The authorities of Kyrgyzstan once again attempt to get the country’s media sector under tight control by amending the law “On mass media”, while journalists are openly threatened with no reaction from the law enforcement bodies.
On October 14, a few dozens of human rights defenders, journalists and civil activists in Bishkek participated in the rally in support of free speech in Kyrgyzstan in the centre of the city, and also demanded that those parliamentarians who tried to limit it should hand over their mandates.
This was a response to the rally held a day earlier in front of the Radio Azattyk office. A few dozens of rally participants demanded to stop the activities of three independent media in Kyrgyzstan – Azattyk, Kloop and Kaktus Media – and to adopt the law on “foreign agents.”
The same demands were made in February 2022 during the similar rally in front of the Kaktus Media office. But that time participants openly threatened to burn down the media office and to “hurt” operators if they met.
Neither law enforcement, nor the leadership of the country responded to such statements.
In the meantime, it became known that the protesters were supported by Nadira Narmatova, member of parliament, one of the initiators of the law “on foreign agents”. According to MP Dastan Bekeshev, who posted on his Telegram channel, Narmatova during the Zhogorku Kenesh session was gathering signatures under the appeal to the president with the request to close down some media outlets. She denied it. But later some members of parliament speaking to journalists confirmed that their colleague was gathering signatures. According to preliminary data, 40 MPs supported her, but some revoked their signatures after the public outcry.
On the frontline of information wars
A little earlier, September 28, the government’s website published a draft of the amended law on mass media prepared by the information policy service of the presidential administration.
The new document was two times bigger than the previous one, and its creation was prompted by “the obsolescence of the existing law of the Kyrgyz Republic ‘On mass media’ dated July 2, 1992”, according to the explanatory note.
According to the very first article, the new law allows to “restrict freedom of speech, freedom of the press and other media in a state of emergency and war according to the constitutional law.” According to the explanatory note, it is not about censorship, but about introduction of “public control” over what mass media publish.
Censorship in Kyrgyzstan is banned and the new law does not lift the ban. The authors cite the standards of the International Covenant on Civil and Political Rights of 1966. It says that “the exercise of the right to hold opinions carries with it special duties and responsibilities,” subject to certain restrictions, but which should be provided by law.
Moreover, the new draft law introduces other prohibitions and restrictions, all of them, according to the authors, are prompted by “urgent need” to bring the existing media law in line with the Constitution adopted in April 2021, as well as other existing laws adopted after 1992.
The “urgent need” that emerged suddenly has caused confusion for the media community of Kyrgyzstan. The point is that in 2021, according to the order of President Sadyr Zhaparov, a large-scale inventory of 359 laws, including laws “On mass media”, “On protection of journalist’s professional activities”, “On TV and radio broadcasting” and “On public TV and radio corporation”, was made in Kyrgyzstan. According to the Institute Media Policy, after the study that took over six months, the ministry of justice, in its official letter, notified that the law “On mass media” met all necessary requirements and there was no need to amend it. According to the agency’s methodology, the law “On mass media” scored 91 points out of 100.
The organisation’s lawyers, after having studied the document, arrived at a conclusion that the suggested amendments have been copied from the similar Russian law. For example, the norm of “the right to refute”. According to it, the media must have proof of reliability of any information they publish. Otherwise, the media outlet must immediately publish their refutation upon the demand of another person.
“But the media and journalists in general do not have to have proofs. They must indicate, for example, the source, cite anyone, but they do not have to have proofs of corruption, or, say other illegal things. […] And it’s another agency’s prerogative to gather evidence. This is the direct violation of journalists’ rights,” Sydykov said.
The new draft law differs from the Russian law in one point only, and it is not in favour of the mass media. The original law reads that any given measure is “allowed”, but the Kyrgyz analogue prohibits almost everything.
“The same thing is about hidden recording. It is allowed under the Russian law in certain cases, when it is done in the public interest, or if it does not violate anyone’s constitutional rights. In our draft law, it is prohibited in any circumstances, even for national security purposes,” the lawyer said.
Information isolation
Adilet Legal Clinic has analysed the published draft law and its findings show that the attempts of the authorities to get the media space of Kyrgyzstan under control become even tougher.
“It suggests introducing a wide range of various reasons and requirements that contain rather vague wording of restrictions and prohibitions, the failure to comply with which could lead to liquidation of a media outlet. Procedures of media outlet registration become considerably complex, and media outlets shall be considered as online outlets as well, i.e. websites,” according to the analysis.
The new draft law deprives foreign citizens of their right to be founders of a media outlet in Kyrgyzstan, and organisations, in which foreign share amounts to 50 per cent.
Moreover, all media outlets are offered to re-register until June 1, 2023. Those who fail to re-register shall be automatically considered as liquidated.
At the same time, during registration, a media outlet should provide not only information about its founders, name of the outlet and address of the editorial office, but also information about funding sources, and also whether the founder is the owner of other companies or enterprises.
A foreign outlet not registered in the country and also funded by foreign states, legal entities or citizens, will now have to obtain a permit from the ministry of foreign affairs. However, the authors have failed to specify any criteria and requirements to such accreditation, which can potentially lead to voluntary and illegal restrictions of the freedom of expression.
“Thus, after the law comes into force, citizens of Kyrgyzstan would have access only to those foreign media outlets, which are permitted to work in our country by the cabinet of ministers,” lawyers of Adilet Legal Clinic said.
They also said that the authors of the draft law failed to provide rationale for the suggested serious restrictions of the freedom of speech.
The draft law along with other initiatives is reasonably thought to be aimed at strict prohibition of pluralism of opinions, which is the integral part of any democratic society. Censorship efforts seem to prevent from public distribution of any information that would be undesirable for a narrow circle of people who exercise public authority.
Total control
Authors of the draft law also suggest giving the status of a media outlet to websites and web pages.
“The longer they remain in the legal uncertainty area, the worse it is for the society, state and citizens,” according to the explanatory note.
However, drafters have failed to provide any definitions of websites and content to be registered as a media outlet. Lawyers welcome the idea of giving a legal status to online media, but have too many questions about the process of implementation.
“We have a requirement for mandatory registration of all websites. But there is no information about what web pages or websites must be registered. So, this requirement seems to refer not only to online media who publish news content. And there are a lot of them,” Nurbek Sydykov said.
The situation with bloggers is unclear. The draft law provides no specific procedures as to when a blogger should be considered as the media, if ever, said Cholpon Dzhakupova, head of Adilet Legal Clinic.
“For example, the Russian legislation reads that if anyone has a certain number of followers, it can be considered as a media outlet. And our law does not have it. The law must be drafted so that it cannot be interpreted on one’s own. There should be no such thing as one’s own decision. Criteria must be precise,” Dzhakupova said.
This intention to consider websites and bloggers as media outlets is an attempt to introduce censorship, according to media expert Omurbek Sataev:
This law would be used as a tool. We have so many laws regulating media activities, and it makes no sense to introduce additional restrictions. Therefore, many journalists, social activists and human rights defenders see the threat in it. These amendments would only aggravate the situation of the freedom of speech in the country.
Lawyers have been particularly concerned about the legislative prohibition of “distribution of some categories of information not only in the media, but also in information and telecommunication networks.” According to lawyers, this wording implies that the presidential administration is planning to introduce state regulation not only of news online outlets, but also of all other websites, as well as social media and messengers.
Working under pressure
The new draft law “On mass media” is not the first attempt of the authorities to restrict the freedom of speech in Kyrgyzstan. The pressure on the media in the country has been increasing in the last three years. According to PolitKlinika, referring to the General Prosecutor’s Office, 13 criminal cases were initiated against journalists and media outlets in 2010 to 2022. Over a half of them were initiated in the last two years.
In January 2022, the police came with a search warrant and detained investigative journalist Bolot Temirov. He escaped the arrest only by the immediate solidarity of journalists and further negative public reaction.
Later on, criminal cases against him were initiated under articles 379 (“Forgery of documents”) and 378 (“Illegal crossing of the state border of the Kyrgyz Republic”) of the Criminal Code of the Kyrgyz Republic. On September 22, the court held in full glare of publicity ended with the acquittal of Temirov.
Director of Next TV Taalai Duishembiev was less lucky, he received real yet suspended sentence.
“Director of Next TV was detained for 7 months, he was released in the courtroom, yet was given 5 years of suspended sentence,” Omurbek Sataev said. “The lawyer will surely appeal the decision. Although the sentence is suspended and he was released to reduce public tension, but the fact remains. I think it was done to make other journalists think seriously.”
It’s better late than never
On the day when a rally in support of independent media took place in Bishkek, it became known that seven legislators initiated amendments to the scandalous law “On protection from unreliable (false) information.” It was drafted by members of parliament of the last convocation, but previous president Sooronbai Zheenbekov sent the document for revision. In August 2021, Sadyr Zhaparov endorsed it and the law came into force.
Although it was presented as a mechanism of protection of honour and dignity of citizens from cyber attacks, online bullying and fake accounts, journalists and experts kept saying that the law was intended against independent media. It soon was confirmed. The law was used to block the website of ResPublica newspaper in July 2022, and in August the blockage of the website of 24.kg was attempted.
No fake account has suffered so far.
According to amendment developers, the law “On protection from unreliable (fake) information” discriminates against media representatives and sets forth the one-sided approach to cases of website removal.
Earlier, according to this law, authors of the issue or website did not have any opportunity to protect themselves from accusations, and now it is proposed to entitle them to appeal a decision made by an authorised body to suspend the website by judicial means.
Such gaps exist in the new draft law “On mass media” that has no precise criteria regarding proposed significant amendments, and also no timing and order of appeal of decisions made by authorities on revocation of registration, refusal to register, or definitions of other violations in the mass media activities. Moreover, there is no liability of authorities for making unjustified and wrongful decisions.