Today, almost all of us have a personal media outlet. Posting or sharing certain content can have serious consequences and may even result in arrest and detention. How do we post and make comment on social networks and not be at risk?
Former vice-present of Facebook Chamat Palihaphitiya, repenting his participation in the project, said that social networks are detrimental to democracy, allowing control of the masses. However, in some countries, the new art of manipulating the masses has been reduced to the nearly forgotten traditions of shooting the messenger, only today the prosecution bodies have moved online. In a word, the puppets in the theatre are new but the same puppeteers are pulling the strings.
In the USA people were arrested for making direct threats to the president’s life, and in Europe a criminal case was recently brought against a woman for “incorrect treatment” when she called a transgender a man after he had undergone treatment to become a woman. In Kazakhstan you can lose money and civil position due to social networks. The most ‘running’ article of the Criminal Code is the 174th: “Incitement of social, national, tribal, racial, class or religious hatred”, according to which 358 criminal offences were registered in the unified register of pre-trial investigations for 2017-2018 (219 and 139 respectively). I remind you that the article is criminal, and the penalties are serious. The incitement of hatred in Kazakhstan is punishable by restriction of freedom for a period between two to 20 years.
Gulmara Birzhanova, a lawyer at the Legal Media Public Foundation, tells us how to protect yourself online and what to do if you find yourself at risk.
-In the past few years, scandals involving the prosecution of users of social networks for the placement of an authors post or a repost of someone else’s publication have become regular. Are there any statistics?
-It is difficult to find statistics. Sentences under Article 174 are not publicly available, they are also absent in online court records of decisions made on the Supreme Court website. Cases that become public knowledge do not reflect the actual situation. One thing is sure – judicial practise shows that in this category of cases there are few acquittals.
(At our request, G. Birzhanova appealed to the Prosecutor General’s office – according to officially provided information, for committing acts under Article 174 of the Criminal Code, in 2017 of the 54 people convicted, 24 were imprisoned and 30 sentenced to restriction of freedom; in 2018 of 83 convicted, 30 were imprisoned and 53 had restrictions to their liberty.
I am against this article. In my opinion, the punishment should be for hate crimes, the definition of inciting discord is open to interpretation. The lack of specifics and ambiguity does not allow an ordinary Kazakhstani an understanding of what is permissible and what is prohibited. Law enforcement agencies often allow abuse of the article, cases are initiated prior to any actual proof of incitement and this applies to sentencing as well. In the judicial and legislative practice there is still no legal definition of the term “estate”. Interpretation is left up to individual local judges. Many cases brought under Article 174 are political in nature and punishment is typically imprisonment.
The aim of the article appears good, to fight dissent and discrimination, but it has become a tool used against civil activists, bloggers and regular people who use social networks.
Wording of articles such as 174 should be clear, precise and specific without room for individual interpretation and application. Cases brought should be for actual crimes rather than in anticipation of a criminal act. It does not seem correct to punish a person for something that could happen but did not in fact happen.
Mass Media Law
-Are the norms of the law on “Mass Media” applicable to bloggers and users of social networks with small followings?
-In 2009, all internet resources in Kazakhstan were equated with the media “the mass media is a periodical, television, radio channel, documentary film maker, audio-visual recording and other forms of periodic or continuous public dissemination of mass media, including internet resources”. Accordingly, social networks are also legally regarded as media. The wording of the court in the verdict of the case of Max Bokaev and Talgat Ayan, “he published in the foreign media Facebook”.
-Is there any difference in whose material is published – copyright or copied with indication of authorship? Does the degree of responsibility for an opinion relate to someone else? There is a precedent when a user who made a repost was subject to criminal prosecution whilst the original author was not charged. How can this be interpreted legally?
-This is a well-known case involving Facebook user Mambetalin, when the author of the original was not charged but the person who reposted was prosecuted. The flexibility and interpretation of Article 174 means it can be applied as liberally as the authorities determine. A similar case, perhaps even more absurd, occurred in Astana. The publication of the book of Telibekov which was prohibited at the time and then subsequently a follower of a branch of Islam posted excerpts from religious literature prior to the book being prohibited in Kazakhstan. Serious accusations have been made but in fact he could not have known that the book would be banned in the future.
-Can you suggest a list of questions/markers, a kind of check list, for those who would like to ensure that actions on social media do not contradict current legislation? What do I need to be aware of before I publish, repost or comment?
-When publishing it is important to be guided by common sense and critical thinking. Everyone has the right to freedom of expression, provided that the person publishes his/her personal opinion, without prejudice to the honour and dignity of others, does slander and does not call for illegal actions. Like any public platform, social networks need to speak constructively, be based on facts and reliable information, especially if your words contain criticism. With regard to reposting, my advice as a human rights activist – before sharing information, check it for accuracy. If there is no confidence in fact or the source, it is better to not share or repost.
-In recent years, the trend of sending fake information through instant messages has increased, the range of topics is vast, from alternative methods of treating flu to politicised forecasts and criminal reports. There can be major consequences for sensitive topics such as kidnapping of children or paedophilia. In India for example, 7 innocent young people were lynched by an enraged mob after they were seen giving candy to village children after a message regarding the discovery of a paedophile in the area went viral.
Responsibility for such actions is governed by Article 274 of the Criminal Code of the Republic of Kazakhstan – another complicated article – “Dissemination of deliberately false information”. Take for example, a message is received via WhatsApp about an impending earthquake, it is resent through a range of networks with the intention of warning people. There was no earthquake and no physical damage, however, the message caused panic in society. In this case a person could be held responsible because the information had the potential to cause potential public danger. It is irrelevant if you are the author/source of the original message or not, the fact that you distributed it is enough for you to be held responsible regardless of the intentions. In 2017, 61 people were convicted under article 274 and 2018 – 56 convicted. If in doubt do not resend.
What actions can a Kazakhstan person take if criminal proceedings are initiated against him/her for a post or comment?
If a pre-court claim has been made against you or you are warned by another user that a case may be brought, inform your subscribers. If a case has already been filed under articles 174 or 274, you should immediately consult a lawyer. I recommend a non-state lawyer with experience in this type of case. These are serious charges with serious punishments if convicted. I would also engage a third-party expert to perform an independent analysis of any phrases, terms used or messages sent/received which will provide important defence evidence in court. If convicted you should contact UN Human Rights Committee.
From the Author
To publish a personal, thoughtful, factual opinion and be responsible for it is your right. Where there is possible contention however more care is needed. It is very easy to hit the share button on posts and messages; however, caution is required if you want to avoid prosecution. Some may be innocent whilst others more sinister. Sharing information from banned organisations or fugitives from law requires thought and a moment to pause before pressing the button. If you happy to face the consequences then press away.