Opening Remarks by the OHCHR Regional Representative for Central Asia, Matilda Bogner at the Technical Consultations on the Right to Freedom of Expression and Freedom of the Media in the Kyrgyz Republic.

Dear Mr. Shakiev, Mr. Baysalov, Mrs. Dzhamanbaeva and Mrs. Ribeiro, dear participants from state authorities, civil society and the media, and international community,

I am honored to speak about the Communication that was issued by the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression that was sent to the Kyrgyzstani authorities on 20 June 2023. 

This Communication, as a comment on pending legislation has been made public via the communications reporting website after 48 hours after its dispatch to the Kyrgyzstani Embassy in Geneva.  Such documents are also subsequently made available in the usual report of the UN Special Rapporteur that is presented to the UN Human Rights Council.

The Special Rapporteur reviewed the fifth version of the draft Law “On the Mass Media” that was published in May by the Presidential Administration for public consultations and commented on its compliance with international human rights standards of Kyrgyzstan under the ratified International Covenant on Civil and Political Rights. 

Dear Participants,

As you know, the UN Special Rapporteur on freedom of expression is one of the mandate-holders in what is known as the Special Procedures of the Human Rights Council.

Special Procedures mandate-holders are independent human rights experts appointed by the Human Rights Council to address either specific country situations or thematic issues in all parts of the world. They are NOT UN staff and are independent from any government or organisation.

Before delving into legal aspects of the Communication, allow me reminding that on 30 August 2022, Kyrgyzstan as a candidate for the Human Rights Council membership for 2023-2025 submitted its Voluntary Pledges and Commitments to permanent missions of all UN member states in Geneva. 

In this Note Verbale, Kyrgyzstan committed to “(…) engage in constructive dialogue aimed at improving the system of human rights protection in the country”, and to “continue to cooperate with the UN treaty bodies, ensure the timely submission of national periodic reports and the subsequent implementation of recommendations from the review”. 

In this regard, in addition to recommendations and concerns raised by the UN Special Rapporteur on Freedom of Expression, I would also like to recall that there are several outstanding November 2022 recommendations of the UN Human Rights Committee that reviewed Kyrgyzstan’s periodic report on the implementation of the International Covenant on Civil and Political Rights, as well as recommendations of the Universal Periodic Review from 2020. 

In 2020, the following UPR recommendations were supported by Kyrgyzstan:

• to “create an enabling environment for media freedom and freedom of opinion and expression, both online and offline, including by bringing the appropriate national laws into full compliance with the International Covenant on Civil and Political Rights and international human rights obligations”;
• to “strengthen democratic institutions by protecting freedom of expression and media freedom, both online and offline, eliminating corruption at all levels by holding officials and non-State actors accountable and protecting civil society’s role in promoting good governance and transparency, and protecting the right to access to information”,
• and to “take further measures to prevent the misuse of legislation on terrorism/extremism, incitement of ethnic hatred and defamation, in order to prevent the targeting of journalists, media organizations and human rights defenders”. 

The UN Human Rights Committee in its Concluding Observations noted that it was concerned about (…) the draft Law regulating media. 

It also “remained concerned about reports of undue government pressure on journalists and other individuals for expressing their opinion, in particular opinions that are critical of the Government’s initiatives, including the initiation of criminal proceedings against bloggers and journalists.

The Committee was deeply concerned that widely reported online and offline cases of harassment and intimidation of human rights defenders and journalists remained without any response from the State party.

The Committee also expressed concerns about the provisions of the Law on the Protection from Unreliable (False) Information, which allow executive bodies to block any internet resource without due process and any preceding judicial oversight. Furthermore, the Committee regrets the State party’s assertion that these provisions do not require any amendments”.  

In this regard the Committee recommended Kyrgyzstan as the State Party under the ICCPR to:

• Review the national legal and institutional framework that may unduly restrict media freedom, including the draft Law “On the Mass Media”, to ensure its compliance with the provisions of article 19 of the Covenant as expounded by the Committee in its general comment No. 34 (2011) on the freedoms of opinion and expression;
• Refrain from the use of criminal prosecution as a tool to suppress critical reporting on matters of public interest;
• Strengthen the protection of bloggers, journalists, human rights defenders and government critics against any kind of threat, pressure, intimidation or attack and ensure that all cases of undue interference committed against these professionals (…) are thoroughly and independently investigated, prosecuted and sanctioned (…);
• Review the Law on the Protection from Unreliable (False) Information and ensure effective safeguards and judicial overview of all decisions on blocking media resources;

It is useful to recall that the UN Human Rights Committee has noted in its jurisprudence and General Comments that “in debates concerning public figures in the political domain and state institutions, the value of freedom of expression is particularly high, and states should avoid penalizing untrue statements that have been published in error, but without malice”.

Dear ladies and gentlemen,

There will be two more detailed presentations on the legal opinions on the draft Law “On the Mass Media”. As all reviews by international experts are based on the same body of international human rights norms, they largely echo each other’s findings.

So let me now highlight extracts from the Letter of the UN Special Rapporteur. 

Article 19 of the International Covenant on Civil and Political Rights provides that “freedom of expression shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

This right includes not only the exchange of information that is favourable, but also that which may criticize, shock, or offend.

Restrictions on the right to freedom of expression must be compatible with the requirements set out in Article 19, paragraph 3, that is, they must be provided by law, pursue a legitimate aim, and be necessary and proportionate. 

The following legitimate aims can be used as permissible grounds for proportionate restrictions:

• For respect of the rights or reputations of others;
• For the protection of national security or of public order (ordre public),
• or of public health or morals.

At the same time, the Special Rapporteur stressed that “the State has the burden of proof to demonstrate that any such restrictions are compatible with the Covenant”.  

The Human Rights Committee recalled that the relationship between right and restriction and between norm and exception must not be reversed.

Furthermore, the Human Rights Committee clarified that “penalization of a media outlet, publishers or journalist solely for being critical of the government or the political social system espoused by the government, can never be considered to be a necessary restriction of freedom of expression.”

There is a corresponding right of the public to receive media output. The press and other media should be able to comment freely on public issues without censorship.

States must ensure the independence and plurality of media, both traditional and online media, including by guaranteeing editorial freedom and ensuring that funding does not undermine the media`s independence.

The Human Rights Committee has held that regulatory mechanisms and legislative frameworks for the media should be adapted and tailored to different forms of media, including the internet, and must be aligned with Article 19 paragraph 3 of the ICCPR.

For instance, States parties should not impose burdensome administrative and financial obstacles such as onerous licensing conditions and fees. Any such conditions should be “reasonable and objective, clear, transparent, non-discriminatory and otherwise in compliance with the Covenant.”

Online media

Restrictions on internet-based outlets, including blogs and websites, should not be used to restrict freedom of expression online beyond what is permissible under international law.

The UN Human Rights Committee has further clarified that such restrictions generally should be content-specific; and that “generic bans on the operation of certain sites and systems are not compatible with the ICCPR,” and that “it is also inconsistent with Article 19 of the ICCPR to prohibit a site or an information dissemination system from publishing material solely on the basis that it may be critical of the government or the political social system espoused by the government.”[1]

Considering that a wide range of actors can engage in journalistic activities, including so called `citizen journalists` and bloggers, generalized systems of registration and licensing of journalists are not compatible with the ICCPR.

The Human Rights Committee has clarified that only limited accreditation schemes are permissible, in case this is necessary to provide journalists with privileged access to certain places and/or events and provided that such schemes are applied in a non-discriminatory manner.

Regarding defamation, the Human Rights Committee has underscored that defamation laws must “not serve, in practice, to stifle freedom of expression”.

States should avoid excessive punitive measures and should foresee valid defences, including the public interest in the subject matter and the defence of truth.

The Special Rapporteur also recalled Article 20 (2) of the ICCPR, stressing that this Article foresee a high threshold that requires the fulfilment of three components before being invoked, as also clarified in the Rabat Plan of Actions:

a) advocacy of hatred;

b) advocacy which constitutes incitement and

c) incitement likely to result in discrimination, hostility or violence.

In relation to the draft Law, the Special Rapporteur shared the following specific observations:

• Overly broad and generalized application of the law that includes websites on the internet telecommunications network and other electronic media.

The Special Rapporteur cautioned against a `one-size-fits-all` approach, which risks creating overly broad and vague obligations in relation to very distinct forms of media and potentially opens doors for abuse of laws through far-reaching restrictions.

The Special Rapporteur was particularly worried about the fact that the draft Law equates internet websites to traditional media, introducing new registration requirements disregarding specific characteristics of the internet, such as its transnational nature.

As such, the draft Law creates far-reaching and disproportional powers for the Government of Kyrgyzstan to regulate the online space which can seriously undermine the free flow of information online and could impede the right of the citizens of Kyrgyzstan to access information of all kinds online.  

This concern is exacerbated by the fact that, in the current wording, the draft Law does not seem to be limited strictly to media outlets, BUT could be applied to all kinds of websites that spread any type of information.

• Mandatory state registration of the mass media with an extensive list of issues to be filed for the application for registration, including the form and frequency of publication, the maximum circulation of the mass media outlet, the sources of funding, etc.

This extensive list of mandatory information opens the doors to undue government interference with the editorial work of media outlets, which could amount to censorship.

Moreover, the mandatory registration requirement for all forms of media creates undue barriers for media outlets to operate.

The draft Law disregards the diversity of the media, which also includes citizen-journalism, bloggers and others that conduct their journalistic activities in a more informal, unstructured, or ad hoc manner.

It also appears that the issues to be filed for registration are more extensive than for other legal entities such as commercial and non-commercial organizations.

Lastly, the requirement for registration of internet websites is still To Be Defined by the Cabinet of Ministers of the Kyrgyz Republic, which adds to the legal uncertainty and the ambiguity of the implications of this law for the online context.

• Restrictions on foreign media that seemingly restrict all kinds of foreign media, including foreign internet websites, from being accessible without prior approval of the Government.  This could have serious consequences, for example in relation to the accessibility of live online streaming services of foreign media in Kyrgyzstan, and risks to seriously impede the right of Kyrgyz citizens to access information from diverse sources.

• Severe restrictions on content, introducing liability for the “abuse of freedom of speech and press” and an obligation for compensation for “moral harm”.  Moral harm is defined in a broad way, including defamation of their honour, dignity, business reputation, or other forms of non-material harm.

The Special Rapporteur noted that while freedom of expression is not absolute, all restrictions need to comply with the mandatory criteria that were mentioned before.  

And under Article 20 of the ICCPR, indeed while states have a duty to prohibit propaganda for war and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, this should be also done in line with the ICCPR.

In this regard, the Special Rapporteur noted that “the restrictions on freedom of expression in the draft Law prima facie go beyond the permitted restrictions on freedom of expression due to the use of vague and unspecified terms such as `terrorism` and materials that can violate `honour and dignity` of individuals and damage their `business reputation”.

The Special Rapporteur recalled her earlier reports in which she expressed concerns about “the `weaponization` of laws against journalists and that vague and overly broad terms can easily be abused to unduly limit the freedom of expression.  Ambiguous laws also create legal uncertainty, having a chilling effect on press freedom and freedom of expression more broadly”.

• With regard to the restrictions on ownership of mass media – the Special Rapporteur noted that prima facie these restrictions are discriminatory and disproportionate.

• In relation to the definition of journalist and accreditation requirements – the Special Rapporteur expressed concerns that a strict accreditation scheme is only accessible to those labelled a `professional` journalist, thus disregarding the fact that a variety of actors can engage in journalistic activities, including citizen journalists and bloggers.

• In relation to the possibility to withdraw accreditation on the ground of dissemination of “false information that tarnishes the honour, dignity or business reputation of the state or local self-government body that granted the accreditation - the Special Rapporteur noted that the constant fear of having one`s accreditation withdrawn on the basis of vague and sometimes subjective grounds can lead to self-censorship.

• On the duties and rights of journalists – the Special Rapporteur noted that the draft Law uses broad and extensive grounds for the `abuse of rights` by journalists, including on the basis of vague terms such as respecting the `business reputation, honour and dignity of citizens, officials and legal entities`.

The Special Rapporteur highlighted that in order to respect the independence of the media, many of the `rights and duties` described in the law could be covered through self-regulation of the media sector instead of Government imposed regulations.

Ladies and gentlemen,

In conclusion, let me stress that the Special Rapportreur noted that if adopted in its current form, the Law “On the Mass Media” will have severe implications for the freedom of expression in Kyrgyzstan. 

The Special Rapporteur recommended to ensure an inclusive consultation process, including with national and international experts, when working on the legal framework for media and freedom of expression in Kyrgyzstan to make sure that it is aligned with Kyrgyzstan`s international obligations.

Dear ladies and gentlemen,

This summary of concerns is just a starting point for our discussion today.

I truly hope that today’s event will pave the way for further in-depth consultations on how to ensure the compliance of national legislation on freedom of expression with the UN human rights mechanisms’ recommendations. 

From my side, I would like to join the message of the UN Resident Coordinator that the UN System in Kyrgyzstan is ready to support national efforts on the implementation of UN human rights standards in laws and practices.

[1] CCPR/C/GC/34, para 43.