Article 19 has recently reviewed the April 2012 version of Kazakhstan’s Draft Law on Access to Information (Draft Law). The Draft Law has been prepared by a working group established within Mazhilis, left, – the lower chamber of the Parliament of the Republic of Kazakhstan – and is supported by the UNDP in the framework of the Access to Information Project.

Step forward in access to information field
According to Article 19, the Access to information legislation has been a topic of discussion in Kazakhstan since 2010, with several draft proposals being produced by various groups.

Organisation’s analysis notes a number of positive aspects of the proposed legal regulation, such as the large pool of those who may make disclosure requests, good process and procedural guarantees, the lists of information which ought to be publicly available without request, and the right of access to public meetings.

However, Article 19 is concerned over a number of features of the Draft Law, the most serious ones relating to the enforcement of the law. These include the vague legal language used, the regime of exceptions which are not compliant with international standards, the lack of monitoring and enforcement procedures, and the specific powers of the Ombusdman, which will allow him/her to play a key role in the implementation of the access to information law.

Article 19 calls on the Mazhilis’ working group to examine the provided analysis and to implement the recommendations. The organisation says it is ready to provide further assistance in the drafting of this important legislation.

The provided analysis makes recommendations for improving the Draft Law based on international legal standards. You can find the full analysis and the list of recommendations here.

Does not meet international defamation standards
In July 2012, Article 19 also reviewed the civil law regime concerning defamation in Kazakhstan, contained in the Civil Code of Kazakhstan and the Tax Code of Kazakhstan.

The review concludes that despite some positive elements of the regime, such as the right of reply, and the explicit provision that legal entities cannot claim compensation for moral harm of defamation, the regulation fails to provide safeguards for free expression and meet international defamation standards.

In particular, says Article 19, the Civil Code does not require from judges to balance between reputation and freedom of expression and examine how the protection of the first affects the second.

Moreover, the definition of defamation in the Civil Code is too broad and allows for punishment even in cases when the defamatory statements are true. Article 19 submits that by failure to distinguish between opinions and statements of fact, the Civil Code does not protect opinions in line with international standards.

Journalists can be easily found guilty
Finally, defendants do not have a defence of truth, and a defence of ‘reasonable publication’, and thus, journalists can be held liable for defamation even though they have acted in accordance with journalistic ethics.

Additionally, the protection of personal images does not correspond to international standards. Setting an outright ban on the use, publication, reproduction, and distribution of images without the consent of the persons depicted, the provision unnecessary limits the right to freedom of expression and disproportionately restricts the media reporting on matters of public interest by the use of images.

Article 19 notes that the provisions in Civil Code of Kazakhstan concerning defamation are often invoked by politicians and businessmen complaining against the damaging effect of publications on their reputation.

According to the organisation, civil liability for defamation is an ordinary way for protection of reputation which exists worldwide. However the provisions in the Civil Code should be in compliance with international defamation standards.

Article 19 calls on the Government of Kazakhstan to propose amendments to the Civil Code relating to civil law liability for defamation in line with the recommendations in their review. It also calls on civil society organisations in Kazakhstan to launch public campaign to explain the need of reforming the Civil Code in order to strengthen the safeguards for freedom of expression.

Background information
Both analyses of Article 19 are drawn upon the international standards and jurisprudence of international bodies, including the UN Human Rights Committee and the European Court of Human Rights, in the area of defamation.

These standards, as well as comparative standards in this area, have been encapsulated in the Article 19 publication, Defining Defamation: Principles on Freedom of Expression and Protection of Reputations (“Defining Defamation”), to which the organisation frequently refer.

These principles have attained significant international endorsement, including by the three official mandates on freedom of expression, the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression.

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