The Global Network Initiative, or GNI, expresses deep concern about the draft amendments proposed to the Law on Informatization of the Republic of Kazakhstan from 24 November 2015, which recently passed the lower house of Parliament. GNI is a global, multistakeholder collaboration between preeminent digital rights and press freedom groups, information and communications technology companies, academics, and investors, with a shared commitment to the rights to freedom of expression and privacy in the ICT sector. While the stated reason for the amendments is to address concerns about cyberbullying of children, GNI is alarmed that the current draft amendments, if adopted by the Senate and President without significant revisions, will pose serious risks for digital rights in Kazakhstan.
We appreciate the government’s desire to protect the rights and reputation of others, in particular the rights of children. However, the government has failed to clearly articulate how the proposed amendments would effectively address concerns about cyberbullying. Instead, they would create new obligations for a broad range of platforms and services to restrict access to content unrelated to cyberbullying, with the threat of cutting off access to services that fail to comply. The amendments could put significant, excessive pressures on global ICT companies to restrict and monitor the speech of their users. We detail some of these concerns in the brief analysis below, which is informed by the GNI “Content Regulation and Human Rights” policy brief and GNI’s previous multistakeholder engagement on various content regulation efforts around the world.
Broad Set of Companies Requiring Legal Representation
GNI has continuously called for content regulation models that are targeted to the services that pose the greatest risks of harm and are best equipped to address them, helping ensure that any corresponding restrictions on freedom of expression meet the international human rights principles of necessity and proportionality. However, the draft amendments require broadly defined “foreign online platforms” or “instant messaging services” with over 100,000 daily users in Kazakhstan to appoint a legal representative. This representative’s details are kept on file with the Ministry of Information and Social Development of the Republic of Kazakhstan, or MIOR, and the representative would be responsible for administering and responding to requests and orders related to the amendments. This requirement must be implemented within six months, or a company could be prohibited from providing services to users in Kazakhstan.
As we read the broad definition of “foreign online platforms” in the draft amendments, it seems it could apply to informational internet resources such as blogs, content management systems, or internet encyclopedias, which face little or no threat of cyberbullying on their services, or services like search engines who would need to limit access to a disproportionate amount of information to comply. While we appreciate that the amendments have removed a previous requirement for a local office and for legal representatives to be Kazakh nationals, the law does not preclude the possibility that MIOR could implement such requirements moving forward. GNI has previously expressed concerns about similar “landing laws” elsewhere, particularly when these provisions are paired with other overbroad authorities to access user data or restrict access to content and services.
Content Takedown Authority and a Potential Monitoring Obligation
The broad set of companies in scope would face newfound pressures from the MIOR to remove content well beyond potential cyberbullying. Under Article 18-2, the amendments would authorize the MIOR to identify content it deems illegal under Article 41-1 of the 2004 Communications law, and to issue orders to platforms and services to remove said content within 24 hours, without any requirement for judicial review or authorization. We are particularly concerned about this approach given the recent history of government-ordered restrictions on expression in Kazakhstan, targeting ICT platforms and their users under the communications law and other regulations for telecommunications and mass media, and even blocking global platforms for online petitions. Should these newfound authorities be used disproportionately, they are most likely to affect human rights defenders, journalists, and others who might scrutinize government activities.
In addition to takedown requirements, the amendments to Article 18-2 also require the legal representative to restrict access to or delete any information prohibited or otherwise restricted for distribution by law in Kazakhstan, or information which has otherwise been ordered by authorities to be disabled already. Private messaging services and other digital communications platforms face the same obligations in this area, and we are concerned this might amount to a general monitoring provision. We have previously expressed concerns about approaches that require invasive monitoring of users, in particular when these threats might undermine encryption.
When private actors are tasked with adjudicating the legality of content, it is essential they are provided sufficient guidance to enable them to ascertain what sorts of expressions are properly restricted and what sorts are not, in line with the human rights principle of legality. Unfortunately, these amendments instead create incentives for overcompliance, with the threat of loss of operating ability in Kazakhstan for failure to comply. Furthermore, the requirement for companies to install equipment verifying the size of their user base, or otherwise enable the MIOR to “use its own resources to do so” (translation), adds a potential inroad for government monitoring of services while circumventing conventional legal process. This adds further pressures on ICT companies to monitor communication themselves, or risk a failure to sufficiently address content that authorities might identify as violating requirements of the laws of Kazakhstan.
While we appreciate the governments’ stated commitment to protecting the rights of others, in particular the rights of children, it is ultimately difficult to separate the approach outlined in these amendments from a broader environment of restrictions on freedom of expression and privacy in the ICT sector in Kazakhstan in recent years. While the draft amendments have been narrowed slightly since the first reading in 2021, they continue to reflect some of the most concerning regulatory approaches we have seen in our years of analyzing, with a human rights lens, legal and regulatory efforts to address digital content and conduct around the world. The amendments grant excessive authorities to order the removal of a broad range of content, incentivize monitoring of services, and pose a disproportionate threat of disconnection of platforms and services altogether. We therefore call upon the government to refrain from enacting the amendments as currently drafted, and instead engage with relevant companies, civil society, and other experts on how best to address legitimate concerns around cyberbullying while respecting human rights. GNI and its diverse, expert membership would welcome the opportunity to engage in such discussions.