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FOCUS March 2018 Volume 91

Internet Freedom in Mongolia

Kh.Naranjargal

The Constitution of Mongolia declares that ratified international treaties and conventions shall be valid as domestic laws.

On 5 May 2015, Mongolia went through the United Nations Universal Periodic Review (UPR) and eight countries provided several recommendations related to the media: harmonize national legislations with international law, ensure independence of the media regulatory body, decriminalize defamation, ensure legal protection of journalistic confidential sources and whistle blowers and provide safety to journalists and human rights activists. The Mongolian government accepted all the recommendations and on 11 April 2016 adopted its General Action Plan on the implementation of the UPR recommendations. 

It is praiseworthy that Mongolia has adopted two policies to protect journalists and ensure their safety. The National Program to Fight Corruption adopted by the Parliament on 3 November  2016  pledges to “[C]reate the legal environment for protection of whistle bowlers and journalists (4.1.5.6),  “create legal regulation to protect the journalists who reported on corruption and  crimes of public officials by investigations from attacks  and pressures, decriminalize defamation and ensure their safety” (4.1.8.2), and “[create an] enabl[ing] environment for ensuring independence of media and safeguarding media freedom” (4.1.8.3).

On 6-7 July 2017, the UN Human Rights Committee reviewed the sixth report of Mongolia on the International Covenant on Civil and Political Rights (ICCPR) and one recommendation of the Concluding Observation No 38 reads:1

In the light of the Committee’s general comment No. 34 (2011) on the freedoms of opinion and expression, the State party should ensure that any restriction on media activities is in strict compliance with the provisions of article 19 (3) of the Covenant. It should consider fully decriminalizing defamation and ensure that defamation is not subject to deprivation of liberty and that defamation laws, both criminal and civil, do not serve to stifle freedom of expression. It should also protect journalists and media workers against any form of harassment and threats, promptly investigate all such attacks and bring those responsible to justice to receive commensurate punishment.

Internet Freedom in Mongolia
The Mongolian government adopted its main policies on broadcast and online media in 2011 and, since then, the Communications Regulatory Committee (CRC) has adopted over thirty internal regulations including the “General Condition and Requirement on Broadcasting Service” and the “General Condition and Requirement on Digital Content,” which apply to news and information websites, content aggregators and content supplying services. The regulations also set standards on issuing, terminating and withdrawing licenses and standards on studio equipment. Since 2011, the CRC has become the only regulatory body on broadcast and online media in Mongolia. 

On 5 January 2013, the government adopted Resolution No. 1, “A Unified System for Website Comments.” With this decree, the government tasked the Information, Communication, Technology and Post Authority (ICTPA) and the General Intelligence Agency to work together to develop software and technical solutions to implement a “unified system.” It contained technical and administrative measures to regulate the content of online comments on Mongolian online media. The official objective was to prevent online slander, insults and threats. This decree was approved during a Cabinet meeting, without prior consultation with the media and information technology (IT) industries, the civil society organizations (CSOs), or a parliamentary discussion. Both the decree and the way it was adopted were heavily criticized by most members of the media and the IT community. Concerns were raised about the applicability of the measures contained in the decree and about their legitimacy under both national law and international standards on freedom of expression. It was the government’s intention to use this new software to identify netizens and thereby end online anonymity. Once the netizen was identified, he or she would be held accountable for posting comments that were considered, under Mongolian laws, to be potentially criminal in nature, libelous, insulting, threatening, or in breach of obscenity laws. The National Data Center is supposed to ensure the technical reliability of this unified system, and the State Registration Authority is supposed to gather information on users who post comments on websites based on the intersection between Internet Protocol (IP) information and the netizens’ civil data and the database of mobile phone users. Internet service providers and mobile operators are obliged to install the government-developed software and to collaborate with the authorities’ efforts to identify netizens.2 Until now, it is not publicly known if the system had been developed and operated.

As per the decree, the CRC is required to adopt the regulatory procedure for the issuance of domain names and define the requirements for news websites. In September 2014, the CRC adopted the amendments to the “General Conditions and Requirements for Regulation of Digital Content.” These regulations cover servers, web hosting companies, online content aggregators, online content suppliers and other Internet Service Providers (ISPs). According to the regulations, the IP addresses of users posting comments shall be indicated and news and information websites shall place the IP addresses of their users on top of the comments generated by the user.

Moreover, the news and information websites are required by the regulations to use filtering software to spot forbidden keywords, turning them into asterisks (***). The software blocks eighty-six words in the Mongolian language (written in Cyrillic), such as mansuurakh (muddle), yankhan (prostitute) and erliiz (mixed-blood). It also blocks one hundred eight words written with Latin characters or in English, such as “sex” or “terrorist.” The software reportedly contains flaws. It does not take into account the contextualized meaning of the words and blocks all words containing letters or syllables similar to those of the prohibited words. In accordance with the above regulation, websites must be registered by www.happywebs.mn. 

During the last 2016 Parliamentary elections, eleven news websites were blocked for twenty-four hours. By May 2017, a total of 552 websites were blocked for allegedly breaching the Intellectual Law, following a statement from the state inspector.

Prosecution of Offenders
Resolution No. 1, “A Unified System for Website Comments,” obliges the Justice Minister to take measures to identify users who post comments that are deemed libelous, insulting, seductive, obscene and threatening others in order to impose upon them legal liability. The procedure on the implementation of the Resolution obligates private Internet providers and mobile phone operators to help government bodies to identify persons suspected to be in violation of the laws and to collect information about them. The CRC has the power to both issue and revoke licenses, but this process lacks transparency and public participation. International standards and domestic law dictate that the regulatory body must be independent. In reality, however, it is a government-controlled body. The CRC belongs to a government agency, the ICTPA. The chairperson and commissioners of the CRC are appointed and dismissed by the Prime Minister and they report to the government. There are currently seven commissioners of the CRC representing government bodies.   

Problem of Rules and Procedure
Since Mongolia does not have a general broadcast law, regulations are taken from internal rules and procedures of the CRC. The restrictions under these internal rules and procedures are contradictory to the provisions of Article 19 of the International Covenant on Civil and Political Rights (ICCPR) which states that restrictions must be provided by law and “must conform to the strict tests of necessity and proportionality.”3 Moreover, the CRC regulations breach Government Resolution No. 119, “Rule on Issuing Public Administrative Regulations,” issued on 19 May 2010, which states that they “must conform to the standards set forth by law,” and “must not impose new duties which are not stated in the law, nor must it set prohibitive regulations not imposed by law.” Furthermore, they “must not include sanctions” and “decision makers must do regulatory impact assessment according to the Rule.” 

Public administrative regulations are enforced only after their registration under the Unified Registration System of the Ministry of Justice and Internal Affairs, after finding them to be in compliance with basic requirements of the system. Many of the public administrative regulations (internal rules and procedures) of CRC have not been registered as of 2017, including the “General Conditions and Requirements for Regulation of Digital Content.” Therefore, CRC’s cancellation of licenses and its censoring of online media using these unregistered regulations are serious breaches of the Constitution, the Law on Media Freedom, and Article 72 of the Law on General Administration enacted on 16 June 2015 that obliges the government/public bodies to register their administrative regulations to the Unified Registration System.

Content Restriction
The CRC controls the content of news and information websites, content aggregators and content suppliers. The scope of legal restrictions concerning content is not well-defined and far too broad in its language. For example, cited content comes under such general phrases as “cruel religious doctrine” or “pornography.” Public bodies such as the General Police Authority, ICTPA, the Authority for Fair Competition and Customers control the content of websites. Based on official statements and communications of these public bodies, the CRC has the power to close down or block any provider’s services.  

Concluding Note
The Mongolian government needs to take urgent action towards implementing the recommendations of the UN’s Universal Periodic Review, Human Rights Committee and UNESCO by supporting media law reform consistent with its obligations before the international community as stated in the Constitution. 

Kh.Naranjargal is the President of the Globe International Center (GIC).

For further information, please contact: Kh.Naranjargal, Globe International Center, City Cultural Palace, Tower G, 3d floor, Ulaanbaatar-210620A, P.O. Box-28, Mongolia; ph 976-11-324627; fax: 976-11-324764; e-mail: hnaran[a]globeinter.org.mn; www.globeinter.org.mn.

Endnotes
1 Human Rights Committee, Concluding observations on the sixth periodic report of Mongolia, CCPR/C/MNG/CO/6, 22 August 2017.
2 Government Resolution No. 1, 2013, text available at
www.legalinfo.mn/law/details/8939?lawid=8939.
3 Human Rights Committee, General Comment No. 34 - Article 19: Freedoms of opinion and expression, CCPR/C/GC/34, 12 September 2011,
http://bangkok.ohchr.org/programme/documents/general-comment-34.aspx.


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