Legal analysis

Kazakhstan: Civil Code Restrictions on Freedom of Expression

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ARTICLE 19

22 Aug 2012

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In July 2012, ARTICLE 19 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, 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 overbroad 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. 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 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 this review
  • civil society organisations in Kazakhstan to launch public campaign to explain the need of reforming of the Civil Code in order to strengthen the safeguards for freedom of expression.
 

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