In May 2015, ARTICLE 19 analysed the Law No 545-IV on Television and Radio Broadcasting (the Law) of the Republic of Kazakhstan (Kazakhstan) for its compliance with international standards on freedom of expression. The Law was adopted by Parliament on 28 December 2011 and signed by President Nazarbayev on 18 January 2012.
This analysis was prepared as part of an initiative led by ARTICLE 19’s partner in Kazakhstan, the International Foundation for Protection of Freedom of Speech Adil Soz (Adil Soz), to launch a campaign to develop a “Road Map for Advancing Media Legislation” in Kazakhstan. Within this initiative, ARTICLE 19 and Adil Soz analyse recent changes to existing laws and codes, as well the provisions of new laws, related to media freedom and freedom of expression. The initiative aims to engage the government of Kazakhstan on the integration of international standards into legislation related to the media, as part of the government’s enduring commitment to modernisation and global technological progress.
In 2011, ARTICLE 19 observed that the main challenge in the field of media regulation in Kazakhstan was the transformation of broadcasting from a regime of political control to a system whereby broadcasting is ruled by legal norms. We reiterate that the Law favours governmental control over the media and fails to provide sufficient and effective safeguards against arbitrary interference.
ARTICLE 19 believes that this Law is open to abuse by government, having insufficient safeguards against arbitrary interference. Thus, this law poses a genuine threat to freedom of expression, as well as freedom of information, in Kazakhstan.
In the analysis, ARTICLE 19 concludes that the main challenge in the field of media regulation in Kazakhstan was the transformation of broadcasting from a regime of political control to a system whereby broadcasting is ruled by legal norms.
Further, the Law does not establish independence for the broadcasting regulator, neither does it establish clear and precise procedure for registration and licensing. In addition, its obligations regarding content restrictions are unclear- and, in any case, content-related obligations should be developed in close consultation with relevant stakeholders, and indeed the public.
ARTICLE 19 calls on the Kazakhstan legislator to consider our recommendations, and revise the Law accordingly. We also call on civil society and other stakeholders to advocate for the most progressive legislation in this important area, and to ensure that regulation of the broadcasting sector fully complies with international freedom of expression standards.
Summary of recommendations:
- Powers in the field of regulation or monitoring of the broadcast sector which are still in the hands of the government and public authorities should be given to an independent regulatory body;
- The status of the regulatory body should be revised and upgraded to that of a genuine regulatory authority in compliance with international standards;
- The Law should include explicit recognition of the major principles of broadcast regulation, editorial independence of broadcasters, equal and fair treatment of broadcasters, and promotion of diversity;
- The Law should include clear and precise procedures for registrations, licenses, frequencies, must-carry distribution and digital free-to-air broadcasting;
- The regulatory body should not be able to refuse registrations of foreign channels, and the definitions of content restrictions should be removed or reworded in a clear and precise manner;
- Regarding the use of national language and the protection of domestic works and industries, the Law should provide that obligations related to content should be developed in close consultation with broadcasters and other interested stakeholders, and should be finalised only after public consultation;
- Regarding the digital switchover, the Law should clarify that the national broadcasting operator should treat all radio and television channels in a fair and non discriminatory manner;
- Sanctions for violations of the law on broadcasting should be applied by the regulatory authority, be proportionate and necessary, and make use of a large range of measures;
- Kazakhstan should take necessary measures to transform the public broadcaster into a public service media provider.
Legal Analysis: The Law on Television and Radio Braodcasting.