-This bill rarely includes provisions that ensure the development policy of the journalism sector- 

The draft of the amended Law on Freedom of Media is being developed by the Ministry of Justice and Internal Affairs, with a rush and hurried discussion underway. In connection with this, legal experts, researchers, and professional journalists have started to express various opinions. For instance, many journalists oppose certain articles and provisions in the draft. Legal expert, researcher, and professor, Dr. B.Batzorig shared his thoughts on the matter.

The government has been holding quick discussions and debates about the draft of the Law on Freedom of Media multiple times. Journalists working in the media field have expressed a rather critical view of this draft. For example, in section 4.1.1, where it defines “journalist”, it states, “a person who independently performs journalistic activities in a digital or other medium as a publisher”. This provision seems to imply that anyone can work as a journalist, which, in my opinion, is unacceptable. How do you view this?

If we narrow the concept of freedom of expression and press freedom to just that, then regulating it under the concept of journalists and media outlets is understandable. However, it is important to distinguish between rights and freedoms. Rights can be restricted by law, but human freedom cannot be limited by law—even if someone is imprisoned, their freedom can never truly be restricted. Historically, in our country, they tried to suppress people by exiling them, giving them derogatory names, ostracizing their families, and using various other methods, but these efforts ultimately failed. Globally, there have been repeated attempts to restrict the development of information on social networks, but such efforts always run into the issue of individual freedom. When the professional practice of journalism is equated with the freedom of citizens to express their opinions, we are at risk of becoming a so-called “democratic” country where people’s voices are legally silenced. If that happens, we might as well eliminate journalism departments from universities and turn them into driving schools.

The Minister of Justice and Internal Affairs has explained that in order to regulate individuals expressing their opinions on social media, they are including them under the umbrella term “journalist”. At the same time, the discussions are being held very quickly, and the draft is being rushed for submission. What do you think about this approach?

Article 16 of the Constitution of Mongolia guarantees the right to freedom of thought, speech, and the press. It states, “Everyone shall have the right to freely express their opinion, to speak, to publish, and to peacefully assemble”. It does not say that the process of expressing and publishing opinions should be regulated by law. It is not possible to regulate or legislate freedom of expression in that way. On the other hand, there cannot be unlimited freedom, as it must be bounded by the rights and freedoms of others. In our country, there are cases where the rights and freedoms of others are exceeded. Today, political figures and those in power are particularly sensitive, and the COVID-19 pandemic showed how easily personal freedoms can be taken away under the pretext of public health. In this context, I have concerns that this draft is being used to restrict the freedom of speech and expression under the guise of holding individuals accountable for their opinions. This situation is being manipulated by certain public figures and organizations as an opportunity to limit freedoms, especially those of journalists, researchers, civil society organizations, and independent thinkers. Instead of creating such laws, it would be better to introduce a program that ensures the guaranteed enjoyment of the rights to freedom of thought, expression, speech, and publication, and monitor the implementation of such a program over a few years. That would be a more effective approach than drafting laws that violate the constitution.

Is it appropriate for the government to develop and push this draft law?

It is within the government’s jurisdiction to do so. However, the head of government in any country has always faced the issue of dealing with journalists, researchers, civil society organizations, and the creators of public social media. Governments typically aim to protect the rights and freedoms of others rather than ensuring individuals can fully enjoy their freedom. With this objective in mind, governments draft laws and attempt to pass them. In our case, laws are often passed directly. If you look at the composition of the working groups in the parliament that draft these laws, it’s clear that these bills will be approved. They are made up entirely of civil servants and officials. These groups cannot be fully free in their actions. 

Therefore, instead of focusing on organizing public debates about the draft law, it is far more important to focus on providing a unified understanding of freedom for media organizations and journalists. It is crucial to involve civil society activists and researchers more than politicians and leaders in this process. If we don’t do that, and if the laws are made with a focus on listening to the difficulties and challenges faced by media organizations and journalists, we may end up inadvertently tightening the grip on their freedom even more. This is why the Constitution does not specify that the freedom of publication should be regulated by law.

The 1998 Media Freedom Law stated that “state organizations are prohibited from owning media outlets”. Yet, the current draft law states that the government may own media outlets. Isn’t this a step backward in terms of press freedom? Could it be that the inclusion of such a provision is an attempt to restrict and limit press freedom? In general, if the government, the parliament, ministries, and city governors all have their own press offices, and journalists are “bombarded” with government-issued content, is this not a form of gradual restriction on freedom?

The 1998 law was a small but very important law regulating a major issue. It had only four articles, but the goals of the law were excellent. However, how has the implementation of this very simple and clear law been? While it prohibited the passage of laws that would restrict media freedom and the independence of media outlets, numerous other laws have been passed that contradict this, such as the Broadcasting Law, the Law on Information Transparency, and the Law on State and Official Secrets. Let’s not even get into the Criminal Code and the General Administrative Law. 

Secondly, while the law stipulates that “the government shall not impose censorship on public media content,” it does not limit the government’s ability to impose secret contracts. The government often forces journalists to adhere to conditions where they have no choice but to accept censored information, and if they refuse, they may face penalties.

Thirdly, the law says that “the government shall not establish any regulatory body to monitor the content published by media outlets” and that such a body shall not be funded. Yet, a whole state control system has been established in practice. Finally, while the law prohibits government entities from owning media outlets, now every government agency has access to expensive equipment that is usually out of reach for regular media organizations and employs civil servants to manage them. In fact, even state organizations have won awards for “Best Content”. Soon, it will be no surprise if government entities take home awards for the best journalistic work or the best journalistic productions.

In the draft of the current law, Article 5.5 states, “The government may own media outlets aimed at promoting and distributing information about Mongolia abroad. These media outlets shall not engage in commercial activities, and there shall be no more than one such outlet.” This could be a possible scenario. But what if, when the draft is discussed in parliament, the word “abroad” is removed by a majority vote? What would happen then? There would be no words left to describe the situation.

For professional journalists and reporters like us, one positive aspect of this draft law is the provision to guarantee the right to protect sources. However, the addition that a court can limit this right based on a judicial decision seems to be a step back from international conventions, such as the United Nations Convention that we are party to. Would you agree with this?

Exactly. In Section 14.2 of the draft law, it states, “The right of journalists and media organizations to protect their sources may be limited by a court decision, in cases where the information is unable to be obtained by any other means, and where the reason for the limitation is based on national security, or the prevention of serious harm to human life, health, or the commission of a crime.” This provision undermines the principle that a journalist’s pledge to protect their source cannot be easily broken. Essentially, what this means is that the government could force journalists to reveal their sources under this law, even if they promised to protect them. The only way to safeguard such protections would be if journalists and their confidential sources were able to jointly approach the court for a closed hearing, with full guarantees of source protection. However, the term “journalist” is being used very broadly here. For example, this provision could be misused by someone to obstruct an investigation or criminal case. This should not be allowed.

We cannot ignore the issue of Article 13.14 of the Criminal Code regarding defamation and insult. These provisions have been part of the Criminal Code since 1961. Some believe this provision should not exist in the Criminal Code at all. Others argue that if it is to remain, it should be applied specifically to individuals and not to journalists or media organizations. Experts and people working in the media field have expressed different opinions on this issue. Initially, the provision in the draft law was worded differently. What is your view on this?

It’s good that there is an attempt to explain and clarify the unclear provisions in the law. However, it would be better to leave the authority to interpret laws, especially those related to freedom, to the Supreme Court. They should be the ones to carry out this duty more than anyone else. As a researcher, I don’t understand why there is so much focus on just Article 13.14 of the Criminal Code. The problem likely stems from how this provision can be used to seriously infringe on journalists’ and media organizations’ rights through criminal or administrative processes. Moreover, political figures and those in power tend to misuse this provision. The term “blatantly false” in this provision essentially means an outright lie, right? If there is a chance that the statement could be true, it should not be considered “blatantly false”. It’s also unclear why provisions like Article 14.8, 18.2, and 18.11 of the Criminal Code are not being discussed in relation to this issue.

Regarding Article 13.14 of the Criminal Code, some citizens, journalists, and lawyers have filed a constitutional complaint with the Constitutional Court, claiming that this provision violates the Constitution. If the Constitutional Court rules that it violates the Constitution, what will happen to those who have been held accountable under this provision?

If the Constitutional Court finds that this provision of the Criminal Code is unconstitutional, then all those who were punished under it will be exonerated. The state will provide compensation to those who have been wrongly punished.

The ethical principles in journalism have been included in Article 10 of the draft law. Do you think this is appropriate?

The right to freedom of thought, expression, and publication cannot be strictly regulated by law. Therefore, while these freedoms should not be legally restricted, the procedures for exercising them can be regulated through guidelines or self-regulation within the media sector. It seems reasonable that the draft law has allowed for such self-regulation by the media. As for codifying the ethical principles of media organizations, there is no harm in doing so. It can be done within reason.

There are no provisions in this law concerning daily newspapers, which have historically played an important role in recording and preserving Mongolian history. The government’s policy has been to restrict the daily newspaper market. For example, under Article 21 of the 2005 Law on Procurement of Goods, Works and Services with State and Local Funds, it stated that tenders should be publicly announced in national daily newspapers, the electronic procurement system, and other media outlets. However, this provision was removed in the revised draft. This removal seems to have negatively impacted newspapers, especially those that document and archive national history. What is your opinion on this?

The right to freely express one’s views and publish is often opposed by those in power, as they wish to erase or alter their past. With the rise of cyberspace, social media platforms, and online publications, those in power now have the means to delete information and history. However, information in newspapers cannot be easily erased; in fact, many times, newspapers have been purchased in bulk for preservation. Laws are meant not just to regulate the industry but to ensure the development of that sector. Unfortunately, this draft law does little to ensure the protection or growth of journalism as a profession. On the other hand, the law on Broadcasting has at least made strides to protect the fairness of competition in the TV industry, but, as you pointed out, there is no mention of protecting the vast wealth of information contained in daily newspapers. The government’s reluctance to support or protect the continued existence of daily newspapers reflects its discomfort with being held accountable for its past. 

Accessing public information from state institutions has become increasingly difficult in recent years. Even though the law requires open access to information, many institutions refuse to disclose information, often classifying public documents as confidential. Could this draft law help resolve these issues?

Investigative journalism is essential in revealing the unlawful and unethical actions of individuals and organizations, and it plays a critical role in upholding public interests. This draft law, however, seems to lack any provisions that would support investigative journalism. In fact, it seems to do more harm than good in terms of encouraging journalistic freedom. Unfortunately, it appears that this proposed law is not supportive of the kind of journalistic activities that are necessary for a healthy democracy. The absence of safeguards for investigative journalism is deeply concerning.

By D.CHANTSALMAA