By D. TEGSHBAYAR
On January 18, 2023, the Mongolian parliament passed a “bill to protect human rights on social media” that allows to regulate social media contents. Within a little over 48 hours after the draft proposal submitted by the Minister of Digital Development and Communication to parliament, the bill was passed giving no space and time for the public to get acquainted with the draft.
This rushed process of passing a law did not occur for the first time for the Mongolian parliament. It turns out, the basis for such breaches of existing laws and human rights by parliament has been laid out over the past half-year. Three laws have already been passed by parliament in an expedited way since August 2022, all within 6 to 48 hours. Mandatory supporting studies to draft bills and public engagement, openness and transparency of drafts ensured pursuant to the law on legislations of Mongolia, effective since 2015, were disregarded in each circumstance.
Expedited procedures for passing a bill
The only circumstances when a bill can be passed in an expedited procedure by the parliament is asserted in article 21.1 of the bill on parliament procedure which specifically indicates that the bill has to be specifically to ensure the ‘national economic security’.
About a month ago, in December 2022, before the adoption of the new bill to protect human rights on social media, the parliament passed a revision to the criminal code within 48 hours eliminating prescription period for corruption-related crimes and increasing punishment commensurate with corruption, money-laundering and illegal enrichment risks. The amendment to the Constitution of Mongolia made in August 2022, however, sets the record of high-speed expedited adoption by a day, within 6 hours.
Public protest against the amendment made in the Constitution lasted for about 2 months with no response from decision-makers.
The draft bill to protect human rights on social media was submitted to the parliament pursuant to article 21.1 of the bill on parliament procedure to be discussed in an expedited manner and was passed the next day. However, human rights organizations criticized that it has no economic nor national security coverage whatsoever rather encompassing regulations pertinent to human rights concerning free speech and anonymity on social media platforms. There was no response from parliament. Five days after the adoption of the bill, the Minister of Digital Development and Communication, N Uchral posted a video explaining ‘his’ need for urgency and addressing public criticisms on the content of the bill on his Facebook page.
Unfortunately, the parliament’s hasty discussion and adoption of these laws overlooked compulsory public engagement and debates and passed without justifications to amendment or create a new law.
Content of the adopted bill
Apparently, the bill is to be effective from February 1, 2023, upon publication in the ‘State News’ magazine. So far, the official adopted version of the bill to protect human rights on social media is not to be found from the website of the Mongolian parliament but publicized on news sites.
The bill and the concept paper define that human rights can be restricted in two ways: 1. by restricting the content in violation, and 2. by partially or completely limiting the communication network to reduce restricted content distribution in the event of public unrest. Although, the latter will be done pursuant to the accompanied law on amendment to Cyber Security and will be regulated by that procedure, justifications for such limitations should be clear in the law within legitimate parameters in consideration of human rights. This procedure to limit the communication network will be developed by the stakeholders working group and adopted by the Minister of Digital Development and Communication.
The bill has 6 chapters with 12 articles. Although it says the law will regulate all specifics of information, in detail, that could be deemed as restricted content, the bill is limited to the following vague list defined as restricted contents:
- denigrating state symbols of Mongolia;
- fraud or attempt to fraud using the social network;
- promoting, urging, or pressuring to negatively affect child’s body, mind and morals;
- encouraging or promoting violence or obscenity;
- encouraging and promoting threats, suicide, and physical harm to people;
- encouraging or advertising the use of narcotic drugs and psychoactive substances;
- extremist activities, undermining national unity, disclosure of state and official secrets, terrorist acts, crimes against human security and national security, inciting and calling for crimes;
- discriminating against an individual or a specific group based on ethnicity, language, race, gender, social origin, status, wealth, religion, opinion, sexual or gender orientation, disability, or health;
- infringement of intellectual property rights;
- instructing in detail to commit a crime or violation, or encouraging, inciting, instigating, promoting, or supporting the commission of a crime or violation;
- luring, urging, inciting, or promoting children to beg, wander, or live unsupervised;
- violating social media platform rules and terms and conditions.
Some lawyers say that crimes listed in article 6 of the bill are currently sufficiently regulated by the law on Crime Prevention (2019), law on Cyber Security (2022), Criminal Code (2016), and the law on Criminal Procedure (2017), and violations are regulated pursuant to the law on Violation (2017).
When the draft version became available, the public strongly criticized following provisions in the law that potentially could have had a direct impact on free speech:
- clause 6.1.3. Any content tarnishing someone’s reputation shall constitute grounds for restriction,
- clause 6.2 Following conditions shall be considered in establishing grounds for restrictions defined in clause 6.1:
6.2.5. if determined that any risk may cause on rights, lawful interest or on social or economic status of a person,
- clause 6.3. Personal information of a public official may not be disclosed or shared on social media without prior consent,
- limitation on anonymity
These clauses were removed upon adoption of the bill by parliament, confirms a member of the Human Rights Commission G. Narantuya in an interview, who was also a member of a working group to develop the bill. However, the final bill is yet to be open to confirm or deny the reduction.
The concept paper says the purpose of the bill is to regulate an increasing number of cyber-crimes. There are three types of justifications: 1) crimes such as online fraud, spreading false information, cyber-attack, embezzlement, extortion, organizing illegal online gambling, invasion of privacy, proliferation of pornography to minors and online abuse are predominant; 2) increased amount of loss due to cyber-crimes; and 3) a need to monitor false, abusive and other restricted contents such as illegal use intellectual property or affecting others both mentally and morally, especially on Facebook.
Clearly, an individual could have reported restricted contents to the social platform itself without any bill. The bill drafter responded to that as ‘public lack of understanding of social media platform rules and many children who use it tend to tolerate restricted contents and cyber bulling due to a language barrier’. The Minister of Digital Development and Communication said that a unit of an existing public center (Public Center to Combat Cyber Attack and Violence) shall establish whether it is a restricted content within 72 hours upon receipt of a complaint and determine if a content constitutes a crime or a violation. The powers of the unit include processing requests regarding restricted content and delivering decisions, recommendations, and requirements to social media providers.
Regulation of certain action still needs to be clarified
The bill still left many questions for the public. For example, the unit that will examine a complaint then shift to the law enforcement organization of the jurisdiction. How will the work of the police and this unit be related and what happens during the examination period with the content provider, content or the victim, is currently unclear. So, the question we may ask ‘Instead of a law, couldn’t we just have raised a public awareness on social media restricted contents and gave a general instruction on reporting violations?’.
The public also ask other questions such as ‘Would there be an official agreement between the unit and social media companies such as Twitter, Facebook, or TikTok? When will my anonymity be revealed by them to the unit?’ or ‘If an individual, not a legal entity, has 300,000 or more subscribers or followers from Mongolia on their website, social media page or platform, can such an individual register a representative office as allowed in clause 7.1.4 of the bill?’ or ‘How to ensure restricting just a restricted contents and not the complete site in the event of negligence or violation?, etc.
However, it seems as though the main public concern will arise immediately after the effectiveness of the bill is in relation to the presumption of innocence ‘Every person accused of any crime is considered innocent until proven guilty by the court, not by a unit of a public center’. Most of the restricted contents listed in article 6 of the bill constitutes a ‘crime’ in accordance with the Criminal Code of Mongolia.
Civil society protest
The law was supposed to take effect on February 1, 2023, unless Mongolian President U Khurelsukh vetoes it. Since the day the bill was proposed to the parliament, the consortium of non-governmental organizations opened a platform to collect signatures opposing the bill. Over 6,588 people signed the petition addressed to the President of Mongolia to veto it on www.uil.mn site and over 458 on www.change.org were collected to send to the President as of January 27. On January 26, 2023, a civil society consortium publicized an open letter to the President U Khurelsukh demanding that he veto the bill.
Several press conferences were scheduled on January 27 and 28, 2023 by the civil society consortium, comprised from the most active domestic NGOs, and the Urban Civil Forum.
On January 27, 2023, the spokesperson of the President’s Office twitted from his personal account that ‘The President of Mongolia will veto the bill on protection of human rights on social media in whole. The President’s Office will make a statement on Monday’.
Speculations have raised by some that the announcement by the President’s spokesperson to veto the bill could mean that the President of Mongolia is intentionally aiming to win a public favour in promoting a change in the governance and political systems in the Constitution. A working group to revise the Constitution has already been set up in 2021, right after the Presidential election though the Constitution has been heavily revised in 2020 and was amended once after that by the Parliament within 6 hours in 2022 as mentioned earlier.
D.Tegshbayar is an independent consultant working in Mongolia specialized in financial crimes compliance. Tweets @Davandai