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The Ministry of Justice and Internal Affairs has assigned a taskforce to restore the defamation article in the Criminal Code. The public has been debating whether it’s appropriate to restore this article through social media. Regarding this issue, we asked the views of representatives from government and nongovernment organizations.

KH.NARANJARGAL: Tossing out the article on defamation crimes was a step forward

The following is a brief interview with President of Globe International Center Kh.Naranjargal about the government’s effort to regulate defamation cases.

Lawyers are working to include an article on defamation in the draft revision on Criminal Code. Do you see this as a correct move?

Apparently, there was an initiative to develop a draft bill to restore the defamation article in the Criminal Code. Firstly, the bill includes penalty and punishment for spreading false information through the media and press.
Secondly, it included an additional note which said that government organizations and politically influential figures will not be considered a victim of this type of crime. However, this isn’t an improvement. 

The article on defamation should not be re-included in the Criminal Code. In the least, people will be scared to speak their mind. A democratic society protects the basic human rights. Expressing one’s opinion is a basic human right. Article 19 of the International Covenant on Civil and Political Rights states, “Everyone shall have the right to hold opinions without interference”. So, without expressing our opinion, how can we criticize the wrongdoings and faults in our society?

Worldwide, defamation cases are trialed by the civil court. Some Mongolian lawyers view that it’s impossible for the local civil courts to decide on these types of matters. Can you comment on this?

People are angered when there’s news of the government making a wrong decision or a state official getting connected to corruption. When they say something about it, they are accused of defamation. We would have a serious problem if all of these cases are considered for penalty. This is an act to restrict people’s right to express their opinion. Imposing any form of punishment on such cases could become a violation of the UN and international conventions ratified by Mongolia.

The UN Human Rights Commission reviewed the human rights situation in Mongolia and gave 164 recommendations. Eight of them were related to the freedom of opinion and expression. The Mongolian government announced to the whole world that it has accepted these recommendations. Later, it included them in its action plan.

In May, the government reported that one of the eight human rights recommendations had been fulfilled. This was accomplished by removing the article on defamation from the Criminal Code. It’s wrong to cancel that decision which helped cross out one of the to-do recommendations.

Tossing out the article on defamation crimes was a step forward for Mongolia to some extent. But it was meaningless to put it back into the Law on Conflicts. If a person is punished for defamation in accordance with the Law on Conflicts and he or she repeals, the case will have to be reviewed by the Criminal Cases Court. In that sense, there’s still the fear that people could become a criminal (if they say something wrong).

How well is Mongolia following recommendations of international organizations?

In July 2017, the UN Human Rights Committee reviewed the Mongolian government’s sixth report on the implementation of the International Covenant on Civil and Political Rights by its state parties. A team led by Deputy Minister for Justice and Internal Affairs B.Enkhbayar presented the report. The Human Rights Committee made new conclusions and recommendations.

The sixth recommendation advised the government to make press restrictions consistent with international conventions and completely remove the article on defamation from the Criminal Code. It recommended the protection of journalists and media specialists from threats and constraints by politicians, and eradicate such actions through appropriate measures. Yet, the current Criminal Code specifies imprisonment for anyone who is deemed guilty of defamation or slander of a candidate during an election. We must enforce recommendations of international bodies because international conventions and agreements need to be aligned with the laws of Mongolia.

In the Constitution, our country promises to fulfill its obligations accepted from the international community. We shouldn’t go against it.

The law initiators claimed that bringing back the defamation article will protect the rights of journalists. Do you agree with this statement?

This action is causing fear not only among journalists but also ordinary people. Restriction on criticism is a threat to the people’s rights to freely express their opinion. People will get the notion that they will be imprisoned if they say anything. This article on defamation will become a shield for those with power and money. Financially and socially influential people will take advantage of this regulation for their own benefit. Just for writing an article and expressing their thoughts, journalists and ordinary individuals will turn into criminals through this proposed idea.

For example, people who are traveling abroad get authentication for their criminal history from the police. If a person has been punished for defamation, it will become a criminal record. This article cannot become a protection for journalists. Journalists are required to report timely news consistent with the public’s interests. When doing so, they could make a mistake with the numbers or add their opinion to the article and for doing so, they shouldn’t be turned into a criminal.

The public has the right to monitor the state. That is why they rely and trust media outlets. This article on defamation will obstruct journalists’ obligation as the fourth governance and restrict their ability to supervise the state.

B.ENKHBAYAR: Accountability will vary for offenders with and without editor

Below is the perspective of the restoration of defamation crimes of Deputy Minister of Justice and Internal Affairs B.Enkhbayar.

On what grounds was the restoration of regulation on defamation initiated?

The Constitution specifies that the reputation of individuals should be respected. In correlation with this, it’s right to include an article on defamation in the Criminal Code. Taking journalists’ disapproval into account, it’s possible to remove articles related to defamation from the Criminal Code and Law on Conflicts in consideration. Disputes related to televisions, websites, and journalists can be resolved through the Civil Law. However, this has adverse impacts.

The processes to inspect criminal and civil cases are different. Law enforcement agencies are in charge of investigations of cases included in the Criminal Code and Law on Conflicts. As for cases that are to be resolved through the Civil Law, all documents must be assembled by the concerning individuals. The police and other law enforcement agencies can be involved because (defamation) is resolved in accordance with the Law on Conflicts.

This article doesn’t only apply to the media and press. Cases of slander in the cyber world have become a serious issue nowadays. Anyone can slander others by opening a new social media account with a fake name and no photo of themselves. There was a case where an individual spread information that could potentially affect the national security and cause internal dispute among the population. The individual was found and inspected in accordance with the Law on Conflicts.

However, the court let that person go after charging with just a fine of two million MNT. It was proven that that person received hundreds of millions MNT to conduct that slander operation.

There was even a case accusing five politicians of raping a young child. It’s common for people to be swayed by false, unverified information. Resolving such cases through the Civil Law will not give us the opportunity to find the person behind the crime. A person who is paid to do something will get a lighter punishment.

What are the advantages of regulating defamation through the Criminal Code?

We’re upholding three main principles. Firstly, remove the punishment of imprisonment. No one will sit behind bars (for the crime of defamation). We’ve added specification on imposing a fine and travel restriction. The fine will be four to 10 times lower than the amount specified in the Law on Conflicts. The maximum amount of fine will be five million MNT for media organizations and 450,000 MTN for individuals.

Secondly, it’s usually high-ranking officials who sue journalists and media organization for defamation. Their status and authority causes suspicions. The defamation article states that state organizations and politicians are not eligible to file defamation complaints. However, it’s slightly different for the cyber world. Without any regulation, people accuse and slander one another in the cyber world. For that reason, people should respect one another in society.

Thirdly, journalism and the media were separated from the digital world. The bill specifies that the person who slanders others should be examined whether they have an editor or not. There was a proposal to include an article enabling journalists and media outlets to keep the identity of their sources confidential in the Law on Criminal Procedure. Media organizations can have a representative in the taskforce.

Dulguun Bayarsaikhan