Social networks have recently entered our life, but have already become an integral part of it. Like any social phenomenon, they require legal regulation.
I would like to share with some of my thoughts on that.
As you know, since 2012, Internet resources in Kazakhstan are considered to be equal to the mass media (media). However, unlike newspapers, radio, television, Internet websites do not require registration, but in other respects, according to the law, they practically do not differ from traditional media.
Let’s imagine: I posted a post on Facebook, let’s say about the political system of Kazakhstan. Under my post, in the comments readers shared their opinions. One of these comments contains clear signs of a wrongful act in Kazakhstan. For example, my subscriber, John Doe, agitates citizens of Kazakhstan to change the constitutional order through violence. In this case, Kazakhstani law enforcement agencies have a reason to start a pre-trial investigation. But! The question is: who should be held accountable? Should it be John Doe as an author of the comment with the illegal agitation? Or should it be me, as the author of the post, under which the illegal comment was posted? After all, if it were not for my post, then perhaps there would not be a provocative comment. And technically, I had the opportunity to delete this comment. Or should it be Mark Zuckerberg as the owner of a social network? After all, it was on the “Facebook” page that my post appeared, and an illegal comment under it. If to follow the letter of the Law of the Republic of Kazakhstan “On the Mass Media” Mark Zuckerberg is the owner of the media and is responsible for its activities.
Let’s put ourselves in the place of law enforcement bodies of Kazakhstan and try to achieve legality and justice in the above described example.
First that comes to mind, is to punish the very John Doe for obvious illegal statements on the Internet. But in most cases, users with such names and photos of Bruce Lee on the profile picture put their location of residence in some Barbados or East Timor. It is good if this is nothing and John Doe, in fact, is just another modest inhabitant of one of the many districts in Alma-Ata. As far as I know, it is not difficult to calculate the identity of such anonymous person by IP-address. In this case, justice will triumph very quickly. But what if this is a real foreigner, a former compatriot living in one of the Western countries, where agitations to change the current government are not considered being a crime? Most likely, it won’t be possible to convict him to criminal offence. In any case, to deport him to Kazakhstan and imprisoned for sure will not be possible.
What happens then?
Then the eyes of law enforcement bodies turn to the author of the post, under which an illegal comment was made. I am the author of the post. The investigator calls me for interrogation and says: “Why didn’t you delete the provocative comment under your post? You will be punished for this.” I say: “Firstly, I have not been logged in on Facebook for three days and have not seen this comment (and it really can be so). And secondly, on what grounds will you bring me to justice? I am neither the author of the illegal comment, nor the owner of the website. I, as a blogger, am not mentioned in the Law “On Mass Media”, and my responsibility in it is not described.” I think that my words will put the investigator to a dead end, and he will have to let me go. Unless to address my civic consciousness and asks to voluntarily delete the illegal comment. In this case, I am ready to delete the truly illegal statements of commentators under my posts. But I emphasize that this issue is not regulated by law and the authorities only have to appeal to the conscience of bloggers.
What if some incompetent blogger refuses to comply with the request of the investigator?
All that is left to do is to bring to account the Internet resource itself, that is, in this case, the website www.facebook.com. Most likely there will be problems again.
We understand that under the Internet resources our legislator had in mind news and information portals, such as www.tengrinews.kz, www.bnews.kz, www.nur.kz and so on. But since the law does not specify the special status of social networks, www.facebook.com falls into the same category.
However, the special status of social networks suggested itself, because they have fundamental differences from information portals.
For example, the information portal has an owner, editorial staff (editor); their identities are easy to establish; all materials on their website are pre-moderated, in other words, the editor pre-reads the articles of his journalists or third-party authors, gives the go-ahead for posting them on the site, therefore, shares responsibility with them for everything that is written on this Internet resource. In social networks everything is arranged differently. Social media is just a platform on which millions of bloggers can publish their materials. And every blogger is editor for himself. The owner of the social network does not control the publication of bloggers and cannot be held responsible for their publication.
What to do in this case?
You can try to make an agreement with Mark Zuckerberg in an amicable way. There is such a thing as blocking an account. This is when, through the complaint of certain people (state bodies or just citizens), the owner of the social network can block (delete) the account of some blogger who violates the moral and ethical code of the social network itself. On a large number of issues, the Facebook code coincides with the criminal codes and moral standards of many countries. For example, Zuckerberg without a shadow of a doubt deleted posts with signs of racial, national, sexual or religious superiority. But on a number of issues the views of citizens of many countries do not coincide with the views of the Facebook owner. For example, he does not consider agitations to change the president of the country to be wrong, he does not consider caricatures of the Prophet Muhammad as an insult to the feelings of religious people, etc. What to do in this case? Law enforcement agencies in Kazakhstan will not be able to do anything with Mark Zuckerberg. Although he is the owner of the media under our legislation, he is a US citizen and lives there. And Kazakhstan and the United States have no international agreements on the extradition of criminals. Well, most importantly, even if such agreement existed, Zuckerberg’s doings are not considered to be a crime in the US. Therefore, America for sure will not give him to Kazakhstan, as to North Korea, Venezuela, Uzbekistan, Turkmenistan and any other freedom-loving countries.
What is the next step in the arsenal of our law enforcement agencies in the fight for law and order?
In such case, our legislators provided such mechanism as blocking of the site. Paragraph 3 of Article 24 of the Law “On Mass Media” states: “For distribution of foreign media products, violating the Constitution of the Republic of Kazakhstan and regulations of this Law, the prohibition shall be imposed in a judicial proceeding and for foreign mass media being the web-sites – suspension of the access to the mentioned websites on the territory of the Republic of Kazakhstan”.
It turns out that the authorities of Kazakhstan, according to local laws, can essentially block “Facebook”, “Twitter”, “YouTube” on their territory, if they contain illegal, from the point of view of Kazakh legislation, materials.
Why so far it has not been done?
The matter is that in this case our legislation will get in conflict with its own international image. Kazakhstan positions itself as a free democratic country with freedom of speech. The blocking of international websites and social networks, of course, would greatly harm such image.
Summarizing all of the above, I come to the following conclusions:
● Social networks differ from information portals and require special legal regulation.
● In case of distribution of unlawful information in social networks, the direct author of the publication should be responsible. The owner of social networks, nor the author of the post, under which illegal information is posted, can be held accountable.
● If the author of the comment cannot be identified or he is abroad and his liability is not possible, concerned parties can apply to the author of the post by analogy with the owner of the Internet resource and demand the removal of the wrongful comment. It is necessary to introduce a norm into the legislation, according to which, if he refuses to do this, he is equated with the author of information and can be held accountable.
● Social networks cannot be blocked, because they are not themselves a source of information, but merely a platform for disseminating information.