Mongolia Should Expedite Law Reform for the Protection of Journalists and Media Freedom to Strengthen Democracy
2 September 2011 7:07 am

International Fact-Finding Mission

Preliminary Report

(Ulanbataar) – The Asian Forum for Human Rights and Development conducted an international fact finding mission to Mongolia from 28 August to- 2 September, 2011 to examine the state of freedom of expression and freedom of information. This is a report of the preliminary findings and recommendations by the fact finding mission.

The fact finding mission was comprised of two human rights experts, Mr. Yap Swee Seng, Executive Director of FORUM-ASIA and Professor Hee-Kyoung Spiritas Cho, Law Professor of Hongik University of South Korea.

During the visit, the mission conducted interviews and meetings with officials of the President’s Office, the Ministry of Justice, media outlets, journalists, non-governmental organizations, the National Human Rights Commission of Mongolia in the capital city, Ulaanbataar, and three provinces, Darkhan, Erdenet and Bulgan.

The fact finding mission notes the rapid progress made by Mongolia in democratization and promotion and protection of human rights since the end of the communist rule in 1990. We welcome the newly adopted Law on the Information Transparency and Right to Access to Information in June 2011. As a young democracy, however, many challenges remain to be addressed by the government. We would like to highlight in particular the following areas of concern: criminalization of defamation; the absence of the right to protect confidential sources; the absence of public interest defence for journalists; media censorship in different guises; harassment of journalists; lack of access to information; lack of transparency in media ownership; lack of viable financial model for sustainable independent media; and general disregard by public officials of the importance of independent media in a democracy.

We are concerned by the rising number of defamation suits against journalists, especially criminal defamation, with 5 cases in 2010 in comparison with none in 2009. During the visit, we were also informed of two more cases of criminal defamation filed against journalists in 2011, namely the case of Ms. Chuluuntsetseg of Udriin Shuudan (Daily Post), who wrote about alleged improper disposal of chemical waste by the Chief of the General Laboratory of the General Agency for Specialized Inspection and Ms. Dolzodmaa of Daily News, who merely factually reported that a former head of National Security Council was denied bail in his case in a court in London. These are journalists simply doing their job and should not have been subjected to lawsuits of any kind.

That the lawsuits were brought by public officials for criminal defamation is particularly alarming. Public officials are accountable to the people in a democracy and must be subject to public scrutiny and criticism. They should not be allowed to resort to defamation lawsuits in response to criticism regarding their work in their official capacity. We also note with concern that the damages amount awarded in civil defamation suits have been rising.

The media play a vital role in a democracy as a watchdog of the government. The threat of criminal defamation has a particularly chilling effect on freedom of expression. Cases of defamation may be resolved in many alternative ways, including a right of reply, correction notice, public apology and civil suit. No one should face the prospect of going to jail or having to pay large damages for reporting facts or expressing their opinion. Defamation should be decriminalized in line with international human rights standards. In addition, a defence of public interest should be introduced to protect journalists who are simply reporting news in a fair and balanced manner.

Currently, there is no law in Mongolia that recognizes a journalist’s general right to protect their confidential sources of information. A right exists under the Law on Public Radio and Television but this only covers those who work in public radio and television, which is only a small number of journalists working in Mongolia. Many journalists interviewed told us that the absence of legal right to protect their confidential sources put them in difficult and dangerous position, especially when police and the court pressure them to disclose their source. Protection of confidential sources is vital in a democracy. The public will be reluctant to come forward to blow the whistle on the misconduct by a public official unless they can be assured that there will not be recrimination against them for providing such information. The best way for them to do so is to disclose the information to the media on a confidential basis. Journalists must have the right to receive information on a confidential basis and disclose them to the public when the matter is in public interest.

It is also troubling that when journalists publish these news that are critical of the government or report on official wrongdoing, the police, more often than not, investigated the journalists that published the news rather than the serious allegations of misconduct by the public official that was reported in public interest.

Although the Media Freedom Law of 1998 prohibits any control or censorship of the content of public information, censorship is widespread and rife in Mongolian media. Journalists interviewed told us that they have been subjected to external pressures, physical attacks, and threats and harassment to themselves, their media organizations and even their families by government officials, politicians, businessmen and others for reporting news. Such treatment of journalists breeds a climate of fear and journalists become reluctant to report news that is critical of those in power or disapproved by official bodies. Self-censorship is even more dangerous to the independence of media because it is not visible. In some of the provinces, certain specific topics considered to be sensitive by the provincial government, such as globalization, were also off–limits from public discussion

We are also gravely concerned by the lack of action on the part of the law enforcement agencies with regard to that these attacks on journalists. Most, if not all, cases that we have been informed about have ended without proper investigation and the perpetrators were never identified, perpetuating impunity against journalists and witnesses.

Lack of access to information in the government and the non-cooperation of government officials remain serious obstacles for many journalists. Refusal to provide information by public authorities is usually made on the grounds of state secrecy. The broad and unclear definition of state secrets in the Law on State Secrets and the Law on the List of Secret Information 1995 allows public officials to apply subjective judgment regarding interpretation resulting in uncertainty and routine refusal of information requests. Even more troubling than the legal definition is the lack of openness on the part of public officials. The general attitude by the public officials showed that there was a low level of respect for both the journalists’ right to report information and the right of the public to receive information. Many provincial authorities had no concrete plans on the implementation of the new Law on Information Transparency and the Right of Access to Information and did not seem to have a clear understanding of their new legal obligations under this law.

Media ownership remains non-transparent in Mongolia. With media playing an important role in politics, especially during election campaigns, the mission was informed that many politicians own directly or indirectly media outlets. Where these relationships are non-transparent, it not only blurs the distinction between real news and political propaganda, more importantly, it undermines the role of independent media in a democracy to monitor politicians and be the watchdog of the government.

It is our view that one of the most serious problems in Mongolian media industry is the lack of a sustainable financial model to support and maintain independent media. The Mongolian media market is small. In a country of three million people, there are more than 400 media outlets. There is a stiff competition among the media outlets for audience and advertising, which inevitably means that normal operating model relying on subscription and advertising is not viable. This forces journalists and media outlets to seek other sources of income to remain in business. The practice of accepting payments to produce stories favourable to politicians and others become routine practice and compromises the credibility of the media industry. It also significantly undermines the standards of journalism and leads to a vicious circle of public distrust in the media leading to decreased circulation, less income, more reliance on irregular sources of funding and so on. A regulatory reform of the whole media industry is required, and a new alternative funding model to encourage independent media must be considered.

The Mongolian government should expedite its law reform for the protection of journalists and media freedom in order to strengthen its young democracy.

The international fact finding mission recommended the Mongolian government to:

  1. Abolish Article 110 on slander and Article 111 on defamation from the Criminal Code. All criminal defamation cases should be dropped;
  2. Introduce public interest defense in the law in order to protect the right of journalists to report on public interest cases with proper legal protection;
  3. Provide legal protection to the journalists and media organizations on non-disclosure of their sources of news. The protection accorded to the journalists working in public radio and television under the Law on Public Radio and Television of 2005 should be expanded to cover all journalists;
  4. Provide better access to legal resources and support for journalists;
  5. Make the media ownership transparent with the information on media ownership accessible to public;
  6. Introduce transparency into paid materials in media and a clear indication of its nature should be imposed;
  7. Review and strengthen the regulatory framework on the granting of radio and television licenses to ensure that there is a healthy competition in the market, but at the same time making sure that professionalism and sustainability of independent media are not undermined by oversaturation of the market.
  8. Review its state secrecy laws and define state secrets clearly and narrowly;
  9. Establish an independent Ombudsman office with adequate powers on civil service that will receive public complaints and discipline civil servants;
  10. Establish an independent Press Council to receive public complaints on media, enforce the code of conduct for media practitioners and enhance the professionalism of journalism.
  11. Conduct public awareness on the Law on the Information Transparency and Right to Information and make the law easily and widely accessible, and training for public officials, especially those at the provincial governments on handling information requests.
  12. Conduct education and training programs for public officials on democracy, human rights and the role of media. This should aim to create a culture of democracy and human rights that include a critical and vibrant media industry and civil society.
  13. Improve the quality of journalist education provided in colleges and universities and ensure that there is ongoing professional training provided to working journalists.

 

The mission thanks the President’s Office, the Ministry of Justice, the Provincial government officials and the National Human Rights Commission of Mongolia that met with the mission. We also express our gratitude to all the media owners, media practitioners and non-governmental organizations in sharing their information and views with the mission.

 

For more information, please contact:

  1. Mr. Yap Swee Seng, tel: 95743042 (Ulaanbaatar), +66 81 8689178 (Bangkok), email: yap@forum-asia.org
  2. Prof Hee-Kyoung Cho, email: hkc30@gmx.com