The news website Tengrinews reported, according to a study conducted by “Media Systems” during the winter of 2015-2016, that they are in Kazakhstan 3.3 million people regularly using social media.
On the most popular social network, namely Vkontakte, Kazakhs people publish every day a very large number of pictures and videos even though a significant proportion of the published content breach the law and/or violates the right to privacy or intellectual property rights held by individuals as detailed on the website Ktk.
One should bear in mind that according to article 20 of the Kazakh Constitution, individuals enjoy freedom of speech and creativity. That is, when it comes to taking pictures and videos, what is not prohibited is deemed to be authorized, except otherwise.
However, when it comes to the distribution of content, then the rule becomes the exception. In other words, taking a picture or a video is almost always permitted, but not the use of it (publication, copies…) since image rights are protected under the Kazakh legislation as intangible rights.
Publishing content on social networks is sometimes formally forbidden by the law, sometimes disseminating content is permitted but only with consent of the right holder and in the remaining cases, individuals can publish freely content without asking for consent.
I – Forbidden publication in any case.
- State secrets, terrorism and violence.
For national security reasons, it is not permitted to publish state secrets, to promote online extremism (especially terrorism), to disclose information about anti-terrorist operations or to encourage violence and cruelty.
Disseminate content on social media is expressly and, in any case, forbidden if it undermines morality. Thus, the Kazakh legislation forbids, inter alia, any publication with a pornographic content or the promotion of narcotic drugs and psychotropic substances.
II – Authorized publication with consent.
- Right to privacy.
The right to privacy is protected in the Kazakh legislation in all its forms. Put in another way, the collection, storage, use and dissemination of information about the private life of a person without his or her consent is prohibited.
Indeed, the Kazakh Constitution, in its article 18, paragraph 1, states that “Everyone has the right to privacy, personal and family privacy, protection of his / her honour and dignity”. In the
civil code, article 145 adds that “No one has the right to use the image of any person without his consent, and in case of death, without the consent of the heirs”.
Thus, if a publication on social media violates the right to privacy, then his author will be subject to several sanctions such as fines and/or imprisonment (in some cases, up to 7 years) according to article 147 of the criminal code.
In addition, the victim of the infringement of privacy rights will be able to lodge a complaint not only on the right to privacy grounds but also for the “moral harm” caused by the publication to himself or his close relatives, under article 951 of the civil code of the Republic of Kazakhstan.
- Intellectual property rights.
Users of social media should bear in mind that intellectual property rights are just as well protected by the law when it comes to media and social network, under article 125 of the Kazakh civil code. For instance, shooting and publishing a significant part of a book or a movie, in other words publishing any content without the consent of the right holder, constitutes an offence.
Users of social networks should be even more careful than previously as right holders have now at their disposal software’s able to automatically detect and report any infringement of rights.
III – Authorized publication without consent.
- Sharing content.
One should look at each social network terms and policies to know whether sharing content published on other media constitutes an offense.
For instance, in accordance with the terms and policies of the video-sharing website YouTube, an individual, as long as he only shares content published on YouTube via the specific feature “share” indicated on the aforementioned website cannot be held responsible for a violation of privacy or a breach of the law on intellectual property rights.
- Publications on police officers in the performance of their duties.
Police officers, when they stop a vehicle, are supposed to check documents, explain why they decided to stop the vehicle, which violation has been committed (if any) and draw up a protocol. In the performance of his duties, the driver is authorized by the article 54 of the law “On road traffic” to shoot pictures and videos of the police officer.
Next, one should notice that article 145 of the Kazakh civil code on the right to privacy does not apply to police officers in the performance of their duties. Thus, the publication of these pictures and videos on social media is, except as otherwise, permitted by the Kazakh legislation in accordance with article 4 of the law "On civil service of the Republic of Kazakhstan" and article 54 of the law "On road traffic".
For instance, in 2014, in the city of Semey in Kazakhstan, a driver stopped by the police decided to film the officers and to publish this video on YouTube. Following this, the police officer filed an administrative action under article 802 of the administrative code. As reported by the news website 365infokz, the court dismissed the plaintiff since he was, at the moment of the incident (28 June 2014), “in working hours in the performance of official duties”.