Photo by Osvaldo Gago on Flickr and used here with Creative Commons.

"Mongolian law sees few protections in place to ensure confidentiality of sources is maintained."

For more than 70 years, one fixture of Mongolian life was not unlike that of its closest neighbors. During the Soviet period, the sole source of information in the then-satellite state was the state-run Mongolian National Broadcaster.

Twenty years on, and Mongolians now enjoy access to a growing media market. High-speed Internet and more than 500 news outlets are available to most of the country’s 3 million people, with a recent resource boom which continues to bring about rapid change and development.

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Yet a range of broad and ill-defined laws continue to prevent journalists from publishing quality investigative material, without significant risk.

Threats to press freedom

In Mongolia, a heavily concentrated press largely owned by prominent figures sees critical or unflattering stories regularly censored. Exposure of corrupt practice can often leave journalists in fear of prosecution under the country’s criminal defamation laws.

Recently adopted Freedom of Information statues often conflict with privacy laws, thus achieving little by way of greater transparency. Even fewer laws act to protect journalistic practice, the confidentiality of sources or whistle-blowers. Investigative work undertaken by journalists rather than police or intelligence agencies could even be deemed to violate the constitution.

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Coupling these restraints with state secrecy laws merely serves to reinforce a sobering “chilling effect.”

Article 16 of Mongolia’s constitution guarantees rights of free expression, thought, speech, assembly and press. This ensures the right of media and citizens alike to “seek and receive” information.

Yet press advocates emphasize that these constitutional rights do not include the right to “impart” information, “regardless of frontiers,” as international law stipulates. In practice, this means that often other laws will act to circumvent these constitutional protections.

Criminal defamation and libel laws

Perhaps the greatest prosecutorial threat to Mongolian journalism can be found in the country’s defamation laws, which act to criminalize slander, defamation and libel. Such laws are regularly used by prominent figures — namely, individual politicians and increasingly, powerful businesspeople — as a means of shielding themselves from public criticism. While criticism of any kind, say press advocates, is often deemed tantamount to defamation.

Under Mongolia law, defamation is a criminal offense. Article 111.2 of the Criminal Code stipulates that the spread of libel “to the public by means of mass media” is punishable by a fine equal to 51 to 150 times the monthly minimum wage — 9.79 million to 28.9 million tugriks ($5,685 to $16,782) — or incarceration for three to six months. These sums would be more than enough to bankrupt smaller independent news outlets.

Between 1999 and 2011, 313 defamation cases were reported to have involved media officials.

Yet journalists are said to often retract their work before cases goes to trial. Editors may also be held liable for publication of material deemed defamatory.

Judges recently issued statements prohibiting the press from reporting on defamation trials involving media officials as proceedings were underway.

Strict evidentiary rules

Under Mongolian law, journalists also must bear the burden of proof, evidencing that what they’ve published is true and accurate. Yet strict evidentiary rules have prevented some journalists from mounting a strong defense. Evidence has been deemed inadmissible in cases where documentary proof was not notarized as original copy.

Such rules significantly hamper a journalist’s capacity to prove their innocence. This applies especially in investigative cases whereby access to original source documents is not always guaranteed — in which case the law does not provide for a “reasonable publication” defense.

Recently amended laws on crime prevention do not yet list defamation as a criminal offense. Yet press advocates fear that the current Parliament will soon act to demand its inclusion, given that a recent list of plaintiffs in defamation cases against media officials is said to include members of the ruling Democratic Party.

Lack of legal protection for whistle-blowers

Mongolian law sees few protections in place to ensure confidentiality of sources is maintained. Nor are there recognized legal protections for whistle-blowers.

Journalists often face pressure from political, judicial and intelligence officials to give up the names of their sources. There is no legal requirement specifying that journalists comply with such demands. Article 139 of the Criminal Code offers some protection for “a journalist’s professional activities that are consistent with the law.” Yet the statute does not specify what constitutes legal “professional activities.”

Press advocates have expressed their concerns given a prevailing view among the government and judicial officials that investigations remain the purview of intelligence services and police.

Under Mongolia’s Constitution, investigations can technically only be carried out by police, prosecutors or intelligence services. This means that a journalist’s recorded interviews, notes, tapes, even photos, if deemed “investigative material,” could well violate the law.

In 2009 local media freedom institutes reported numerous Mongolian journalists had been threatened or attacked in the course of their careers. One in six Mongolian journalists had received “improper reactions,” often from those directly affected by critical content. Almost 20 percent of those received severe threats of violence, including death threats.

Censorship as ownership: is Mongolia’s media state-controlled?

Media industries elsewhere face significant decline in revenue and reach. Yet Mongolia’s media has thus far bucked these trends.

In 2009 Mongolians enjoyed access to regular news from almost 400 news outlets. By the first quarter of 2013, the number reached 555 — an all-time high. Extraordinary figures, given a population of less than 3 million people.

Prominent government officials and powerful business figures are said to own the vast majority of the country’s news media outlets. Direct government censorship is explicitly outlawed in Mongolia’s constitution. Yet by simply buying up media outlets, the country’s most powerful are then able to apply pressure and where necessary, determine the nature of news content.

Yet exact figures are hard to come by. While legislation states that media ownership and investment shares be made public, often media outlets will submit only a company’s registered name, in which the names of individual investors are not disclosed.

As Globe International President Naranjargal Khashkhuu wryly explains, “It is amazing that all these media outlets can all survive in this small market. So we must ask, who feeds them?”

In a recent interview with DW Akademie, Mongolian Press Institute Executive Director Munkhmandakh Myagmar went on to explain that:

“[D]evelopment is not going based on market principles because the media does not survive on revenues from advertising or sales. Instead the media exists based on financial support or subsidies from politicians. In turn they are obliged to provide information that is wanted by politicians. This makes journalism in Mongolia extremely unhealthy.”

Media outlets are often called upon to sign “agreements of co-operation” with advertisers. These “blocking” provisions will then contractually prevent media from distributing any “negative information” about entities from which they receive funds for advertising.

State media budget figures not disclosed

Media advocates say that while the government releases an annual budget for media development, the public remains in the dark as to which outlets receive the vast bulk of funding.

“In 2012 the Parliament of Mongolia had some 3 billion tugriks in its media funding budget,” says one press advocate. “Yet one particular television station is said to have reserved for it 700 million tugriks of the funding, while others didn’t receive any money, at all. There is no public discussion, so the public is not aware who is getting how much. It makes state funding another form of government censorship.”

Freedom of Information … in theory

In 2011, in response to recommendations from both the UN Human Rights Council and local rights groups, Mongolia adopted its first national Freedom of Information (FOI) Law. Yet advocates suggest that FOI procedures are unworkable, conflict with other laws, and demonstrate the government’s lack of commitment to the law’s implementation.

In 2012 a coalition of civil society actors sought to more closely examine the annual state budget. Together they lodged some 29 FOI requests to government agencies. Only one agency provided a single response before rejecting the request on grounds of violation of individual privacy.

A long list of broad and ill-defined exemptions to FOI (Article 18) acts to curb publication of detrimental information related to national security, the “public interest of Mongolia,” matters of competition, intellectual property or private material relating to the “lawful interests” of individuals or organizations.

So while laws on anti-corruption oblige public officials to disclose their assets and income records, under the law of individual privacy, the information on the properties and net worth of public officials remain a closely kept secret. This helps explain why local media will sometimes report on a politician’s (disclosed) number of livestock, vehicles and other properties, rather than their net value.

State Secrecy Laws

A team of journalists recently tested the responsiveness of government agencies to FOI requests. Government agencies are legally obligated to respond to such requests within a maximum 14 working day period. The journalists sought information regarding the criminal trial and subsequent execution of famed revolutionaries during the early 1920s.

Yet under a broad State Secrets Act, execution notices remain a matter of state secrecy. Documents related to capital punishment are to remain a state secret without limitation — that is, never to be declassified.

The journalists ran significant risks in even requesting such information. Individuals can run afoul of the State Secrets law by simply requesting that information be released — that is, a possible eight years imprisonment for simply “seeking” information deemed secret under the law’s sweeping list of State Secrets, which covers almost 60 broad topics ranging from foreign policy to economics, science to technology, defense to intelligence.

Thus, journalists on the foreign policy beat might do best to avoid never-to-be-declassified “document(s) describing official policy and opinion of Mongolia on cooperation with other countries, all kind of information and reports provided by other countries through accredited manners.”

Instead some may practice self-censorship, directly drawing their reports from official press releases rather than risk running afoul of the law. Such constraints may seem somewhat anachronistic at a time when growing Internet connectedness is said to subvert the influence of state-owned media.

At a recent investigative journalism training session in Ulaanbaatar, media trainers from the UK spoke about privacy and recent moves by major news outlets to publish NSA-related material. The audience of Mongolian journalists asked: “Yes, but how do you fund it?”

Perhaps there is a movement, not yet wholly defined, to enhance press freedom that will likely require new funding models as well as a digital shift.

Only then, equipped with a strong grasp of local laws as well as their constitutional rights to freedom of information, speech and expression, might Mongolian journalists act to loosen the grip of the powerful on public debate.

Lisa Gardner is a journalist and media trainer currently based in Ulaanbaatar, Mongolia. Her work speaks to conflict, new media and human rights in Asia and places particular focus on questions of digital security and freedom of expression. You might find her most days on Twitter (@leesebkk) and can reach her via email (PGP) at [email protected]

JournoSec is a column aimed at helping journalists better under the security, privacy and anonymity challenges they currently face, and steps they can take to protect themselves. Managed by OpenITP Outreach Manager Sandra Ordonez, it brings together leading voices from the community behind open-source technologies that circumvent censorship and surveillance. For more information, follow @OpenITP. To become more involved, contact sandraordonez AT OpenITP DOT org.