By Dulamkhorloo Baatar

I have recently written about the context and content of the proposed new Press Freedom law. Here, I will add some analyses and a sense of the draft’s chance of adoption.

Why are we concerned?

“The draft law on Media Freedom, presented to the Parliament, is praised for including important regulations that ensure journalists’ and media organizations’ right to protect their sources, as well as for promoting transparency in media ownership and financing. However, it is premature to conclude whether the draft law improves the Law on Press Freedom, adopted in 1998, until it is officially adopted by the Parliament and its implementation effectiveness is assessed.” said Narantsetseg Batsaikhan, CEO and co-founder of Fidelitas Partners law firm.

Additionally, even in case the proposed bill is adopted and becomes a law, there are several problematic clauses.

The draft lays out five key principles that media organizations should follow including dissemination of factual information, ensuring objectivity, prioritizing national security, human rights and the public interest, to uphold human dignity and justice and to show respect to legally protected confidentiality. “The mention of safeguarding national security is concerning as it may open a pathway for the state to intimidate journalists and sentence them behind closed doors” according to Mandkhaikhatan Tsevegmid, the CEO of Youth Policy Watch. The removal of such vague principles is also very important according to International Center for non-profit Law (ICNL). “Under international legal standards we don’t recommend prohibiting the publication of false news or require the publication of fact because the term “fact” or “false information” are very broad and gives authorities the discretion to decide that something is not fact or violates the law.” said Lily Liu, legal advisor at ICNL. The Press Institute of Mongolia also states that the mention of these vague principles poses a significant risk to journalists and indicates that several provisions need to be clarified to be effectively utilized to ensure freedom of the press.

The Ministry of Justice and Home Affairs has submitted the Press Freedom Bill as part of a package of laws regulating civic space, including the Law on protests. “Across the bills submitted by the Ministry of Justice, we see a trend to further shrink civic space and increase state interference” said Mandkhaikhatan at the request of Nest Center to comment on the legal landscape. Her concern is shared among several civil society advocates, including the Nest Center despite optimism from the international community welcoming the proposed bill.

Personal liability of journalists isn’t addressed properly in the proposed bill

Another key issue that is still left unaddressed is the personal liability of journalists. This issue that is currently being addressed by the Criminal Code is expected to be left unaddressed even after multiple mentions by civil society groups during a series of discussions with the Ministry of Justice.

The Ministry of Justice and Home Affairs have included two definitions on misinformation and a hybrid of disinformation and malinformation, claiming this will provide guidance to how provision 13.14 under the Criminal Code is applied. The problematic provision uses the term of false information in place of libel and has been used to intimidate journalists under this clause. According to Globe International Center, a total of 2260 cases have been opened under this provision between 2020 and 2024, and 133 instances were submitted to court.

If we break down the data, only on 5 cases, the journalist was found guilty, and was sentenced under the Criminal Code after libel provision was added to the law in January 2020. Between 2020 and 2024, a total of 5 journalists were found guilty under the Criminal Code provision 13.14 out of a total of 2260 cases opened. Although the data is scarce and scattered when it comes to the criminalization of libel, according to Globe International Center, in the four years leading to 2024, 5 percent of all cases opened under this clause was submitted to court and only 0.3 percent of cases was ruled guilty by court. This would mean 99.7 percent of all accused are intimidated under this clause.

Firstly, the fact that only a fraction of the cases opened are submitted to court shows that this clause is mostly used as an intimidation tool, calling journalists to be questioned only to be recused after a series of questioning. Secondly, the prohibiting of false information violates Mongolia’s commitments to the ICCPR, Article 19.

Contrary to what the Ministry of Justice claims, local lawyers say that even if a definition is provided in the Press Freedom Law, it can’t be used to define how the Criminal Code is applied, as the Criminal code is a standalone, procedural law.

Merely providing definition to disinformation in the Press Freedom Law is expected to be insufficient to address the fact that journalists are still being questioned and sentenced by this provision.

“Rather than just including terminology and content specific to the digital environment and dissemination methods in the draft Bill on Press Freedom, it is more important to outline a process that ensures the rights are implemented equally in these different environments and methods. This will help protect press freedom. The draft law needs improvement in this direction in my view.” said Narantsetseg Batsaikhan, CEO and co-founder of Fidelitas Partners law firm.

Do we believe the bill will be successfully passed this time?

If history is any indication, former President Elbegdorj had withdrawn a Press Freedom Bill he had submitted more than a decade ago as the bill’s entire concept was lost during Parliament discussion due to conflicting interests.

“It is unclear how the draft law will change during the stages of discussion and adoption by Parliament. Members of Parliament, standing committees, party, and coalition groups may introduce dissenting opinions or propose substantive changes to the draft law in accordance with the procedures set out in the Law on Procedure of the Plenary Session of the State Great Khural of Mongolia.” said Narantsetseg Batsaikhan, CEO and co-founder of Fidelitas Partners law firm.

Civil society groups are now in a wait and see mode until the Parliament session commences in March to see the initial reaction from Parliament members. Although conflicting interests of MPs may pose a threat to the passage of an ideal law, the civil society groups are hopeful that the current Parliament with record number of members, most of them new to the Parliament would uphold their duties to protect the constitutional rights.

“Regardless of the digital environment or the means of dissemination, legislators must fully uphold their duty to ensure the guaranteed exercise of the constitutional right to freedom of expression. There is no legislation specifically aimed at ensuring the implementation of the constitutionally guaranteed right to freedom of expression” said Narantsetseg.

What’s next?

The spring Parliament session is expected to commence mid-March or early April.

Although the proposition of the bill is a welcome step towards ensuring freedom of expression, the international community, as well as local CSOs agree that there is a long way to go for the proposed bill to be sufficient to address existing issues.

Julie Hunter, senior legal advisor at ICNL states that, “Mongolia does stand out for its generally much better laws and having open process. I think it is a very encouraging sign. And the challenge is to safeguard and continue to protect rights and not necessarily to rush laws. I understand the eagerness to pass the law, but if they do have any of these more restrictive provisions those can be so problematic that they might eclipse the positive aspects of the law. I think the press freedom effort is really important because free journalism and access to information is one of the bedrocks to democracy. We need to protect it globally.” Pierre Dagard, from RSF says, “this draft law is a good basis on which the Parliament can work on”.

Local civil society groups and media professionals will continue to monitor the process and advocate for a legal environment that would be relevant in the years to come.

About Dulamkhorloo

My name is Dulamkhorloo Baatar. I run the Nest Center for Journalism Innovation and Development NGO, established in 2020 to support media organizations to become financially sustainable and resilient, enabling them to better serve the public’s right to information. Following our incubation programs enabling journalism startups to invest in their public interest reporting and creating several high impact stories, our beneficiaries started witnessing increased intimidation attempts which led us to gear our mission towards improving legal regulations and creating a safeguard for journalists.