By Toby Mendel
Background
Mongolia adopted its Law on Media Freedom in 1998 (1998 Media Law) as a statement of its commitment to media freedom. The 1998 Media Law, however, has only four short articles which set out the following standards:
- Article 1 describes the purpose of the law as being to guarantee freedom of expression and the right to publish, as set out in the Constitution of Mongolia.
- Article 2 states: “The Parliament shall be prohibited to adopt any laws restricting freedom of mass media”.
- Article 3 comprises two key ideas, namely that the media shall be responsible for what they disseminate, and that the State shall not censor media content or finance others to do this0s.
- Article 4 prohibits State organisations from owning media outlets.
While the intention behind this was no doubt positive, in fact the 1998 Media Law suffers from being too vague, too general or unrealistic, while the clearest provision, Article 4, has simply been ignored. Article 2, for example, is just unrealistic. Every country in the world has laws which restrict freedom of expression and indeed media freedom. It may have been inspired by the First Amendment to the Constitution of the United States which states, in relevant part, “Congress shall make no law … abridging the freedom of speech, or of the press”. However, in practice, courts in the United States have defined a number of categories of so-called “unprotected speech” so as to get around the otherwise apparently absolute nature of this prohibition.
International law takes an arguably much more practical approach, providing broad protection for freedom of expression but also allowing States to impose restrictions as long as they meet a strict three-part test. This allows for a more careful tailoring of restrictions. For example, courts in the United States have not been able to read the right of journalists to protect their sources into the First Amendment, whereas international courts have had no problem doing this under international guarantees.
Local actors in Mongolia have long understood that the 1998 Media Law needs to be revised so as to provide more practical protections for media freedom, and there have been a number of attempts to introduce replacement legislation over the years. None, however, have come to fruition (i.e. in the form of a law actually getting passed).
That may change soon. The current government has made a commitment to adopt a Law on Freedom of the Media (draft Media Law) and, in 2024, the Ministry of Justice and Home Affairs (MJHA) struck a multi-stakeholder Working Group to develop this legislation. A consultation draft was released at the end of October 2024. I happened to be in Mongolia at the time, for the launch of the Media Law Forum on 1 November 2024, and so I was able to meet with the MJHA Working Group to give them some quick feedback on the draft.
Discussion on Law on Media Freedom
The MJHA Working Group has now handed the draft over to Parliament, where it is being considered by the Legal Standing Committee (the 23 January draft is available here in Mongolian). If that Committee approves it for further consideration by Parliament, the latter will likely set up a working group to review the draft. As part of this process, the Parliament of Mongolia formally asked UNESCO for technical assistance to help ensure the draft Media Law was in line with international standards. UNESCO, in turn, reached out to my organisation, the Centre for Law and Democracy, to provide this technical assistance. I prepared a detailed analysis of the draft Media Law, which is available in both English and Mongolian, and undertook a mission to Ulaanbaatar from 23-29 March to meet with local stakeholders to discuss this analysis and its recommendations.
The current draft: strengths and weaknesses
Overall, the intention behind the draft Media Law is positive and almost all of its provisions are oriented towards protecting media freedom. As such, I believe it is important to move forward with this legislation, albeit in a way that makes necessary improvements to it. My analysis identifies numerous areas where the draft could be improved. These may be grouped into four different areas. First, there are a lot of fairly technical comments about improving the language and approach.
Second, one provision, namely Article 5.1, is problematical from a media freedom perspective. This article describes itself as setting out “principles” which must be adhered to by journalists, but the rules in Article 5.1 are actually restrictions on the work of journalists. They are also all either entirely inappropriate as standards for journalism – such as the requirement for journalists to “prioritise national security” – or are legitimate only as part of a system of professional regulation (self-regulation) of the media and not as directly binding legal requirements. This provision should simply be removed. There are also a number of provisions calling on the media to base their reporting on facts or to report accurately. This is again inappropriate as a directly binding legal requirement, although the need for the media to act professionally to ensure the accuracy of the information they disseminate is covered by all self-regulatory systems.
Third, in many cases, the provisions in the draft Media Law are unduly vague or general. For many of these provisions, I have proposed enhancements to the language so as to provide more practical support for media freedom. For example, Article 6.1 is very similar to Article 2 in the 1998 Media Law. Here, I have proposed that this be replaced by a set of conditions on any laws which restrict media freedom, in line with the three-part test for this under international law. An 11 March 2025 post on this site by Dulamkhorloo Baatar, Founder and Chair of the Nest Center for Journalism Innovation and Development, includes a focus on the problematical Article 13.14 of the Criminal Code. While it might be preferable simply to repeal this provision, setting clear standards for restrictions on freedom of expression might allow for this and the many other problematical provisions in Mongolia law to be reviewed.
Another example of this is Article 14, which addresses media self-regulation. Article 14.1 states that the media sector “will have” its own independent self-regulatory body, while the following articles set out mandatory conditions for the system, such as that it will adopt professional standards for the media, accept and review complaints relating to those standards and issue professional opinions in relation to those complaints. While this appears to recognise the self-regulatory system run by the Media Council of Mongolia, it does nothing to support that body and it is also not very clear. For example, if a second self-regulatory body were to be set up, would it also be recognised? I have instead proposed that the law provide for the recognition of any body which has certain characteristics (largely in line with those currently found in Article 14). But I have also proposed that, where a body has been recognised, complaints about the members of the body should be required to go through the self-regulatory system before a court case may be lodged. This approach applies in Indonesia and it has proven to be very successful in terms of both providing redress for the public and protecting media freedom. If adopted, this would significantly enhance the work of the Media Council.
Finally, my analysis casts this draft Media Law as a quasi-constitutional law, given that protection of a constitutional right is its stated purpose. As such, it should set out a broad range of governing standards for media freedom, which other laws must then comply with. From this perspective, the draft Media Law is missing a number of important elements, which I spell out in my analysis. These include, for example, the governing principles for public service media (independence, public funding and accountability to the public), as well as for the regulation of other media sectors (journalists, and print, broadcast and digital media). A 25 February 2025 blog on this site by Dulamkhorloo Baatar, Founder and Chair of the Nest Center for Journalism Innovation and Development, available here, also suggests other areas which should be included in the draft Media Law, such as subsidies for the media, but this is quite controversial and challenging to include in legislation of this sort.
The draft Media Law can be described as a good start, but more needs to be done. This law has the potential to play an important role in safeguarding media freedom in Mongolia and, as such, it should be prioritised. But significant amendments will be needed if it is to fulfil that potential.
About Toby Mendel
Toby Mendel is the Executive Director of the Centre for Law and Democracy (CLD), a Halifax, Canada based international human rights organisation which focuses on foundational rights for democracy (freedom of expression, the right to information, freedom of association and assembly and the right to participate). He has worked on these issues globally and in countries around the world for over 25 years. In addition to leading CLD, he also works with a range of inter-governmental organisations – including UNESCO, the World Bank, the OSCE and the Council of Europe – on these human rights issues. He has been working in Mongolia since 2001 and, in 2021, he was awarded the Mongolian Friendship Medal by the President of Mongolia. In March 2017, he posted a guest blog on this site, The Long Journey – Towards a Broadcasting Law in Mongolia.