Enabling Freedom of the Press (MN0055)

Statement of public problem Mongolia’s revised Criminal Code and Law on Infringements establish liability for “dissemination of obviously false information to the public” that damages a person’s dignity or a legal entity’s business reputation. The broad and vague description such as “obviously false” ignores the nature and effects of information impartation, one of which is information distortion, and entails the risk of abuse of law, discriminatory or arbitrary ruling and ultimately the threat of restricting freedom of expression. The Law of Mongolia on Broadcasting, effective since 1 July 2020, does not guarantee independent regulation of the sector and grants the Government full authority for licensing from granting to revoking. Under the Public Radio and Television Management Law, a national broadcaster has been set up with the function of providing the public with objective information free of any political or business interest. However, some provisions of the PRTV Law and problems in its implementation prevent due discharge of this function of delivering impartial and balanced information. Source confidentiality is granted only under the PRTV Law, which creates a situation where reporters working for other media outlets, and particularly investigative journalists are compelled to reveal their source idenditties when summoned to the court of law for their critical reporting.

Commitment description Strengthen legal guarantees of the freedoms of the press and expression by aligning the aforementioned legislation with international legal norms, in particular with the spirit of Article 19 of the International Covenant on Civil and Political Rights.

Contribution to public problem • Transparency of the activities of public institutions and officials will increase in line with policy objectives and public expectations. • The risk of being groundlessly denied the freedom of expression and the professional duty of independent reporting on the pretext of imparting “obviously false information” will be effectively mitigated . • People’s right to receiving quality information from diverse sources will be strengthened by limiting political interference in the broadcasting sector which has exceptional influence on shaping public opinion • Increased transparency with regard to media owners will help opening up conflicts of interest that bear on the content and quality of information and ultimately be of benefit to people’s right to know. • Institution of clearly defined and effective legal safeguards from overcentralization in the media sector will be conducive to nurturing pluralistic media serving the public as a source of diverse information.

Relevance to OGP values ● Transparency The commitment aims at supporting public right to know by strenghtneing the basis of transparency, availability and diversity of information . ● Public participation The commitment is to ensure the public’s right to receive information on government decision-making and thereby contribute to the public’s capacity to influence policy decisions. ● Government accountability The commitment is to improve availability of information that is essential for bringing government accountability mechanisms into effect.

Coherence with other policies and strategies - “National Anti-Corruption Program”, Section 5.2.5;” create conditions for citizen oversight of investigations of acts of corruption, abuse of power and conflict of interest as well as informant protection processes by establishing systems for corruption control and prevention in political and law enforcement organizations”, to be implemented in the Program’s second stage 2020-2023. (NACP approved by Parliament Resolution 51 of 2016) - “Vision-2050” Long-Term Development Policy, Parliament Resolution 52, 2020, its Action Plan for 2021- 2030: Provision 5.6.5 “Improve systems for receipt and confidentiality of information on corruption and abuse of power; develop a legal framework for the protection of persons who uncovered and/or reported such acts of malfeasance; strengthen private sector and civil society cooperation in corruption prevention, and citizen oversight”. - “Guidelines to Strengthen Mongolia’s Legislation in the Period to 2024”, Article 92: “ put in place a legislation protecting individuals who critised, reported and/or disclosed wrongful activities of public and/or private entities from being harassed, penalized or criminally charged to ensure that whistleblowers are not victimized through vengeance and/or other criminal acts”. (Guidelines approved by Parliament Resolution 12 of 2021) - Relevance to the SDGs: Goal 16: “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and transparent institutions at all levels” Target 16.5 (Substantially reduce corruption and bribery in all their forms), Target 16.6 (Develop effective, accountable and transparent institutions at all levels), Target 16.7 (Ensure responsive, inclusive, participatory, and representative decision making at all levels), Target 16.10 (Ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements);

Target definition Protect person’s right to receive balanced and objective information from an independent media, and assure the right to freedom of expression.

Follow-up actions • Public advocacy and promotion of new legislative amendments ● Information and education activities for relevant public servants to ensure implementation of the legislation ● Independent monitoring of the implementation of the legislation

Milestones Start date: End date: 1. A working group in charge of the commitment formed 2021.12.1 2022.3.15 2. Assessment of the legislation relevant to the commitment, and communication of outcomes to stakeholders 2021.12.15 2022.3.15 3. Study of international norms and standards relevant to the commitment, drafting of amendments 2022. 2.15 2022.5.15 4. Discussion and feedback on the proposed amendments from the public and communities 2022. 5.15 2022.7.15 5. Finalization and submission of amendments, lobbying 2022.7.15 2022.9.15 6. Insertion of a provision securing the right of a reporter to protect source anonymity in the Law on Whistleblower Legal Status and the Freedom of the Press Law. 2022.7.15 2022.9.15 7. Amendment to the Law on State and Official Secrets to establish a procedure whereby the state secrets list only be defined and approved by law rather than Cabinet Resolution and/or government agency decision. 2022.7.15 2022.9.15

Action Plan Review

Commitment 8. Legal Environment Enabling Freedom of the Press

Commitment Cluster 2 and 8: Legislation on Freedom of Information and the Press

For a complete description of the commitments included in this cluster, see Commitments 2 and 8 in Mongolia’s 2021-2023 Action Plan.

Context and Objectives:

This cluster of commitments intends to strengthen freedom of information and improve the press’ operational environment in Mongolia, building on a commitment in Mongolia’s second action plan, which supported efforts to pass the Law on Broadcasting adopted in 2019. [37] Commitment 8 aims to protect source anonymity for journalists through amendments to the Law on Whistleblower Legal Status and the Freedom of the Press Law. To improve access to information, a milestone repeated in both Commitments 2 and 8 plans for an amendment to the Law on State and Official Secrets to establish a legislative procedure for defining the state secrets lists, rather than leaving state secrets to the discretion of cabinet resolutions or government agency decisions.

Potential for Results: Substantial

The Democracy Education Center considers this initiative to have substantial potential to achieve meaningful impact on freedom of the press. [38] According to Reporters Without Borders, the Mongolian media’s watchdog role has been limited to date by issues with government transparency and media legislation. [39]

Source anonymity is a key concern for journalists in Mongolia. The Public Radio and Television Management Law is the only law that protects source anonymity. In other sectors of journalism, these legal protections are absent. In response to critical reporting, investigative journalists are sometimes compelled to reveal the identity of their sources. According to the Globe International Center, a Mongolian CSO, coercion to disclose sources was common in 2020. For example, a journalist from the Arkhangai province received a letter from the province’s police department urgently requesting collaboration in disclosing information on officers that had been sources for an article. Likewise, Zarig.mn received a similar letter from the national police agency. [40] Amendments to the Law on Whistleblower Legal Status and the Freedom of the Press Law could widen protection of source anonymity, filling an important legislative gap. Reporters Without Borders highlights protection of sources as an important area for media reform. [41]

A survey of 81 Mongolian journalists or media workers also revealed that access to information was considered an obstacle to free media by 95% of respondents. Respondents described a culture of silence in the government and civil service bureaucracy. Government bodies that refused to provide information to the journalists reportedly often saw the information as falling into the categories of private secrets, organizational secrets, or state secrets. [42] Amendment to the Law on State and Official Secrets, including annulment of Articles 13.2 and 14.1, could open access to government information by limiting the discretion of cabinet resolutions or government agency decisions to withhold information. It is intended to narrow permissible limitations on the right to information to scenarios in which information is pertinent to the interests defined by law, assessment finds material damages would be caused by information disclosure, and these damages take precedence over the public interest of freedom of information.

Other milestones included in Commitment 2 have modest potential for results, and some are more relevant to other commitments. The commitment does not offer sufficient clarity on planned citizen participation in anti-corruption efforts, an initiative that is not aligned with the commitment’s overall objective. It also does not offer details on the pandemic related information transparency measures or legislative amendments on citizens’ right to know about environmental impact of mineral resource consumption. One of its milestones repeats milestones in Commitment 5 (which aim to evaluate the Law on Legislation, the Law on Public Hearing, and the General Administrative Law) but does not plan for implementing the resulting recommendations in legislative reforms. The milestones’ lack of coherence and verifiability gaps limit the potential impact of this commitment.

Opportunities, challenges, and recommendations during implementation

To achieve legislative amendments on media freedoms, this initiative can leverage high-level political backing and engagement of the Mongolian Press Council and the Press Institute of Mongolia, organizations new to Mongolia’s open government process. [43] However, in terms of efficacy of planned legislative amendments, existing media freedom legislation has suffered from weak implementation, [44] which could continue to pose a challenge. As such, the IRM recommends the following:

In future action plans, consolidate commitments with overlapping milestones into a single commitment to streamline coordination and planning. Ensure that only milestones which contribute to the commitment objective are included in each commitment.

Results Report

Commitment 8. Legal environment enabling freedom of the press

This commitment was clustered as: Legislation on Freedom of Information and the Press (Commitments 2 and 8)

This commitment aimed to facilitate a multi-stakeholder process to amend the Law on State and Official Secrets, Law on Whistleblower Legal Status, and Law on Freedom of the Press. Implementation did not progress during the action plan cycle, based on evidence in the government self-assessment report and comments from the Media Council of Mongolia. Prior to the implementation period, initial assessment of the three laws was completed by March 2020. [69] This was then followed by the creation of a working group to develop amendment proposals in December 2020. [70] Amendment of the Law on State and Official Secrets particularly did not see any progress due to the proposal being screened in secrecy by the National Security Agency. [71]