Despite the fact that this field is under detailed regulation by the authorized bodies, there occur cases of dispute on the part of the Internet resources owners over the facts of blocking the website access in law enforcement practice, which, in some cases, are resolved in favor of the Internet sites owners.

10/01/2018

Relevance of the topic

The current Kazakhstan legislation allows government bodies to block users' access to certain Internet resources (websites) using the Internet from the territory of Kazakhstan.

Both small and large business corporate websites, as well as news, advertising and any other resources owned by foreign or transnational companies can be blocked.

Despite the fact that this field is under detailed regulation by the authorized bodies, there occur cases of dispute on the part of the Internet resources owners over the facts of blocking the website access in law enforcement practice, which, in some cases, are resolved in favor of the Internet sites owners.

As known, there has been developed the state program Digital Kazakhstan in Kazakhstan (2018-2022). It is anticipated that the implementation of this program will result in amounting the share of Internet users in Kazakhstan in 2021 to 81%, and the number of domain names in the KZ zone has already exceeded the number of one hundred thousand units.

Since the Internet consists of a variety of data transmission systems, this publication will consider the issues which are related only to the regulation of restrictive measures to Internet resources/websites access.

Legal regulation

The website is accessible on the Internet under a specific domain name.  In accordance with the Law of the Republic of Kazakhstan "On "The Law on Informational Support", a domain name is a symbolic (alphanumeric) denomination, formed in accordance with the rules of Internet addressing, corresponding to a specific network address and intended for named access to an Internet object.

The procedure of registering, using and distributing domain names in the Kazakhstan Internet segment is determined in accordance with the Rules of registration, use and distribution of domain names in the Kazakhstan Internet segment, approved by the order of the Minister of Defense and Aerospace Industry of the Republic of Kazakhstan dated March 13, 2018 No. 38/НҚ (hereinafter "Rules").

The authorized body which performs control and cross-sector co-ordination in the field of information security is the Ministry of Defense and Aerospace Industry of the Republic of Kazakhstan.

The administrator of domain names in the domain of the Kazakhstan Internet segment is the “Kazakhstan Association of IT Companies” Association.

And the maintenance of register and sustaining stable operation of the Kazakhstan first-level domain name is carried out by the domain names register office in the Kazakhstan Internet segment - the Establishment of the Kazakh Network Information Center (KazNIC).

The domain names register office and domain name registrar are different subjects. The latter is a legal entity accredited by the administrator to provide services of registering domain names, registering domain name information, enforcing the registrant’s (the person who stated willingness to register a domain name) right to use the domain name based on agreements between the registry and registrant. The list of the registrars is available on the KazNIC official website.

In accordance with the Law of the Republic of Kazakhstan “On Mass Media” dated July 23, 1999 No. 451-I (hereinafter referred to as the “Law on Mass Media”), certain Internet resources can be classified as mass media.

Thus, according to the Law on Mass Media, an Internet resource that has passed the registration procedure at an authorized body, the information and communication infrastructure of which is located on the territory of the Republic of Kazakhstan, is a mass medium and is defined as a “network publication”.

The state body which performs state regulation in the field of mass media is the Ministry of Information and Communications of the Republic of Kazakhstan.

In which cases your Website/Internet resource could be blocked?

In accordance with Clause 16 of the Rules named above, the use of a domain name in the space of the Kazakhstan Internet segment is suspended in the following cases:

1) revealing inaccurate information about the registrant indicated in the application filed by the registrant for registering a domain name;

2) revealing malware on the Internet resource which threatens the safe Internet use;

3) the existence of a court decision which has taken legal effect to suspend the use of a domain name;

4) if the registrant has not disposed of the information security incident, which has been notified by an authorized body, or by the Computer Incident Responding Agency of the Republican Governmental Enterprise on the basis of the right of economic management "State Technical Service" of the National Security Committee of the Republic of Kazakhstan.

In accordance with the Law of the Republic of Kazakhstan “On Communication” dated July 5, 2004 No. 567-II (hereinafter referred to as the “Law on Communication”), the site may be blocked in cases of its use for criminal purposes detrimental to the interests of the individual, society and the state, and also for disseminating information which violates the legislation of the Republic of Kazakhstan on elections, containing proclivities for extremist and terrorist activity, mass rioting, as well as participation in mass (public) events held with the established order violation, propagandizing sexual exploitation of minors and child pornography.

Also, an Internet resource may be blocked in accordance with the Law of the Republic of Kazakhstan “On Advertising” dated December 19, 2003 No. 508-II (hereinafter referred to as the “Law on Advertising”) if it contains advertisements:

1) of ethyl alcohol and alcoholic products;

2) of breast milk substitutes;

3) of products (works, services) subject to mandatory confirmation of conformity, which have not passed their confirmation of conformity;

4) of tobacco and tobacco products;

5) in the form of holding various events, such as prize drawings, lotteries aimed at stimulating demand and interest in alcoholic products, tobacco and tobacco products;

6) of financial (investment) pyramid scheme activity;

7) of electronic casinos and on-line casinos;

8) of products (works, services) which are prohibited to be produced and sold in accordance with the legislation of the Republic of Kazakhstan;

9) of job vacancies containing discriminatory requirements in the world of work;

10) containing textual, visual, and sound information which violates the generally accepted norms of humanity and morality by using offensive words, comparisons, and images concerning sex.

It is important to emphasize that the government bodies are liable to check the Internet resource on the basis of requests from third parties concerning possible violations. For example, the official website of the Ministry of Information and Communications of the Republic of Kazakhstan has a special icon for such purposes - “Inform on the Internet content”.

Considering that in practice there occurred situations related to the Internet resources blocking without proper prior owner notification, our initial recommendation may be to indicate the possibility of self-check by the website owners of a possible Internet resource access restriction at http://mic.gov.kz/ru/complain. This link also allows you to check if the website is included in the prohibited site registry.

Depending on what was a legal, and in some cases non-legal, basis for restricting access to the site, and which of the authorized bodies initiated its blocking, various legal methods for the possible elimination of these restrictions can be developed and applied.

 

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