Article 212. Provision of Services for Hosting Internet Resources Pursuing Unlawful Purposes

1. Knowingly unlawful provision of services involving the provision of hardware and software systems operating on an open information and communications network for hosting internet resources pursuing unlawful purposes —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to two years.

2. The same act committed by a group of persons by prior conspiracy or by a criminal group —

shall be punishable by imprisonment for a period of three to seven years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.

The public danger of the act commented on herein is associated with the significant harm caused to society as a result of the functioning in the information space of resources that distribute materials of a terrorist or extremist nature, pornography, malicious software, and other similar unlawful materials (content).

The object of the crime under consideration is public relations associated with ensuring the protection of the information space against materials containing unlawful content.

The information space is a sphere of activity associated with the formation, creation, transformation, processing, transmission, use, and storage of information. The information space acts as a means of influencing individual and public consciousness, information infrastructure, and information itself.

From the objective side, the crime is expressed in the unlawful provision of services involving the provision of hardware and software systems operating on an open information and communications network for hosting internet resources pursuing unlawful purposes.

An open information and communications network shall mean the Internet.

Whether the services are provided for remuneration or free of charge is irrelevant for the purposes of qualification.

Services involving the provision of hardware and software systems operating on an open information and communications network shall include: the creation and maintenance of a website, a personal page, and a file storage and sharing service.

Internet resources pursuing unlawful purposes include materials containing the propaganda and justification of extremism or terrorism, information disclosing the technical methods and tactics of counter-terrorism operations during their conduct, propaganda of narcotic drugs, psychotropic substances and precursors, the cult of cruelty and violence, pornography, as well as malicious software.

By its legal construction, the elements of this crime are formal. The crime shall be deemed completed from the moment the owner or holder of hardware and software systems operating on an open information and communications network provides access to such systems to a person intending to host an internet resource pursuing unlawful purposes.

From the subjective side, the crime may be committed only intentionally: the perpetrator is aware that they are providing a hardware and software system (hosting) for the placement of internet resources distributing unlawful information (content), foresees the possibility or inevitability of socially dangerous consequences, desires their occurrence or is indifferent to them. Knowingly means that, prior to providing the hardware and software system, the person had reliable knowledge that unlawful information would be posted on the resource.

The motives and purposes of this crime may vary and do not affect its qualification; however, they must be taken into account when individualising the punishment.

The subject of the crime is a sane natural person who has attained the age of sixteen.

The qualifying features under Part 2 of Article 212 of the Criminal Code are the commission of the crime by a group of persons by prior conspiracy and by a criminal group. For definitions of the concepts of “group of persons by prior conspiracy” and “criminal group”, see the commentary to Article 206 of the Criminal Code.

The act provided for in Part 1 of Article 212 of the Criminal Code is classified as a minor offence.

The act provided for in Part 2 of Article 212 of the Criminal Code is classified as a serious crime.

Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan, by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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