Commentary to article 451. Violation of the legislation of the Republic of Kazakhstan on mass media The Code of the Republic of Kazakhstan on Administrative Offences

Home / Codes / Commentary to article 451. Violation of the legislation of the Republic of Kazakhstan on mass media The Code of the Republic of Kazakhstan on Administrative Offences

Chapter 26. ADMINISTRATIVE OFFENSES IN THE FIELD OF PRESS AND INFORMATION

The Constitution of the Republic of Kazakhstan guarantees freedom of speech, creativity, expression in print and in other forms of one's views and beliefs, receipt and dissemination of information in any way not prohibited by law.

The most important guarantees of stability and effectiveness of public administration in a modern democratic society are the availability of mass media that objectively cover political events. Therefore, the media should both be free from political influence and should provide citizens with real opportunities for public expression and freedom of speech.

In modern society, the press, radio and television have become essential attributes of life. Such legislative acts as the Law of the Republic of Kazakhstan dated July 23, 1999 "On Mass Media", the Law of the Republic of Kazakhstan dated November 16, 2015 "On Access to Information", the Law of the Republic of Kazakhstan dated November 24, 2015 "On Informatization", the Law of the Republic of Kazakhstan dated January 18, 2012 "On Television and Radio Broadcasting", the Law of the Republic of Kazakhstan dated November 19 The December 2003 Law on Advertising regulates the activities of the mass media.

Chapter 26 of the Administrative Code contains the elements of administrative offenses in the field of press and information, the generic object of which is public relations, protected by the above-mentioned legislative acts.

Article 451. Violation of the legislation of the Republic of Kazakhstan on mass media

1. Distribution of mass media products, messages and materials of an information agency and an online publication without registration or after a decision has been made to suspend or terminate their release (airing) or invalidate the registration certificate -

entails a fine for officials in the amount of ten, for small businesses - in the amount of twenty, for medium-sized businesses - in the amount of fifty, for large businesses - in the amount of three hundred monthly calculation indices, with confiscation of mass media products.

2. Production, manufacture, replication and (or) distribution of mass media products, messages and materials of an information agency and an online publication without re-accounting in cases of a change of owner or its organizational and legal form, name, as well as the name of the mass media, changes in the language of the publication or broadcast, the territory of distribution, the main thematic focus, the frequency of issue -

They impose a fine on officials in the amount of forty, on small businesses - in the amount of one hundred, on medium-sized businesses - in the amount of two hundred, on large businesses - in the amount of one thousand monthly calculation indices, with the suspension of the release (airing) of mass media for up to three months.

3. The actions provided for in the second part of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -

entail the prohibition of the release (airing) of mass media.

4. Dissemination in violation of the requirements of the legislation of the Republic of Kazakhstan in the mass media or via telecommunications networks of personal and biometric data, other information that allows to identify a minor who has suffered as a result of illegal actions (inaction), as well as a suspect and (or) accused of committing an administrative and (or) criminal offense, with the exception of minors recognized as by a court guilty of committing grave or especially grave crimes, including information about their parents and other legal representatives, -

entails a fine for individuals in the amount of five, for officials, small businesses or non-profit organizations - in the amount of twenty-five, for medium-sized businesses - in the amount of fifty, for large businesses - in the amount of one hundred monthly calculation indices.

5. The action provided for in part four of this article, committed repeatedly within a year after the imposition of an administrative penalty, -

entails a fine for individuals and officials, small business entities or non-profit organizations - in the amount of fifty, for medium-sized businesses - in the amount of one hundred, for large businesses - in the amount of two hundred monthly calculation indices.

Part 1 of the commented article provides for administrative liability of officials and business entities in the form of an administrative fine with confiscation for distributing mass media products, messages and materials of an information agency and an online publication without registration or after a decision is made to suspend or terminate their release (airing) or recognition of the registration certificate as invalid. the power.

The direct object of the administrative offense provided for in part 1 of the commented article is the procedure established by law and protected by the state for complying with the requirements for the distribution of mass media products.

According to the Law of the Republic of Kazakhstan dated July 23, 1999 "On Mass Media" (hereinafter - the Law) The distribution of mass media products means the sale (subscription, delivery, distribution) of periodicals, the airing of radio and television programs, the demonstration of newsreel programs and the posting of information on Internet resources.

The objective side of an administrative offense provided for in Part 1 of Article 451 of the Administrative Code is characterized by an action, namely:

- distribution of mass media products, messages and materials of an information agency and an online publication without registration;

- or the distribution of mass media products, messages and materials of an information agency and an online publication after a decision has been made to suspend or terminate their release (airing) or invalidate the registration certificate.

According to the requirements of article 10 of the law, periodicals and news agencies operating in the territory of the Republic of Kazakhstan are subject to mandatory registration.

There are exceptions to this rule, namely, article 12 of the law provides for exemption from registration of periodicals with a circulation of less than one hundred copies, official, regulatory and other acts and bulletins of judicial practice.

According to paragraph 1 of Article 13 of the law, the suspension or termination of the release or distribution of media products registered with the authorized body is possible by decision of the owner or the court.

Suspension is understood as the temporary cessation of the release of one or more issues of publications, the airing of television, radio programs, television, radio channels, the temporary suspension of the activities of an online publication, as well as the distribution of mass media products until the reasons that served as the basis for the suspension are eliminated. The suspension of the release of mass media or the distribution of mass media products is allowed for a period of no more than three months.

Paragraph 3 of article 13 contains the following grounds for suspending the release of mass media or the distribution of mass media products:

- propaganda or agitation of the cult of cruelty and violence, social, racial, national, religious, class and tribal superiority;

- disclosure of information constituting state secrets or other legally protected secrets;

- dissemination of information promoting suicide;

- disclosing the techniques and tactics of anti-terrorist operations during their conduct;

- propaganda of narcotic drugs, psychotropic substances, their analogues and precursors;

- distribution of television, radio programs, television, radio channels, as well as demonstration of pornographic and special sexually erotic films;

- the use of mass media for the purpose of violating the conditions of election campaigning;

- carrying out activities by foreigners, stateless persons, foreign legal entities and international organizations that hinder and (or) facilitate the nomination and election of candidates, political parties that have nominated a party list, achieving a certain result in elections, and campaigning during the period of its prohibition;

- coercion to participate or refuse to participate in a strike, violation of the legislation of the Republic of Kazakhstan on the organization and conduct of peaceful assemblies, rallies, marches, pickets and demonstrations;

- about copyright and related rights on the Internet;

- as well as violation of the requirements provided for in paragraph 6 of Article 10 of the Law, which provides, namely, that a periodical, news agency and online publication are subject to re-registration in cases of a change of ownership or a change in its name, as well as the name, language of the publication or materials and messages, the territory of distribution, the main thematic focus and frequency of issue.

The grounds for termination of the release of mass media or the distribution of mass media products, according to paragraph 4 of Article 13 of the law, are:

- propaganda or agitation of violent change of the constitutional order, violation of the integrity of the Republic of Kazakhstan, undermining the security of the state, war;

- propaganda of extremism or terrorism;

- publication of materials and dissemination of information aimed at inciting ethnic and interfaith hatred;

- as well as failure to eliminate the reasons for suspending the release of mass media or the distribution of mass media products within the prescribed period.

Propaganda in the mass media is understood as the dissemination of views, facts, arguments and other information, including intentionally distorted information, in order to form a positive public opinion about information prohibited by the legislation of the Republic of Kazakhstan and (or) to encourage an unlimited number of people to commit illegal acts or omissions.

The termination of the release of mass media or the distribution of mass media products entails the cancellation of the registration certificate.

In case of suspension or termination by a court decision that has entered into force of the release of mass media or mass media products, when the media is an Internet resource, authorized state bodies, owners of Internet resources are obliged to suspend or stop the release of mass media or the distribution of mass media products on the territory of the Republic of Kazakhstan.

The subject of an administrative offense provided for in part 1 of the commented article are officials and business entities (a special entity). The sanction provides for administrative liability in the form of an administrative fine with confiscation of mass media products.

The subjective side of the acts provided for in Part 1 of Article 451 of the Administrative Code is characterized by guilt in the form of intent or negligence.

The composition of the administrative offense provided for in the commented article is formal, that is, it is considered completed from the moment the fact of the offense is discovered by the controlling body and it is not necessary to establish the fact of causing material harm.

Part 2 of the commented article provides for the administrative responsibility of officials and business entities for the production, manufacture, replication and (or) distribution of mass media products, messages and materials of an information agency and an online publication without re-accounting in cases of a change of owner or its organizational and legal form, the name, as well as the name of the media, language changes publications or broadcasts, the territory of distribution, the main thematic focus, and the frequency of issue.

The direct object of the administrative offense provided for in part 2 of the commented article is the procedure established by law and protected by the state for compliance with the requirements of a periodical, an information agency and an online publication for re-accounting.

The objective side of the administrative offense provided for in part 2 of the commented article is expressed in action, namely

- production, manufacture, replication and (or) distribution of mass media products, messages and materials of an information agency and an online publication without re-accounting in the cases specified in paragraph 6 of Article 10 of the law. According to this rule, a periodical, an information agency, and an online publication are subject to re-accounting in cases of a change of ownership or a change in its name, as well as the name, language of the publication or materials and messages, the territory of distribution, the main thematic focus, and the frequency of issue.

The subject of an administrative offense provided for in part 2 of the commented article are officials and business entities (a special entity). The sanction provides for administrative liability in the form of an administrative fine with the suspension of the release (airing) of mass media for up to three months.

The subjective side of the acts provided for in Part 2 of Article 451 of the Administrative Code is characterized by guilt in the form of intent or negligence.

Part 3 of the commented article establishes a more severe punishment for repeated commission of an act provided for in part 2 of Article 451 of the Administrative Code within a year after the imposition of an administrative penalty.

The sanction provides for a ban on the release (airing) of mass media.

Part 4 of the commented article provides for administrative liability in the form of an administrative fine for the dissemination, in violation of the requirements of the legislation of the Republic of Kazakhstan, in the mass media or via telecommunications networks of personal and biometric data, other information that allows to identify a minor who suffered as a result of illegal actions (inaction), as well as a suspect and (or) accused of committing an administrative offense. and (or) a criminal offense, with the exception of minors, those found guilty by the court of committing grave or especially grave crimes, including information about their parents and other legal representatives.

The direct object of the administrative offense provided for in part 4 of the commented article is the procedure established by law and protected by the state for complying with the requirements for the dissemination of personal and biometric data in the media or via telecommunications networks, as well as other information about minors, parents and other legal representatives.

The objective side of the administrative offense provided for in part 4 of the commented article is expressed in action, namely in the dissemination of personal and biometric data, other information about minors who have suffered as a result of illegal actions (inaction), as well as suspects and (or) accused of committing administrative and (or) criminal offenses, with the exception of minors who are recognized as by a court guilty of committing grave or especially grave crimes, including information about their parents and other legal representatives.

According to sub–paragraphs 1), 2) of Article 1 of the law, biometric data is personal data that characterizes the physiological and biological characteristics of a personal data subject, on the basis of which his identity can be established; personal data is information related to a specific or determined on the basis of personal data subject, recorded on electronic, paper and (or) another tangible medium.

According to paragraph 3-4 of Article 14 of the law, it is prohibited to disseminate personal and biometric data of a person in the media or telecommunications networks, including information about his parents and other legal representatives, other information that allows identification, about:

1) a child who suffered as a result of illegal actions (inaction);

2) minors suspected and (or) accused of committing administrative and (or) criminal offenses.

The action described in subparagraph 2) of paragraph 3-4 does not apply to minors found guilty by a court of committing grave and (or) especially grave crimes, including information about their parents and other legal representatives.

The subjective side of the acts provided for in Part 4 of Article 451 of the Administrative Code is characterized by guilt in the form of intent or negligence.

The subject is individuals, officials, as well as business entities.

An example is Resolution No. 4a-610/2018 of October 8, 2018, issued by the Orenburg Regional Judge (Russian Federation).

Such a rule of the Administrative Code is defined as the illegal dissemination of information about a minor who has suffered as a result of illegal actions (inaction), or violation of the requirements provided for by federal laws for the dissemination of such information, if these actions (inaction) They do not contain a criminally punishable act is contained in Part 3 of Article 13.15 of the Administrative Code of the Russian Federation.

According to Part 6 of art . 4 of the Law of the Russian Federation of December 27, 1991 No. 2124-1 "On Mass Media" prohibits the dissemination in the mass media, as well as in information and telecommunication networks of information about a minor who has suffered as a result of illegal actions (omissions), including surnames, first names, patronymics, photos- and video images of such a minor, his parents and other legal representatives, the date of birth of such a minor, an audio recording of his voice, his place of residence or place of temporary stay, his place of study or work, and other information that directly or indirectly establishes the identity of such a minor.

From the analysis of the Resolution, it follows that during the unscheduled systematic monitoring of the media "______" (order No. __ dated January 22, 2018, memo No. __ dated January 25, 2018) The Office of Roskomnadzor in the Orenburg region revealed a violation of the legislation of the Russian Federation on mass media.

It was established that from January 17, 2018 to January 19, 2018, the media "___" published articles on the Internet: "UK: an entrepreneur and his seven-year-old son were killed in a Land Cruiser car in Orenburg"; "Double murder in Vostochny: RIA56 publishes photos from the scene"; "The circumstances of the murder are announced entrepreneur in Orenburg"; "The murdered businessman, full name, has a wife and a two-year-old daughter"; "A day later: the search for the killers of the entrepreneur and the child continues in Orenburg"; "A funeral service was held in Orenburg for the murdered FULL NAME and his 7-year-old son." An analysis of the content of the articles showed that they contain information about a minor who suffered as a result of illegal actions: last name, first name, age of the child and last name, first name, age, place of work and photo of the father. That is, information that allows, in aggregate, directly or indirectly to establish the identity of a minor child.

In accordance with Part 4 of Article 41 of the Law on Mass Media, the editorial board does not have the right to disclose in disseminated messages and materials the information specified in Part 6 of Article 4 of this Law, except in cases where the dissemination of such information is carried out in order to protect the rights and legitimate interests of a minor who has suffered as a result of unlawful actions (inaction). In these cases, such information may be disseminated in the mass media, as well as in information and telecommunication networks, in particular, with the consent of the legal representative of a minor who has not reached the age of fourteen and has suffered as a result of illegal actions (inaction).

We should immediately note here the peculiarity of Russian legislation, as opposed to Kazakh legislation, which is that the dissemination of information is permissible under two conditions: its dissemination is carried out in order to protect the rights and legitimate interests of a minor who has suffered as a result of illegal actions (inaction), and the consent of the legal representative of the minor to its dissemination.

It also indicates the absence in the editorial of the written consent of the legal representative of the minor who suffered as a result of illegal actions to disseminate any information about him.

In addition, screenshots taken from the official websites of the Investigative Committee of the Russian Federation confirm that the personal data of the minor child and his father are not contained in the articles published on the website of the Investigative Committee of the Russian Federation. There is no evidence that the materials containing information about a minor who suffered as a result of illegal actions were published by the media "___" upon receiving an official appeal from law enforcement agencies to the editorial office, the case materials are not confirmed.

In order to catch criminals and protect the rule of law, disclosure of personal data of a minor who suffered as a result of illegal actions was not required. These data do not serve the purpose of detecting and disclosing threats to public safety. Taking into account the above circumstances, the dissemination of information about a minor who has suffered as a result of illegal actions that directly or indirectly establish the identity of such a child does not fall under cases where the consent of the legal representative of the minor is not required.

Thus, the application of part 3 of Article 13.15 of the Administrative Code of the Russian Federation is illustrated in the above-described Resolution.

Part 5 of the commented article establishes a more severe punishment for repeated commission of an act provided for in part 4 of Article 451 of the Administrative Code within a year after the imposition of an administrative penalty.

According to part 1 of Article 684 of the Administrative Code, cases of administrative offenses provided for in parts 1, 2, 3 of Article 451 of the Administrative Code are considered by judges of specialized district and equivalent administrative courts.

According to part 1 of Article 692-1 of the Administrative Code, the authorized body in the field of information examines cases of an administrative offense provided for in part 4.5 of Article 451 of the Administrative Code.

According to subparagraph 62) of part 1 of Article 804 of the Administrative Code, protocols on administrative offenses provided for in part 1,2,3 of Article 451 of the Administrative Code may be drawn up by authorized officials of the authorized body in the field of information.

Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:

Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);

Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;

Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);

Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);

Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;

Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;

Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;

Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);

Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);

Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;

Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;

Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);

Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;

Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;

Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);

Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;

Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.

Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).

Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus

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