On September 9, 2023, Law No. 18-VIII on Online Platforms and Online Advertising entered into force in the Republic of Kazakhstan. This law, which was signed by the president of Kazakhstan, Kassym-Jomart Tokayev, on July 10, 2023, creates the legal framework for operating online platforms, prescribes the rights and responsibilities of online platform owners (bloggers) and their users, and governs the process of localizing online advertising.
According to Minister of Information and Social Development Darkhan Kadyrali, the adoption of the law “will help [the government] in [instituting] the necessary measures to reduce the shadow economy and combat online fraud, and enable effective cooperation and interaction with online platforms to fully realize the rights and freedoms of citizens.”
Members of the Mazhilis (Kazakh legislature) have reportedly claimed that “[t]he precedent for the development of such a law … was the development of internet fraud, cyberbullying and uncontrolled illegal advertising.” According to Mazhilis member Aidos Sarym, this law “will not affect users and, above all, the very concept of online advertising. … [It was prompted by the recognition] that the legal relationships and communications in this domain have largely operated in a gray area.”
The newly adopted law establishes legal definitions for relevant terminology concerning online platforms, provides the state registration procedure for bloggers and influencers, outlines governmental jurisdiction, regulates the placement and distribution of advertising materials online, and introduces a ban on posting and disseminating false information on online platforms such as Telegram, Facebook, Instagram, and YouTube.
Provisions of the Law
Definitions
Under this law, the term “online platform” refers to “an internet resource or software used for creating, sharing, and storing content through user accounts, excluding financial and e-commerce services.” (Law No. 18-VIII, art. 1(10).)
Bloggers and influencers who use online platforms and create online accounts are required to formally register with the government agency in charge of monitoring online platforms. (Art. 1(6), (12).) The term “influencer (blogger)” is defined as “a user of an online platform who publishes information on an online platform addressed to an indefinite number of persons for the purposes of entrepreneurial activity,” while “account” is defined as “the personal page of users on an online platform, which individuals create after registering with the government.” (Art. 1(1).)
Regulatory Bodies, and the Rights and Obligations of Owners
In Kazakhstan, the government is responsible for formulating and implementing state policies and developing regulatory legislation regarding online platforms and advertising. (Art. 7, para.1; art. 8, paras. 1 & 2.) This requires ensuring that these platforms adhere to the legislation of Kazakhstan. (Art. 6, paras. 1 & 2.) To achieve this, the government is empowered to exercise state control over compliance, conduct preventive control without physically visiting the entities being monitored, and promptly address and prevent violations. The government grants the entities under its control the authority to rectify violations discovered during preventive control without requiring a physical visit. (Art. 6, paras. 5, 6, 7.)
The government is to establish an institution for monitoring online platforms, and owners will be required to appoint a legal representative for interaction with the government if the average daily access to their online platforms during a month is more than 100,000 users located in the territory of the Republic of Kazakhstan. (Art. 9, para.1.) A national registry of such representatives is to be created. (Art. 9, para. 2.) Information on the average monthly number of users over the previous six months of operation must be publicly disclosed. (Art. 9, para. 3(7).)
The law stipulates that online platform owners must provide the capability for automatic translation of content into the Kazakh language. They must also ensure that their users can interact with the platform interface, read the user agreement, and access a summary of the primary conditions, all in Kazakh. (Art. 5, paras. 1 & 2.) This feature is essential for enabling social network algorithms to monitor and moderate content in the Kazakh language. (Art. 13, paras. 2, 3, 4.)
According to the law, the owners are obliged to cooperate with government agencies to fight against false information, which is defined as anything that “is contrary to the facts, or contains material misrepresentations that create a false belief regarding events and processes reported in any form.” (Art. 1(3).) Also, owners are required to counteract the distribution of illegal content, which is defined as calls for, propaganda for, or agitation for violent change of the constitutional order; violation of the integrity of the Republic of Kazakhstan; undermining the security of the state; war; social, racial, national, religious, class, and tribal superiority; ideas of separatism; and fraud. (Art. 9, para. 4(1); art. 14, para.1.) They must immediately inform the law enforcement agencies upon detecting illegal content that poses a threat to the life or safety of individuals, and notify the authorized body about measures taken to counter it. (Art. 9(5), (6).)
The law explicitly prohibits the dissemination of personal data without the consent of the user or their legal representative. (Art. 10(3), (4).)
In addition, users who have been subjected to the dissemination of false information have the right to request the removal of such content from the platform. If the platform owner refuses to remove the information, individuals can apply to the court. (Art. 15, paras. 1 & 2.) Under article 1(2) of the newly adopted supplemental Law on Amendments and Additions to the Code on Administrative Offenses of July 10, 2023, posting and disseminating false information by bloggers and influencers is punishable by a fine of up to 100 MCIs (monthly calculation indices) (about US$756).
Requirements for Localization of Online Advertising
The newly adopted law extends provisions of Kazakhstan’s law regulating advertising to advertisements placed and distributed online. (Art. 19, para. 3.)
Online advertising must be identifiable, marked, and labeled in accordance with the prescribed localization requirements. (Art. 19, paras. 1 & 2; art. 20.)
The law also states that advertisement systems must be able to function without user profiling. (Art. 20.) Profiling based on data related to race, national origin, political views, biometric or personal information that can identify an individual, or health status is prohibited. (Art. 20, para. 3.)
Targeted online advertising must not be directed at users identified as minors by the online platform. (Art. 20, para. 4.)
Iana Fremer, Law Library of Congress
November 8, 2023
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