Media Freedom is guaranteed by law, but not realized in practice
The new Constitution of Mongolia ratified in 1992 guarantees the freedom of expression and opinion and right to information. The Law on Media Freedom adopted in 1998 contains only two pages essentially prohibiting censorship and state ownership on media. In 2005, the Law on Public Service Radio and Television opened up the process of dismantling state monopoly in broadcasting sector by transforming the formerly state run national radio and television into public service entities and restricting advertisement revenues for the national broadcaster to provide competition space for commercial televisions. The Law on Information Transparency and Right to Information (2011) guarantees the right of citizens to obtain information of public concern from government officials. Defamation was decriminalized by the new Criminal and Offence laws adopted in 2015. An amendment of the Media Law failed, again, to be passed in parliament in 2016.
At first sight there is a relatively strong legal environment for protection of media freedom in Mongolia. In reality, however, the freedom of media and editorial independence is limited as a closer look at the legal regulations reveals.
Legal regulations for safeguarding editorial independence of commercial media do not exist. Media owners as well as advertisers can directly influence editorial decision making and professional operations of newsrooms. Because regulations to prevent conflicts of interests are weak and in-effective, there is an unwritten rule among journalists to refrain from critics if the subject matter deals with persons or companies affiliated with the owner or advertiser.
Some sort of legal guarantee for editorial independence applies for the Public Service Broadcaster (PSB) only due to the Law on Public Service Radio and Television. Nevertheless, political influence on PSB operations is still strong, as it can be seen from the politically influenced appointments of the PSB Governing Board members and its senior management.
Transparency obligations for media owners are deficient
For print media, there is no need to obtain any special permission for running a newspaper or magazine, but the media outlet needs to be registered in accordance with the Law on registration of legal entities. The owner of the outlet, his shares in the company or media market or the size of income are not relevant for the registration procedure.
Only for TV, radio and internet media the “General Terms and Conditions of Broadcasting Regulation” approved by the regulatory agency of the Mongolian government, the Communications Regulatory Committee (CRC) demands transparency of license owners. The CRC’s “General Terms” require television and radio license holders to provide for transparency of license ownership “in order to ensure independence, openness and responsibility of broadcasting.” According to this rule, license holders are obliged to submit to the CRC a written statement with names and ownership shares of owners and investors, address and contact information of license holders, management structure, names and citizenship of executive staff.
Online news media, according the General terms and requirements for digital content service need to be registered with the CRC, but there are no ownership disclosure requirements for these media.
As of October 2016 the CRC website listed the names of companies, founders and executive staff of 16 national broadcasters, 25 FM radios covering Ulaanbaatar, 73 local televisions and 56 cable operators. Even though the General Terms require disclosure of ownership shares, this information is not published on the CRC’s website. Citizens can freely access the CRC’s website to obtain ownership information. However, the above mentioned list is published on the page for license holders (and not on the page designed for citizens) and it requires certain efforts to find ownership information from the website.
In case of non-fulfilment or violation of the General Terms the CRC has the right to assign tasks to eliminate violations or meet standards, take administrative measures, reprimand, hold back or suspend licenses. As of October 2016 the CRC did not make take any measures with regard to non-fulfilment of ownership disclosure requirements.
The National Security Concept of Mongolia approved by the Parliament in 2010 states: “Ownership and affiliations of media shall be transparent and their activities realistic, balanced and responsible.” As of October 2016 the Council did not make any decisions or statements concerning the implementation of the media ownership transparency provision of the National Security Concept.
The General State Registration Law of Mongolia had until 2015 required written permission from the legal entity or person in order to access registration information about that entity or person. In January 2015 the Registration Law was revised and according to the revised legislation, all information relating to state registration, save for that which is confidential, is to be made publicly available on the official website of the Legal Entity Registration Office. However, searches require the unique registration numbers of the relevant legal entities in order to obtain a limited amount of information. Detailed information, such as information in relation to company shareholders and copies of company charters, is not available electronically.
Disclosure of ownership information on own initiative is non-existent, most media companies keep information on circulation, sales and market-share confidential.
The draft Law on Media Freedom, submitted to the Parliament in 2014 by a group of 7 members of Parliament lead by MP M. Batchimeg, included provisions on safeguarding editorial independence and restricting influence of owners or shareholders on professional decision making processes in newsrooms, as well as a provision that required transparency of media owners and their shares. After the parliamentary elections in 2016 the newly formed Parliament decided to return 99 draft laws to their initiators, among them the draft Law on Media Freedom, in order “to take views and suggestions of the new Government into consideration”.
In fact, the Mongolian People’s Party (MPP) which won the majority of Parliament seats in June 2016 had promised in its election program “to legally protect the media freedom and to refrain from any policies to constrain media operations.” However, the new Government formed after the elections decided in its Action Plan 2016–2020 to omit endeavours to establish ownership disclosure practices in the media sector.
According to the Law on Regulating Public and Private Interests in Public Service and Preventing Conflicts of Interest (2012) family members are defined as “related persons” and individuals or legal entities who are connected with a public official through profit generating activities belong to "affiliated persons". However, this law covers those ‘in public service role’ only, and does not apply to business persons in the media sector, excluding the senior management of the national Public service broadcaster.
Licensing and registration authorities belong to the government
The head and members of the CRC are appointed by the prime minister for 6 years. There are not any legal regulations as to who can dismiss the CRC members and how. The CRC is set up in accordance with the Communications Law and this law does not expicitly guarantee the independence of this organization. The appointment process of CRC members lacks independence, transparency and public participation. Despite of various regulations conflicts of interest and cases of abuse of regulatory power are still present, since it remains in the power of the Prime minister to appoint the CRC head and members in accordance with own interests.
So all regulatory bodies are part of the government structure and the decisions made by these bodies can directly be influenced by the government.
For example, via nominating the CRC executive staff, the political party in power will have a strong influence over the licensing process. Most broadcasting channels owned by members of the Democratic Party acquired their licenses during the party’s term in office (2004 to 2008). In the following four years, with the People’s Party now at the helm, most broadcasting houses in the possession of its members were granted their licenses.
Legal bodies who disagree with the CRC’s decision to suspend a license can, according to the Communications Law appeal to court. A recent example includes the case of the news website Amjilt.com. In July 2014, Amjilt.com published a story about a prime minister owning a tourist camp which is shedding sewage into Tuul river. The story was documented by a photo taken from the spot. The CRC accused the website of ‘violating the law’ and registered it on its black list, closing access to the website from Mongolia. The website appealed to court and in November 2015 the website was re-opened.
However, decision making processes concerning licensing are in-transparent and lack public participation. Information is available on the CRC’s website only once the decisions are already made.
Article 4 of the Law on Radio Waves states that “the State shall, as an owner of radio wave, issue the right to use radio frequency and radio frequency band to other persons with the terms and conditions specified in his Law.” The organization entitled to allocate radio frequencies on the behalf of the state is the CRC.
How telling is the Information Transparency and Right to Information Law?
As government agencies, all institutions involved in licensing, registration and monitoring of media are obliged to publish their rules, regulations, decisions and license holder data on their website, as required by the ITRIT. So for example, all terms and conditions for licensing broadcast or online media, meeting minutes, decisions, the list of licenses issued as well the financial and activity reports of the CRC can be retrieved from its website.
But: The CRC’s assessment methods do not take specifics of media business into account and thus do not use criteria such as audience share, circulation, turnover/revenue, distribution of share capital or voting rights; They also do not consider mergers within the same branch of activity or control by a single person, company or group of key elements of the production and distribution processes, and related activities such as advertising as important criteria for business concentration.
State advertisement is distributed without any rules
There are no rules as to how to distribute funds allocated for advertisement and public communication. Public communication specialists at government organizations state that they use their ‘common sense’ to judge which media outlet might be ‘the biggest one” or choose the cheapest one, or the executive management simply orders to use the media outlet of his/her friend or affiliated person. There are no practices of public tender announcement for selection of channels for state advertisement.
Even though there are no legal grounds for direct state interference into editorial decision making, government organizations use advertisement distribution as a tool to influence media content by concluding “contracts of collaboration” to restrict criticism or negative coverage. Systems to monitor allocation of state advertisement do not exist.
No legal regulations to prevent media concentration and monopolies
In Mongolia there is a grave deficit of the institutional systems to address media concentration. The Constitution and the Civil Law do not in any way address the issue of media concentration. The Competition law, amended in 2015, does not specifically address concentration or monopoly issues in the media sector. The Competition law does not specifically assign the CRC (which is in charge for licensing and regulating the broadcasting sector) to regulate dominating or monopoly activities in the sector.
However, the Competition law and the CRC’s regulations contain some provisions to measure dominating positions on the market and restrict mergers and consolidations that might negatively affect conditions for competition. These provisions cover distribution networks, broadcast and online media only. Ownership and concentration of print media remains unaddressed.
Due to absence of any laws specifically addressing media concentration, there is no legal definition of what constitutes concentration in the media sector. In addition, neither the general CRC procedures for granting licenses in the communications sector, nor other regulations defining the terms and conditions for granting permissions in the radio, television or online news media sectors contain provisions that aim to prevent media monopolies.
In short, CRC decision making with regard to licensing issues does not take media concentration into account. Over the past five years there were not any efforts made to introduce legal regulations for preventing media concentrations. The draft Law on Media Freedom returned to its initiators in 2016, did not address the issue of media concentration.
Other state influence on media organizations
Until January 2016 newspaper sales were exempt from value added tax, which created favourable conditions for developing pluralistic newspapers in Mongolia. However, in July 2015 the Value added tax law was revised to remove the provision about newspaper exemption from VAT. Consequently, starting from January 1 2016 all media entities (including newspapers) with an annual income of more than 50 Million Tugriks pay a value added tax of 10 percent, as required by the Value Added Tax Law.
For small media entities, especially those in rural areas of Mongolia, the existing taxation regulations and lacking specific policies in support of rural/community media create significant challenges, according to the editor-in-chief of the local newspaper “Khovdiin medee”, A.Byambasuren. The newspaper is published in a remote western area of Mongolia, Khovd province. (Details and all tables see Legal Assessment)