So far, the authorities have failed to stop Facebook posts of emails between Kazakh leaders and their American attorneys. But the authorities are not giving up.
The court battle started in early 2015.
The next round will be March 3. That’s when California-based U.S. Magistrate Judge Kendall Newman hears Facebook’s motion to quash Kazakhstan’s demand that the social media site turn over the identities of those making the anonymous posts.
Filing suit in another country is a new strategy in former Soviet states’ already sizable press-silencing arsenal.
The Kazakhstan lawsuits are likely to fail, however, because they run up hard against the United States’ sacrosanct First Amendment, which guarantees freedom of expression.
The first round of the legal skirmishing involved a U.S. court refusing to order Facebook to stop posting the emails.
Kazakhstan authorities then asked Facebook for the identities of those releasing and commenting on the thousands of emails that Kazakh leaders exchanged with their American attorneys.
The authorities believe the opposition hacked into accounts containing the emails, then turned them over to opposition journalists.
The country’s leaders are apoplectic about the emails that have been appearing on Facebook, some of which document excesses that many have engaged in.
One of the emails, for example, revealed Kazakhstan President Nursultan Nazarbayev’s $105,000 purchase of three letters written by Napoleon Bonaparte.
Kazakhstan suspects that the posts are coming from former staff members of the opposition newspaper Respublika, whose print and Internet editions a Kazakhstan court ordered closed on trumped-up charges in 2014.
Respublika had been the lone opposition voice in a country that has cracked down on dissidents and journalists since government forces massacred striking oil workers at Zhanaozan in western Kazakhstan in December 2011.
The brutal suppression of the workers’ campaign for higher pay killed 14 and injured dozens, giving the opposition a rallying cry.
Kazakhstan authorities believe Respublika’s former staff have opened another front in their campaign against the government since the publication was closed: use of social media.
Kazakhstan’s demand that a court order Facebook to stop publishing the emails clashed with an important provision of the First Amendment: the notion that news and information outlets must not be subject to “prior restraint” — that is, an order preventing them from publishing.
U.S. courts have long ruled that the remedy for any damage that a news organization inflicts to a person’s or organization’s reputation is post-publication libel suits, not prior restraint.
When Kazakhstan failed to prevent Facebook from posting the emails, it decided to try another legal tactic: a demand that a court order the social-media giant to turn over the identities of those making the posts.
The American journalists organization Reporters Committee for the Freedom of the Press opposed both the prior-restraint request and Kazakhstan’s demand for the identities of the Facebook posters.
If the posters are identified, the journalist organization contended, Kazakh authorities would go after the posters or their families.
Many former Respublika staff have fled Kazakhstan to avoid jail — or worse.
A lot of their family members are still in the country, however. And the Reporters Committee for Freedom of the Press knows that it’s all too common for former Soviet states who are unable to find dissidents and opposition members they want to punish to go after their family members instead.
Although Kazakhstan’s campaign to stop the email disclosures is likely to fail in the United States, the strategy of using another country’s courts to try to suppress dissidents and opposition journalists is a dangerous new wrinkle in the suppressors’ playbook.
That’s because few countries — including many democracies — have the ironclad free-speech guarantee repressed by the United States’ First Amendment.
This means that Kazakhstan’s tactics of seeking a prior-restraint order or forcing social-media outlets to identify those making anonymous posts may work in many countries.
It will be a sad day if that happens.
Brave journalists in every country in the former Soviet Union risk jail, injury and death to spotlight corruption and other official abuses in hopes of provoking change that makes their society better. Sadly, politically motivated detentions, arrests, convictions and killings continue across the region — from Russia, one of the world’s most notorious abusers of journalists’ rights, to my own homeland, Armenia.
We need to hear their voices, not have them extinguished. It would be particularly galling if oppressors are able to use other countries’ courts to help them do their opposition-silencing dirty work.
Armine Sahakyan is a human rights activist based in Armenia. Follow her on Twitter at: www.twitter.com/ArmineSahakyann
