Media surveys during the pre-election period: the legal collision should be resolved in favor of freedom of speech.

Сourts mistakenly classified some media pre-election reports as sociological surveys, though the media  were just providing objective and comprehensive coverage of the elections to the Majilis (lower chamber of the parliament) and Maslikhats (local councils) . Blitz interviews on the streets, where journalists ask questions to people, are not sociological research as they do not even meet the basic requirements of sociological surveys in terms of sample selection, interview volume, and form of proposed final results. In cases where there are doubts as to whether there is a social survey in the pre-election period or whether it is coverage of a socially important issue in the media, such doubts should be resolved in favor of journalists.
"Adil Soz" has provided and continues to provide legal support to journalists in two of the cases mentioned below and believes that it is necessary not only to resolve these disputes in favor of journalists but also to take a number of preventive measures, including developing of relevant normative legal acts and making the judiciary aware of them.
Blitz interviews should not be considered pre-election surveys, which are carried out by certain organizations in accordance with the Constitutional Law of the Republic of Kazakhstan "On Elections." The legal collision regarding media reports and sociological surveys during elections should be resolved in favor of freedom of speech. Courts should be able to distinguish one from the other. "Adil Soz" recommends to clarify this issue and to conduct appropriate work with judges.
  
Case #1: Survey in the Telegram channel "Uralsk Week"

The Chief Editor of "Uralsk Week," Tamara Yeslyamova, was accused of producing or distributing anonymous campaign materials (Article 113 of the Code of Administrative Infractions of the Republic of Kazakhstan) and public opinion polling without complying with the requirements of the electoral legislation of the Republic of Kazakhstan (Part 3 of Article 120 of the Code of Administrative Infractions of the Republic of Kazakhstan).
The grounds for the administrative charges  was the article "Vote for self-nominated candidates only" ("Uralsk Week," February 22, 2023) and the public opinion survey "Which party will you vote for on March 19?" (Telegram channel "Uralsk Week," February 20, 2023). Both administrative charges were consolidated into a single case.
The case regarding the distribution of anonymous campaign materials was dropped by the court due to the absence of the administrative offense, with the right to full compensation for material and moral damage, and restoration of all lost or infringed rights. However, the court fined Tamara Yeslyamova for 51,750 thousand tenge for the survey in the Telegram channel.
The Specialized Court for Administrative Offenses of Uralsk decided that the Chief Editor of "Uralsk Week," Tamara Yeslyamova, violated Part 2 of Clause 9 of Article 28 of the Election Law and conducted a social survey. The court did not take into account that Part 3 of Clause 9 of Article 28 of the Constitutional Law "On Elections" directly provides for a number of similar procedures, including:
-Forecasts of election results,
-Other research related to elections,
-Voting in support of candidates or political parties in the media,
-Voting in support of candidates or political parties on online platforms.
"The court mistakenly considered the voting on a Telegram channel (on an online platform) in support of political parties as a public opinion poll.
If the voting in support of political parties on online platforms was the same as a public opinion poll, then the aforementioned procedures would not be separately indicated in clause 3 of article 9 of the Constitutional Law "On Elections".
If we follow the logic of the court, then any  vote on the topic of elections in a Telegram channel should be ordered and paid for by someone, even though such a vote does not require any material costs; the owner of the Telegram channel must be a legal entity with a mandatory 5-year experience in conducting such votings, although the voting option appeared on Telegram only in 2019; the staff must include specialists with experience in pressing the button in the Telegram channel to launch the voting, although any child can press the button; all regions from which subscribers of the Telegram channel voted must be specified, but determining the region of each voting subscriber is not possible since IP addresses are personal data with limited access; and the methods of information collection, analysis, and the margin of error of the survey results cannot be indicated since such procedures are not provided for in a Telegram channel vote.
Therefore, the voting in support of political parties conducted by Tamara Yeslyamova on a Telegram channel (on an online platform) is not a public opinion poll, as the court mistakenly believed, and the above requirements reflected in clauses 1 and 2 of article 9 of the Constitutional Law "On Elections" do not apply to the voting in support of political parties conducted on an online platform.
Furthermore, the court stated in the ruling that Tamara Yeslyamova allegedly conducted an anonymous public opinion poll. However, the voting was not conducted on an anonymous Telegram channel, accordingly, the court's conclusion is also erroneous.
The prohibition on voting in support of political parties on online platforms is directly provided for in clause 3 of article 9 of the Constitutional Law "On Elections" during the five days before the voting day and on the day of voting. Therefore, on other days, voting in support of political parties on online platforms is NOT PROHIBITED."

Case #2. Blitz Survey, Republica.kz.media 

On March 16th, journalist Zhanna Baytelova conducted a blitz survey of passersby on Almaty's Arbat street asking them if they would vote in the elections. She was making a video report for the Telegram channel Republica.kz.media.
The specialized inter-district court for administrative offenses in Almaty erroneously considered this to be a public opinion poll.
If we follow the logic of the court, then a journalistic video report of a blitz survey of citizens on the topic of elections, should be ordered and paid for  although it doesn not require any material costs and can be done at the initiative of the journalist; a legal entity with mandatory 5 years of experience and a staff of experienced employees should be responsible for making the video report, although today even a child can make a video recording on a phone; the regions where the sociological survey was conducted should be specified, although the report was made in one place; and the methods of information collection, analysis, and the margin of error of the survey results cannot be specified in a journalistic report at all, since a journalist is not a professional sociologist and does not use the appropriate scientific sociological methods in making a journalistic report.
Therefore, a video report on the street with opinions of citizens regarding the elections made by a professional journalist is not a public opinion poll as it is described in Article 28, paragraph 9 of the Constitutional Law "On Elections," as erroneously determined by the first-instance court, and Zhanna Baytelova, as a journalist, should not meet the requirements of a professional sociological organization, since she did not engage in professional sociological research.
If the court believes otherwise, such an expansive interpretation of the law does not directly follow from its content. Prohibiting journalists from carrying out lawful professional activities for collecting and disseminating information on the pretext that the collection and dissemination of any information related to the elections is a public opinion poll and can only be conducted by specialized sociological organizations is absurd.
Currently, Tamara Yeslyamova and Zhanna Baytelova are appealing the court decisions in appellate instances.
  
The requirements for conducting public opinion polls in accordance with Part 1 and 2 of Article 9, Section 28 of the Constitutional Law "On Elections" are as follows: legal entities registered in accordance with the legislation of the Republic of Kazakhstan, having at least five years of experience in conducting public opinion polls, and having specialists with experience in this field are entitled to conduct such polls. The regions where the public opinion poll is conducted must be specified, as well as the person who commissioned and paid for the poll, the method of collecting information and the methods of analysis used, and the margin of error for the poll results.
There is doubt as to how the Law should be interpreted. In the cases mentioned above, journalists conducted reports that resembled the methods of conducting sociological research just in some aspects.
In accordance with Part 3 of Article 10 of the Code of Administrative Infractions (Presumption of Innocence), Any doubts in guilty shall be interpreted in favor of a person in respect of whom the case on administrative infraction is initiated. The doubts arising upon application of the legislation on administrative infractions shall be also resolved in his (her) favor.

"Adil Soz" recommends:

Introduce a clear and unambiguous definition of what constitutes a sociological survey and what does not in the Constitutional Law of the Republic of Kazakhstan "On Elections", as well as specify it in the sublegal acts of the Central Election Commission.
The Supreme Court should adopt a special regulatory resolution on the application of election legislation.
Conduct training seminars for judges, Central Election Commission officials, prosecutors, and police officers before the next pre-election period to prevent violations of journalists' rights and international obligations to ensure freedom of speech.