Content Regulation / Censorship, Gender Expression, Indecency / Obscenity
The State v. Momar Sowe and Alieu Sarr
Closed Contracts Expression
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Havas Worldwide Kazakhstan, an advertisement agency in Kazakhstan, created a poster for an international advertising competition. The poster portrayed two male Kazakh cultural figures kissing.
The mayor’s office and a conservatory named after one of the cultural figures sued Havas Wordwide for unethical advertising. The court ruled in the plaintiffs’ favor and awarded over $180,000 in damages.
Havas Worldvide Kazakhstan is an advertisement agency based in Kazakhstan. The agency designed a poster for an international advertisement competition. The poster was of Pushkin, a Russian poet, and Kurmangazy, a Kazakh musician, kissing; the men are considered cultural icons in Kazakhstan.
The poster was not published by the agency, but it began to draw attention after a copy was posted on Facebook on August 24 on a page of an LGBT nightclub in Almaty, the capital of Kazakhstan. Within a month, a class action suit had been filed, along with a suit by the Almaty mayor’s office, which claimed that the poster violated Article 349(1) of the Kazakh Administrative Code. The specified law bars the creation, distribution and use of advertisements (works and services) that are forbidden by the law in Kazakhstan. In this case, the forbidden subject is the male cultural icons kissing.
On September 24, an Almaty court ruled in favor of the mayor’s office, finding the poster “unethical” and fined Havas $1,700.
On October 4, 2014, the Almaty court heard a separate complaint from the Kurmangazy, one of the cultural icons, conservatory. The conservatory also demanded monetary compensation for moral damages from Havas Wordlwide in the amount of $180,000 for unethical advertising that insulted the name of their school. The court ruled in favor of the conservatory.
In making its ruling for the mayor’s office, the court relied on a specialist from the Ministry of Internal Affairs of the Mayoral office of Almaty. The specialist stated that the poster was unethical, however, neither the court nor the specialist explained what standard of ethics was applied. Moreover, the court refused Havas Worldwide’s motion for a psycho-artistic expert review of the poster to determine whether or not it was unethical.
In making its ruling for the conservatory, the court set a precedent where images of men kissing are enough to cause moral harm.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Kazakhstan is a party to the International Covenant on Civil and Political Rights. Thus, it is obliged to respect the right of freedom of expression. Comment 34 of the UN committee on ICCPR clarified that “the mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties.”
In the case against Havas Worldwide we have a clear violation of the right to freedom of expression by the Kazakh courts.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The case established a precedent by which two males kissing can be deemed offensive and punishable with a fine.
Let us know if you notice errors or if the case analysis needs revision.