Case Summary and Outcome

The Supreme Court of Kazakhstan upheld fines against a man who recorded and published a video on Facebook of two women without their consent and by doing so exposed their sexual orientation. WA and WB were secretly recorded kissing by a stranger at a cinema. The stranger then posted the video on Facebook, criticizing their sexual preferences and called on the women to be outed and shamed. The video became viral in Kazakhstan and led to the women becoming targets of harassment and threats. The two were forced to flee Kazakhstan for several months, and eventually sued the man for violating their privacy and sought compensation for moral harm. The first instance court ruled for the women, only for the judgment to be overturned by an appellate court on the ground that the women’s behavior was amoral. The Supreme Court reinstated the first instance judgment, reiterating that the man violated the women’s right to privacy by recording them without their consent, publishing the subsequent video on social media, which in turn caused the women great harm.

To protect the privacy of the plaintiffs, their names have been anonymized and the official judgments are not publicly available. 

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Facts

On January 30, 2018, two women (WA and WB) went to a cinema in Almaty, Kazakhstan. There, the couple talked and kissed. At some point, a stranger (Mamedov E.A) and his wife approached the women and commented on their behavior. Without notifying WA and WB, Mamedov recorded the interaction and published it on Facebook right after. He also left a comment under the video, “They are possibly someone’s children, sisters or acquaintances. Repost to start a conversation, maybe it is possible to reach them, to change, or at least to shame them… P.S. for reading namaz (Muslim prayer) in public there is a fine and ‘goodbye,’ but pinks and blues are given freedom.” The terms pinks and blues referred to LGBTI individuals.

The video became viral immediately and the women began receiving messages from friends and acquaintances about it while still in the cinema. Mamedov took down the video twenty-four hours later, but by that time it had already attracted 60,000 views and was reshared on other social media. WA and WB estimated that since the video was first posted, it was viewed over one million times across different social media platforms. Traditional media also reported on the video.

Reactions and commentary to the video on social media contained hate speech and threats against WA and WB. Many comments included physical and death threats against the women. One social media user wrote “if my sister does something like this, I will shoot her dead and will punish other Kazakh women for the same.” Others called on the women to be stoned or beaten.

Reactions to the video spilled offline. WA and WB recalled that once as they were walking outside, a taxi driver asked, “Haven’t you been killed yet?” The video also caused rifts in the women’s relationship with their parents and colleagues at work and university.

Fearing for their safety, WA and WB fled Kazakhstan for eight months.

The women sued Mamedov. They argued that he violated their privacy by recording and publishing the video without seeking consent, and in doing so breached Article 145 of the Civil Code of Kazakhstan which protects the right to one’s own image. They sought compensation for moral harm.

Mamedov rejected the women’s arguments. First, he claimed to have told the women that they were being recorded. He also argued that he was protected by the Law on Mass Media since he published the video on Facebook, which is considered to be a media entity. Article 14 of the law exempts media companies and journalists from seeking permission to record someone and share their image as long as the recording was in a public or cultural place, or was obtained with the aim of protecting human rights, health and morals. Additionally, Mamedov claimed that he published the video on Facebook because one of the women made an offensive gesture towards him.

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Decision Overview

First Instance Judgment

In May 2018, Almaty’s District Court found for WA and WB on the grounds that Mamedov never received permission from the women to record them and his publication of the video on Facebook harmed them.

The court reiterated that Article 145 of the Civil Code of Kazakhstan prohibits the use of anyone’s image without their permission. Mamedov’s wife testified that he warned WA and WB about the fact that he was recording them. However, the court questioned the witness’s credibility as she was Mamedov’s wife and rejected her testimony. It thus concluded that Mamedov never requested the women’s permission to record them.

The first instance court did not reject Mamedov’s arguments around receiving protection under the law of mass media, but explained that such protections could be limited or waived to ensure the principles of fairness, reason, and justice. The court added that individuals and legal entities were prohibited from abusing their rights to harm others.

Accordingly, the Almaty Court concluded that WA and WB suffered moral harm because of Mamedov’s actions and awarded them compensation for moral harm, albeit the amount was significantly smaller than the one they sough. (The exact compensation amounts were not included in this analysis due to privacy concerns)

Mamedov appealed.

Appellate Court Judgment

On appeal in August 2018, the Almaty City Court overturned the first instance verdict and ruled for Mamedov on the grounds that Mamedov was exercising his freedom of expression to defend the morals of Kazakh society violated by the women’s public homosexual display of affection.

The appellate court found that the first instance court erred in concluding that the video caused moral harm to WA and WB. The appellate court began by noting that in the recording, one of the women made an offensive gesture towards Mamedov. The fact that the gesture was offensive was confirmed by the Kazakh Society of Deaf Persons. Furthermore, the court considered testimony of a psychologist from the Center for Family Welfare who concluded that the women’s open sexual and erotic behavior violated the notion of family values for children.

The appellate court also defended Mamedov’s freedom to record the women. It explained that Article 20 of the Kazakh Constitution guarantees everyone the freedom to receive and disseminate information using any lawful means. The recording in question was done in a cinema, which the court considered a cultural and public place. Accordingly, Mamedov had the freedom to record anyone without their permission in such a public place. The court ignored that the recording was done in secret and noted that at no point the women asked Mamedov to stop the recording.

Furthermore, the court found that Mamedov did not encroach on the women’s private life, since they were the ones who decided to touch each other in public and in front of children. The appellate court stressed that the Kazakh society was not ready for homosexual relationships as illustrated by the lack of equal marriage laws in the country.

Moreover, the court noted that the Kazakh Civil Code demands citizens to act in a manner that respects the principles of fairness, reason, and justice, as well as public morals. The women’s actions in this case violated the moral foundations of society. Therefore, WA and WB had no right to request protection under article 145 of the Kazakh Civil Code, which prohibits the use of a person’s image without permission.

The court concluded that Mamedov acted as a defender of public morals since the women’s actions were amoral, unacceptable and performed in front of children.

WA and WB appealed.

Supreme Court Judgment

In July 2019, the Supreme Court of Kazakhstan reversed the appellate court’s judgment and found for WA and WB finding that Mamedov’s actions clearly violated the women’s right to privacy.

The Court began by summarizing the effects of Mamedov’s video. It recalled that the video was watched by at least 60,000 social media users on Facebook and shared across other platforms. Because of Mamedov’s actions, the women became objects of scrutiny, their private lives became public, and their relationships with colleagues and relatives deteriorated. On this basis, the first instance court ruled that Mamedov violated the women’s right to their own image.

The appellate court overturned the first instance judgment, but its reasoning was flawed. The Supreme Court reiterated that it was an established fact that Mamedov did not seek the women’s permission to record them and to share a video of them on Facebook. Mamedov thus violated the women’s right to privacy as he made them a subject of public discussion.

Mamedov’s actions thus violated the women’s rights to privacy guaranteed by Article 18(1) of the Constitution of Kazakhstan and Article 115(3) of the Civil Code. Accordingly, the Supreme Court reinstated the first instance judgment.

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