(Berlin) – Respect for freedom of expression should lead to dismissal of multiple lawsuits over a poster that shows two male cultural icons kissing. The lawsuits have been brought in connection with a poster designed by an advertising agency that depicts two historical figures, the Kazakh composer Kurmangazy Sagyrbaiuly and the Russian poet Aleksandr Pushkin, kissing.
On October 2, 2014, a judge in Almaty will begin initial proceedings in a case brought against the agency by 34 people studying or working at a national conservatory and orchestra named after Kurmangazy, a notable 19th century cultural figure in Kazakhstan. The plaintiffs are seeking $34 million tenge (approximately US$186,000) in damages.
“The poster is no doubt provocative, but provocation is a legitimate part of free expression and arguably an inherent part of creative design,” said Mihra Rittmann, Europe and Central Asia researcher at Human Rights Watch. “Kazakhstan’s judiciary should ensure that freedom of expression trumps subjective discomfort about a particular image, and that homophobia masked as cultural concern is not allowed to triumph.”
The plaintiffs claim the poster is “unethical” and offensive not only “to the honor and dignity of the composer’s and poet’s descendants” but to “all people not indifferent to their art….”
Havas Worldwide Kazakhstan, the advertising agency, designed the Kurmangazy-Pushkin poster for the Central Asian Advertisement Festival, where it won an award in August. The embrace shown on the poster is a reference to the intersection of Kurmangazy and Pushkin streets in Almaty, which is also the location of a gay club, Studio 69.
The poster was not published by the agency, but it began to draw attention after a copy was posted on Facebook on August 24. 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 is “unethical.”
In addition, in early September, media reported that Nurken Khalykbergen, who claims to be a descendant of Kurmangazy, had filed suit for 10 million tenge (about $55,000) in moral damages. Dariya Khamitzhanova, director of Havas, told Human Rights Watch that Khalykbergen also filed a complaint in an attempt to bring criminal charges of “insult” and “defamation” against the Havas employees involved in the poster’s design, but that prosecutors have declined to press charges, allegedly because Khalykbergen was unable to prove he is a direct descendant of the composer.
On September 24, an Almaty court ruled in favor of the mayor’s office, finding the poster “unethical” and fined both Havas and its director a total of approximately $1,700 for violating Kazakhstan’s law on advertising. The mayor’s office contended that the poster “offends the image of these great artists and violates widespread moral norms and behaviors, given that it shows nontraditional sexual relations, which are unacceptable to society.”
Khamitzhanova is filing an appeal, which could be heard in court as soon as next week.
As party to the International Covenant on Civil and Political Rights (ICCPR), Kazakhstan has an obligation to respect the right to freedom of expression, including the freedom to seek, receive, and impart information and ideas of all kinds. In its General Comment 34 on freedom of expression, the United Nations Human Rights Committee, which oversees compliance with the ICCPR, notes 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.”
“Works of art or design, which may at times offend or be provocative, should be subject to opinion and debate, not to laws that stifle expression,” Rittmann said. “Studying or working in places named after Kurmangazy cannot be a legitimate justification for seeking moral damages, however much the individuals personally or collectively dislike that Kurmangazy was depicted kissing Pushkin in the poster.”
The publication of the poster on Facebook caused a stir in social media, and prompted leaders of the Bolashak (Future) national movement to organize a roundtable against homosexuality in Almaty.
On September 11, Bolashak leaders called on Kazakhstan lawmakers to adopt a law banning lesbian, gay, bisexual, and transgender (LGBT) “propaganda,” akin to the one under consideration in neighboring Kyrgyzstan. Both legal initiatives were apparently inspired by the 2013 Russian law banning “propaganda of nontraditional sexual relations.”
“Laws criminalizing propaganda of ‘nontraditional sexual relations’ – which are blatantly discriminatory and contrary to international human rights norms – have no place in Kazakhstan,” Rittmann said. “Kazakh officials should firmly reject any attempts to introduce such legislation.”