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Proposed legislation on media may impede freedom of speech in Ukraine

Kyiv TV tower. Source:
Edited by: Yuri Zoria
As the new government came to power in Ukraine last year, local media entered a turbulence zone. At first, the team of new President Volodymyr Zelenskyy boasted of winning the elections without any assistance of the media, implying that the press is useless. These statements, however, ignored the influence of TV and the popularity of the series Servant of the People that starred the would-be president in the role of a president.

After a few months in office, the new team in power came up with legislation on media that was immediately labeled by the Ukrainian media community as an effort to impose censorship. In particular, the so-called bill on disinformation that sparkled the greatest outrage. However, with much attention drawn to this bill, another no less dangerous initiative has now a good chance to be passed in Parliament.

At the end of 2019, the President’s Office published a decree foreseeing among other things the development of a law on the requirements and standards for media, instruments against disinformation, and strengthening the responsibility for violating the legislation on the information.

Addressing it, Minister of Culture, Youth, and Sports Volodymyr Borodyanskyi introduced a bill on Amending Particular Legislative Acts of Ukraine on Ensuring National Information Security and the Right to Access Reliable Information (“Misinformation Bill”). In January 2020, a comparison table of amendments was presented to the public.

Ukraine’s media community immediately stood against it. As the bill called to fight fakes rather seemed like the one which will fight dissenting media.

The media movement Media for Conscious Choice and other representatives of the media community published a statement calling the Ministry not to register the bill in parliament.

“The proposed bill does not perform the functions of protecting Ukrainian society from the dissemination of publicly harmful information and misinformation. Instead, it creates mechanisms of control over information space, not only over traditional media but also over ordinary citizens who exchange information in any way. Additionally, persons who did not go through a special registration procedure and are not subject to special control in accordance with state-established procedures are deprived of the journalist’s rights.”

The statement also outlines objectionable provisions of the bill. Among them are:

  • Introduction of a very narrow concept of misinformation and introduction of criminal responsibility for misinformation.
  • Establishment of a special mechanism for state interference with the information field – the Information Commissioner post – and providing them with broad and monopolistic powers in the field without proper safeguards mechanisms against abuse of power.

The statement emphasizes that the proposed mechanism does not correspond to Ukraine’s international commitments, in particular, the norms of Article 10 of the European Convention on Human Rights and Fundamental Freedoms.

  • Serious and unjustified narrowing of the rights of journalists and depriving them of protection by dividing them into “professional journalists” and “journalists.” Forced creation of a special body, the Association of Professional Journalists of Ukraine. Only those having the press card issued by the institution would be considered as professional journalists to enjoy the right to attend public events and to be protected by the state.
  • Introducing the notion of “information disseminator,” which covers ordinary citizens – in fact, social media users who make their posts open to the public. The statement says that the bill imposes excessive responsibility on ordinary citizens and includes the requirement of their full public identification, which contradicts national and international legislation and seriously endangers freedom of speech.
  • Launching Trust Index that will be assigned to media outlets according to criteria approved by the State Commissioner.

“I understand the need to fight against disinformation, especially in the context of the current conflict in and around Ukraine. But this should not be done at the expense of media freedom and through state interference in the content of the media and in the organization of journalism activities in the country,” said Désir in an official statement, pointing out that the current legislation already provides mechanisms to counteract socially dangerous information.

In the last week of January 2020, public discussions over the legislation started. Earlier Minister Borodyanskyi elucidated the most controversial provision of the bill – criminal liability for disinformation. According to him, it would be imposed after the Commissioner proves in court three instances of distributing disinformation by a disseminator in the course of one year.

“The criminal liability does not involve imprisonment, only community service. For the court to make such a verdict, it is obliged to petition the European Court for Human Rights and obtain its judgment,” the Minister said on a TV show.

Media experts stress that misinformation and disinformation must be combated, and yet they consider the proposed legislation as rather endangering the activities of journalists than contributing towards the achievement of the stated objective.

“We must realize that the whole world is living in a challenging era, and now information, multiplied by the new technologies, has a huge impact on our lives. That is why we, of course, have to think about how to build this information space, how to make it cleaner, how to prevent information from inciting conflicts, aggression, violence. But it certainly has to be done not the way prescribed in this bill. Of course, its creators blame us, they reproach us saying “you’re criticizing us not suggesting what should be done instead. But I do not know a single country in the world that would come up with an effective system for combating disinformation. The world is in search, and we can’t do it now in a half-day,” Diana Dutsyk, Executive Director of the Ukrainian Media and Communication Institute said.

Dmytro Zolotukhyn, ex-Deputy Minister for Information Policy, notes that the term disinformation itself is within the competence of special services rather than of journalists,

“If a person disseminates disinformation in its classic form, they cannot be considered a journalist. This is a philosophical question. I believe that this bill is not yet viable.”

Euromaidan Press applied for the accreditation to the discussion on the disinformation bill organized by the Ministry of Culture, Youth, and Sports. However, the Ministry replied that the format of the discussion and the resource of the venue do not allow to include all applicants and that the regulation was that only one member of one organization could attend (Euromaidan Press applied for only one accreditation). Later, Radio Svoboda informed about other media received the letters containing the text,

“The issue is that there are stakeholder groups of media jurists, journalists, editors-in-chief, foreign experts, and all of them should be represented equally, give or take. So, if there are too many people this discussion would be ineffective, thus we have closed the registration, because, unfortunately, we cannot accommodate and ensure the effective functioning of such a wide circle,” Anatoliy Maksymchuk, Deputy Minister explained to Radio Svoboda.

According to Maksymchuk, it was only the first scheduled discussion, the Ministry intends to hold two or three more. They are going to submit the bill to the parliament thereafter.

Meanwhile, Halyna Petrenko, Director of the Detektor Media NGO, draws attention to the fact that the public discussions on the so-called misinformation bill and on the bill on media took place almost simultaneously,

“Those who closely follow the development of media legislation might have heard the version that the bill on disinformation is aimed to divert public attention from the already registered bill on media (# 2693), and public discussions on them this week will follow one another, and their presentations took place on the same day last week. Several journalists whom I questioned even though it was the same document.”

The expert outlines controversial aspects of the bill on media. One of the greatest issues is the regulation of the activities of internet media, including bloggers.

Referring to lawyers, Petrenko suggests paying attention to a small interlineation about obligatory registration not only for subjects that broadcast without using the radio frequency resource, subjects in printed media, and audio and visual services providers. The registration is also foreseen for the “subjects in the media field, including non-residents of Ukraine which provide users in the territory of Ukraine with access to their media services on the conditions that foresee users paying for the access or the use of such media services”.

“It appeared at the end of work on the text of the bill. Maybe even after the working group passed it to MPs for the registration. It might be called to regulate the activities of the international over-the-top platforms,” Petrenko says adding that the interlineation should be viewed together with the new bill on amending the taxation laws.

In particular, it regulates the added-value tax for electronic services provided by non-residents to individuals whose delivery area is located within the customs territory of Ukraine.

Speaking of the bill, Mykyta Poturaev, Deputy Chairman of the Parliament’s Committee on Humanitarian and Information Policy, warned that the state will be ready to ban foreign media and paid-access media services such as Netflix if they refuse to comply with the mandatory registration requirements stipulated by the law and other tax requirements under Ukrainian law.

The above-mentioned statement of the media community members addresses the bill on media and calls on the legislators to work on its controversial provisions prior to the second reading. In particular, on the provisions on the online-registration for media, regulation of foreign media, lack of anti-monopoly mechanisms in the field, and on the unclear procedure of forming the co-regulatory body.

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Edited by: Yuri Zoria
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