Draft Law No. 9068 - Kiev's New Tool to Put Pressure on Independent Media

Author: Natalya Natalina

The head of the board of the “Uspishna Varta” human rights organization

A bill that has already been registered in the Verkhovna Rada, which gives the authorities considerable tools to put pressure on, and to even close, independent TV and radio companies on the eve of elections of 2019, has gone virtually unnoticed against the background of the loud statements of president Petro Poroshenko about the need to adopt the law "On agents of the Kremlin" during his speech in parliament on September 20th.

This concerns draft law No. 9068 "On amendments to the Law of Ukraine 'On television and radio broadcasting' concerning the strengthening of information security and countering the aggressor state in the information sphere", which was registered in the parliament of Ukraine on September 7th, 2018. The authors of this law substantiate the need to adopt it, as well as many other initiatives in the media sphere over the last 4 years, by saying that "Ukraine is in a state of hybrid war with the Russian Federation".

Viktoriya Syumar - the head of the parliamentary committee on questions of information policy, Olga Chervakova - the former journalist of the "Inter" TV channel, Georgy Shverk - the former media manager of the Ukrainian media holding, which earlier belonged to the president Petro Poroshenko and the former head of his administration Boris Lozhkin, became the authors of this draft law. Among the coauthors of the document there is the head of the "Radical Party" Oleg Lyashko, the son of the known composer Evgeny Rybinsky, and the chairman of the "Bloc of Petro Poroshenko" faction Artur Gerasimov. In other words, there isn't a more active advocate of censorship and the prohibition of freedom of speech than those who were formerly against it.

So, what does draft law No. 9068 mean for independent media and journalists on the eve of presidential and parliamentary elections?

The first thing that president Poroshenko's team proposes is to make changes to articles 6 and 72 of the Law of Ukraine "On television and broadcasting" and to forbid TV and radio companies "from broadcasting statements that justify or recognise as lawful the occupation of the territory of Ukraine if such broadcasting pursues the aim of inciting hostility and hatred".

Also, the authors of the draft law suggest to forbid TV and radio companies from "distributing terminology that contradicts the Law of Ukraine 'On the features of the state policy on ensuring the state sovereignty of Ukraine in the temporarily occupied territories of the Donetsk and Lugansk regions' if such distribution pursues the purpose of inciting hostility and the rhetoric of hatred".

At the same time, it is specified in draft law No. 9068 that "competent authorities", in accordance with the practice of the ECHR, will consider the status of the person who carried out the specified actions, the nature and the formulation of statements, the context, and also its potential to lead to "harmful" consequences. Who these "competent authorities" are and why they have the right to use the practice of the ECHR isn't specified in the law. Although, in article 17 of the Law of Ukraine "On the implementation of decisions and the use of the ECHR's practice" it is clearly specified that only the courts (!) use the Convention and the practice of the ECHR as a source of law while considering cases.

The second part of draft law 9068 stipulates that the National Council of Television and Radio Broadcasting makes decisions about the payment of penalties (irrespective of the imposition on the "violator" of sanctions in the form of a warning) that are 25% of the licensing fee for broadcasting (for TV and radio companies) and relaying (for providers) for:

  • Calls to violently change the constitutional system of Ukraine;
  • Calls to unleash a war of aggression or its promotion and/or the incitement of national, racial, and religious strife and hatred;
  • Statements that justify or recognise as lawful the occupation of the territory of Ukraine if such broadcasting pursues the aim of inciting hostility and hatred;
  • The distribution of terminology that contradicts the Law of Ukraine "On the features of the state policy on ensuring the state sovereignty of Ukraine in the temporarily occupied territories of the Donetsk and Lugansk regions" if such distribution pursues the purpose of inciting hostility and the rhetoric of hatred;
  • Propaganda of the exclusiveness, superiority, or inferiority of persons based on their religious beliefs, ideologies, belongings to this or that nation or races, their physical or material status, or social origin;
  • Broadcasting TV programs made after August 1st, 1991 that contain the promotion or propaganda of bodies of the aggressor state and their separate actions that justify or recognise as lawful the occupation of the territory of Ukraine;

In the draft law there is an amendment whereby in the event that everything stated above has been broadcasted and distributed live on the air and was a part of a speech or remark of a person who isn't a employee, then the TV-radio organisation doesn't bear responsibility for these violations, except in cases when employees didn't take measures for the termination of the offense live on the air.

In addition, the authors of the law suggest to fine broadcasting companies 5% of the sum of all licensing fees of licences owned by the "violator" if information isn't submitted to the National Council, or if it isn't submitted in time or isn't veracious.

The law also stipulates that if violations aren't eliminated within a month after sanctions were applied in the form of a penalty, and also in the event of repeated issuance of penalties for violating the same provision of this law, the National Council then appeals to the court with a claim for the cancellation of the license for the broadcasting of the TV-radio organisation or the cancellation of the license of the provider of the program service.

Thus, if the draft law is adopted, the National Council will actually receive unlimited opportunities to put pressure on, and to even close, TV and radio companies that the authorities deem to be objectionable.

As a reminder, this isn't the first year that discussions about whether the National Council should apply penalties in general have been ongoing. Earlier the sizes of penalties were established by the National Council and were coordinated with the Cabinet of Ministers. But before 2015, in fact, such kinds of sanctions weren't put into practice, because penalties were still being enforced by the government. Only on November 1st, 2016 was the so-called law on language quotas adopted, which determines the sizes of penalties that the National Council can issue, as well as the violations that can cause broadcasters and providers to be penalised in the first place.

As a result, in 2017 the National Council imposed the sanction "penalty" to 17 radio stations. The total amount of penalties totalled more than 1 million hryvnia. For example, in March, 2018 the National Council issued a record penalty of 327,800 hryvnia (about €10,000) to the "Pyatnitsa" radio station because during the interval from 07:00 to 14:00 the proportion of songs sung in the state language was 29% instead of the 30% stipulated by law.

In February 2018, more than 60 representatives of the media and media companies appealed to President Poroshenko and other authorities to stop censorship in the country and the blackmailing of editors by the National Council: “The actual duties of this body were reduced to censorship, constant unscheduled inspections, blackmailing agencies concerning the renewal of licenses etc,” it is said in the appeal. From the major media, it was signed by journalists from “Strana”, “Era-Media”, “Inter”, “Vesti”, ZIK, NewsOne, “112 Ukraine”, “Era-FM”, UA|TV, and other media

The adoption of draft law No. 9068, undoubtedly, will strengthen these tendencies. Due to the consideration of this draft law, human rights activists all have a number of questions to ask at once:

Firstly, how and according to what criteria will the National Council determine that a TV-radio organisation has broadcasted content that aims to "incite hostility and hatred"?

It is known that within the structure of the National Council there is a certain department for monitoring and analysing TV and radio broadcasting. The public doesn't know on the basis of what criteria and techniques this monitoring is being carried out. On August 31st, 2018 the vice-chairperson of the National Council Ulyana Feshchuk publicly stated that the National Council carries out the monitoring of TV channels and radio stations "in a manual regime, i.e., people sit with earphones and watch television and listen to radio". According to her, a certain modernised monitoring center of the National Council of Television and Broadcasting will start "to work more effectively" in 2019.

According to TV channels, the National Council leans on the conclusions of a certain independent media council, which in December, 2015 consisted of five media non-governmental (but very close to the government) organisations – Media Law Institute, Institute of Mass Information, "Internews-Ukraine", "Telekritika", and the "Souspilnist" fund. The media watchdog (as she calls herself) Natalya Ligacheva was elected as the head of this council. In fact, it is such an expert group of journalists and media activists that present, at the request of representatives of the authorities, expert conclusions on disputable situations in the media. The council can check the press and, on its own initiative, search its content for violations of the law of Ukraine, international law, and international journalistic standards and journalistic ethics. At the same time, the council isn't a legal entity nor a governmental body. In accordance with the recommendation of this media council, the National Council can fine the media and even withdraw licenses from TV channels and radio stations. I.e., in fact, now Mrs Ligacheva & Co will determine which channels "kindle hostility" and which ones don't?

According to media lawyers, these so-called "expert conclusions" of this media council don't belong to any kind of examinations provided by the existing Ukrainian legislation. This so-called independent media council de jure doesn't exist at all. It isn't registered as a legal entity and doesn't have any powers to examine media agencies, and thus their conclusions don't have any legal force.

Secondly, what criteria of objectivity do they mean, and where are guarantees of double standards not appearing in the monitoring of the National Council? For example, on September 20th the National Council appointed an unscheduled offsite inspection of the "NewsOne" TV channel. According to the information on the website of the National Council, calls to unleash a war of aggression or its promotion, as well as the incitement of national, racial, or religious strife and hatred were detected in fragments of the speeches of Elena Lukash ("Interview with Elena Lukash"), Vyacheslav Pikhovshek ("Interview with Elena Lukash", "Subjective results"), Ruslan Kotsaba ("This is how I think"), Evgeny Chervonenko ("Big evening", "Live", "Subjective results"), Andrey Lesik ("Live"), Mikhail Dobkin ("Ukrainian format"), and D. Spivak ("Big evening") about Russian aggression and the war in Donbass, about Andrey Parubiy, and about the autocephalous church. Members of the National Council didn't provide any proof during the pronouncement of the decision on verification.

At the same time, the National Council's system of monitoring doesn't document the speeches of the notorious Larisa Nitsoy, Irina Farion, Bogdan Butkevich, Ostap Drozdov, and other speakers who systematically carrying out the "propaganda of the exclusiveness, superiority, or inferiority of persons based on their religious beliefs, ideologies, belongings to this or that nation or races, their physical or material status, or social origin" on the air of such TV channels as "Channel 5" and "Pryamoy".

Thirdly, who will determine the exhaustive list of terminology that contradicts the Law of Ukraine "On the features of the state policy on ensuring the state sovereignty of Ukraine in the temporarily occupied territories of the Donetsk and Lugansk regions", and how will they do it? This law, in particular, commits to paper terminology about "the armed aggression of the Russian Federation against Ukraine" and defines Crimea and parts of the territories of Donetsk and Lugansk regions as the "temporary occupation of the territory of Ukraine". This exhaustive list of "terminology" is not presented neither in the framework of this law, nor within the framework of draft law No. 9068, thereby giving the National Council a wide range of variations and interpretations.

As a reminder, on March 3rd, 2017 the National Council, during consideration of the question of renewing the license of "Radio Vesti", decided to deprive it of a broadcasting license on frequency 104.6 in the city of Kiev. According to the vice-chairperson of the National Council Ulyana Feshchuk, the radio station had 4 acting warnings. One of them was for the on-air presence of Tatyana Montyan, whose speech offended honor and dignity, and she wasn't stopped by the journalist. In particular, the program with Montyan took place on August 31st, where she allowed herself to make such statements: "It would be good if it could be possible to hang tariffs on those who jumped around on Maidan with a pot on their head"; "For example, it is all the same for me who the completely brainwashed Maidanists listen to"; "It happens that brainwashed Maidanists and anti-Maidanists live in the same house". It wasn't reported according to which criteria members of the National Council determined that these statements offend honor and dignity.

But the statement of the journalist Matvey Ganapolsky - the host of the TV channel "Pryamoy", which contained expressions that are no less provocative and humiliate honor and dignity just as much, for some reason wasn't included in the monitoring of the National Council. Moreover, the head of the National Council Yury Artemenko personally congratulated the TV channel "Pryamoy" (which, I will remind, according to the estimates of independent media experts, belongs to president Poroshenko) on the anniversary of its first broadcast.

Fourthly, some of the calls listed in draft law No. 9068 fall under those actions for which responsibility is provided by the Criminal Code (109, 182, 436 Criminal Code etc.). In order to prove the grounds for the application of these sanctions, it is necessary to establish that they made such calls to carry out such actions, and perhaps there has to be a relevant decision (sentence) of the court that establishes the fact of such actions. Thus, if the National Council establishes (i.e., will actually assume the function of a court), following the results of monitoring, the existence of appeals on the air of TV channels - for example, to overthrow the constitutional system, will it form the basis for the Prosecutor General's Office and the SBU to automatically initiate a criminal case? Or the National Council will wait for law enforcement bodies to carry out an investigation and the pronouncement of a court ruling? These processes, we will remind, can last for years. Most likely, a TV-radio broadcaster will be extrajudicially disconnected from the airwaves, and then over many years will try to prove the illegality of such a decision, which, for example, happens in the case of "Radio Vesti" that we wrote about above.

And lastly, the authors of draft law No. 9068 appeal to article 20 of the International Covenant on Civil and Political Rights in order to prove that the law corresponds to the international standards of defending human rights.

As a reminder, Article 20 of the International Covenant on Civil and Political Rights stipulates that the propaganda of war in essence is a form of instigating violence based on the justification of national, racial, or religious hatred. In international law a discussion is still ongoing concerning interaction and balance between article 19 (freedom of speech) and article 20 (a ban on propaganda of war) of the International Covenant on Civil and Political Rights in jurisprudence. Explanations on this matter are given in general remark No. 11 and No. 34 of UN Committee on Human Rights.

The document formulates, in particular (point 50), that "any restriction substantiated by article 20 must also correspond to point 3 of article 19", and further (in point 52) that "in every case when a State Party limits the right to the free expression of opinion, there is a need to substantiate a ban and their conditions in strict compliance with article 19".

Point 3 of article 19 prescribes that restrictions must be established by the law. But article 20 also speaks about the same things. Here it is more important to follow what is meant by the word "law". Concerning this matter, proceeding from the communications considered in the United Nations Human Rights Committee it is legally specified in general remark No. 34 that "law" must be formulated rather accurately, and information about it must be available to the general public. In addition, such a "law" shouldn't give persons unlimited discretionary power concerning limits of restrictions, and the restrictions must correspond to the principle of proportionality and should not be large-scale.

Experts agree that article 20(1) concerns only "a serious narrow crime..., which can and must be forbidden by the norms of national legislation", and as a result, it shouldn't mean "a bigger threat to freedom of speech".

The early resolutions of the United Nations General Assembly (110 (II), 290 (IV), 380 (V)), raising the issue of the danger of propaganda and confirming the condemnation of "propaganda against peace", are also of special interest. It is important to note that in them the General Assembly already discusses the problem in detail, declaring that such propaganda includes not only the instigation of conflicts or aggressive actions, but also "measures aimed at isolating people from any contact with the outside world that prevent the press, radio, and other means of communication from covering international events, thereby preventing mutual understanding between peoples". Defining the connection between propaganda of war and the suppression of freedom of speech, the General Assembly noted that the success of propaganda becomes possible when the media is deprived of freedom to cover important events and special opinions.

Well, we can only congratulate the authors of draft law No. 9068 for their invaluable contribution to the success of propaganda in our state.

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