Act’s description and legal basis
The Law was adopted as one of many reactions to the Russian aggression which started in February 2014. It provided for a prohibition of distribution and performance (including broadcasting) of movies and other programs produced after 1 August 1991 that contained popularization and propaganda of aggressor state’s authorities and their actions, which created a positive image of their representatives, Soviet state security agents, or justified or recognized as legitimate the occupation of Ukraine’s territory.
The law clarifies the criteria to determine what constitutes such popularization or propaganda:
- employees of the aggressor state authorities or Soviet state security bodies are presented as positive characters;
- the script is directly or indirectly linked with the activity of the aggressor state authorities or Soviet state security bodies, and this activity is presented in a positive light;
- the script directly or indirectly denies or questions Ukraine’s territorial integrity, justifies or positively describes the occupation of Ukraine’s territory, acts of aggression by other states, acts of war, promotes the exclusivity, superiority or inferiority of persons based on their religious beliefs, ethnicity or race, gender, property status, social origin.
Within the meaning of the law, “aggressor state” is a state that in any way occupied a part of the territory of Ukraine or committed aggression against Ukraine and is recognized by the Verkhovna Rada of Ukraine as an aggressor state or an occupying state. The Transitional Provisions of the Law indicate that lawmakers officially recognize the Russian Federation as an aggressor-state.
The new Law of Ukraine “On Media” preserved this prohibition in the Law of Ukraine “On Cinematography” while adding an additional dimension to it related to the propaganda of the Russian Nazi totalitarian regime, its armed aggression against Ukraine, as well as the usage of the symbols of the military invasion of the Russian Nazi totalitarian regime in Ukraine. Moreover, this law lifted the temporal limits of the prohibition. Now it also covers all movies that contain popularization and propaganda of the aggressor state’s authorities and their actions, notwithstanding their production date.
The Law “On Media” classifies the ban under an umbrella restriction on broadcasting the films prohibited under the Law of Ukraine “On Cinematography” and considers it a significant violation. It may result in fines, differentiated by the stakeholder status:
- linear audiovisual media services (TV and radio) may face a fine reaching 10 % of their license fee or between 5 and 40 minimal wages (33,500-268,000 UAH or 840-6700 EUR as of March 2023);
- non-linear audiovisual media services (on-demand services) may face a fine reaching between 30 and 40 minimal wages (201,000 and 268,000 UAH or 5025-6700 EUR as of March 2023).
Importantly, contrary to many new norms introduced after the full-scale invasion, this prohibition will apply permanently, even after the possible ceasefire between Ukraine and Russia. If the content is contained not in films but in other programs, it may be covered by the provisions on the prohibition on propagating the Russian Nazi totalitarian regime, while the decommunization laws cover the element on the Soviet security services.
When determining the sum of the fine, the regulator shall consider the technology applied, territorial coverage, and other relevant aspects that make the violation more threatening to public order. In case an audiovisual media service provider commits any second significant violation in a year, it will be subjected to a doubled fine, while 6 significant violations per year will lead the National Broadcasting Council (NBC) to apply to a court demanding the license revocation or registration cancellation.
Consequences
According to the answer of the State Agency of Ukraine on Cinematography, in total, 160 films were prohibited between 2015 and 2020 under the provision prohibiting films containing popularization and propaganda of the aggressor state. Particularly, in 2015 the Agency forbade 81 films; in 2016 – 50; in 2017 – 22; in 2018 – 5; in 2020 – 2. Films and TV series glorifying the Soviet and Russian law enforcement bodies and its armed forces were among the main themes streamed by those products. Some Ukrainian channels tried to undermine the restriction and changed the names of directors, operators, and actors. Eventually, Ukrainian channels tried to find new formats and produce their own products.
This measure also influenced the process of banning Russian TV channels in Ukraine – from 2014 to 2020, the NBC issued numerous decisions restricting the Russian TV channels’ retransmission using the broadcasting of such content as a justification. For example, in December 2015, the NBC restricted the broadcasting of the foreign channel “Phoenix+Kino” essentially due to streaming of the popularization and propaganda of the aggressor state. This violation could be one of many made by “Dozhd”, banned in Ukraine in January 2017, not only due to the streaming of prohibited films but also for broadcasting a map of Russia with Crimea, which fell within the discussed restriction.
In terms of liability for broadcasting such content, predominantly programs rather than films, a primary sanction for that violation by the media was a warning. Throughout the restriction’s application, there were non-intentional violators like a channel from Melitopol (presenting the Crimean peninsula as a part of the Russian Federation on the shared image, April 2016) or a radio company from Kramatorsk (accidentally playing an anthem of the Russian Prosecutor General’s Office, March 2016) and systemic violators like 112 (in January 2021), NewsOne (in August 2018, April 2021), NASH (in April 2021).
Systemic violators often covered in detail the activities of the Russian President, describing him in a positive light, spreading propaganda about him deserving a Nobel Prize, and much more. The NBC tried to withdraw their licenses via courts but did not succeed due to lengthy court proceedings. Eventually, the President of Ukraine controversially applied sanctions against these companies for systemic efforts undermining the national security of Ukraine (in February 2021 to NewsOne, 112, in February 2022 to NASH).