Act’s description and legal basis
This law prohibited the distribution and performance (including broadcasting) of movies and audiovisual works involving artists included in the List of Persons Threatening National Security, except for news broadcasts and information-analytical programs. In addition, persons included in the List were prohibited from performing on the territory of Ukraine. The Ministry of Culture and Information Policy of Ukraine (MCIP) was responsible for compiling and reviewing this List in response to requests from the National Security and Defense Council (NSDC), the Security Service of Ukraine (SSU), and the National Broadcasting Council (NBC). The MCIP’s role used to be somewhat technical, and it had no discretion to influence the inclusion or exclusion of any person from the List. The Ministry or any other authority adopted no procedure to govern the List’s compilation.
The amendments in force from 7 October 2022 rotated the roles of the MCIP and the NSDC, the former being empowered to submit requests for artists’ inclusion in the List and the latter entrusted with its compilation and publication. The Law of Ukraine “On Media”, adopted in December 2022 and in force from 31 March 2023, introduced significant amendments to the rules governing the List of Persons Threatening National Security. The MCIP is again in charge of forming, updating, and publishing the List. The NBC, the SSU, and the NSDC may submit their proposals to include a person in the List.
For the first time after the List’s introduction, the legislator set the grounds serving as the basis for the inclusion of persons in the List and defined respective authorities’ powers regarding the nomination of persons in the List. Only non-Ukrainian citizens can be subjected to such a restriction.
| # | Ground for inclusion in the List | Powers on including in the List |
| 1. | Supporting by any statements or actions the acts of aggression against Ukraine or the occupation of the territory of Ukraine by the aggressor state | NBC or SSU |
| 2. | Serving as the top military command of the armed forces of the aggressor state and the leaders of any related and dependent military organizations | NBC or SSU |
| 3. | Entering or leaving the temporarily occupied territory of Ukraine in violation of applicable legislation | SSU |
| 4. | Denying or doubting the existence of the Ukrainian nation and/or state, and/or language, sovereignty, or territorial integrity of Ukraine, an established act of aggression against Ukraine, the commission of war crimes by the aggressor state | NBC or SSU |
| 5. | Inclusion into the personal sanctions list under the Law “On Sanctions” | NSDC |
| 6. | Disseminating the national security-related content prohibited by the Law “On Media”, such as hate speech, calls to overthrow constitutional order or breach territorial integrity of Ukraine, spreading both Russian Nazi and Soviet symbols | NBC |
| 7. | Participation in anti-Ukrainian events organized by the aggressor state | NBC or SSU |
| 8. | Facing restrictions under the citizenship laws for the media, arts, culture, and other content creators | SSU |
| 9. | Speech crimes under the Criminal Code (hate speech, terrorist content, propaganda for war, etc.) | SSU |
When deciding to include a person in the List, the respective authorities shall provide due reasoning for such an act – the legal and factual grounds, data for the identification of that person, explanation of how the particular activity may threaten national security, territorial integrity, or public order. This data is further published in the List. However, the Law directly provides that there would be no reassessment against newly established criteria of previous decisions on the inclusion of persons into the List.
The MCIP includes the person in the List within five working days of receiving the submission from the nominating authority and provides the decision to that person or his/her legal representative within ten working days. The restrictions connected with the acquisition of this status enter into force one month after the inclusion of the person into the List. Those included in the List may challenge the decision in the court.
The new Law “On Media” limited these provisions’ application to the media timewise. Now, they will only apply from the moment of the recognition of a particular state as an aggressor until such status’s withdrawal and five years after such withdrawal. The Parliament will have to annually review the need to apply these restrictions during the five-year period mentioned above. The legislator classified this breach as a significant violation of the law. 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 840-6,700 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 5,025-6,700 EUR as of March 2023).
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 NBC to apply to a court demanding the license revocation or registration cancellation.
The State Agency of Ukraine on Cinematography is responsible for the implementation of the prohibition of the distribution and performance of movies on the basis of the inclusion of a person into the List. The sanction for the violation of the prohibition is a fine between 10 and 50 minimum wages (67,000-335,000 UAH or 1,675-8,735 EUR as of March 2023).
Consequences
According to the answer of the State Agency of Ukraine on Cinematography, 272 films were prohibited between 2015 and 2021 due to the participation in them of the persons included in the List of Persons Threatening National Security. Particularly, in 2016 the Agency forbade 67 films; in 2017 – 35; in 2018 – 132; in 2019 – 3; in 2020 – 19; and in 2021 – 17. A recent (though still a pre-invasion) survey demonstrated that 44% of Ukrainians support the prohibition of Russian films and do not consider the latter to violate their rights. Another survey in the summer of 2022 showed that 71% of Ukrainians support the ban.
In December 2021, the Constitutional Court of Ukraine found the initial law to comply with the Constitution of Ukraine. However, the decision might have been better substantiated. For instance, the Court’s interpretation of the grounds for possible inclusion in the List contained the assessment that “…a person who, in particular, propagated violence and called for the overthrowing of constitutional order in Ukraine, participated in illegal armed formations and combat operations on the territory of Ukraine as part of illegal armed formations, expressed support for the aggressive policy of the occupying state and used propaganda or other actions aimed at denying the right of the Ukrainian people to their statehood may be included in the List of Persons Threatening National Security.” It went far beyond the actual legal norms, and even the Court mentioned that such discretionary powers as the List’s creation must be generally regulated on a sub-legislative level.
The List was constantly reviewed and attracted heavy debates. Currently, it primarily includes artists that spread messages harming the national security of Ukraine. However, it will remain non-transparent regarding the already included persons as the revised legislation does not require the reassessment of their inclusion in the List against the new criteria. This lack of transparency had previously been prone to challenges from the included artists by both legal and non-legal means. Philipp Kirkorov, Katerina Varnava, Al Bano, and Vasily Vakulenko (Basta) were all excluded from the List without the court order, contrary to Fedor Dobronravov, who successfully challenged his inclusion in courts. Alisher Valeev was included in the list twice, which shows a hasty approach to decisions by authorities. Moreover, his inclusion was explained by harmful and offensive speech used by the artist rather than by any grounds mentioned by the Constitutional Court. Another example of inconsistent application of the Law related to the movie “Sunburn” artists, some of them Ukrainian citizens, who were included in the list in November 2021 and excluded immediately.
Broadcasting the content involving the persons from the “black list” was used by the NBC as a reason for banning Russian TV channels’ retransmission. For instance, such as in this case in 2016, where the NBC banned five Russian channels quoting the involvement of the persons from the List. The NBC chose a similar approach to one Belarusian channel in 2021.
As to its enforcement vis-a-vis Ukrainian media, there was a practical problem when certain channels explicitly showed films involving persons included in the List, but the NBC could not even issue a warning for the violation of the law due to the collision between the Laws of Ukraine “On Television and Radio Broadcasting” and “On Cinematography”. The new Law of Ukraine “On Media” fixed that unfortunate loophole.