Act’s description and legal basis
In its Decision, the NBC stated that access to Russian channels “RTR Planeta”, “NTV Mir”, “Rossiya 24”, and “TVCI” has to be restricted by the cable TV providers in their packages since the said channels do not comply with the European Convention on Transfrontier Television (hereinafter – ECTT). The legal basis for such a decision was Article 42(1) of the Law of Ukraine “On Television and Radio Broadcasting”, which indirectly empowered the NBC to make the respective declarations and, thus, effectively excluding these channels’ possibility to be retransmitted and included into cable TV packages in Ukraine. Overall, the NBC failed to diligently substantiate the Decision by making no factual assessment and analysis of the broadcasted content and merely referring to the legal norms to ground it.
Noticeably, the initial Decision was the first one where the NBC emphasized compliance with the ECTT. The earlier orders aimed at Russian channels merely underlined the prohibition of channels that were not adapted to the requirements of the ECTT. However, after the amendments introduced in May 2015, channels outside the jurisdiction of the EU Member States or ECTT State Parties could only be broadcasted after the NBC issued a final decision on their compliance with the ECTT and Ukrainian legislation after the monitoring and included them in the list of channels allowed for retransmission. This procedure applied to Russian channels since it was not a party to the ECTT.
In 2016, the Parliament granted the NBC sanctioning powers, which were not within the NBC competence earlier. Thus, the NBC was empowered to issue a warning or impose a fine of 25% of the license fee on the providers for retransmitting the ECTT-non-compliant TV channels.
Consequences
The initial Decision was not the first attempt to restrict the reach of Russian linear media. Back in March 2014, on the NBC submission, the Kyiv District Administrative Court obliged the cable TV providers to suspend the retransmission of channels “Pervyi Kanal”, “RTR Planeta”, “Rossiya 24”, “NTV Mir”, since they contained propaganda and justification of Russian occupation of Ukrainian territories. This decision started the thread of numerous lawsuits aimed at prohibiting the retransmission of Russian channels. In July 2014, the court prohibited the “TV Centre International” channel, and in September 2014 – “RBK-TV”. In August 2014, RT and Life News were prohibited, but this time by order of the Ministry of Internal Affairs, which was most likely outside the Ministry’s powers.
From 2014 to 2020, the NBC issued numerous decisions restricting the Russian TV channels’ retransmission. Over the past nine years, the retransmission of more than 90 Russian channels was prohibited. The enforcement of adopted measures demonstrated that during 2014-2018, the NBC issued 42 warnings and 17 fines to cable TV service providers from different regions for the retransmission of Russian channels. Noticeably, over the last three years, there were not many cases where NBC had to step in.
On a parallel track, Ukrainian sanctions covered some Russian TV channels broadcasting on the Internet. For example, the Order of the President of Ukraine № 126/2018 obliged providers to block the website “ntv.ru” for three years, which broadcasted the Russian channel “NTV”. Similarly, the Order № 51/2022 required blocking the website “vitrina.tv” for five years.
Restrictions on illegal channels continued in wartime. Two days after the full-scale invasion of Ukraine, the National Center for Operational Management of Telecommunications Networks (NCON) obliged the Internet service providers to block the primary Internet resources that provide retransmission of the channels of the aggressor state. Later providers had to block websites that broadcast anti-Ukrainian content.
Moreover, after the Russian invasion of Ukraine, the international arena first-hand experienced the effects of Russian messages and declarations inciting violence and hatred. That is why Ukraine was actively lobbying for the European Union to prevent the spreading pro-Russian narratives over Europe. Therefore, as a part of the sanctions policy against Russia, the EU suspended the broadcasting activities and licenses of 9 disinformation outlets under its Member States’ jurisdiction, including 4 of those the Ukrainian court prohibited in 2014. European sanctions also assisted in dealing with the private companies possessing satellite uplinks which should comply with sanctions to stop broadcasting Russian channels.
Individual EU Member States also started to act against Russian TV channels. Before 2022, only Latvia and Lithuania were actively condemning the propaganda of Russian TV channels. Namely, in 2014 Latvian regulator suspended the retransmission of “Rossiya RTR” due to the established violations in programs hosted by Russian correspondents (Olga Skabeeva, Dmitri Kiselev) who actively spread war propaganda. Later that same year, Lithuania restricted the retransmission of “RTR Planeta”. Noticeably, both of the decisions were considered by the Court of Justice of the European Union as compliant with the European Union Law. After the war commenced in Ukraine, both countries banned Russian channels’ retransmission completely, followed by Estonia, Poland, and Greece.
Since the adopted measures reached their desirable effect, Ukrainian viewers are currently better equipped to recognize and reject Russian propaganda. As of 2022, the survey demonstrates that the audience of Russian television consists primarily of older people over 40 years old from the Southern and Eastern regions of Ukraine, where its influence is still present.
At the same time, the complete prohibition of retransmitting Russian channels in Ukraine made viewers resort to other, more illegal sources of information. For example, in Ukraine, more than 5 million illegal satellite dishes can provide access to any kind of channels, including forbidden ones, which, until recently, were easily accessible via different European satellites. After the prohibition of Russian television, many Ukrainians, especially in the Southern regions, resorted to satellites and transmitters through Moldova. Ukrainian authorities constantly turned to the operators of satellites, asking them to stop transmitting the channels, and usually, the requests were successful.
The Law “On Media” partially preserves the foreign linear audiovisual media retransmission approach. Similarly to the Law “On Television and Broadcasting”, it allows the retransmission of channels, which comply with the requirements of the ECTT, though any media from the EU can be retransmitted freely. Section IX of the Law, devoted to wartime restrictions, also prohibits the retransmission of any channels owned by the aggressor state citizens or with the editorial control conducted in this state. It additionally provides the NBC with the power to order the blocking of websites retransmitting the prohibited channels.
Non-compliance with the rules on retransmission constitutes a grave violation of the Law. Therefore, the NBC can impose a sanction of a fine between 10 and 75 minimal wages (6,700–502,500 UAH or 168–12,608 EUR as of March 2023) on the providers. As to the harsher measure, if the provider commits another grave violation within a year after the previous grave one, the NBC may initiate court proceedings for the registration cancellation.