Act’s description and legal basis
Overall, the Law recognizes the Russian Federation as a terrorist State (aggressor state), thus prohibiting 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.
The Law defines the following actions to constitute propaganda:
- dissemination of information aimed at supporting or justifying the criminal nature of the activities of the Russian Federation, its authorities, military or official personnel who openly or covertly act on behalf of the Russian Federation on the Ukrainian territory;
- popularisation and glorification of aggressor state’s activities, actions of its officials, employees (including military personnel) and/or representatives;
- public denial, including in mass media or via the Internet, of the criminal nature of the armed aggression of the Russian Federation against Ukraine;
- public usage of symbols of the military invasion of the Russian Nazi totalitarian regime in Ukraine, or the usage, creation, and distribution of products containing these symbols in Ukraine and (or) abroad.
The symbols of the Russian regime include the Latin letters “Z” and “V” (which are used by the Russian military invaders), as well as both official and non-official symbols of the armed forces of the Russian Federation. Such symbols must not be displayed without legitimate context or in the context of justifying the military actions of Russia to be considered propaganda.
The Law also establishes the situations when the usage of such symbols is regarded as lawful. Such exceptions include, among others, the use of respective symbols:
- in works and materials (including campaigns and advertisements) produced and disseminated to condemn the Russian military invasion, if such purpose is expressed in an obvious form;
- in photos and media materials if the latter record the fact of the Russian aggression, its justification (by Russian side) and are not aimed at supporting, propagating or justifying armed aggression or manipulating public consciousness to create a positive image of Russia;
- in museums, thematic exhibitions, library funds;
- in the process of scientific activity, including scientific research and dissemination of their results;
- during the presentation or reconstruction of historical events;
- in manuals, textbooks and other materials of a scientific, educational and studying nature.
The legislators took account of this restriction while drafting the Law “On Media”. It specified that the prohibition applies to all the media in Ukraine and includes the display of mentioned content in movies and other audiovisual materials (triggering the enforcement system under the control of the National Broadcasting Council (NBC)). Importantly, and contrary to many other new norms introduced after the full-scale invasion, this prohibition will apply permanently, even after the possible ceasefire between Ukraine and Russia.
Moreover, the law qualifies this action as a grave violation for all types of media. Sanctions include fines, differentiated by the stakeholder status:
- linear audiovisual media services (TV and radio) may face a fine reaching 25% of their license fee or between 10 and 75 minimal wages (67,000–502,500 UAH or 1,684–12,633 EUR as of March 2023);
- non-linear audiovisual media services (on-demand services) may face a fine reaching between 50 and 75 minimal wages (335,000–502,500 UAH or 8,422–12,633 EUR as of March 2023);
- print media and online media may face a fine reaching between 10 and 15 minimal wages (67,000–100,500 UAH or 1,684–2,527 EUR as of March 2023).
Due to the Law “On Media” specificities, if such propaganda of the Russian Nazi totalitarian regime is contained in the movies, it will trigger the application of less severe sanctions as the broadcasting of films prohibited under the Law “On Cinematography” is a significant, not a grave, violation.
As to the harsher measure, if the audiovisual media service provider commits another grave violation within a year after the previous grave one, the NBC may initiate court proceedings for the license revocation or registration cancellation. A registered online media may be blocked by the court order under the NBC request if it commits four grave violations in a month. A print media can be ordered to cease its operations by the court order under the NBC request if it commits three grave violations of the Law in a year.
Consequences
Noticeably, prohibitions of similar fashion were already implemented into legislation in March 2022 with the Law “On the Amendments to Certain Laws of Ukraine regarding the Ban on the Production and Distribution of Information Products aimed at Promoting the Actions of the Aggressor State” and the Law “On the Amendments to Certain Legislative Acts of Ukraine regarding the Strengthening of Criminal Liability for the Production and Distribution of Prohibited Information Products”. They established criminal liability for the justification of Russian military aggression against Ukraine that started in 2014 and prohibited disseminating such types of content in print and audiovisual media:
- justification, recognition as legitimate, denial of the armed aggression of the Russian Federation against Ukraine, including by presenting the armed aggression of the Russian Federation against Ukraine as an internal conflict, civil conflict, civil war, denying the temporary occupation of part of the territory of Ukraine;
- glorification of persons who carried out the armed aggression of the Russian Federation against Ukraine, representatives of the armed forces of the Russian Federation, irregular, illegal paramilitary formations, armed gangs, and groups of mercenaries created, subordinated, managed, and financed by the Russian Federation, as well as representatives of the occupation administration of the Russian Federation, which consists of its state bodies and other structures functionally responsible for the management of the temporarily occupied territories of Ukraine, and representatives of self-proclaimed bodies under the control of the Russian Federation, which usurped the performance of power functions in the temporarily occupied territories of Ukraine, including by defining them as “insurgents”, “militia”, “polite military people”.
The legislator eliminated these provisions from the Law “On Media” and essentially included the abovementioned notions into the definition of Russian propaganda under this Law to avoid double jeopardy and exclude the disproportionate ban on using certain words.
The problem, however, remains within the Criminal Code. Draft law No 7215 “On the Amendments to the Criminal Code and Criminal Procedure Code on Responsibility for the Propaganda of Russian Neo-Nazi Totalitarian Regime, the Armed Aggression of the Russian Federation as a Terrorist State against Ukraine” should have been the basis for responsibility for propaganda under the adopted Law and remains on the table. At the same time, the Criminal Code already contains provisions that exploit notions similar to the analysed Law in an inconsistent manner.
For instance, Article 111-1 of the Code, covering collaborationism, was applied to the person who justified the Russian aggression and encouraged to make donations to support the Russian Armed Forces. He faced imprisonment for five years and confiscation of all assets. Article 436-2 of the Code, covering the justification, recognition as legitimate, denial of the armed aggression of the Russian Federation against Ukraine, and glorification of its participants, was applied to sentence the person that accused the Armed Forces of Ukraine of killings, robberies and brutal violence in Donetsk region and used denigrating language against Ukrainians for three years.
The experts from the Human Rights Platform have already underlined that these two norms have to be coordinated to ensure the consistent application of the prohibitions. Any possible amendments must also consider the provisions of the analysed Law since the notion of propaganda covers the justification of Russian aggression. Thus, the mere prohibition of propaganda of the Russian Nazi totalitarian regime, if inserted in the Criminal Code, will worsen the problem since the objective elements of the crime between at least three provisions will overlap. This, in turn, may create a risk of parallel application of two norms and violation of the principle ne bis in idem (no punishment twice for the same facts), undermining the principle of legality.
As to the liability of the media under the respective legislation, there were no cases of application of the prohibition inserted by this Law or other similar prohibitions introduced in March 2022. The Law “On Media” clarifies the major issues regarding the liability of audiovisual media providers and online media for disseminating banned Russian propaganda and creates a coherent regulatory system that needs civil society’s active oversight to avoid and highlight potential abuses.