Act’s description and legal basis
The declared main goal of the adopted Law is to implement the anti-terrorist measures mandated by the EU into national and criminal laws. In this regard, the Law expands the list of sanctions provided in the Law of Ukraine “On Sanctions” by introducing the new penalty — “blocking access to information resources”, used for purposes of:
- demonstration and use of symbols of terrorist organisations and groups;
- promotion of ideas and program goals of such organisations (groups).
According to the Law “On Sanctions”, these sanctions may be imposed on a foreign state, a foreign legal entity, a legal entity controlled by a foreign legal entity or a non-resident natural person, foreigners, stateless persons, as well as individuals who engage in terrorist activity.
Moreover, the analysed law authorises the Security Service of Ukraine to form and maintain a special List of terrorist organisations and groups that will clarify the individuals/entities who are considered to be “terrorists” under Ukrainian legislation. Currently, however, no separate law defines the procedure for forming such a list. There is also no indication of whether the list will be accessible to the public.
Consequences
Although the national authorities appear to have pursued the legitimate aim of preserving national security, the adopted provision has de-facto legalised the previously questionable blocking of websites allegedly containing “terrorist content”. As of now, Ukraine has yet to resort to such measures since no indication of blocked websites with illegal content can be found. Still, national authorities have to carefully assess the content subjected to blocking due to limited guidance provided by Ukrainian legislation.
Beyond acknowledging the mere existence of this sanction, the recent amendments lack legislative clarification on its practical implementation. For instance, the Law does not provide any legal safeguards such as judicial authorisation against the arbitrary imposition of sanctions; therefore, the national authorities are granted the autonomy to determine the restricted content. Moreover, the Law does not provide any clarification as to which terrorist organisations will be subjected to sanctions – whether they would be entities within the aforementioned List or any other organisations. It is presumed that the separate law defining the mechanism of the List maintenance (which is yet to be adopted) will solve the uncertainty. The Law’s provisions also do not provide a list of exceptions when the demonstration of terrorist symbols may be recognised as legitimate (such as for academic, archive purposes or depiction of historical events). As a result, there is a constant risk of limiting access to legitimate content labelled as “terrorist content” but serving entirely different purposes.
For instance, the information depicting the crimes of Russian aggression against the Ukrainian state should not be considered a promotion of terrorism, even if it contains references to the ideas promoted by Russia, considered a terrorist state. Similarly, the demonstration of terrorist symbols without an illegal motive can be essential for scientific research or archive purposes and does not endanger the national interest. The practice of indiscriminate blocking of any content deemed to be “terrorist”, in turn, may adversely affect the fundamental right to access information.
To avoid the potential abuse of Ukrainian provisions, national authorities are encouraged to turn to European standards related to the fight against terrorism. In this regard, EU Regulation 2021/784 on addressing the dissemination of terrorist content online defines “terrorist content” and establishes the procedure for removal of such content from the network.