The new Media Law – security over freedom or a delicate balance?

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2014 became the first focal point of the decade-long efforts of Russia to assert its dominance over Ukraine after the USSR’s dissolution. The media were heavily involved: the campaign of fear and hatred led to rising disgust for Ukraine’s democratic choices and justified the occupation of Crimea and the War in Donbas. Ukraine had to react swiftly, imposing barriers on the aggressor state’s media and its products. After years of a non-systematic approach toward tuning the freedom of expression against national security protection, fueled even more by the full-scale invasion in February 2022, the drafters of the novel Ukrainian media legislation faced the task of codifying the existing restrictions, simultaneously crafting them in the language of the international human rights law. The fact that the European Commission included the adoption of the Law of Ukraine “On Media” among the criteria for Ukraine’s candidacy status and future accession talks meant that any restrictions contained therein should fall within the permissible limits established by the EU Charter and the European Convention on Human Rights (under one of the Copenhagen criteria). In this piece, we will describe the outcomes of Ukraine’s recent attempts to design its framework for combatting threats from the aggressor state in the media sector and suggest the ways to solidify its compliance with international law in light of any future candidacy talks.

International law on free speech and national security

Any discussion on what can be prohibited shall start from the provisions of the ECHR and ICCPR, establishing a three-part test to analyze whether interference with freedom of expression is permissible. Such interference shall be prescribed by law, pursue a legitimate aim, and be necessary in a democratic society. One such legitimate aim is national security protection. The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, endorsed by the UN, define this aim as covering the situations when the genuine purpose and demonstrable effect of the restriction is to protect a country’s existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitements to violent overthrow of the government. Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR further suggest that this ground can be invoked when adequate safeguards and effective remedies against abuse exist.

Other important provisions in this debate are Article 20 of the ICCPR, prohibiting propaganda for war (including propaganda for the ongoing war) and hate speech, and Article 17 of the ECHR, prohibiting any actions contrary to the Convention’s values and interpreted as covering the most obnoxious types of speech, such as anti-Semitism, calls for terrorism or its justification, or propagation of totalitarian ideologies aimed at overthrowing the government. 

Article 4 of the ICCPR and Article 15 of the ECHR additionally allow derogating from the provisions proscribing free speech in times of public emergency, which threatens the life of the nation, including wars. Any measures of this kind must be strictly required by the exigencies of the situation and be consistent with the other obligations under international law. The abovementioned Siracusa Principles further stipulate that any derogatory measures shall be necessary and proportionate to deal with the threat to the life of the nation. At the same time, the laws governing states of emergency shall provide for prompt and periodic independent review by the legislature of the necessity for derogation measures. The ECtHR assessed similar factors when determining whether the measures’ design under the derogation complied with the ECHR. At the same time, no international body had a chance to review the derogations related to the freedom of expression against the established standards.

Ukraine vs Russia before 2022: chaos and criticism

In 2014, Ukraine’s authorities started catching up with the Russian media’s efforts to dismantle its sovereignty too late after losing Crimea to an illegal annexation. Notably, Ukraine had never derogated from Article 19 of the ICCPR or Article 10 of the ECHR obligations, thus, remaining bound by its provisions in full. Under this legal regime, it had introduced several content and origin-based restrictions on media, such as:

Almost all these measures were criticized by IGOs and INGOs. They cited various reasons: from “a cynical, politically expedient attack on the right to information” to “mandating one “correct” interpretation” of the past. They have also called on to “refrain from prescribing restrictive legal and political measures, such as … mandatory quotas for programs in the official language” and condemned the attempts to ban Russian media in Ukraine as “antidemocratic…, likely to be ineffective”. The critical flaw of these analyses has predominantly been their lack of contextual assessment of Russia’s information influence on Ukraine after 2014, combined with Ukraine’s attempts to limit the war-influenced international human rights law discourse to the limited parts of its occupied territories. These factors and the relative “freezing” of the conflict in 2018-2021 led to the commentators’ peacetime approach to free speech despite the brewing full-scale invasion right around the corner. The state authorities did not do any favor by designing the restrictions in a permanent manner and without introducing any potential temporal limitations to their application, which might have mitigated their harmful impact in the eyes of the internal and external observers and researchers.

February 2022 – onwards: derogations, limitations, and codifications

Following the full-scale Russian invasion, Ukraine has introduced martial law and officially derogated from its obligations under the ECHR and the ICCPR. This derogation empowers Ukraine to impose additional restrictions on freedom of expression which go beyond the standard three-part test. As a side effect, it added a layer of legitimacy to the restrictions introduced in 2014-2022. At the same time, its introduction spurred the flood of new incoherent laws, which did no favor to the media environment and puzzled the media, who had to apply them consistently. The restrictions included:

All these post-February restrictions were adopted without significant discussions and consultations in one reading, adding to an already established list of national security prohibitions on content. These included not only the norms introduced after 2014 but also pre-existing general bans on incitements to hostility, discrimination, or violence, propaganda for war, or calls for the violent overthrow of the Ukrainian government. This entire system required re-shuffling in the wake of the upcoming media reform to avoid any double jeopardy and norms’ overlap.

The process of drafting the Law of Ukraine “On Media” presented an excellent opportunity to codify the measure and enhance their compliance with international human rights law. The initial drafts of the Law had already distinguished between peacetime and wartime restrictions by introducing a separate section devoted to aggression-related restrictions. The former contained general content restrictions and did not go beyond the usual procedures for channels’ retransmission as per the ECTT and the EU AVMS Directive. The latter contained the norms which could barely be justified under the non-emergency legislation, such as the norms on blacklists or some business-related restrictions, such as the total ownership ban for Russians in the media or retransmission of the aggressor state television channels. 

These norms could only have become enforceable after the Ukrainian parliament recognized a specific state as an aggressor state and remained in force until such status was rescinded. It was not tied up to martial law or emergency regimes due to the hybrid nature of the Russian-Ukrainian war and the need to preserve the barriers against the Russian content influx, even in relatively peaceful periods. This approach, albeit modified, was kept up in the adopted version of the law.

The Media Code and national security: a two-tiered approach

The Law of Ukraine “On Media” was adopted on 13 December 2022, finalizing the decade-long implementation of the EU AVMS Directive and a three-year work over its last iteration. It has been in force since 31 March 2023 and is only in the early implementation stage to judge its impact. As mentioned above, its main body preserves the approach of establishing a two-tiered system of restrictions aimed at protecting national security. The general restrictions would apply notwithstanding the surrounding war, while the specific limitations were designed to limit the information influence of the aggressor state in times of aggression.

The first tier includes the adopted language quotas and preserves the current approach to foreign linear broadcasters’ retransmission: the broadcasters or their rightsholders shall register with the National Broadcasting Council (NBC) to get permission for inclusion into packages. This permission is subject to the broadcasters’ compliance with the ECTT, which prohibits broadcasting hate speech and content harmful to children in the programs. This procedure does not apply to the EU registered broadcasters, which is the EU AVMS Directive’s immediate requirement: a separate procedure for their retransmission termination, mirroring Article 3 of the Directive, applies. 

This general part of the Law contains certain national security-related content restrictions, such as:

The second tier of limitations will only apply in the specified timeframe: after the Verkhovna Rada of Ukraine recognizes a particular state as an aggressor state until the withdrawal of such status and for a five-year period after such withdrawal. The parliament will also be obliged to review the necessity of the measures imposed under Section IX of the Law yearly during the mentioned five-year period. This norm goes beyond the initial proposal to reflect the necessity of the post-war transitional period, which will be crucial for Ukraine’s separation from the aggressor state’s information space and eliminate the risks of Russia’s influence reinstatement here. 

Section IX of the Law contains content-based and origin-based restrictions aimed at closing any remaining loopholes for Russian media or Russian content entering the Ukrainian market during the war. The restrictions on content combine some of the previously adopted and new norms; these are the prohibitions to disseminate:

For the first time, this Section defines the criteria for including persons in the “blacklists” absent in the initial version of the restrictions and provides a straightforward appeals procedure for the persons touched by the measure. It also postpones the liability provisions regarding the ban on Russian music until the Cabinet of Ministers establishes the procedure for granting information about a particular musician’s citizenship.

Another set of restrictions prohibits natural or legal persons residing or registered in the aggressor state, or containing such persons in their ownership structure, or receiving financing from such persons to found or own media in Ukraine or register their media as foreign linear media (effectively prohibiting these media retransmission). Aggressor state non-linear audiovisual media – the media owned or editorially controlled by the persons mentioned above, or the media predominantly aimed at Russia – are subject to website blocking under the NBC decision if they comply with specific criteria mentioned in the Law. All these decisions are subject to judicial review by the domestic courts shall any such media file an appeal.

Conclusions and suggestions

The new Law of Ukraine “On Media” is an ambitious attempt to codify media regulation in Ukraine, preserving the main principles of EU law and simultaneously protecting its media landscape from national security threats emanating from the ongoing Russian aggression. While the public’s attention is mainly drawn to the compliance of its norms with the EU AVMS Directive, the legislators’ attempts to translate anti-Russian restriction into the language of international human rights law deserved no less merit.

The two-tiered approach towards distinguishing the imposed limitations on the basis of their application periods is a novelty that deserves further attention internationally when it comes to designing the principles for free speech in wartime. The legislator’s decision not to tie the enforcement of Section IX restrictions to martial law is an unorthodox attempt to reserve some time for the post-war transition of the society, which will understandably resent some types of content and media after the cessation of hostilities. However, as there is no guarantee that the aggressor state status will be revoked immediately after the adoption of any peace treaty, further discussion on modifying this timeframe is necessary to ensure that Section IX restrictions remain temporary.

However, the substantive flaws remain too. Not all the restrictions proposed for enforcement outside the context of aggression are compatible with international standards and fall within the ambit of Article 20 of the ICCPR or Article 17 of the ECHR. Some of the proposed prohibitions remain vague in their wording. To eliminate these flaws and mitigate any adverse effects on freedom of expression, we suggest the following:

  • to eliminate overly vague categories of prohibited content, such as information that denigrates the official language and information that doubts the existence of the Ukrainian nation, Ukrainian statehood, or Ukrainian language;
  • to limit the application of the ban on films produced or premiered in Russia after 1 January 2014 to the Section IX timeframe, whichever this timeframe will emerge after its review;
  • to clarify the rules on blacklists formation by eliminating the overbroad grounds for inclusion and providing the reassessment of the previously included persons against the new criteria;
  • to enhance the foreseeability of the ban on Russian music by providing clear rules on establishing singers’ citizenship and defining the notion of “producing” a song.

Maksym Dvorovyi, DSLU Head of Digital Rights

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