Expanding possibilities of blocking and banning: How MPs rewrite the law on media

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In May of this year, after numerous claims by the media community, the "old" project was sent for rework. The relevant committee on humanitarian policy issues reassured journalists that the new document will take into account all their claims...
22:48, 30 June 2020

Open source

A new draft law on media, which will be submitted to the Rada after July 1 was published by Strana.

This document replaced the previous bill, which the pro-government MPs and officials of the Ministry of Culture worked on for 5 months.

In May of this year, after numerous claims by the media community, the "old" project was sent for rework. In the relevant committee on humanitarian policy issues, members reassured journalists that the new document will take into account all their claims.

They read a new bill and it turned out that almost all of the most scandalous norms of its predecessor migrated into it. Moreover, some of them are seriously strengthened and expanded. And, in general, the law has become even more repressive in relation to the media.

Twin brother of an old project

The list of complaints from the media community to the "old" project was quite extensive. The main one is that the authorities gave virtually unlimited powers to the National Council on Broadcasting, which will oversee all media in Ukraine (and not just radio and TV, as it is now), including the right to block objectionable online publications.

Journalists repeatedly analyzed in detail the "gross" violations that could lead to blocking sites.

Initially, they wanted to pass the bill on media in the "green printer" mode.

But the harsh criticism to which both Ukrainian media outlets and a number of international organizations, including the OSCE subjected it, forced the mono-majority to slow down the process. The committee withdrew the project and began to refine it. And already in mid-June, it turned out that the new version of the bill was almost ready.

"This is an updated edition, on which the working group, together with MPs, industry representatives, Council of Europe experts and all interested parties, worked for about 6 months," said Yevgenia Kravchuk, deputy head of the humanitarian policy committee.

In a conversation with the press, the MP explained that the document will be registered in the Verkhovna Rada after July 1. First, it will be presented at a meeting of the relevant committee, and after that, it will appear on Rada’s website.

By the way, one of the main reasons for the delay in considering the bill was the incomprehensible situation with the National Council on television and radio broadcasting. More precisely, with the question - who will control this body, which the new law gave superpowers to?

We detailed the alignment of forces in the National Council, the majority of which now belongs not to the president, but to representatives of the largest oligarchic groups.

However, in the near future, the process of its rotation will be launched. Parliament will express no confidence in the National Council, which will lead to the automatic dismissal of half (four) of its members appointed by parliamentary quota. And new people selected according to the wishes of the president’s office will come in their place.

Thus, by the time the law is passed, the National Council will be already fanned out and controlled by Zelensky. At least his office has such a plan. But in parliament, its implementation might be met with resistance. Which, by the way, can slow down the process of approval of the bill.

What has changed in the new project

The form of the updated bill, which was at the disposal of the journalists, has not changed.

Instead of 124 articles on 174 pages, we now have 126 articles on 183 pages. As in the first case and in the second, the essence of the document is set out in 10 sections. In structure, the difference, perhaps, is only in the fact that a separate article of the Ministry of Defense and civil-military administrations media appeared.

The bill tried to clarify a number of basic definitions. For example, a clarification was written in the concept of "online media" that it is a media that not only disseminates information via the Internet but also has its own website or its own page on a platform for sharing information.

Obviously, with such a refinement, the lawmakers tried to bring bloggers out of the law.

But the reference that the dissemination of information should go on a personal page on a platform for sharing information (for example, a personal page on any social network) still ranks bloggers as online media.

But in the term “media” lawmakers entered clarification that this is means of disseminating information in any form, which periodically or regularly comes out under editorial control. Therefore, if we take the same bloggers, no one exercises editorial control in their respect, which means that they cannot be reckoned with ordinary media.

A large block of new terms appeared in the bill, such as who is the ultimate beneficial owner of the media entities, who is the key participant in the media entity, what are the signs of indirect and direct decisive influence on media activities and other terms that relate to the media ownership structure.

An important point should be noted. All these additions, according to the outgoing data of the bill, were made by a certain Tetiana Smirnova. A person with the same name is a lawyer of the "1 + 1" TV channel.

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As before, the National Broadcasting Council will oversee the entire media market. The new project simplified the requirements for its members. For example, if earlier those who were 30 years old could become a member of the Regulator, now there is no age limit at all. But priority in the appointment will be given taking into account gender equality. That is, if the majority of men will appear in the National Council, then women should be appointed to vacant posts. And vice versa.

The work of the National Council will be organized by the patronage service. Moreover, if earlier it could only include an assistant and secretary of the head of the National Council and one adviser to a member of the Regulator, now each member of the Regulator can give one representative to the service, and each of them will receive a salary.

The powers of the National Council in the new project are further expanded. For example, after the adoption of the law, the Regulator will be able to contact the owners of the platforms for general access to information (including foreign ones) with the requirement to restrict access to user information distributed by media to which sanctions have been applied.

Also, the National Council will receive the right to contact the owners of search engines, including foreign ones, with the requirement of exclusion or blocking in the search results or catalogs of information that is subject to sanctions in Ukraine.

What does this mean? The fact that the National Council will demand not only to block objectionable media in Ukraine, but also to close the pages of this media in social networks, for example on Facebook, and the possibility to show its articles or other information materials in the search engines Google, Yahoo, Bing and more.

As before, it is proposed to create a mechanism such as general regulation to supposedly demonstrate transparency and lack of censorship for the media. This will be a public union created by the National Council from representatives of licensed media.

The new draft clearly defines what may become the subject of general regulation. This is the establishment of criteria by which the entities in the field of online media will include persons who disseminate online information but are not registered as media, defining criteria for what information is forbidden to disseminate, what information can harm the psyche or moral of children, as well as broadcast rules for memorial days.

However, as before, it is up to the National Council to decide on sanctions for the media.

Media blocking capabilities expanded

There are 5 types of sanctions in total: a fine, cancellation of media registration, cancellation of a license, a ban on online media in Ukraine, a ban on a foreign audiovisual media service in Ukraine.

Of all these types of sanctions, the National Council can set only the penalty on its own. As for the cancellation of registrations, licenses, or media blocking, this will occur on the basis of a court decision.

A whole article on how online media blocking will be implemented appeared in the bill.

For media whose domain name is UA or UKR, they will require the domain registrar to stop registering or maintaining the domain name. They will also oblige the hosting service provider (if it is a resident of Ukraine) to stop providing these services.

If the media are registered in other domain zones, then the providers will be obliged to block the resource.

For online media that provide information through information sharing platforms (for example, Youtube), they will require restricting access to the pages of this resource from the owner of the platform.

As in the previous draft law, sanctions for the media depend on three groups of violations: minor, significant, and gross.

For example, minor violations are a violation of the deadlines for responding to requests from the National Council, a violation of the deadlines for making changes to the registry, or non-compliance with requirements for outgoing data.

Significant violations are the publication of any generally forbidden information. An article about what information is prohibited by the media migrated to the new project almost in full from the old one.

Of the important innovations, the document introduced a ban on statements that encourage discrimination on the basis of gender identity.

In general, the project was saturated with many ideas of gender equality. Here, as already mentioned above, there are requirements for the gender composition of the National Council for Broadcasting and the provision of benefits for appointments of representatives of the smaller number gender.

As before, the bill will introduce direct censorship on the positive mention of USSR communist leaders - from secretaries of district committees, etc., as well as Soviet law enforcement agencies. It is forbidden to publish materials in which the symbolism of the communist or national socialist (Nazi) totalitarian regime is demonstrated in order to justify or deny their criminal nature.

A new paragraph was added to this article - the broadcast of statements or materials that demeanor show disregard for the state language is prohibited.

Significant violations include the dissemination of information, which can lead to grave consequences for the psyche of children (by the way, in the previous project we were talking about adolescents, now there is a division into information for children and adults) or the availability of this information in the public domain without using the parental system control.

And a few more points are found there - a violation of the law requirements during the election campaign, information support of the elections or referendum, as well as a violation of the distribution of advertising and sponsorship.

But the publication of information prohibited by a whole separate section "Restrictions related to armed aggression" falls under gross violations.

The same section also almost completely corresponds to the “prohibition” from the previous draft, which refers to the “aggressor state” (“occupying state”), that is, a certain country (it is not directly called), but it is clear that we are talking about Russia . And also in the case of the appearance of "successors" to such an "aggressor state," so do they.

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We are talking about three groups of explicitly prohibited information.

1. Materials that contain the popularization or propaganda of the bodies of the aggressor state, its officials, persons and organizations that are controlled by the aggressor, and their individual actions that justify or recognize lawfully armed aggression, annexation, occupation of the territory of Ukraine, in particular, and public denial of these actions.

2. Inaccurate materials regarding armed aggression and the actions of the aggressor state, if the consequence is incitement to hatred or hatred or calls for a violent change of power, the overthrow of the constitutional order, or violation of territorial integrity or constitutional order.

3. Programs and materials (except informational and informational-analytical) among which participants there are persons included in the List of persons that pose a threat to the national media space.

Note that, according to the new project, not only the National Council and the National Security and Defense Council with the Security Service of Ukraine but also the Ministry of Culture will compile such a list.

The bill also states that it is forbidden "exclusively" (there is no such word in the previous version of the document) to positively cover the activities of the aggressor’s authorities, "with the aim of popularizing them" (such a turn was also absent in the previous draft).

What does this mean?

Firstly, one can only criticize life beyond the line of demarcation. It is impossible to broadcast any speeches of Russian officials at all (since they can talk about the achievements of Russia). It is impossible to submit different points of view on what is happening in Donbas, but only "reliable" information, for example, data from the headquarters of the JFO.

Well, the ban on "exclusively" positive coverage of the activity of the aggressor state, obviously, means that any positive information from Russia must be seasoned with a fly in the ointment. Otherwise, this is a gross violation of the law. Although in fact, this is all direct censorship. Indeed, for such a media they can use a block (by court order) or, at a minimum, write a fine (simply by the decision of the National Council).

By the way, if earlier the maximum fine for online media was up to 5 minimum wages on the day the violation was made, now such a penalty will be used only for minor violations.

Significant ones will cost from 5 to 10 minimum wages, and gross ones will cost up to 15 minimum wages.

Note that, for print media, fines have been reduced on the contrary. If earlier it was a question of fines of up to 75 times the minimum wage, now the maximum is also 15 minimum wages. But fines were left for audiovisual media.

As before, legislators entrusted to make decisions on blocking media only to the district administrative court in Kyiv. According to the usual procedure and within 30 days. But, as stated in the bill, "in the event of a real threat to the interests of national security," the court must consider the claim within 2 days. And the appeal and cassation - within 10 days.

Now you can block a site only after cases of violation of the law have been proved in legal order - for example, criminal cases on the site’s content have been investigated.

It is important that the draft law on media included the responsibility of foreign audiovisual media, which will broadcast prohibited information in Ukraine.

Even during the discussion of the project, the question was raised about the possibility of blocking and imposing a fine on such media, in particular, on the foreign Internet site YouTube. Moreover, top managers of Ukrainian TV channels and MP Mykyta Poturaev, now the head of the profile committee, spoke for this.

However, in the final version of the project, there is no direct responsibility for such sites. The document says only that the National Council can send such a media a request to remove relevant information or restrict access to it in Ukraine.

The new bill also contains some cosmetic concessions for the media.

For example, a clause appeared that the media should not coordinate their materials with officials of state authorities and local self-government, as well as political parties. Previously, there was no mention of parties.

At the same time, persons who believe that inaccurate information has been made public are given the right to demand its refutation or to give an answer within 14 days after the release of this information (earlier the term was 30 days).

But this pill is unlikely to sweeten direct censorship, which, as it was in the previous draft, remained in the new one, and lightning court decisions that will block the media, which, according to the National Council, violated some norms of the law.

Related: Russian State Duma appeals to Prosecutor’s Office concerning number of foreign mass media



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