The Author

Marta Barandiy

Marta Barandiy is the founder of Promote Ukraine and holds Ph.D. in International Law. She lecturers at Ukrainian Free University in Munich, Germany. She is a Brussels-based analyst writing on International Conflicts Resolution, Sovereignty in International Law, International Terrorism, Information War, Russian aggression in Ukraine and Europe.


The Parliament of Ukraine has recently voted for a Resolution that proposes to shut down two national TV channels – NewsOne and 112 Ukraine. The MPs accuse them of spreading Russian chauvinist propaganda and the ideology of terrorism. Now, the National Security and Defense Council should take measures according to the Law on Sanctions. These measures to be signed by the President of Ukraine.

Bypassing legal procedures

The Resolution was voted for without the agreement of the Committee of Freedom of Speech and through “button pushing” (Ukrainian parliamentarians voting for their absent fellow MPs, which is not allowed by the Parliament’s Regulation). The basis of the Resolution was a petition on the website of the Parliament signed by Ukrainian citizens who were convinced that the channels were financed and controlled by the Kremlin.

The reason for the petition was that under the conditions of military action in Donbas, Russian propaganda is a weapon of war, and in the upcoming elections, it would be used against the sovereignty of Ukraine.

Yet the applied procedure bypassed the existing law on media freedom, which should not be happening in a state with the rule of law. There is no state of emergency in Ukraine – thus, the regular law should be applied. It foresees that the National Television and Radio Broadcast Council, Security Service of Ukraine, and court are competent to handle cases of crime and abuse by the media. This would ensure the requirement of Art. 10 of the ECHR on proportionality and legitimacy – and allow the channels to defend themselves in the court.

Why did the Ukrainian Parliament intervene then?

Is it because the other institutions are not efficient? Or is it because there are not enough legal grounds for the competent organs to cancel the broadcasting license?

Given that the petition is a document that reflects the moral stance of a part of the population and the Resolution is a document with legal consequences, we need to establish what exactly the channels abused, moral norms or norms of law.

First of all, many suspect they are financed by the Kremlin. While it’s clear that Ukraine should resist Russia’s information attacks against Ukrainians, the country still has no law forbidding Russian funding of Ukrainian media sources.

Such a law exists in the US, not in Ukraine.

At the beginning of 2018, Russia Today and Sputnik were listed among foreign agents in the USA according to FARA 1938 , which requires that agents representing foreigners reveal financing sources and details of their activities, so everyone can have an idea in whose interests they act. And in October 2018 one of the distributors stopped broadcasting Russia Today on the grounds of the John McCain defense clause, just because it is financed by Russia.

Yet Ukraine is not governed by the US law, it needs to have its own norms to forbid the media and other Ukrainian structures being financed by Russia.

Such a law was being prepared in 2016 but was never adopted. Therefore, if an outlet is indeed financed by the Kremlin (which still needs to be proven), this is no official reason for Ukraine to revoke its broadcasting license.

Many Russian channels, especially those just rebroadcasting their programs in Ukraine were banned back in 2014. In all of the cases this happened on the decision of the National Television and Radio Broadcast Council or court.

Those channels that had representation in Ukraine were banned later by the decision of the National Security and Defense Council. Yet these are media legally established in Russia. Ukraine has little influence to make them adapt their activity to Ukrainian law. This is different in the case of 112 Ukraine and NewsOne.

A further argument to cancel the license is that both channels are most probably owned by Viktor Medvedchuk, dubbed as “Putin’s man in Ukraine,” despite the official papers saying otherwise. In 2016, Ukraine’s Prosecutor General was required by the court to open a criminal investigation against him concerning proof of his anti-state activities. Nevertheless, Medvedchuk is working in Ukraine, and most probably will participate in the 2019 presidential elections, whether by himself or by supporting a united candidate from the so-called “opposition.” Therefore, closing the channels based on ownership by Viktor Medvedchuk has no legal grounds.

Notably, the Law on Sanctions used by the Verkhovna Rada of Ukraine to pass the Resolution is applicable to the official owners and managers of the channels – in one case is a foreigner and in the other – a non-resident. The manager of the latter was changed the day after the Resolution was passed: both the owner and the manager of NewsOne are Ukrainian residents now.

Yet it is still unclear whether the Law applies to media outlets established in Ukraine, as there is a possibility to influence them by applying other existing legal norms. The misuse of the Law on Sanctions in relation to basic human rights has to be prevented. Moreover, the media enjoys special international legal protection because of the importance of freedom of speech.

Other arguments to stop broadcasting of 112 and NewsOne include TV-presenters who repeatedly used clichés of Russian propaganda like praise for Russia’s military power in Syria and suggesting for Ukrainians to watch this power more often in order to estimate Russia’s real force in comparison to Ukraine. The presenters sometimes accuse Ukrainian authorities of being responsible for Russian aggression against Ukraine. At least one of the channels spreads fake news.

Do these abuses mean that the channels should be shut down? Maybe. But it is the court that should decide, not the Parliament, because media should be free from political influence. There have been numerous investigations into 112 and NewsOne by the National Television and Radio Broadcasting Council and National Security Service of Ukraine, but they were not enough to revoke their licenses. So, the legislator who has no competence in these matters stepped in.

As for the moral side, we mustn’t forget that the decision of the National Security and Defense Council that acts on the Parliament’s authority would need to be signed by the President, who himself owns a TV channel and is a candidate in the 2019 presidential election. This makes him an “interested” party in the case.

Besides, in the media environment in Ukraine where almost all the channels belong to a few people with political interests in these channels, how ethical is it to demand to close the mass-media of other people? This may be used by the latter as an argument that the government wishes to “shut down its opponents.”

Therefore, the channels shouldn’t be closed at the Parliament’s will.

Hybrid war brings hybrid freedom of speech

Why does Ukrainian society push for closing the channels? It was officially the petition that gave the impetus for the Parliament to adopt the Resolution.

The situation in which Ukrainian authorities refuse to call the military intervention of Russia “a war” in internal legal acts dissonates with many Ukrainians, who see themselves as left on their own with dealing with the status of this war. Thus, the activists and media impose their understanding of the status of this war on others without any legal support.

This has consequences for the communication between people in society.

In the past four years, the situation of war in Ukraine has led to the rise of the phenomenon of “betrayal” (“treason”). It allows labeling anything opposing the Ukrainian government’s stance as “treason” leading to Russia’s victory. Those speaking about signs of corruption in the government are the “enemy” aiming to sow distrust towards Ukraine’s leaders at a time of war and those blindly praising the government are the true Ukrainians fighting for national identity. One is forced to take sides every time he takes a stance on whatever issue in society. The area “in between” slowly disappears.

Yet the role of civil society and media is to criticize and to control the government, not the other way around.

In developed democracies, people understand that the “government in its natural state is arrogant and lazy… and if it is not accountable to the people, it just keeps doing the lazy and arrogant thing…” These are the words of Nikki Haley, the Representative of the USA in the UN.

It is not up to civil society activists or other people to make conclusions on treason on the basis of their own subjective values. These are the powers of the court.

What the Parliament should do is to draw criteria based on which a person is to be qualified as a “hand of Kremlin” so that everyone is on the same page.

Everyone should clearly understand what is allowed, what is not allowed, and what are the consequences of the breach of this law. The law-enforcement authorities should ensure the efficiency of this law. Up till then any one-by-one “qualification” of a person by a petition or the Parliament as an “enemy” is not acceptable. Hate speech towards people with other political views should be legally prosecuted.

The international silence

The chair of the Committee of Foreign Affairs of the Ukrainian Parliament Hanna Hopko told Daily RBC that there will be no reaction of Ukraine’s Western partners to the Resolution and possible closure of the channels. According to her, she explained everything to the embassies when the authorities banned Russian social media services “Vkontakte” and “Odnoklassniki” to which the Law on Sanctions was applied.

Such an approach is dangerous because it sedates the vigilance of Ukraine’s international partners and by this provokes the permissiveness of the Ukrainian authorities.

If these channels deserve to be closed, it should be established by the court. But if they are banned by an act of parliament without application of legal procedures and international control, this will set a dangerous precedent allowing for easy political interference in the work of media.

Besides, Russian social media and Ukrainian channels have different statuses. Ukrainian media, even if their official owners are foreigners or non-residents, cannot be compared to foreign structures that are administered from other states and therefore interfere in the internal affairs of Ukraine – they can be influenced by national instruments.

Their closure can happen quickly but the fight for freedom will take years.

Historian Timothy Snyder, a bestselling author well known in Ukraine, warns that “most of the power of authoritarianism is freely given… the first heedless acts of conformity cannot be reversed. The institutions like a court, a media, a law fall one after the other unless each is defended from the beginning.”

How to combat propaganda

Russia’s propaganda machine should be fought by existing procedures and through international cooperation. Together, countries should develop new procedures if necessary.

For now, propaganda of war and hatred rhetoric are forbidden by international law. It is because both are capable of provoking bloodshed. Some countries used this law to shut down media outlets. Thus, by the decision of the court, Denmark closed Roj TV A/S back in 2010. According to the government, the channel promoted the terrorist activities of PCC (Kurdistan Workers Party). In May 2018, the European Court for Human Rights confirmed that Denmark did the right thing through the right authority.

As for fake news, they are both allowed and not allowed. An agreement on “fake news” – International Convention concerning the Use of Broadcasting in the Cause of Peace of the League of Nations 1936 forbids spreading of misleading messages. It requires the States to prohibit broadcasting programs that provoke actions which are incompatible with internal order and security. The agreement is still valid, though no one is executing its norms.

Moreover, in the Сommon Declaration of the UNO, OSCE, OAS, and Africa from 2017, it is noted that “fake news should not be banned but debunked.”

This collision between international norms shows that the question is not well studied and regulated on the level of international law. Also, fake news in a country that suffers from military intervention could lead to military losses.

Nevertheless, the government of Ukraine should apply the existing law or pass a new law applicable to all. Criteria should be drawn for reasons of transparency and for the sake of saving democracy. To rephrase the above-mentioned historian Timothy Snyder, the laws and rules are there not to serve the projects of the elites, they are there to hinder them.

 

DISCLAIMER
This opinion was originally published at Euromaidan Press.
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