The International Federation of Journalists has expressed concerns over the recently adopted Law on Media in Ukraine and has called for a revision of the law. In two separate statements published on January 12 and January 17, the organization stated that the new law poses a threat to the freedom and diversity of Ukrainian media. In reference to the National Union of Journalists of Ukraine, which is a member of the Federation, the organization has described the new powers granted to the National Council of Television and Radio Broadcasting as “excessive”.
The Secretary General of the International Federation of Journalists, Anthony Bellanger, has expressed concerns over the “increasing authoritarianism of the Ukrainian government” towards media and journalists. He also reminded that the new media law is a part of Ukraine’s commitments as part of its European integration process.
The International Federation of Journalists is not alone in its criticism of the new law. The Committee to Protect Journalists had already criticized the draft law in September 2022, and their criticism persisted even after the bill underwent significant changes during its second reading. The European Federation of Journalists also expressed their criticism of the new law. On the other hand, organizations such as Reporters Without Borders have supported the draft law.
Oksana Romaniuk, Executive Director of the Institute of Mass Information, explains why the International Federation of Journalists criticizes the draft law, while Reporters Without Borders, for example, supports it: “I think it’s because the IFJ relies solely on the position of its members. If their member, the National Union of Journalists of Ukraine, initiates a statement, they automatically support it. And, let’s say, either your position or ours will be of lesser importance. As for Reporters, they have no such restrictions. They receive information from several sources and analyze it. In addition, Reporters has a legal department that has studied this legislation separately, while the IFJ simply does not have one.”
Detector Media reached out to Ukrainian organizations mentioned by the International Federation of Journalists for their thoughts on the criticism of the new law. This is how they assessed the criticism from the IFJ:
Serhiy Shturhetskyi, Chairman of the Committee of the Independent Media Trade Union of Ukraine, answered the questions of Detector Media:
- In your opinion, how justified are the IFJ’s criticisms and arguments?
- The position of the IFJ is based on the position of its member organizations in Ukraine, which in Ukraine are the Independent Media Trade Union of Ukraine and the National Union of Journalists of Ukraine.
- Does the media law really threaten freedom of speech and media pluralism?
- Certain provisions could push Ukraine away from European standards and pose a threat to freedom of speech. The unprofessionalism of some Ukrainian government officials is still evident in their persistent unwillingness to correct mistakes before the spring EU-Ukraine session.
The International Federation of Journalists Criticized the Law on Media. Reaction of Ukrainian Media Professionals
- The National Union of Journalists of Ukraine is grateful to the European and International Federations of Journalists for their continued support of our Ukrainian colleagues. During the consideration of the new media legislation in Ukraine, we constantly informed our international partners about the risks to freedom of speech that the new law may create.
The Union welcomes the implementation of the European Directive on audiovisual services [Audiovisual Media Services Directive] and supports the modernization of media legislation. At the same time, we have expressed concern about 1) the political dependence of the national regulator; 2) the granting of powers to regulate print and online media in light of political dependence.
These are the two main warnings that were not taken into account when the draft law was considered.
It is up to the regulator to decide whether the law will pose a threat to freedom of speech. It is now the regulator’s turn to prove its independence and ability to regulate markets where the National Council [of Television and Radio Broadcasting of Ukraine] has no experience (print and online media). It also depends on the government to approve bylaws – criteria, procedures, etc. We will closely monitor the development of these documents and insist that they are not adopted without consulting practitioners, including journalists from print and online media.
Excessive attention to media regulation against the backdrop of Ukraine’s overall movement in the European direction of deregulation and business facilitation will create an unfavorable business climate in the media market and harm competition. This will result in a narrowing of the field of freedom of speech. Despite the war, we at the NUJU call on the government and parliament to create models of economic sustainability for Ukrainian media, and not just to get involved in regulation. However, the planned committee hearings on economic support for the media, which were supposed to take place last August, have been postponed twice, now indefinitely, which indicates that this topic is a low priority for MPs.
***
The initiative divided Ukrainian media professionals and civil society organizations. The appeal against the adoption of the draft law in 2020, even before the first reading of the draft law, was signed by, among others, the editor-in-chief of Censor.NET Yuri Butusov, TV presenter Natalia Vlashchenko, the founder of Gordon magazine Dmytro Gordon, the editor-in-chief of LB.ua Sonia Koshkina, TV host Savik Shuster. The appeal for the adoption of the law in the second reading in December 2022 was signed, among others, by the NGO Center for Democracy and Rule of Law, the NGO Souspilnist Foundation, the National Association of Media, and the NGO Internews Ukraine.
In the context of European integration, Detector Media asked Patrick Penninckx, Head of the Information Society Department of the Council of Europe, for comments (after the IFJ criticism). However, Mr. Penninckx said that the Council had not yet assessed the final version of the law, which President Zelenskyy signed on December 29, 2022.
Detector Media reached out to the National Council on Television and Radio Broadcasting to get their comment on their criticism of the new media law in Ukraine. However, the regulator’s press service responded as follows: “The Law of Ukraine “On Media” was adopted by the Verkhovna Rada of Ukraine and signed by the President of Ukraine. The European Commission and the Council of Europe have issued opinions on its provisions. The law is binding for the National Council on Television and Radio Broadcasting. For comments and suggestions to the law, in particular, those expressed in the appeal, it is better to contact its authors.”
Detector Media received a response to the criticism of the International Federation of Journalists from one of the initiators of the draft law, Mykyta Poturaiev, chairman of the parliamentary committee on humanitarian and information policy, MP from the Servant of the People fraction. Here is the part of the statement that concerns the law:
“...Another disinformation campaign concerns the Law on Media recently adopted by the Verkhovna Rada and signed by the President of Ukraine.
The campaign is aimed at the EU’s governing institutions, governments, and politicians of the EU member states. The aim of the campaign is to force Ukraine to revise some fundamental provisions of the law by threatening to “disqualify” this clause as one of the seven conditions for the start of negotiations on Ukraine’s membership in the EU.
Let’s look at a few of the blatantly false statements, in my opinion, from the already numerous complaints filed by a European journalistic organization.
Thus, it is argued that, according to the law, the work of a media organization can be terminated without a decision of the court or the regulator (In addition, the union noted that, according to the law, the cancellation of licenses and the banning of media activities can take place without a decision of the regulator and the court, which nullifies the role of the regulator). I am forced to use the definition of “outright lie” here, because the law of Ukraine, unlike the laws of most EU member states, where national regulators have much greater rights, clearly states that the work of registered media can be restricted by a court decision only.
Here is another example of the same false information. It is alleged that the law gives the state the right to create state-owned media, which will lead to the destruction of independent media and monopolization of the media environment (In a statement issued in early January, IMTUU warned that the law does not contain restrictions on the creation of linear media services by the state, allowing the monopolization of airwaves with content created exclusively by state-owned media). At the same time, the law explicitly and without any compromise prohibits the state and any state bodies from being founders and owners of any media. The only exceptions are made for foreign broadcasting, which is again expressly prohibited from broadcasting on the territory of Ukraine; for radio broadcasting by the Ministry of Defense – temporarily, only for the duration of the war and only in frontline areas; and for the parliamentary TV channel Rada, whose work should be further restricted by a separate law.
An example of manipulation is the statement that the law granted the national regulator the right to regulate the entire media environment, including social media (to regulate print and online media, as well as internet, television, radio and online platforms such as YouTube and social networks). In fact, the regulator will indeed engage with registered media, which may include bloggers, but only if they want to obtain the appropriate status. Registration for online media is also voluntary.
Additionally, there are accusations of “unprecedented, punitive, and repressive rights of the regulator in relation to the media” that are allegedly established by this law. This is another example of manipulation since the rights of the regulator have not fundamentally changed compared to the original legislation of 1994, and for some reason, these rights have never caused any concern among international organizations. After all, even the first law that created the Ukrainian national regulator and established the first rules for the media environment was actually a copy of several laws of European countries. Moreover, national regulators exist in all EU member states. And European national regulators usually have more rights than the Ukrainian regulator does today, even during the war against Ukraine.
Another manipulative but also frequently repeated accusation is that there is an insufficient presence of representatives of journalistic professional organizations among the members of the Ukrainian national regulator. This is a strange statement given the fact that at least one of the current members of the regulator was nominated by the National Union of Journalists of Ukraine, and the chairman of the National Council is a person with the official title of honored journalist and a member of the NUJU.
So, obviously, the problem is not the lack of representation of professional organizations but the absence of specific people among the members of the regulator who would represent and promote a specific political position.
What could it be? A reminder should be made that certain representatives of the leadership of certain Ukrainian journalistic organizations, together with the same international organizations, have consistently fought and continue to fight against the ban on Russian media in Ukraine; the ban on pro-Russian media in Ukraine; the ban on Russian media in Europe and the countries of the democratic, civilized world. We would also like to remind you that the biggest so-called “criticism” of the then-draft law “On Media” came from pro-Russian media and journalists and seemed to be fully coordinated with similar statements by representatives of the leadership of one of the Ukrainian journalistic organizations. Let’s recall what caused this “criticism”: the section dedicated to protecting and combating Russian narratives and the Russian information war against Ukraine.
Finally, it should be noted that the Russian Union of Journalists, with its well-known members such as Dmitry Kiselyov, Vladimir Solovyov, Olga Skabeyeva, and other war criminals and propagandists of the genocide against the Ukrainian people, is still a member of international journalistic organizations that, with the support of their Ukrainian colleagues, are now trying to discredit and revise the Law on Media. These international organizations have not demonstrated any desire to get rid of such a shameful partnership.” (In fact, as Detector Media reported after the Ukrainian media called for the expulsion of the Russian Union of Journalists from the IFJ, the Russian representative was not re-elected to the Federation’s leadership, and the issue raised by the Ukrainians was to be considered by the Federation’s executive committee. As far as we know, this issue has not been considered yet.)
We also asked Ihor Rozkladai, a member of the group that worked on drafting the law, chief media law expert at the Center for Democracy and Rule of Law, and member of the Independent Media Council, about the essence and possible reasons for the criticism from the International and European Federation of Journalists. In his opinion, the IFJ “broadcasts the position of the NUJU, and I doubt that anyone other than the NUJU has read and understood the law at all. Whether Ukraine should respond is a difficult question. Because on the one hand, they are spreading this information on the principle of ‘I haven’t read it, but I condemn it’. There are doubts whether those in Europe who don’t know about the law will delve into refuting it. There should be some kind of an external advocacy campaign, but I don’t have an answer yet, we’re contemplating it ourselves. As for me, this is an overly politicized story. And the purpose of this attack, in my opinion, is to prevent Ukraine from effectively protecting the Ukrainian media space.” Ihor Rozkladay’s explanation of the law can be found here.
Kateryna Myasnikova, executive director of the National Association of Media, explains her response to criticism of the law: “As a representative of one of the largest associations of Ukrainian media, I can confidently say that the assessment of the law as an “authoritarian drift of the Ukrainian government towards the media and journalists” is an exaggeration. I would like to hope that this is due to the fact that there is no translation of the text yet, so representatives of international organizations have not been able to properly assess the law. I hope they will have this opportunity in the near future.
The statement says, for example, that licenses can be revoked, and media outlets can be banned without a decision of the regulator or a court. This is not true. The law clearly defines that such sanctions can be applied exclusively via a court order. There are only two cases when online media can be blocked without a court decision. Unregistered media outlets that have committed five or more gross violations within a month (indicating a systemic flagrant disregard for the law) may be blocked for up to two weeks. Only anonymous media, whose owners cannot be identified, can be banned from distribution. In this case, it is impossible to identify a person or organization that can be sued and therefore initiate legal proceedings. All this is done by the decision of the regulator, which can be appealed in court.
The Law on Media also prevents the National Council from regulating social media or foreign video platforms like YouTube.
There are also many reservations about the independence of the National Council. I would like to remind you that the Law on Media deprives parliamentary fractions and groups of the right to nominate members of the National Council. From now on, only public associations and professional unions will be able to do this. Also, in accordance with the law, candidates are reviewed by an independent competition commission before being appointed by the President of Ukraine. We believe these changes will make a significant contribution to the independence of the regulator.”
Vita Volodovska, Director of the Digital Security Lab, also assessed the statement of the International Federation of Journalists:
- The allegations in the statement are either the result of a selective and unsystematic analysis of the text of the draft law or deliberate manipulation.
The regulator’s powers are changing, but in no way does it become a censor. On the contrary, the new law significantly strengthens safeguards against possible abuse, starting with the procedure for appointing members of the National Council. The law adds a competitive procedure that makes the process more transparent and accountable. More importantly, it is the journalistic community and civil society that are given the right to nominate candidates rather than political parties, as has been the case before.
Indeed, the new law extends the jurisdiction of the National Council to print and online media, which was not the case before. However, these powers are limited to responding to cases of violation of the law. Moreover, the content restrictions provided for in the law were already in place before and covered information that can be legally restricted under international human rights. Only a few war-related restrictions are new, they are temporary in nature and were introduced for the legitimate purpose of protecting national security.
Registration for online media is voluntary, and for print media, it will also become voluntary after the end of the Russian aggression. The cancellation of voluntary registration of media outlets is in no way a reason to suspend their activities.
The statement that the National Council will be able to demand that the administration of Youtube and Facebook remove any content and that Google remove certain results from users’ search results without the right of the editors to defend themselves, is at least incomplete and distorts its meaning. It is only about information whose illegality was established by a final decision of the regulator (and was not challenged by the media) or the court in the course of proceedings directly involving media representatives.
Maksym Dvorovyi, Head of Digital Rights at the Digital Security Lab, also responded to the statements of the International Federation of Journalists:
- Let’s go through the arguments of the statement that can be regarded as critical.
“The law empowers the regulator, the National Television and Radio Broadcasting Council, whose members are appointed by the President and the Parliament, with a broader authority over the Ukrainian media landscape.” - If the subject of criticism here is the appointment of the regulator by the President and Parliament on a quota basis, this is enshrined in the Constitution, which cannot be changed under martial law. Almost everyone in the media community is aware of this problem, but it cannot be fixed now.
In the current architecture of the regulator, as many safeguards as possible have been added to increase transparency and reduce the influence of politicians on the selection process. As for broader powers, the National Council will regulate print and online media. This step is necessary given the ineffective attempts at self-regulation in the media sector, as well as the fact that bringing specific authors of materials to justice under the Criminal Code is not a working model for regulating the media at the current pace of law enforcement and court work. There are plenty of examples of media outlets that have disseminated content that could threaten national security.
“IMTUU warned that the law does not contain restrictions on the creation of linear media services by the state, allowing the monopolisation of airwaves with content created exclusively by state-owned media.” — Article 21 of the law explicitly enshrines this restriction with exceptions for UA:PBC, local public media, which will be transformed into communal channels that have mechanisms for an independent editorial policy similar to UA:PBC, and Rada TV channel.
“In addition, the union noted that, according to the law, the cancellation of licences and the banning of media activities can take place without a decision of the regulator and the court.” — The meaning here also requires clarification. The only thing that comes to my mind is the potential possibility of terminating the work of the media by the Law on Sanctions. I can agree with this element of criticism, but it is misdirected — the text of the Law on Media cannot solve the problem that the Law on Sanctions is being used in a rather peculiar way (and with human rights violations) as a substitute for law enforcement actions and against Ukrainian citizens, which was not, in fact, envisaged by the text of the law (except in the case of Ukrainian citizens involved in terrorism).
Summary: After the end of martial law, the articles of the Constitution on the media landscape and the powers of the authorities should be changed. At the same time, we can think about redesigning the procedures for appointing a regulator, see how the regulation of print and online media will go, and see if there will really be a slide into authoritarianism.
Detector Media will continue to cover and initiate discussions on the Law on Media. We are ready to give all interested parties the opportunity to voice their opinions.
