Freedom of Expression in Times of Conflict: UKRAINIAN REALITIES Analytical report 04/2017

This report is the first publication within the framework of the project “: Freedom of Expression in Times of Conflict” implemented by a non-governmental organisation “Digital Defenders Partners” (DDP) under the support of American Bar Association Rule of Law Initiative (ABA ROLI).

The information and views set out in this report are those of the authors and organisations to whose papers and rankings respective references are provided, and in no way represent the official position of DDP.

The selection of materials and summaries are the exclusive responsibility of the author of this report, and have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and do not represent the position or policy of the American Bar Association. Furthermore, nothing in this report is to be considered rendering legal advice for specific cases.

Author: Olga Kyryliuk, expert in international law with the focus on freedom of expression; co-founder and managing partner of DDP [email protected]

Original: Ukrainian

© Copyright 2017, DDP ABA ROLI DDP USA , Ukraine

American Bar Association Rule of Law “Digital Defenders Partners” Initiative (ABA ROLI) is an international is a Ukrainian-based non-govern- non-profit organization that promotes mental organisation established with a justice, economic opportunity and view of protecting human rights online human dignity through the rule of law, and promoting the idea of free, open and implements technical assistance and affordable to all . projects funded by international donor organizations. Main work areas: - expert analysis ABA ROLI work in Ukraine involves: - analytical support - legal aid clinics; - advocacy - support for advocacy centers, pro- - legal consulting viding public outreach and legal - awareness-raising campaigns consultations to disadvantaged - capacity building. populations; - defense attorneys training; - technical assistance in drafting and Key thematic areas: revising legislation. human rights online, strengthening multistakeholderism in media and ABA ROLI has supported efforts to digital spheres, privacy and personal combat corruption, cybercrime and data protection, access to public human trafficking and helped to information, cybersecurity, media reform the law enforcement system. literacy. ABA ROLI also supported initiatives that address issues of xenophobia, “Digital Defenders Partners” racism and ethnic discrimination. is a young, ambitious, talented and hard-working team of professionals, ABA ROLI has been operating who know how to protect your rights country-specific programs in Ukraine online and are ready to provide their since 1992, and currently is assistance. implementing Internet Freedom Program funded by United States Government. Contents Contents

INTRODUCTION - 4 p. UKRAINE IN WORLD RANKINGS - 6 p. INTERNATIONAL STANDARDS AND THREATS TO JOURNALISTS - 13 p. INFORMATION SECURITY vs. FREEDOM OF EXPRESSION - 21 p. CONCLUSIONS - 29 p. “Unless potential perpetrators know that their attacks will have legal consequences, these instances of violence against journalists will persist. And victims are not only the journalists themselves but also societies as a whole that end up being deprived of critical information”.

David Kaye, UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression

In the 21st century, the information aggravation of the military confron- turned into a key resource, the tation in the past two years occured availability and diversity of which in the early 2017 in Avdiivka, with serve as an indication of democracy, simultaneous disruption of water, transparency and social respon- electricity and heating supply in sibility of the state. The free Internet severe winter conditions, when is the cornerstone of the broader temperatures dropped down to 20 processes of maintaining rule of law degrees below zero. As of 25 April and democratic governance in 2017, the Ministry of Social Policy of Ukraine while fostering the inte- Ukraine reported the number of gration of the country into a global approximately 1.7 million registered information society. Without pro- IDPs (internally displaced persons) viding sufficient guarantees and from Crimea and Donbas.2 means for exercising human rights online, as well as sustaining a From the very beginning, the conflict reasonable balance between free- with Russia contained a significant dom of expression and national information component, which moved security, Ukraine would significantly the confrontation from purely restrict its growth and development physical to information space. The opportunities, thus depriving its Internet turned into a separate citizens of the benefits brought by a battlefield, where it is easier to digital era. conceal manipulations, disseminate propaganda and impose restrictions The last three years posed a under the shield of national security. challenging task for Ukraine. The response had to be prompt, According to the data collected by proportionate to the threat and the Office of the United Nations reliant on the existing information High Commissioner for Human potential. The lack of official Rights (OHCHR), during the period recognition of the state of armed from mid-April 2014 to 15 February conflict provided for unconditional 2017 there were 33,146 victims among the , 1. Report on the Human Rights Situation in Ukraine: 16 November 2016 to 15 February 2017, Office of the United civilians and the members of armed Nations High Commissioner for Human Rights, http://www.ohchr.org/Documents/Countries/UA/UAReport1 groups, including 9,900 killed and 7th_EN.pdf. 23,246 wounded.1 The most intense 2. Обліковано 1 583 827 переселенців, - Мінсоцполітики, 25 Квітня 2017, http://www.msp.gov.ua/news/13032.html. 4 compliance by Ukraine with all valid in order to prevent their trans- peacetime rules of international law. formation from yet declaratory, At the same time, many initiatives framework provisions into binding launched at the national level normative rules. Threats to journa- sparked a mixed reaction from listic activities and attacks on international human rights groups, journalists may potentially create a media community and ordinary significant chilling effect on the citizens. Information started to be unbiased coverage of events, espe- recognised as such that threatens cially from the areas temporarily out territorial integrity and sovereignty, of the Ukrainian government’s and, thus, justifies the governmental control. Positions of Ukraine in world attempts to block and filter content, rankings of media freedom and the and ensure greater scrutiny of the right to freedom of expression broadcasters’ licensing. demonstrate a downward trend.

OHCHR noted that as of 15 February This report is aimed at ascertaining 2017, freedom of expression on both of the interrelation between the sides of the contact line remained conflict in Donbas, annexation of limited and politicised. Media experts Crimea and respect for freedom of and representatives of some NGOs expression in Ukraine based on the complained of the state and editorial comprehensive analysis of the with respect to the international legal standards, content related to the conflict and national legislation and reports of the Russian Federation. Media repre- international human rights organi- sentatives working on the territory sations. not controlled by Ukraine were at high risk to find themselves under indiscriminate fire, and suffered from violence, censorship and illegal detention by armed groups. Access to these areas also remained problematic.3

The idea of this report appeared in a response to the emergence of serious signals indicating the swinging of a balance between national security and freedom of expression within the state as a reaction to an external aggression. Restrictive wordings of the recent legislative amendments in respect of the protection of the right to access to information and freedom of expression require a careful analysis 3. Ibid, Pp. 26-28. 5 UKRAINE IN WORLD RANKINGS The systematic analysis of the According to a report by the inter- reports of international non- national non-governmental human governmental organisations with the rights organization Freedom House focus on the protection of and “Nations in Transit 2017”, since 2008 respect for the freedom of the ranking of media independence in expression in different countries Ukraine has gradually deteriorated and around the world demonstrated that reached the point of 5.75 out of 7 Ukraine was traditionally ranked possible (1 – the highest, 7 – the lowest) somewhere in-between, gradually in 2017. The citizens enjoy access to improving its positions during each different sources of information, and subsequent reporting period. despite the fact that television remains Freedom of expression directly the primary source of information for depends on the political and the majority of , its impact is socio-economic climate in the reduced. Comparing to 2014, when country. Therefore, changing of 89% of Ukrainians watched daily news peacetime realities, the annexation on TV, in 2016 this number dropped to of Crimea and the protracted 79%. At the same time, 62% of conflict in the East of Ukraine have Ukrainians use the Internet. This led to the deterioration of the state’s indicator increased by 7% comparing positions in international rankings. to the previous year.

According to the independent Some national and international media international Institute for Econo- have expressed concerns about the mics and Peace, Ukraine was ranked pressure on journalists. In particular, 156th in Global Peace Index 2016 (1 in October a leading Internet – the highest rank, 162 – the lowest publication “Ukrainska Pravda” rank) and turned out to be in the (“Ukrainian Truth”) published an open group of countries with the lowest letter to the Ukrainian government, level of security, along with Syria, providing evidence that the work of South Sudan, Iraq, Afghanistan, investigative journalists was under Somalia, Yemen and Central African surveillance. The protracted conflict Republic. At the same time, the with Russia raises the question of the militarisation level was estimated at media freedom in Ukraine. The issue of 2.8 points out of 5 (1 – the safest, 5 – the limits of legal restrictions on the most dangerous), society and freedom of media in the context of the security factor received 3.4 points “information war” with Russia is a out of 5, while the indicator of subject of constant debate, especially domestic and international conflict in terms of Russian propaganda TV equalled to 3.3 points out of 5. channels, the broadcasting of which Pursuant to the data provided by the was prohibited in Ukraine since 2014.5 Institute, the approximate cost of violence in Ukraine reached 43 billion 4 4. Ukraine, Global Peace Index 2016, Institute for Economics and Peace, dollars. http://static.visionofhumanity.org/#page/indexes/global-peace-index/2 016/UKR/OVER. 5 Ukraine Country Profile, Nations in Transit 2017, https://freedomhouse.org/report/nations-transit/2017/ukraine.

7 According to another report by In May 2016, the website “Myrotvorets” Freedom House “Populists and (“Peacemaker”), focused on identifying autocrats: the dual threat to global the enemies of Ukraine, published the democracy” published in January names and contact information of 2017, Ukraine remained on the same more than 4,000 Ukrainian and foreign position as in 2016 when it was ranked journalists accredited by the 61st (1 – the highest, 100 – the lowest) separatist forces to cover the fighting and was recognised as only partly free. in the East of Ukraine. The distribution Civil rights, including freedom of of this information was strongly expression, are ensured at the 3rd criticised as such that violates media level out of 7 possible (1 – the highest freedom and puts at risk the safety of level of freedom, 7 – the lowest level of journalists working in the conflict zone. freedom). Ukraine joined the list of 28 However, Arsen Avakov, the Minister of countries that suffered the largest Internal Affairs of Ukraine, defended drop in the ranking of freedom during the actions of the website. In August the past 10 years. For Ukraine, as well 2016, Tetiana Popova, the Deputy as for Russia, Nauru, Ecuador and the Minister of Information Policy, Dominican Republic, the general index resigned in a protest against the declined by 12 points. government’s failure to prevent harassment and attacks on journalists Ukraine received 11 points out of 16 and to defend freedom of expression.6 possible in the ranking of freedom of It is concluded in the report that in expression and opinion. It is noted in general, Ukrainians can freely express the report that media environment in their views privately, though the Ukraine is characterised by consi- conflict had a significant effect on derable pluralism and open criticism of polarising political views. Intimidation the government. However, many is still a common tool in the areas media are funded and controlled by controlled by separatists.7 oligarchs pursuing different political interests. In 2014, the Ministry of Noteworthy that freedom of Internal Affairs banned the broadcast expression in Crimea became the of more than ten Russian channels, subject of a separate report due to the substantiating this decision by a need peninsula being classified as the to protect the public information territory with disputed status. This space. The murder of Pavlo Sheremeta, distinction was caused by significant a famous Ukrainian journalist, was differences in the level of protection of mentioned separately as an alarming political and civil rights within this signal of existing threats to the disputed territory and the rest of the security and freedom of journalists. country. Crimea was ranked 9th in the The report includes also references to overall table, which means no freedom. other incidents of violence and At the same time, according to the harassment towards media workers 6. -коментар Тетяни Попової щодо відставки з and organisations on the territories посади заступника міністра інформаційної політики України both controlled and non-controlled by https://www.facebook.com/TVP777/posts/10209796756737297. 7. Ukraine Profile, Freedom in the World 2017, the . https://freedomhouse.org/report/freedom-world/2017/ukraine. 8 estimations by the Freedom House the According to some reports, the FSB level of execution of civil rights (the Federal Security Service of the equaled to 6 out of 7. Crimea received Russian Federation) encourages 11 points out of 16 possible in the local residents to inform on people ranking of freedom of expression and who oppose the annexation of opinion. Crimea, while the atmosphere of fear and intimidation significantly contri- in Crimea is butes to the unwillingness to discuss significantly limited. In addition to political issues privately.8 other restrictive rules of the Russian legislation, the amendments to the In the ranking provided in the report Criminal Code of the Russian “Freedom on the Net 2016”, Ukraine Federation that came into force in scored 38th out of 100 (0 – the best 2014 banned public calls for taking score, 100 – the worst score) and actions aimed at violation of the was recognised as partly free in the territorial integrity of the Russian context of ensuring freedom on the Federation. It basically means that a Internet. The report covers the person can be sentenced to period from June 2015 to May 2016 imprisonment for up to five years for and points to a number of violations the statements against the annexation in the Ukrainian online environment. of Crimea, including those in the The protracted conflict between media. Ukrainian armed forces and pro-Russian separatists in the East The Russian Federal Service for of Ukraine undermined the rights of Supervision in the Sphere of Telecom, the users of Internet resources and Information Technologies and Mass contributed to the establishment of Communications “Roskomnaglyad” self-censorship. Ukraine’s indicators obliged all Crimean media to pass in the Internet freedom ranking re-registration in accordance with the declined due to arrests for Russian legislation by April 2015. expressing “separatist” views on Before the annexation of Crimea, there social networks and blocking access were about 3,000 media outlets. After for Donbas users to dozens of the final term for re-registration in prohibited websites. The case of 2015, Roskomnaglyad announced that distributing personal data of journa- it had registered and allowed the lists working in the East of Ukraine operation of 232 media entities. The was mentioned once again. In terms occupation authorities actually of the obstacles to access to blocked the access to Ukrainian Internet Ukraine is on 8th level out of television in Crimea. Independent and 25; as for content restrictions it is pro-Ukrainian media, as well as ranked at 11th level out of 35, Crimean Tatar media, do not longer and for violations of users’ rights – work in Crimea. Internet service at 19th out of 40. Overall, since 2012 providers must comply with the draconian rules of the Russian law on 8. Crimea Profile, Freedom in the World 2017, media. https://freedomhouse.org/report/freedom-world/2017/crimea. 9 Ukraine’s position in the ranking has “Inter” TV channel, which has a decreased by 11 points.9 reputation of being mainly pro- Russian. The structure of media According to the recent World Press ownership remains opaque. Natio- Freedom Index published by inter- nalist radicals carried out attacks national non-governmental orga- against journalists because of their nisation “Reporters without Borders” work in Eastern Ukraine. The in April 2017, Ukraine has improved decision of the appellate court to its position by 5 points comparing to justify Ruslan Kotsabа, a journalist the previous year and was ranked and blogger accused of state 102nd among 180 countries with the treason for calling to boycott global score of 33.19 (0 – the best conscription, is mentioned among indicator, 100 – the worst indicator), positive trends. thus recognised as problematic with regard to ensuring freedom of A separate part of the report on journalistic activities10. Oligarchic Ukraine is devoted to Crimea. It is control over the media and infor- noted that Russia continued to mation war with Russia remain the prosecute people for publicly biggest threats. It is also pointed to opposing its occupation of Crimea, the government’s failure to provide further shrinking space for free adequate guarantees for journalists speech and freedom of association. and the lack of access by inter- Under the pretext of fighting against national observers and journalists, extremism and terrorism, authorities able to provide critical overview of harassed and took arbitrary action the events, to the territories against some Crimean Tatar activists non-controlled by the Ukrainian in apparent retaliation for their government. peaceful opposition to the Russian occupation.11 In January 2017, an international non-governmental organisation The World Report of Human Rights Human Rights Watch published a new Watch 2016 contains the indication World Report “Populism vs. Human to a number of controversial steps Rights: Global Conflict”. It is taken by the Ukrainian government mentioned in the report that in 2016, in 2015 and being of restrictive the government of Ukraine continued nature in terms of freedom of to take controversial steps, which expression. In December 2014, the limited the media freedom and establishment by the government of justified that mainly by the need to the Ministry of Information Policy counter the anti-Ukrainian propa- coincided with the publication ganda of the Russian Federation. In of independent reports about the May 2016, the Ukrainian government banned 17 Russian journalists and 9. Ukraine: Country Report, Freedom on the Net 2016, https://freedomhouse.org/report/freedom-net/2016/ukraine media managers from entering 10. 2017 World Press Freedom Index, https://rsf.org/en/ranking_table. Ukraine. During 2016, several attacks 11. Ukraine - Events of 2016, World Report 2017 “The Dangerous Rise of Populism Global Attacks on Human Rights Values“, have been accomplished against https://www.hrw.org/world-report/2017/country-chapters/ukraine. 10 abuses by Ukrainian forces in free media. In her opinion, “the Eastern Ukraine. Ukrainian bloggers media is a vital component of a and journalists protested against the healthy democracy and their role new ministry, fearing that its should be respected at all times. operation could lead to censorship. Disputed information and potentially In April, Ukraine banned the problematic statements should not demonstration of all films produced be prohibited; on the contrary, they in Russia after 2014, and subse- should be dealt with through open quently in January – of all films discussions”.13 produced after 1991, which present positive images of Russian military According to the international forces. In August, the government non-governmental organisation prepared a list of 38 books, by “Committee to Protect Journalists”, mostly Russian authors, banned during the active phase of the from being imported to Ukraine, as conflict in Eastern Ukraine in 2014, 5 well as the “black list” of Russian journalists were killed while singers and actors, based on their performing their professional duties. views on the conflict. In September, Such statistics put Ukraine on a par the government expanded the list of with Syria (17 deaths) and Iraq “persona non grata” prohibited from (5 deaths) that were deemed the entering Ukraine up to 382 people. most dangerous countries for Among them, there are 35 journalists. During 2015-2016, two journalists and bloggers from more journalists were killed in various countries, including those Ukraine.14 from Russia, Israel and the UK. In June, a package of laws prohibiting Nazi and communist symbols, and providing for criminal responsibility for denying the “criminal nature of the communist totalitarian regime”, entered into force. Another law recognises the nationalist groups that fought against Germany during the World War II, while simul- taneously collaborating with the Nazis, as the “fighters for indepen- dence”. The law provides for criminal responsibility for questioning the legality of their actions.12

12 Ukraine - Events of 2015, World Report 2016 “Twin Threats: How the In the context of the adoption of the Politics of Fear and the Crushing of Civil Society Imperil Global Rights“, above laws, the OSCE Represen- https://www.hrw.org/world-report/2016/country-chapters/ukraine. 13. New Laws in Ukraine Potential Threat to Free Expression tative on Freedom of the Media and Free Media, OSCE Representative says, 18 May 2015, http://www.osce.org/fom/158581. noticed that they constituted a 14. 12 Journalists Killed in Ukraine since 1992/Motive Confirmed, threat to freedom of expression and https://cpj.org/killed/europe/ukraine/. 11 Therefore, even a brief review of the Freedom of expression is an indispen- rankings and reports provided in this sable element of any democratic society. section gives the opportunity to The greatest trials of this freedom understand that the vast majority of always occur during the periods of threats to freedom of expression in instability. Currently, it is extremely Ukraine are related to the ongoing important for Ukraine to strengthen the armed conflict. Moreover, Ukraine guarantees for protection of freedom of managed to maintain intermediate expression and maintain the balance positions in these rankings due to the between freedom of every person to fact that Crimea is the subject of a speak and be heard and ensuring separate analysis and takes an national security. The task is not an easy independent position in the overall one, but the way Ukraine would choose ranking. It goes without saying that lack to cope with it, will serve as an indicator of effective control of Ukrainian govern- of the democratic nature of the ment over some areas of Donetsk and government and its openness to Lugansk regions and Crimea does not criticism, as well as its commitment to allow Ukraine to guarantee and ensure structural reforms and further the proper protection of freedom of integration of the country into the single expression on these territories. At the European information space. same time, people who live in the grey area have more urgent needs in housing, As the famous Greek playwright food, medical care and employment. Aeschylus properly pointed out back in Under such settings freedom of the 5th century B.C., the first casualty of expression is often left neglected. war is truth. In the following section we will describe the threats to freedom of However, given the strong information expression and to those who defend it in component of the armed conflict, there Ukraine during the times of conflict. is an urgent need to strengthen Ukraine’s information space and create, to the largest extent possible, safe and tolerant environment for freedom of expression both for ordinary citizens in private conversations or social networks and for professional journalists, who often put their lives at risk in an attempt to report from the most dangerous parts of the country and to inform the public about the most complex and sensitive issues.

12 abuses by Ukrainian forces in Eastern Ukraine. Ukrainian bloggers and journalists protested against the new ministry, fearing that its operation could lead to censorship. In April, Ukraine banned the demonstration of all films produced in Russia after 2014, and subse- quently in January – of all films produced after 1991, which present positive images of Russian military forces. In August, the government prepared a list of 38 books, by mostly Russian authors, banned from being imported to Ukraine, as well as the “black list” of Russian singers and actors, based on their views on the conflict. In September, the government expanded the list of “persona non grata” prohibited from entering Ukraine up to 382 people. Among them, there are 35 journalists and bloggers from various countries, including those from Russia, Israel and the UK. In June, a package of laws prohibiting Nazi and communist symbols, and providing for criminal responsibility for denying the “criminal nature of the communist totalitarian regime”, entered into force. Another law recognises the nationalist groups that fought against Germany during the World War II, while simul- taneously collaborating with the Nazis, as the “fighters for indepen- dence”. The law provides for criminal responsibility for questioning the legality of their actions.12

In the context of the adoption of the above laws, the OSCE Represen- tative on Freedom of the Media noticed that they constituted a threat to freedom of expression and

INTERNATIONAL STANDARDS AND THREATS TO JOURNALISTS

“Behind each statistic is an individual journalist with a name and a story that they were seeking to uncover. By doing their work, in particular in dangerous circumstances, journalists defend the public’s right to know and are therefore human rights defenders. For each journalist that is killed or attacked, countless other journalists are intimidated to self-censor and entire societies are deprived of important information. States must act to end this tragedy.“

Thomas Hughes, Executive director of ARTICLE 19 In times of an armed conflict, both awareness and their understanding on the territory of warfare, in the of possible threats and available frontline area, and in other regions remedies. The armed conflict has led of the country, arises the biggest to a downturn of Ukraine’s position amount of obstacles to freedom of in international rankings of ensuring expression threatening the safety of freedom of expression, with lack of journalists, forcing ordinary citizens proper investigation of cases of to resort to self-censorship and journalists’ rights violations and verifying the government’s ability to adoption of restrictive legislation respond efficiently to the challenges being recognized as one of the main of military and information reasons therefor. confrontation between the conflicting parties by using means As a general rule, the journalists that are proportionate and working in an armed conflict zone reasonable in a democratic society. are protected by international Ukraine appeared to be significantly humanitarian law. However, Ukraine unprepared for changing peacetime is not officially in a state of an armed rhetoric into the one of an armed conflict, conducting the anti-terro- conflict, which can be clearly seen rist operation in the non-govern- from the fact that three years upon ment controlled areas. Therefore, the outset of information and the journalists should seek protection military aggression the means of in the peacetime legislation. response still remain restrictive and prohibitive. However, the period of The right to freedom of opinion and immediate response under the expression is enshrined in the emergency settings has long ago Universal Declaration of Human transformed into a protracted Rights of 1948 (Article 19) and the phase, which requires a transition International Covenant on Civil and from defensive to offensive tactics. Political Rights of 1966 (Article 19). If When applied to information space the Declaration recognizes this right the offensive tactic means creating as absolute, the Covenant specifies high-quality Ukrainian content in possible restrictions, which, however, multiple languages and delivering must be provided by law and Ukraine’s position to the broadest required for the respect of the rights possible range of international or reputations of others; or for the community. The government should protection of national security, demonstrate openness and public order, health or morals. tolerance towards pluralism of views Article 10 of the European and criticism of its politics. Convention for the Protection of Technological development along Human Rights and Fundamental with minimum skills of using the Freedoms of 1950 expands the list of Internet gives a lot of opportunities restrictions in the interests of to overcome any restrictions. territorial integrity or public safety, Therefore, the emphasis should be for the prevention of disorder, put on raising the level of users’ legal crime or disclosure of confidential 14 information, or for maintaining the acts of violence against journalists. authority and impartiality of the National legislation should not judiciary. Moreover, any restrictions restrain journalists and media on the freedom of expression must workers in the performance of their be proportionate to the aim pursued. professional functions. Furthermore, states are obliged to provide In 2012, the UN approved the Plan of guarantees that the measures for Action on the Safety of Journalists combating terrorism and main- and the Issue of Impunity taining national security are in elaborated by the UNESCO member compliance with their obligations states. The document is aimed at under international law and do not ensuring respect for freedom of cause undue or excessive damage to expression in the world through the activities and safety of creating a free and safe environment journalists. For the first time, it was for journalists and media workers. required that all states immediately With regard thereto, it is necessary and unconditionally release the to establish danger reduction journalists and media workers, who mechanisms both in times of war and suffered illegal detentions or peace and to strengthen legal arrests, as well as restrain from mechanisms for protection of opposing the use by journalists of freedom of expression and the right encryption and anonymization to access to information. Respective means.16 programs for the implementation of the Action Plan have already been Within the framework of the Council of completed in Nepal, Pakistan, South (CoE) was adopted quite a big Sudan and Tunisia.15 number of documents on the issue, namely, the Declaration (2014) and the In September 2016, in response to Recommendation (2016) of the Com- the ongoing attacks and harassment mittee of Ministers on the Protection of journalists and media workers, of Journalism and Safety of Jour- particularly in times of an armed nalists and Other Media Actors, the conflict, the United Nations Human Declaration (1996) and the Recom- Rights Council adopted a Resolution mendation (1996) of the Committee of “The Safety of Journalists”, which Ministers on the Protection of Jour- immediately got high appraisal nalists in Situations of Conflict and among human rights activists for its Tension, the Resolution of the Parlia- revolutionary character. The mentary Assembly 1438 (2005) on document indicates the need to and the Working create and maintain a secure Conditions of Journalists in Conflict environment for journalists based on the principles of freedom and 15. UN Plan of Action on the Safety of Journalists and the Issue of Impunity, http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CI/CI/pdf/of independence from undue inter- ficial_documents/UN-Plan-on-Safety-Journalists_EN_UN-Logo.pdf. 16. Human Rights Council Resolution 33/2 “The safety of journalists“, 29 ference. States are encouraged to September 2016, develop and implement strategies to http://www.un.org/ga/search/view_doc.asp?symbol=A/HRC/33/L.6&refere r=http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID combat impunity for attacks and =20628&Lang=E.

15 Zones, and the Declaration of the and Safety of Journalists, which Committee of Ministers on the serves as a board for posting Protection and Promotion of Inves- notifications of journalists’ rights tigative Journalism (2007). These violations in Council of Europe and other documents by the CoE member states. Over the past two were published as a separate edition years – from April 2015 to April 2017 in 2016.17 – 18 alerts of threats to journalistic activities in Ukraine were posted on In January 2017, a new Resolution of the Platform, including 14 alerts the Parliamentary Assembly of the related to the area controlled by the Council of Europe (PACE) 2141 (2017) Ukrainian government, 3 alerts “Attacks against Journalists and related to Crimea and 1 alert related Media Freedom in Europe” was to non-controlled area in Donetsk published. The document empha- and Luhansk region. Only two cases sises the lack of progress in were successful (M. Varfolomeyeva, resolving individual cases of R. Kotsaba). 16 other cases continue journalists’ rights violations in to pose a threat to media freedom in Ukraine specified in the previous Ukraine. All violations fall under the Resolution 2035 (2015). In particular, following categories:. it refers to the following cases: the 4 – attacks on physical safety and imprisonment of Oleg Sentsov in integrity of journalists; Russia, who according to PACE 2 – detention and imprisonment of should be transferred to relevant journalists; law enforcement agencies in 2 – harassment and intimidation of Ukraine; shutdown of Crimean Tatar journalists; media and the systematic violation 4 – impunity; of the right to freedom of expression 6 – other acts having chilling effects in Crimea by Russian authorities; on media freedom. pressure on media freedom and threats to the safety of journalists In 15 cases Ukraine sent a response coming from separatist forces in with its official position.19 Eastern Ukraine; incomplete investi- gation of the murder of Pavlo Sheremeta. At the same time, the Resolution marks as positive the 17. Збірник документів Ради Європи “Безпека журналістів“, Рада efforts of the Ukrainian authorities Європи, 2016, https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayD to implement a public broadcasting CTMContent?documentId=09000016806b5970. and stresses the need to complete 18. Resolution 2141 (2017) “Attacks against Journalists and Media Freedom in Europe“, Parliamentary Assembly of the Council of Europe, all necessary transformations in the http://semantic-pace.net/tools/pdf.aspx?doc=aHR0cDovL2Fzc2VtY 18 mx5LmNvZS5pbnQvbncveG1sL1hSZWYvWDJILURXLWV4dHIuYXN nearest future. wP2ZpbGVpZD0yMzQwMCZsYW5nPUVO&xsl=aHR0cDovL3NlbWF udGljcGFjZS5uZXQvWHNsdC9QZGYvWFJlZi1XRC1BVC1YTUwyUE RGLnhzbA==&xsltparams=ZmlsZWlkPTIzNDAw. In April 2015, the Council of Europe 19. Ukraine, CoE Platform to Promote the Protection of Journalism and Safety of Journalists, along with several partner organi- http://www.coe.int/en/web/media-freedom/ukraine?p_p_id=sojcou sations established a Platform to ntrygraph_WAR_coesojportlet&p_p_lifecycle=0&p_p_state=norm al&p_p_mode=view&p_p_col_id=column-1&p_p_col_pos=2&p_p_ Promote the Protection of Journalism col_count=12&_sojcountrygraph_WAR_coesojportlet_year=2017. 16 According to the latest data On 9 March 2017, Dunja Mijatović, the published by the international project OSCE Representative on Freedom of Mapping Media Freedom, covering the Media, published her regular 42 countries, in the third quarter of report covering the period from 2 2016 (1 July – 30 August) Ukraine December 2016 to 9 March 2017. was ranked third (44 cases), following While the description of the situation (114) and Russia (58), by the with freedom of media in the majority number of violations of journalists’ of countries required just a few rights and prevention of their work. paragraphs, Ukraine, Azerbaijan, Belarus and Russia were given a few The report marked an unprece- pages each. Dunja Mijatović expres- dented increase in the number of sed her concern regarding some cases of combating free journalism legislative initiatives, in particular, the in Europe. 4 deaths of journalists restriction of access to the Ukrainian were recorded during the reporting market of foreign printed materials period, with two of them in Ukraine – with anti-Ukrainian content and the murders of Pavlo Sheremeta and approval of the Doctrine of Infor- Oleksandr Shchetynin. Among 54 mation Security of Ukraine; prose- cases of physical attacks on journa- cution of the Crimean journalist lists, 11 took place in Ukraine. Ukraine Mykola Semena; injuries of media was also mentioned with regard to workers (Pavlo Chuprin and Christo- the cases of arson attacks on pher Nunn); denials of broadcasting property owned by journalists and licenses; interrogation of journalists; media companies. During the repor- arson attacks on property owned by ting quarter, the rate of intimidation journalists. The report repeatedly of journalists increased by 37% and highlighted the deterioration of the reached the number of 112 cases, respect for media freedom and with 16 of them in Ukraine.20 safety of journalists in areas outside the control of the government of An international non-governmental Ukraine. It also contains the referral organisation Press Emblem Campaign to the statement by the Chief Monitor (PEC) provides convincing statistics of the OSCE Special Monitoring in support of the growing threats to Mission to Ukraine – Ambassador journalists working in conflict zones. Ertuğrul Apakan, who pointed out the In 2016, in accordance with the prohibition of 350 websites and the safety index for media workers, restriction of access of Ukrainian developed by PEC, Ukraine’s position media companies to the non-govern- worsened by one level comparing to ment controlled territory of Ukraine. 2015, which moved the country down to 3rd level (1 – the safest conditions, 5 – the most dangerous 20. Report: Journalists under “unprecedented“ attack, 29 November 2016, Mapping Media Freedom, conditions) along with Brazil, Central https://mappingmediafreedom.org/plus/index.php/2016/11/29/rep ort-journalists-under-unprecedented-attack/. African Republic, the Democratic 21. 31.10.2016. International Day to End Impunity for Crimes against Republic of Congo, Egypt, Israel, Journalists on 2 November - PEC says media workers face 21 increasing risks in a number of countries, Press Emblem Campaign etc. (PEC), http://pressemblem.ch/pec-news.shtml. 17 Intimidation of media workers and The majority of violations fall into the arrests of bloggers constitute a huge category of preventing journalistic threat.22 activities – 107 cases (in 2015 – 100 cases, in 2014 – 150 cases, in 2013 – The previous report covering the 130 cases). Most cases of prevention period from 11 March to 1 December come from the individuals, police 2016 was severely criticized by the and local authorities. The second Ukrainian authorities and media largest category of cases includes community, who characterized it as intimidation and threats to partly lacking impartiality and journalists – 42 cases. In 2016, this grounded on the outdated category exceeded the indicator of information. The report released in the year of 2015, when 36 threats to March 2017 almost coincided with journalists were recorded (in 2014 – the expiration of Dunja Mijatović’s 98 cases, in 2013 – 35 cases). powers as the OSCE Representative Individuals and deputies of different on Freedom of the Media. At the levels were named as a source of moment of preparation of this threat in the majority of cases. report the position remained vacant. Beatings and attacks on journalists, The role of regional coordinator is along with restrictions on access to extremely important in terms of public information (30 cases each) maintaining the proper balance in constitute the third largest ensuring freedom of expression. category. In addition, one journalist Therefore, it is an urgent matter of was killed in 2016 in Ukraine (in 2015 high significance to find the – 2, in 2014 – 7, in 2013 – none). appropriate candidate to undertake the responsibility of protecting Given a limited access to Donetsk media freedom in the OSCE region. and Luhansk regions, IMI managed to register 12 cases of freedom of An independent NGO Institute of expression violations on the Mass Information (IMI) conducts occupied territories. In particular, monthly monitoring of the state of they included blocking of Ukrainian ensuring freedom of speech in TV channels broadcasting and Ukraine. According to the conso- websites, publication of journalists’ lidated data, there were 262 cases of personal data on separatist websites freedom of speech violations and detention of bloggers. In 2016, recorded on the unoccupied 31 cases of freedom of expression territory of Ukraine in 2016, which violations were registered in demonstrates approximately 15% annexed Crimea, which is slightly decrease compared to 2015 (in 2015 lower than in 2015 (43 cases). – 310 violations; in 2014 – 995 Similarly to the previous year, the violations). Along with the occupied media outlets and journalists on the Crimea (31 cases) and Donbas (12 peninsula were under pressure of cases), the number of press freedom 22. Regular Report to the Permanent Council for the period from violations reached 305 cases in 2 December 2016 to through 9 March 2017, OSCE, http://www.osce.org/representative-on-freedom-of-media/30395 2016. 6?download=true. 18 Russian intelligence agencies, Roskom- in the interests of national security. naglyad and occupation Crimean However, 35% of the respondents authorities.23 believe that there should be no restrictions regardless of circums- At the same time, starting from the tances.25 beginning of the year and as of 23 April 2017, IMI registered 2 cases of According to the Prosecutor beatings, 15 cases of prevention of General’s Office of Ukraine, during journalistic activities, 2 cases of 2013-January 2017 there were 645 censorship and no case of murder of criminal proceedings registered journalists in Ukraine.24 under the Article 171 of the Criminal Code of Ukraine “Obstruction to During the period from 12 December lawful professional activities of 2016 to 12 January 2017, NGO journalists.” Among them, 326 cases “Internews-Ukraine” conducted an (50.6%) were closed at the stage of expert survey entitled “Ensuring investigation and only 46 cases (7.1%) Internet freedom in situations of an ended up in courts. The rest of the armed conflict”, during which 100 cases (42%) are under investigation. respondents from Ukraine were inter- viewed, namely, the representatives of When commenting on such statistics, media community, human rights the National Union of Journalists of activists and Internet technologies Ukraine (NUJU) indicated that only experts. Most respondents (57%) 1/12 of criminal proceedings initiated believe that there are threats to as a result of crimes against journa- Internet freedom in Ukraine, but they lists are considered in courts. are insignificant. However, 22% of Following the events of , respondents mentioned that the risks the number of criminal cases regar- are high. Respondents expect that ding the obstruction to the work of during the next two years the following journalists is not decreasing. Upon violations will be among the most 2013-2014, when there were 182 and significant in Ukraine: progovernment 152 such cases respectively, the manipulations in online discussions number dropped to 120 in 2015 and and blocking of content (65%), again increased to 176 in 2016. The legislative initiatives restricting Inter- NUJU draws attention to the fact net freedom (59%), pressure on the that only in January 2017 there were Internet service providers (52%). An 15 registered cases of violations armed conflict in Eastern Ukraine falling under this category.26 restricts free development of the 23. 2016 рік. Підсумки стану свободи слова в Україні – інфографіка, Тиждень.ua, 28 грудня 2016, http://tyzhden.ua/News/182014 . Internet in Ukraine due to self- 24. Барометр свободи слова 2017, Інститут масової інформації, regulation and self-censorship in the http://imi.org.ua/barametr/. 25. Результати опитування щодо ризиків Інтернет-свободи в media sector. Many respondents are Україні, 2017, Інтерньюз-Україна, http://internews.ua/2017/01/netfreedom-survey/. sensitive when it comes to the issue of 26. З 2013 року зареєстровано 645 кримінальних проваджень за security during the conflict. Thus, 43% перешкоджання діяльності журналістів – ГПУ, Інтернет-видання “Детектор медіа“, 2 березня 2017, of them were ready to accept some http://detector.media/infospace/article/123702/2017-03-02-z-2013-roku-z areestrovano-645-kriminalnikh-provadzhen-za-pereshkodzhannya-diyalno restrictions of users’ Internet freedom sti-zhurnalistiv-gpu/. 19 The above statistics indicate the existence of real threats to freedom of expression and security of journalists. Attacks on journalists and lack of an impartial investigation of such cases turned out to be a normal practice in Ukraine. All together it raises concerns of the international community and adversely affects the image of Ukraine in the world. However, we deem as positive the fact that when carrying out their own monitoring of respect for freedom of expression in Ukraine, the OSCE and the Council of Europe give an overview of the whole country within its internationally recognised borders, including Crimea and temporarily occupied areas of Donetsk and Luhansk regions. Sometimes, this approach is criticised as such that leads to deterioration of Ukraine’s ratings by the indicators of ensuring rights and freedoms on the territories over which the Ukrainian government does not exercise the effective control. Noteworthy, that such comprehensive reporting has never been used to accuse Ukraine of violations on the territories beyond its control but rather constitutes an evidence of the whole territory of Ukraine being continuously recognised by the international community as integral within the internationally recognised borders.

20 in the interests of national security. However, 35% of the respondents believe that there should be no restrictions regardless of circums- tances.25

According to the Prosecutor General’s Office of Ukraine, during 2013-January 2017 there were 645 criminal proceedings registered under the Article 171 of the Criminal Code of Ukraine “Obstruction to lawful professional activities of journalists.” Among them, 326 cases (50.6%) were closed at the stage of investigation and only 46 cases (7.1%) ended up in courts. The rest of the cases (42%) are under investigation.

When commenting on such statistics, the National Union of Journalists of Ukraine (NUJU) indicated that only 1/12 of criminal proceedings initiated as a result of crimes against journa- lists are considered in courts. Following the events of Euromaidan, the number of criminal cases regar- ding the obstruction to the work of journalists is not decreasing. Upon 2013-2014, when there were 182 and 152 such cases respectively, the number dropped to 120 in 2015 and again increased to 176 in 2016. The NUJU draws attention to the fact that only in January 2017 there were 15 registered cases of violations falling under this category.26 23. 2016 рік. Підсумки стану свободи слова в Україні – інфографіка, Тиждень.ua, 28 грудня 2016, http://tyzhden.ua/News/182014 . 24. Барометр свободи слова 2017, Інститут масової інформації, http://imi.org.ua/barametr/. 25. Результати опитування щодо ризиків Інтернет-свободи в Україні, 2017, Інтерньюз-Україна, http://internews.ua/2017/01/netfreedom-survey/. 26. З 2013 року зареєстровано 645 кримінальних проваджень за перешкоджання діяльності журналістів – ГПУ, Інтернет-видання “Детектор медіа“, 2 березня 2017, http://detector.media/infospace/article/123702/2017-03-02-z-2013-roku-z areestrovano-645-kriminalnikh-provadzhen-za-pereshkodzhannya-diyalno sti-zhurnalistiv-gpu/.

INFORMATION SECURITY vs. FREEDOM OF EXPRESSION

“Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety“.

Benjamin Franklin Finding a proper balance between under the settings of orchestrated protecting national security, including by it hybrid war. Since the document its information component, and is of a national importance and is ensuring freedom of expression in approved for a long-term pers- times of the most difficult trials for the pective, it is worth expanding the country is a huge challenge and a test wording of its purpose; otherwise, for democratic governance of the any new threat from the country state and its orientation towards the other than the Russian Federation protection of human rights. For will require a revision of the whole Ukraine this challenge was posed by document. The use of the infor- the annexation of Crimea and an mation space for any destructive armed conflict in the East of the purposes or for any actions aimed at country. The situation got even more discrediting Ukraine internationally complicated due to the fact that the is forbidden. Given wording is quite state is not officially engaged in war, broad and may further lead to does not introduce martial law, and, qualification of any dissenting therefore, has no legal grounds for opinion as a threat to national restricting rights and freedoms. Being security, thus increasing the number unprepared to resist information of prisoners of conscience. It is attacks from Russia, Ukraine was proposed to specify at the legislative gradually closing its information space level the mechanism for blocking from external influence and started and taking down the Internet regulating its contents. This caused content threatening national serious concerns among Ukrainian sovereignty, promoting communist human rights activists and and/or the national socialist international community, and was totalitarian regimes and their repeatedly pointed out, in particular, symbols. Every Internet user may be by Dunja Mijatović, the OSCE brought to responsibility upon the Representative on Freedom of the suspicion of being used by the Media. However, the priority of aggressor state for conducting information security over the freedom information war against Ukraine. The of expression is still embedded in monitoring function is delegated to legislative amendments aimed at the Ministry of Information Policy of protection of the national interests of Ukraine and the Security Service of Ukraine. Ukraine.27

On 25 February 2017, the President At the same time, it is important to of Ukraine signed note that Ukraine didn’t ask the a decree enacting the decision of the Council of Europe to provide a National Security and Defense preliminary expert analysis of the draft Council of Ukraine (NSDC) “On the doctrine. Though, the draft doctrine Information Security Doctrine of

Ukraine”. The aim of the Doctrine is 27. Указ Президента України №47/2017 від 25 лютого 2017 року countering destructive information Про рішення Ради національної безпеки і оборони України від 29 грудня 2016 року “Про Доктрину інформаційної безпеки України“? influence of the Russian Federation http://www.president.gov.ua/documents/472017-21374. 22 in its 2015 edition received many and route through which the serious remarks by the Council of information was transmitted; Europe.28 The Doctrine was criticized entitlement of law enforcement by the international human rights authorities with the powers to issue organisation Amnesty International. writs to the computer data owners The experts of this organisation noted regarding the immediate fixation and that the proposed monitoring system retention of computer data needed poses a serious threat to freedom of to solve the crime for up to 90 days speech in the country.29 In its turn, the with the possibility of extending this Internet Association of Ukraine drew period for up to 3 years.31 Moreover, attention to the ambiguity of the NSDC decision contains two definitions of the terms “state secret provisions that were not information space” and “Ukrainian published. segment of the Internet”, as well as to the fact that telecommunications Ivan Petukhov, the Chairman of the operators and service providers are National Assembly of the Civil not responsible for the content Sector of Ukraine, noted that the transmitted through their networks. legislative framework of Ukraine is Moreover, the exclusive powers for the gradually absorbing the key ideas of official monitoring of television and the laws of 16 January 2014, with the radio programs belong to the National new laws being even more restrictive Council on Television and Radio than the draconian ones.32 The Broadcasting of Ukraine.30 Internet Association of Ukraine also expressed its concerns and pointed By his other decree dated 13 to a number of significant February 2017 the President of inconsistencies of the proposed Ukraine enacted the NSDC decision amendments with the Convention “On Threats to State’s Cyberspace on Cybercrime. It noted that the and Emergency Measures for most important feature of all Neutralization Thereof.” Based existing censorship systems is a thereon within a three-months complete inability to block access period, the Cabinet of Ministers is expected to submit to the Verkhovna 28. Council of Europe Does Not Pre-Analyze Ukraine's Information Security Doctrine, Ukrainian News Agency, 01 March 2017, Rada of Ukraine the draft laws http://ukranews.com/en/news/482571-council-of-europe-does-no regarding the implementation of the t-pre-analyze-ukraine-s-information-security-doctrine. 29. Amnesty International виступило проти тотальної цензури в Convention on Cybercrime dated Україні, UkrWill, 28.02.2017, https://ukrwill.com/amnesty-international-vistupilo-proti-totalnoyi- 2001, and to specify therein blocking tsenzuri-v-ukrayini. of some information resources 30 Лист №36/1-5 від 07.03.2017 щодо реалізації Указу Президента України від 25.02.2017 № 47/2017, Інтернет Асоціація України, (websites) by telecommunications http://inau.ua/document/lyst-no361-5-vid-07032017-shchodo-real izaciyi-ukazu-prezydenta-ukrayiny-vid-25022017-no. operators and providers upon court 31. Указ Президента України №32/2017 від 13 лютого 2017 року decision; provision by telecom- Про рішення Ради національної безпеки і оборони України від 29 грудня 2016 року “Про загрози кібербезпеці держави та munication operators and providers невідкладні заходи з їх нейтралізації“, http://www.president.gov.ua/documents/322017-21282. at the request of law enforcement 32. Цензура та жорсткий контроль за суспільством, Конфликты и authorities of the information законы, 22.03.2017, https://k-z.com.ua/ukrayna/41799-cenzura-ta-zhorstkiy-kontrol-za necessary to identify service providers -suspilstvom. 23 for those actively seeking such access which meet the requirements of the to banned content. According to the Convention, on its territory (Articl 4).35 Association, the real goal of blocking The non-selective nature of trans- information is to introduce political mission blocking contradicts this censorship.33 provision. Moreover, subject to the Recommendation of the Committee of The “On Introducing Ministers of the Council of Europe “On Amendments to Some Laws of Protecting Freedom of Expression and Ukraine on the Protection of Information in Times of Crisis” member Information Television and Radio states should not restrict public’s access Space of Ukraine” adopted in February to information in times of crisis beyond 2015 is also worth mentioning. The the limitations provided for in Article 10 important amendments were of the European Convention on Human introduced to the Law of Ukraine “On Rights and interpreted in the case-law of Cinematography”, which from then on the European Court of Human Rights has banned the distribution and (Paragraph 17). National governments, demonstration of films produced after media organisations, national or 1 August 1991 and containing international governmental and propaganda or popularisation of the non-governmental organisations should aggressor state bodies and their strive to ensure the protection of actions, regardless of the country of freedom of expression and information origin. The broadcasting of all films in times of crisis through dialogue and produced by individuals and legal co-operation (Paragraph 27).36 entities of the aggressor state after 1 January 2014 (Article 151) is also Restrictions also affected the books. prohibited.34 Starting from 1 January 2017, a new authorization procedure was Since March 2016, all films first established for the import to Ukraine demonstrated after 1 January 2014 of publishing production originating or are banned as well. This restriction has produced and/or imported from the a clear territorial linkage, is territory of the aggressor state or non-selective and actually blocks temporarily occupied territories of access to the Ukrainian media market Ukraine. The analysis and evaluation of for any cinematographic products publications should be performed by a originating from Russia, regardless of specially established expert com- there thematic content. However, the mittee. The decision on granting a

Internet gives the possibilities to 33. Лист №32 від 28.02.2017 Президенту України щодо Рішення circumvent such technical limitations РНБО від 29.12.2016 “Про загрози кібербезпеці держави та невідкладні заходи їх нейтралізації“, Інтернет Асоціація України, and access forbidden movies online. http://inau.ua/document/lyst-no32-vid-28022017-prezydentu-ukra yiny-shchodo-rishennya-rnbo-vid-29122016-pro-zagrozy. Pursuant to its commitments under 34. Закон України “Про внесення змін до деяких законів України the European Convention on Trans- щодо захисту інформаційного телерадіопростору України“ від 05.02.2015, http://zakon2.rada.gov.ua/laws/show/159-19. frontier Television, Ukraine must 35. Європейська конвенція про транскордонне телебачення 1989 року, http://zakon3.rada.gov.ua/laws/show/994_444. ensure freedom of reception and 36. Збірник документів Ради Європи “Безпека журналістів“, Рада restrain from imposing limits on Європи, 2016, С. 22-23, https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayD retransmission of program services, CTMContent?documentId=09000016806b5970. 24 permit must be approved within 10 In terms of language policy, it provides days following the receipt of the for the right of citizens living in the application and the respective non-controlled territory to make a package of documents (Article 281).37 free choice of the language for Media community representatives consuming information, particularly, questioned the ability to provide the through creating conditions for the expert committee with the sufficient dissemination of information in number of personnel required for Ukrainian and other languages prompt and comprehensive review (including Russian). It also envisages of all books offered for import. This the (re)construction of broadcasting legislative innovation breaches infrastructure and installation of Article 10 of the Constitution of technical equipment necessary for Ukraine, which stipulates free transmitting the signal to the development, usage and protection non-controlled territories, distribution of Russian and other national of publications and installation of minorities’ languages in Ukraine. telecommunications equipment at According to the European Charter checkpoints on the contact line and in for Regional or Minority Languages, nearby area to facilitate access to Ukraine is obliged to promote the high-speed mobile internet () and use of regional or minority arranging Wi-Fi-zones.39 Such measures languages, in speech and writing, in are aimed at promotion of gradual public and private life and/or reintegration of people living on the encourage their use (Article 7). temporary non-controlled territories. Moreover, the very fact of licensing the products based on their New legislative initiatives seem to production in a particular country serve as attempts to legitimise violates the commitments under- already existing restrictive practices. taken by Ukraine as a member of the Thus, the international NGO Amnesty World Trade Organisation with International in its 2016-2017 report regard to non-tariff barriers and draws attention to the fact of the licensing (General Agreement on intimidation of media perceived as Tariffs and Trade of 1994) and does supporters of pro-Russian or not qualify as exceptions (Art. XX- pro-separatist views, as well as XXI).38 those actively criticising the govern- ment. The report refers to the The Action Plan approved by the attacks on “Inter” TV channel, the Cabinet of Ministers of Ukraine and closure of Savik Shuster’s 3STV aimed at implementation of some channel, illegal conviction of jour- principles of the state internal policy nalist Ruslan Kotsaba, and the with regard to certain areas of murder of journalist Pavlo Sheremeta. Donetsk and Luhansk regions, where 37. Закон України “Про видавничу справу» у редакції від 01.01.2017, state authorities temporarily do not http://zakon3.rada.gov.ua/laws/show/318/97-%D0%B2%D1%80/page. 38. Моніторинг дотримання конституційних прав людини в Україні exercise their powers, became a за 2016 рік, Forbidden to Forbid, 30.12.2016, document with a positive con- http://forbiddentoforbid.org.ua/uk/monitoring-dotrimannya-konstituciyni-2/. 39. Розпорядження Кабінету Міністрів України від 11 січня 2017 р. notation, but declarative provisions. № 8-р , http://zakon3.rada.gov.ua/laws/show/8-2017-%D1%80. 25 The report also states that journalists reasons for banning the channel. TV with pro-Ukrainian views or those Director explained that the use of that working in the Ukrainian media could cartographic image was required by not work freely in Crimea and on the Russian legislation. OSCE Repre- territories controlled by separatists.40 sentative on Freedom of the Media Dunja Mijatović called this prohibition a During the last three years, many TV serious threat to media pluralism in channels, radio stations and online Ukraine. The Committee to Protect media were closed in Ukraine. The Journalists, the European Federation following cases created the biggest of Journalists and the Human Rights resonance: license withdrawal of the Watch also stood for lifting the ban.43 opposition television channel “Gamma” and radio “Vesti” (“News”); shutdown of Another interesting example of the the most popular political talk-show of lack of critical information materials the country “Shuster Live” and TV regarding the governing elite is a “Channel 17” known for its journalists’ research conducted by an investigations; arson attack on “Inter” independent analytical platform TV channel office; refusal to prolong VoxUkraine, which in September 2016 the license for channel “112 Ukraine” published the results of a two-year and unscheduled inspection of TV analysis of weekly summaries of news channel “NewsOne.” According to the programs of the most popular organisation “Ukrainian Cyber Army”, Ukrainian TV channels (1+1, Inter, during the period from June 2014 to Ukraina, ICTV) in the prime time on February 2017, 142 websites not Sundays to assess the objectivity of favoured by the state were closed and coverage of the activities of the 30 were blocked without any court . The dynamic of decision.41 In general, during 2014- references to the President’s activities 2016 the National Council for Television was similar for all four channels – the and Radio Broadcasting limited the peaks and slumps of references retransmission of 76 Russian TV almost perfectly matched. The channels in Ukraine. As of the date of percentage of negative references is this report, the Ministry of Information also similar for all channels and equals Policy of Ukraine was compiling a list of to approximately 1-2%. For the compa- websites to be blocked in Ukraine in rison purposes, the authors of the the nearest future.42 analysis referred to similar research of references to President Obama during

One of the most recent and notorious 40. Річна доповідь 2016/2017: Україна, Amnesty International, examples of restricted broadcasting in http://amnesty.org.ua/nws/richna-dopovid-2016-2017-ukrayina/. 41 “Демократична“ влада після Майдану закрила десятки 2017 is the case of the independent телеканалів, радіостанцій та інтернет-ЗМІ, [UA] “Голос Правди“, 11.03.2017, Russian TV channel “Dozhd” (“Rain”), https://golospravdy.com/demokratichna-vlada-pislya-majdanu-zak which is under pressure in Russia as rila-desyatki-telekanaliv-radiostancij-ta-internet-zmi/. 42. У списку на закриття сотні “антиукраїнських“ сайтів, well. Demonstration of the map Корреспондент.net, 2 квітня 2017, http://ua.korrespondent.net/ukraine/3834901-u-spysku-na-zakrytt showing Crimea as a part of Russia ia-sotni-antyukrainskykh-saitiv. and broadcasting of Russian adver- 43. The National Radio and TV Council of Ukraine Bans Broadcast of Russian TV Channel Dozhd, Council of Europe, 17 February 2017, tisements are named among the https://www.coe.int/en/web/media-freedom/all-alerts/-/soj/alert/22241532 26 the first year of his presidency, is not an effective response to conducted by Media Monitor (52% of extremism, while, to the contrary, positive references). With a view open and critical discussion should thereto, the study prepared by be encouraged. States should not VoxUkraine ends up with a con- react to crises by introducing clusion about the ceremonial role of additional restrictions on freedom of the President in the Ukrainian news expression, except where clearly and leaves open the question of required because of the situation or (self)censorship on top Ukrainian provided by international human channels.44 rights law. The filtering of content on the Internet using communications The adoption of the Joint “kill switches” (i.e. shutting down Declaration on Freedom of Expres- entire parts of communications sion and “Fake News”, Disinformation systems) and the physical takeover and Propaganda by four repre- of broadcasting stations cannot be sentatives responsible for media justified under the human rights law. freedom at the universal (UN) and States shall take effective measures regional (OSCE, OAS, ACHPR) levels to prevent attacks on journalists and appeared to be extremely timely and conduct efficient investigation of important with a view to imple- such cases. Moreover, states should mentation of restrictive practices in promote the development of citizen the area of freedom of expression in journalism and create conditions for Ukraine and all over the world. all groups of the society to be heard. Declaration specifies key principles Any restrictions on freedom of of protecting freedom of expression: expression must meet three criteria: compliance with the proportionality to be provided by law; to serve as test when introducing any rest- protection of legitimate interests rictions, including those with regard recognized under international law; to foreign media companies; and to be required for the protection inadmissibility of intermediaries’ of such interest.46 liability for the third party content; prohibition of content’s filtering; using blocking as a last resort measure; ban of broadcasting only upon court’s decision or that of any other independent body due to illegality of content; maintenance of a pluralistic media environment, 45 44. Self-Censorship on TV: How Do the Most Viewed Ukrainian TV Channels etc. Report Poroshenko’s Activities, VoxUkraine, 8 September 2016, https://voxukraine.org/2016/09/08/self-censorship-on-tv-how-do-the-mo st-viewed-ukrainian-tv-channels-report-petro-poroshenkos-activities/. Two years earlier another Joint 45. Joint Declaration on Freedom of Expression and “Fake News“, Disinformation and Propaganda, 3 March 2017, Declaration on Freedom of http://www.coe.int/en/web/media-freedom/-/joint-declaration-on-freedo m-of-expression-and-fake-news-disinformation-and-propaganda. Expression and Responses to 46. Joint Declaration on Freedom of Expression and Responses Conflict Situation was adopted. It to Conflict Situation, 04 May 2015, ARTICLE 19, https://www.article19.org/resources.php/resource/37951/en/joint-declarati states, in particular, that censorship on-on-freedom-of-expression-and-responses-to-conflict-situation. 27 Despite the declarative nature of the above provisions, they reflect minimum standards of ensuring freedom of expression in different countries, which, similarly to Ukraine, have undergone through a conflict. It is extremely important to ensure that legislative innovations developed at national level comply with the best international practices and preserve strong focus on human rights and maintenance of freedom of expres- sion and media pluralism.

28 treated as complementary. Critical and CONCLUSIONS pluralistic ideas, thoughts and expres- sions constitute the foundation of a In times of armed conflicts freedom of democratic society and prevent the expression is hardly a high priority for any usurpation of state power. country. The protection of human lives and national security become the The blocking of information threats and determining factors for a state policy the application of defensive tactics during the period of instability. The last cannot serve as a basis for a successful three years of the conflict with Russia, long-term strategy in the digital era. There accompanied by complex transformation will always be more advanced techno- processes, geopolitical reorientation, logies and tools enabling the human losses and sometimes contro- circumvention of any technical restri- versial reforms, tested Ukraine for its ctions. At the moment, it is extremely statehood and identity. Starting from important to create high-quality multi- 2014, Ukraine has been gradually adjusting lingual Ukrainian content and expand the its inability to deter and repel external platforms for its distribution. threats through increasing its internal capacity. Dialectical and hybrid nature of All the voices should be heard. And this the threat considerably complicated the relates not only to professional journalists search for effective and proportionate but also bloggers, citizen journalists and response mechanisms. Significant part of every person sharing his/her views on the the conflict is still happening in cyber- Internet. Murders and attacks on space through the application of journalists, as well as lack of proper information technologies. And while a investigation thereof lead to a reduction in military component has been studied for civic engagement and create an years, which allowed achieving respective atmosphere of fear and self-censorship. arrangements regarding permitted Critical and pluralistic views are the only means and methods of warfare at the opportunity to create the most objective international level, the proper moment to and comprehensive picture of develop- analyse the information component is ments. Distortion and substitution of right now. reality occur every time when freedom of expression is getting sidelined. Freedom This report appeared as an idea to show cannot be sacrificed regardless of the the importance of access to information purpose. There always can be found and freedom of expression in times of alternative tools of protecting national conflict. It is not a big deal to manipulate security and territorial integrity that bear the thoughts and behaviour of people no devastating consequences for human when the whole nation is undergoing rights. through the critical moments of its history. However, the protection of In an attempt to gain access to the areas national security does not provide for the non-controlled by the government of lawfulness of human rights restrictions. Ukraine or reporting on the events taking These two concepts cannot be mutually place therein, journalists simply do their exclusive; to the contrary, they should be job. And the task of the state is to

29 promote the development of journalism. should be prevented, with a priority given All cases of intimidation and attacks on to a pluralistic media environment. The journalists should be properly inves- value of freedom of expression is tigated, while the perpetrators should be particularly evident and critical in times of found and brought to responsibility. The conflict when access to certain areas of removal of the content is possible only the state and true information remains upon the court’s decision, provided that limited. Ukraine can be a vivid trial and such a measure is necessary and error example of state policy in this proportionate to the pursued aim as sphere. required by international law.

When drafting any new legislation, Ukraine should be guided by the recommendations and observations of the specialised international bodies and institutions in the sphere of freedom of expression. It is truly valuable that all human rights organisations preparing world rankings on media freedom do not simply offer the rating table, but provide extensive comments on why a state was placed on this particular position. These comments should be considered by national governments to improve media environment in the country, increase security guarantees for journalists and maintain international standards of ensuring freedom of expression. It is unlikely that Ukraine would significantly improve its positions in world rankings unless the government control is restored over the whole territory of the country. As for now, the responsibility for the violations of freedom of expression is attributed to the parties exercising effective control over the respective territory.

During the periods of unrest, the restrictions imposed for the protection of national interests serve as the best indicator of state’s democratic gover- nance and transparency. And while some of these restrictions are not yet of a compulsory nature, their final approval

30 FOR NOTES Credits for pictures used in the report : Eduardo Hurtado Javi_indy - Freepik.com Mike Rosenberg Chris Reading Kjpargeter - Freepik.com

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