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Freedom on the Net, Ukraine Ukraine https://freedomhouse.org/country/ukraine/freedom-net/2020 The COVID-19 pandemic saw the authorities prosecute users for spreading rumors online and launch several initiatives aimed at stopping the spread of the disease, including an app that monitors individuals in mandatory isolation, that infringe upon users’ privacy rights. Online journalists continued to face extralegal retaliation for their work. Cyberattacks remain a regular occurrence, affecting government and nongovernment targets alike. C1 1.00-6.00 pts0-6 pts Do the constitution or other laws fail to protect rights such as freedom of expression, access to 3.003 information, and press freedom, including on the internet, and are they enforced by a judiciary that 6.006 lacks independence? The right to free speech is granted to all citizens of Ukraine under Article 34 of the constitution, but the state may restrict this right in the interests of national security or public order, and it is sometimes restricted in practice. Article 15 of the constitution prohibits censorship.132 Ukrainian courts are hampered by corruption and political interference, and public trust in the judiciary remains low.133 Serious crimes against journalists often remain unresolved (see C7). President Zelenskyy’s administration has at times denied reporters access to information (see B5). The IMI recorded 21 COVID-19–related restrictions on the work of journalists from mid-March 2020 until the end of April 2020, including cases in which journalists were prohibited from attending government meetings or prevented from reporting.134 C2 1.00-4.00 pts0-4 pts Are there laws that assign criminal penalties or civil liability for online activities? 2.002 4.004 No dedicated law mandates criminal penalties or civil liability specifically for online activities. However, the criminal code penalizes extremism, separatism, and terrorism, including through online activities. Article 109(2) of the criminal code prescribes prison sentences of three to five years for public calls for the violent overthrow of the constitutional order. Article 110 criminalizes public calls for the infringement of Ukraine’s territorial integrity, 1 of 9 11/3/2020, 10:09 AM Ukraine https://freedomhouse.org/country/ukraine/freedom-net/2020 including those made online, with a maximum penalty of five years in prison. Article 161 prohibits “inciting national, racial or religious enmity and hatred” and assigns a maximum penalty of five years in prison.135 Article 173-1 of the code of administrative offenses prescribes fines for spreading false rumors that sow panic, and was invoked many times during the COVID-19 pandemic (see C3).136 Since January 2019, the code of administrative offences penalizes any form of bullying, including by using means of electronic communication (under Article 173-4). Individuals found guilty of bullying may be fined or given community service obligations. Individuals who fail to report bullying are also subject to fines. In February 2019, the first court decision for bullying on social media was rendered.137 Neither defamation nor insult are criminally penalized in Ukraine.138 The disinformation bill introduced during the coverage period envisions criminal liability for disseminating disinformation (see C3). C3 1.00-6.00 pts0-6 pts Are individuals penalized for online activities? 2.002 6.006 Multiple internet users in Ukraine have been arrested and fined or sentenced to prison in recent years for activities that may be protected under international human rights standards. The COVID-19 pandemic led the state to penalize dozens of users for spreading false information online. As of the beginning of June 2020, the SSU identified 18 individuals that allegedly received instructions from Russia to spread false information about COVID-19 and opened criminal proceedings against them under Articles 109 and 110 of the criminal code. Furthermore, according to the SSU, by June 2020, “administrative measures,” i.e., fines, had been imposed on 160 people under Article 173-1 of the code of administrative offenses for spreading false information that could provoke panic or public order violations.139 However, this figure appears inconsistent with data reported by the judiciary. From March 12 to May 18, 2020, the courts examined 89 police protocols under Article 173-1 of the code of administrative offenses related to the dissemination of COVID-19-related disinformation. The courts fined 30 users, issued warnings to nine others, and either closed the remaining cases for lack of evidence or sent them back to the police for clarifications. In 80 percent of these cases, disinformation was disseminated via Facebook, Instagram, or Viber.140 In at least some cases, users were found guilty of sharing false information jokingly or unknowingly. Additionally, in March and early April 2020, the Cyber Police recorded 267 cases of COVID-19-related “fake news,” identifying 152 individuals responsible.141 In May 2020, for the first time since armed conflict erupted in eastern Ukraine, a court found a social media user (specifically, a VK user) guilty under Article 436 of the criminal code (penalizing “public calls to an aggressive war or an armed conflict”). The user was also found guilty under Article 110 of the criminal code, receiving a 3.25-year prison 2 of 9 11/3/2020, 10:09 AM Ukraine https://freedomhouse.org/country/ukraine/freedom-net/2020 sentence.142 That month, blogger Serhiy Poyarkov was indicted under Article 346 of the criminal code (penalizing among other things “threats of murder, impairment of health, destruction or impairment of property, kidnapping or confinement made in respect of the president of Ukraine”) for allegedly threatening President Zelenskyy in a YouTube video uploaded in October 2019. The charge carries a maximum sentence of five years in prison. Poyarkov claims the video was a parody.143 The SSU regularly reports the unmasking of alleged Russian agents involved in disseminating online content in violation of Articles 109 and 110 of the criminal code.144 In 2019, the SSU opened 34 cases under Articles 109 and 110 of the criminal code for crimes against national security via the dissemination of allegedly anti-Ukrainian propaganda or other illegal content (a decrease from 49 cases in 2018). The SSU also banned 280 foreign nationals from entering Ukraine for spreading separatist materials online.145 Journalists who work online occasionally face civil defamation lawsuits from public and private actors who object to their reporting. In August 2019, former chief of staff Andriy Bohdan filed a defamation lawsuit against three journalists from the investigative journalism outfit Schemes.146 That month, online media outlet Hromadske TV was fined by a court for allegedly defaming the far-right group C14 in a tweet (see B4). In March 2020, Iryna Venediktova, then the interim head of the State Bureau of Investigation (SBI) and now the prosecutor general, announced that she has filed a lawsuit against Anti-Corruption Action Center, an NGO, and Ukrayinska Pravda, an online media outlet, for claiming that her husband influenced the process of appointing SBI employees.147 In May 2018, Kirill Vyshinsky, a journalist for the Russian state-run media service RIA Novosti, was detained and charged with treason for “subversive” reporting on Crimea and working with separatist groups. The SSU pointed to opinion pieces published on RIA Novosti Ukraine’s webpage as evidence for the charges. In August 2019, Vyshinsky was released from detention; the next month, he returned to Russia as part of a prisoner exchange.148 C4 1.00-4.00 pts0-4 pts Does the government place restrictions on anonymous communication or encryption? 4.004 4.004 There is currently no obligatory registration for either internet users or prepaid mobile device subscribers. Users can purchase prepaid SIM cards anonymously and comment anonymously on many websites. During the coverage period, President Zelenskyy’s administration attempted to introduce a requirement to present a passport in order to purchase SIM cards, sending a proposal to this effect to the parliament.149 However, the proposal generated stiff resistance and was withdrawn just a few days after it was formally registered.150 At present, there are no restrictions related to encryption tools, though the commercial provision of these tools is subject to licensing.151 3 of 9 11/3/2020, 10:09 AM Ukraine https://freedomhouse.org/country/ukraine/freedom-net/2020 The disinformation bill proposed in January 2020 would oblige all individuals and legal entities to provide contact and other identifying information every time they share “mass information” online (see B3).152 Moreover, it would empower the government to identify the administrators of websites, web pages, social media accounts, channels, chats, or “other communities” with more than 5,000 subscribers or unique daily users.153 In January 2020, several regional media outlets received letters purportedly from regional offices of the Cyber Police of Ukraine suggesting that they embed code in their websites that would enable the identification of anonymous users.154 The Cyber Police denied that its offices had sent the letters.155 C5 1.00-6.00 pts0-6 pts Does state surveillance of internet activities infringe on users’ right to privacy? 3.003 6.006 Little information about surveillance or communications interception in Ukraine is publicly available. There is a lack of comprehensive legislation to protect privacy and prevent abuse of surveillance powers. The SSU and police can initiate criminal investigations and use wiretapping devices on communication technologies, but existing legislation, such as the Law on Operative Investigative Activity,156 does not specify the circumstances that justify these measures or the timeframe or scope of their implementation. In September 2019, a bill (draft law 1129) was registered in the parliament that would permit investigative authorities to hack into and retrieve information from electronic systems as well as monitor correspondence without a court order in urgent cases.
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