The Ukrainian Ministry of Culture has published a bill that aims to “provide national information security and the right to access reliable information”. Minister Volodymyr Borodyanskyi plans to hold public discussions in February and submit a document to parliament in March.
Earlier, a press conference was held on January 17, where Culture, Youth and Sports Minister Borodyanskyi and his deputy Anatoliy Maksymchuk presented the main provisions of the bill set to combat disinformation.
We analyzed how the culture ministry proposes to combat disinformation and who could be affected by this law.
What Does the Ministry of Culture Want to Combat and Why?
Disinformation and false information were identified as the main "information enemies" of Borodyanskyi and the team that was behind the draft law. It took 130 pages to lay out direct and indirect methods of dealing with these phenomena.
False information is false, incomplete or misleading information about a person, fact, event or phenomenon. And if such news concerns issues of public interest (for example, national security, territorial integrity, sovereignty, defense of Ukraine, the right of the Ukrainian people to self-determination, life and health of citizens, state of the environment), then this is disinformation.
“Disinformation is where the state appears. Where there is no state, it is false information,” Borodyanskyi gave a simpler definition in an interview with Detector Media.
Satire, parody, unfair advertising, or judgmental judgments, if there is at least a minimal factual basis, will not be rendered disinformation.
All this is done in order to "provide conditions for everyone to have access to reliable, objective and complete information" and "to create conditions for the formation of a conscious information society in Ukraine." Thus main vectors of state information policy are formulated in law.
How Will Dissemination of Disinformation Be Punished?
Disinformation will be punished by fines, corrective labor and imprisonment.
1,000 times the minimum wage (now 4,723,000 hryvnia or $193,600) will have to be paid for every disinformation incident if the disseminator agrees to refute it. The first two such incidents, however, will not be punished, with the fine coming into play from the third one. But if the disseminator refuses to refute such information, the fine will double.
For systematic widespread disinformation, fines of 85,000-170,000 hryvnia ($3,500-7,000) or sentences of one to two years of correctional labor can be issued. Although the bill does not specify what is rendered “systematic”.
Dissemination of disinformation using bots or a fake account network is considered a serious crime that can lead to two to five years’ imprisonment. Funding of such activities is regarded as an even graver crime that can result in three to five years in prison.
The maximum term of five to seven years can be obtained for repeated mass dissemination of disinformation, or if it is perpetrated by a group of people or has caused grave consequences.
Who Will Be Punished for Disinformation?
The law introduces the term "disseminator of information." These are individuals and legal entities, including the media, which disseminate mass information. In its analysis of the document, the Institute of Mass Information reached a conclusion that any user of social networks can be classified as such.
However, there is an interesting rule in the law that requires hosting providers and providers of common information platforms such as Facebook, Twitter, and others, as well as messaging services such as Telegram to collect and transmit "credentials of account or channel owners, chats or other communities with over 5,000 subscribers or over 5,000 unique users each day" to the commissioner. It may be that such users will be targeted since a person with 100 Facebook friends that shares information from a questionable group will do less harm than someone who posts such information in that group.
Who Will Seek out Disinformation?
Under current legislation, only the affected party can sue for disinformation. This is why this draft proposes to eliminate this loophole and introduce the position of information commissioner. This person will not be chosen by means of competition, but by a basic ministerial vote.
Candidates for the position will be submitted by the ombudsperson, the minister of justice and the minister of culture, who is currently responsible for the state's information policy. This person will have to be at least 35 years old, fluent in Ukrainian and English, have lived in Ukraine for the past 5 years and have experience in human rights or information protection.
The Commissioner will be able to record cases of disinformation, demand refutation of disinformation from the disseminators (voluntarily or through court), and information about non-media disseminators from providers. It may also restrict access to information and impose fines through the court.
For example, if the disseminator refuses to disclose information, provide the right to reply or refute disinformation, the Commissioner may go to court and restrict access.
State and local authorities, state and municipal institutions are also obliged to monitor whether anyone disseminates false, distorted or incomplete information about them, and to respond promptly to such cases: by demanding the right of reply, refutation or even by turning to court.
Self-Regulating Journalism and Professional Journalists
According to the authors of the bill, disinformation will be significantly reduced if journalists start to care about high standards of work and adherence to professional ethics. They will do this through a self-regulated body – the Association of Professional Journalists of Ukraine. It is up to this organization to adopt the Journalist Code and standards of professional ethics, monitor their compliance, and apply disciplinary proceedings to professional journalists.
The Association will be founded by five journalistic organizations, National Public Broadcasting Company of Ukraine (UA:PBC) and legal entities that are part of the state foreign language broadcasting. Since the ministry of information policy is the founder of the state-owned foreign language broadcasting, with which the current ministry of culture is one entity, the Ministry will become the seventh "pillar" of the Association.
Those who agree to join the Association are offered a "carrot" from the authorities, namely the status of "professional journalist". These media will get more protection and open more doors than a “regular” journalist.
For example, by presenting their press card, a professional journalist would qualify to "gather information in emergency zones, including areas of natural disaster, catastrophe, in places of crashes, riots, locations of counter-terrorism operations (including formerly “ATO” – ed.) and Joint Forces Operation, and hostilities". They will be more protected when investigative measures are conducted against them and will be able to expect compensation for injuries in the course of work.
Quality Mark for Media
The media will be able to get a "trust index" that will indicate that they adhere to journalistic standards. Obtaining this “index” is voluntary and the following criteria must be met: 1) dissemination of credible information 2) media journalists must adhere to professional ethics rules 3) transparent ownership structure 4) respect the right to reply and refute false information or disinformation.
Whether the media meets these criteria will be determined by organizations that meet another set of criteria prescribed by the Commissioner. A list of such organizations will be posted on the official website of the Information Commissioner. If the media successfully passes the evaluation, the state will reimburse the costs.
The Trust Index is valid for one year. During this time, the media may use it to mark their materials. After it expires, the media will have to be re-evaluated. The Index shall cease to be valid if the Commissioner has addressed the media three times or more with allegations of disinformation or the right to reply.
The bill attracted negative reactions immediately after its presentation on January 17 when several journalists questioned what the ministry intended to achieve.
RFE/RL’s Inna Kuznetsova, who recalled her bad experience of heading the Commission on Journalism Ethics, wondered why journalists should be forced to join a new organization with no reputation just to retain their status of a “professional journalist”.
Oksana Melnychuk from the think tank PACS, in turn, referred to Emmanuel Macron’s response to Russia’s meddling in the French presidential election stating that it took Paris over a year to adopt such a law, whereas Kyiv devised a similar bill within a much shorter timeframe. She suggested that the current draft may in fact introduce censorship as opposed to the protection, and also argued that it deviated from international norms.
In response to the numerous questions, deputy minister stressed that the law is, above all, aimed at preventing the dissemination of false information, urging opinion leaders to consider the repercussions of conveying disinformation.
Rights advocate and director of the Ukrainian office of Freedom House Matthew Schaaf turned to Twitter to express his outlook on the bill immediately after its presentation in Kyiv on January 17. He noted that the presented law “[raised] some interesting questions about definition of disinformation, media regulation, & criminal responsibility”, whilst expressing hope that public consultation could provide the answers. Schaaf also pointed out that there will be mechanisms designed to prevent abuse, namely compulsory review of judgments under cassational procedure and the requirement for cassation court to obtain preliminary conclusions from the European Court of Human Rights (ECtHR).
The National Union of Journalists of Ukraine (NUJU) also warned that “the law would legalize state interference in the journalistic profession and restrict media workers’ rights.” The European Federation of Journalists (EFJ) sided with NUJU: “The government must strictly respect journalistic self-regulation and autonomy. The state should create conditions for this process avoiding any governmental interference and not depriving journalists of their rights...” said EFJ General Secretary Ricardo Gutiérrez.
Journalist and former executive director of Detector Media Diana Dutsyk used Facebook to address the key points of the bill she disagreed with. In her post published on January 22, Dutsyk decried the oversimplified definition of “disinformation” and “veiled censorship” along with state-controlled self-regulation. She proceeded to predict the authorities “buying” some journalists and aired her concerns about the status and protection of “non-professional” journalists who choose not to join the newly created NGO.