VIDEO
In EuroIntegrators, media expert and ex-Deputy Minister for Information Policy of Ukraine Tetiana Popova sits down with diplomats, heads of international organizations, and Ukrainian power brokers to discuss Ukraine’s European integration. In this episode, the guests are Matthew Schaaf, Director of Ukraine Office at Freedom House, and Oleksandr Burmahin – Media lawyer at the Human Rights Platform.
Watch other episodes of “EuroIntegrators.”
The show is produced by a Ukrainian NGO Information Security and Oboz.TV.
See the text version of the interview:
Popova: Hello, this is a new episode of the EuroIntegrators program, and we are speaking today about the new disinformation law proposal from the Ministry of Culture.
First of all, I would like to present very briefly what this law is about and why it is discussed in all the talk shows.
The first idea that has risen big questions is the Information Commissioner, who will be dependent on the Cabinet of Ministers of Ukraine and who can go to court to demand from the media not to spread some information. This is a new definition that will appear in Ukrainian law if this draft law is adopted. And not everyone agrees with it.
The second question is that every media has to go through a check, has to get a “trust index” and publish it. And if it doesn’t publish it, it will receive fines.
The third innovation: journalists have to create the Association of professional journalists – a journalistic self-government (the Ministry of Culture calls it like that), but in fact most of these organizations which have to create an association of professional journalists dependent in one or another way on the state or on large media holding companies.
The fourth innovation is fines, there will be fines ranging from a thousand of minimum salaries up to 2000 of minimum salaries. I would like to remind you that this is approximately from 4.7 to 9.4 million UAH. That is, almost every media, except very large media holdings will likely go bankrupt after the first lawsuit.
The fifth innovation is criminal responsibility. First of all, it can be minimum up to 2 years of corrective work – it applies to journalists and also can imply huge fines. Another option of criminal responsibility if it is done by an organized group, for example using the services of bots – from 2 to 5 years in jail. If these actions are funded, then from 3 to 5 years in jail.
And the biggest criminal responsibility is from 5 to 7 years, if these actions are made by parts 1 and 3 of this article, committed repeatedly or by an organized group – from 5 to 7 years, and also restrictions on the rights to engage in activities or occupy positions.
What do you think about these ideas, and what is your position?
Schaaf: Thank you for inviting me to speak with you and for talking about this very important topic. I’d like to start by the saying that the problem of disinformation is very real, the one that not only in Ukraine, but many other countries are struggling with and trying to deal with. We can see very clearly in the US that this has been a matter of challenging, and in many other countries. We need to find solutions. That being said Freedom House and many other human rights organizations have many concerns about proposals that have been made. We shared some of these concerns with the Ministry of Culture, Youth and Sports in December, and I will continue to engage in that process. I think the first concern was about the process. That essentially some pretty extreme proposals were made without adequate consultation and discussion with media, with civil society, with consumers of media, with regular people who this law will affect. Now fortunately, they have relaxed the timeline a little bit. Originally, the law was supposed to be introduced by the end of last year, and now there is a little more time to have a discussion about this. But from the public events that I’ve seen, it’s not clear that the discussion is authentic and there is real consultation, but more a presentation of perspectives and not a lot of listening and making adjustments based on that. I would highlight two other concerns that we have, which don’t cover everything, but they are two main concerns. One is the Information Commissioner. This, according to the draft, is a very powerful position, and has a function more like law enforcement by determining what is accurate information, what is inaccurate information and then recommending sanctions based on that determination. So they have a lot of power over who says what and what ideas and opinions are considered to be accurate or inaccurate. And then there can be very real consequences – very high fines as you mentioned, criminal responsibility, potential jail time for people who offend this law repeatedly. And the person is appointed by the Cabinet of Ministers, so essentially they are representatives of the government rather than a representatives of the people or of the people’s interests. So it’s a political position, and they will have to make very hard decisions. There are a lot of questions about the independence of this this person and whether the decisions that they make could be considered legitimate or not. Another area that we are concerned about is the definition of disinformation and in particular the discussion about disinformation in areas of public interest – national security, the health and safety of the nation and other areas. We are concerned that by singling out information, ideas, and opinions in specific areas like this that it would actually damage public debate in Ukraine and public discourse on some really important questions. And of course people’s ideas on the health and security of the nation should be actively discussed in the media, on social media. These are the things that are most important to have a vigorous public debate on. And we are concerned that this proposal could negatively affect that.
Popova: What about the Professional journalists’ association they propose?
Schaaf: Yes. It’s kind of ironic to call it self-regulation when essentially a new “non-governmental” organization will be created by law, and then the function of this “non-governmental” organization would be highly regulated also by law. One aspect of this association that I think is especially of concern to us is the distinction between “journalists” and “professional journalists”, and essentially only professional journalists who meet criteria established by the law and by the association at some point in the future will get certain rights, including protection from violence for example. So, you are a freelanced journalist, you are a journalist who only works 2 years and 11 months as a journalist for example, and under the current draft of the law, if someone threatens your life or attacks you or something of that sort, then you won’t get the same protection that a journalist who has worked 3 years and 1 month and has gone through the process to become a member of this association and so on. It’s kind of an arbitrary distinction and one that can very seriously affect the work of journalists in Ukraine.
Popova: Oleksandr, I saw that you wrote a great analysis. It’s too long for us to show, it’s on 22 pages. But we’ve pointed out the basic recommendations from it. Could you tell us what exactly you didn’t like in this law? What it violates and what can be left from it?
Burmahin: In fact, I want to emphasize that 4 lawyers have worked on it, a “Human rights platform and a Digital security lab. These were 4 quite experienced media lawyers. And we emphasized the main things in these recommendations in this analysis. Because if we wrote about some smaller concerns and then write the recommendations and conclusions, then this document could take up the same amount as this draft law itself. For about 100 pages. In fact, the key or basic models offered by this draft law by the Ministry of Culture have either contradictory to the Constitution or contradictory to both the Constitution and the Convention. Or it contains serious flaws that also contradict international standards and approaches or the practice of the European Court of Human Rights. If we take a Commissioner in the information sphere, who is planned to be appointed by the Cabinet of Ministers, the Cabinet of Ministers, in accordance with the Constitution, has no power to create such an institute. It manages the executive branch of power, and regarding the commissioner, there is a large volume of international standards that provides for minimum standards of independence, and the professionalism of this person and this institute. And most importantly, the Ombudsman should protect the rights and not persecute journalists or other possible human rights abusers, that is, should protect common interests. The Ombudsman is primarily protects individual human rights or groups of people. If we take the definition of disinformation in general it is one of the major defects or disadvantages of this whole complex, because it is positioned as anti-disinformational, and in fact the definition of disinformation given in this draft law is that it is untrue information on socially significant issues in the field of defense, national security, environmental protection. There is a right to self-determination for some reason, and territorial integrity. Our organization, our lawyers are now defending cases of Pashinsky’s before “Novoye Vremya” regarding the publications related to the defense sphere. I am running now the case of Gladkovsky-Svynarchuk against Bihus and his team. We all remember this investigation that became a blast during the election campaign. Such investigations will automatically fall into a category of disinformation, as journalists often use information obtained from their own sources on the basis of anonymity. This draft law and this concept implies that all information should necessarily have sources and must be from identified disseminators. And the disseminators can be any person. It is implied that, for example, the use of aliases is forbidden, which also does not meet journalistic standards, does not comply with the law on copyright and related rights. That is, any investigator who disseminates disinformation accordingly falls under the sanctions that were already mentioned, this is also certain nonsense. However, such a definition does not cover the huge amount of disinformation that is being addressed today in international researches, in Council of Europe documents, in European Union documents. It is understood that when reliable information is mixed with unreliable information, even authentic information is given with certain accents and is essentially used for negative purposes.
And today there is an understanding among international organizations that disinformation is a larger process, it is an action, not a category of information. And this draft law, which contains such serious sanctions mechanisms, is essentially narrowed down and can only be used in the internal market to our own journalists. Although if we talk about disinformation, about this issue, it appeared in connection with an external threat. International organizations today say that the source of this threat is Russia, Iran, North Korea, China and other countries but these are the main 4 countries. But then this mechanism should also be focused on the fact that these are external threats, these are narratives, this is a great analytical work, and not a narrow enough definition that can be interpreted one way or another again without clear criteria. It is narrow, meaning by these manifestations of disinformation. Again, if we talk about this journalist association that is planned to be created under the law. There is confusion in terms even among experts because many of them are talking about self-regulation, and they have written it as self-government. And the mechanism itself is essentially borrowed from the lawyer’s self-government. Why do journalists need lawyer self-government?! Advocacy has its role in the society, its international standards, and indeed, according to them, there should be corporate self-government in the advocacy. There are no such standards and practices for journalists. And they have written that it is the only organization that deals with these issues that cannot be eliminated, cannot be reorganized and they even prescribe every step how it works and functions in details. That is, there is already a violation of standards in the field of freedom of association and association of citizens.
Popova: Is this constitutional freedom already?
Burmahin: Yes. But they violate the constitution in another aspect. The aspect is related to the fact that we have two classes of journalists.
Popova: They restrict the rights of other journalists.
Burmahin: Professional journalists and just journalists. And the difference between them is only that some of them are members of this organization and others are not. And in essence, a large number of professional rights and guarantees will depend on this, and this will turn into privileges for the professional against the non-professional journalists. This is a direct violation of Article 36 of the Constitution. Because according to our constitution, there can be no different amount of rights and powers depending on the presence in public associations, and they are essentially trying to enforce this. The most obvious thing is that all the specific guarantees of criminal protection will apply only to professional journalists. That is, if someone attacks a journalist, violates his professional rights, an ordinary journalist will have no protection. And for example, accreditation. Only professional journalists who are members of this organization can be accredited. The ordinary journalist who does not want and he has all the right not to become a member of this association, which is also a constitutional standard, he will not be able to get rights because he is simply won’t be accredited. And by responsibility, these are absolutely disproportionate things. Millions of fines that will create a cooling effect for sure. And concerning the Commissioner again the labeling of materials is essentially forced. Because when the Commissioner addresses and says that in his or her opinion it is disinformation, then every media or distributor should mark such news with the fact of disinformation or that this issue is considered as disinformation. And then those who are reposting this information are obliged to show and save it as marked. As long as the process goes a lot of media will be essentially having marked information.
Popova: And most of the anti-corruption investigations, I think.
Burmahin: Including them. And the most interesting thing that we discussed with our colleagues, this can be used as trolling. And the media that work legally can suffer. On-line media which are registered in Ukraine, which are not hiding somewhere on islands by their hosting, Because those medias will ignore those requirements. And those who are really working – “Obozrevatel”, “Liga.net” – such large publishers can have marked information due to such trolling.
Popova: One more guest will be joining us now by Skype. This is Solomiya Bobrovska – the deputy of the political party “Golos”, the Secretary of the parliamentary committee on foreign policy.
Popova: We have seen statements from three international organizations, this is the European Federation of Journalists, Harlem Desir’s Office of the OSCE and the Council of Europe which supported the position of the European Federation of Journalists today. Tell us, how do you expect this draft law will be welcomed by international partners?
Bobrovska: Well, first of all, I would like to say that we are also preparing our own statement from our faction “Golos”. Obviously, we are also ashamed. And it is very strange that colleagues who worked in the media environment and spoke before the elections – that the national council, in particular, would have all possible resources within the national council in relation to the control of conditional disinformation, but there are opportunities that the national council can control for example giving the license, withdrawal it and so on. But today they are issuing a very strange draft law that looks more like a document of Belarusian format than the Ukrainian one, because it seems to me that journalists have very clearly shown their position in the past years about the possibility of tightening the nuts for the journalistic environment. That is why we must have not only international partners, but first and foremost Ukrainian politicians, and also the journalistic community. Because it is politically not just a fight against disinformation, it is certainly the same as with the new regulation that they want us to fasten actually to one quality mark like they offer a quality index in this draft law and put us in one line. Well, I would like to see what an interesting state line will that be and again it will be similar to the Belarusian format. Not to a democratic Ukrainian one.
Popova: And you think this draft law as it is now still can get votes in your opinion?
Bobrovska: However, we will hope for an adequate number of colleagues from the majority. who understands the risks and who also came out of the media . From what I know from the opposition parties, including us – we will not support this draft law although our position was similar when there was a change in the law on foreign language broadcasting , however, the mono majority voted unanimously for it, but I hope that they will see a lot of risks here.
And if someone of them plans to go into journalism I’m not sure they want to be as functionally minimal as MPs today.
Popova: Thank you Solomiya for your position. I think it is wrong if we won’t hear the opinion of a ministry representative. We invited them but unfortunately, they did not come. There had to be 4th chair for them. A deputy from the humanitarian policy committee from “Sluga Narodu” also declined to come, but we picked up the main position and the main arguments of the Minister of Culture, Pan Borodiansky and we wanted to show you and then we will discuss those arguments.
Borodiansky: There will be an appeal to the distributor of information and then a court hearing will be held to decide whether this information is disinformation in the interpretation of the law we are proposing to discuss. That’s how it happens, it’s not so accurate but it’s not a disinformation. About self-governing organization that journalists will join. We are criticized for identifying the list of organizations that create this organization. I would like to give an example of Lithuania, which has the same organization and the founders of it are 15 members, consisting of one representative that is delegated from the Lithuanian Center for Human Rights, the Association of Lithuanian Psychiatrists, the Bishop’s Conference of the Catholic Church, the Publishers Association, the Lithuanian Radio Association, the Association of Journalists, national association of creative journalists, national association of publishers of districts and city newspapers etc. The law, like we do have, defines the list of organizations that founded this self-government organization. A journalist may be unprofessional, that is, he can work, collect and disseminate information, but the state says that only a professional journalist has a special function and will receive the additional protection from the state. 7 years is given for the systematic spread of disinformation as a bot-farm. The index of trust is the fact of checking, relatively speaking the world has fact-checking companies and they say that this is the media that used facts for a month, not distorted them and gave factual information. They are assigned an index, and they independently receive this index and say – we are trusted media. The draft law has gaps, it is not perfect. And it has to be cleaned up, but it contains the things that we talked about that you wrote about by yourself and we support them. We support the story of being a professional journalist. That he or she should receive professional certification and be protected by law in your community.
Popova: So that was their argument about professional journalists and the index of trust and the commissioner and about 7 years in jail. What can you say as a lawyer about all that?
Burmahin: Firstly, a brief comment on the speech of the Member of our Parliament, this drat law will not only apply to journalists, anyone who writes their own post on their Facebook page for example, will be distributor of the information in accordance with this draft law and will be the subject to responsibilities such as full identification according to these sources, links and everything else, if not, such a disseminator will be considered a disinformer as well as an investigator writing on the subject of defense.
Popova: Deputies can also be linked to that.
Burmahin: Absolutely right. As for the speech of Minister of Culture, the general concept here is that it should be a complex, a jewelry mechanism that has to balance a very large number of particularly sensitive areas for Ukraine today, and indeed protection of territorial integrity and national security on the one hand, and freedom of speech on the other, freedom of expression in all its manifestations, protection of privacy can be there too, but for some reason the authorities, like the previous ones, are planning an ax instead of, say, a microscope. Like there was draft law 6688 if you remember.
Popova: Cheer up, the worst is yet to come compared to that law as I think.
Burmahin: Yes, but for some reason the authorities always offer an ax in such complicated things and difficult moments, but there cannot be an ax at that with such uncertain discretion and limitations of criteria because it will cut and work on internal let’s say so subjects rather than on external in the first turn.
Popova: Why do you think international organizations like the OSCE are so concerned by this law? Harlem Désir is coming to Ukraine is even coming to Ukraine?
Schaaf: I think they are concerned for the same reasons that we are, that many media are, human right groups and legal experts and others. The concern is that the proposals that had been made could have disastrous effects on freedom of expression, on the work of journalists, on access to information and the ability of people to access lots of a different information, different voices and different people. That’s the first issue where I think the main concern comes from. And there is some twisting of international standards that is happening to a certain degree…
Popova: Twisting? What do you mean?
Schaaf: In a saying “Oh, all these proposals consistent with international standards…” But they’re not. And that’s the point. So, Harlem Désir, representatives of the Council of Europe, the main holders of media freedom, freedom of expression standards that are relevant to Ukraine I think have responsibility to be engaging the government, to be engaging the public, to be speaking, sharing the prospective on what they think about the proposals that are made, and also what are the existing international standards. And how can Ukraine, how can other countries deal with the problem of disinformation. Also making sure that people can speak their mind, have access to information, journalists can work independently, without inappropriate influence on the government and so on. So, I don’t know exactly why he’s coming, but I hope this is on his agenda…
Popova: He is coming about this law, to have consultations about the law.
Schaaf: Great. I hope that the government, the Ministry of Culture, the others do engage and take an advantage of the resource of the experts that they have, the lawyers they have to come to a better solution.
Popova: We also see on the screen the position of the European Federation of Journalists now and today’s comment by the Council of Europe. While we are showing the viewpoints of other international freedom of speech journalist associations, I would like to ask what is the real world practice of disinformation in the world?
Burmahin: International practice is still being worked out. That is, there are no ready-made effective models, let’s say, that could be implemented with one or other variables to the situation in Ukraine. Therefore, just like other countries and the United States and the European Union, we are at the stage of solving this problem, searching for these models, but again there are universal standards cannot contradict with these models, cannot introduce mechanisms that have censorship signs that will raise the cooling effect and horrification not only of journalists but also of any disseminators of information.
Today, let’s put it this way, international practice is moving through the creation of analytical centers that are serious about exploring these issues and tracking the sources, narratives that are spreading, and then the second part that may emerge is joining these analytical centers- the most famous example is strategic communications – and joining of national regulators that working in the media field to them, so to speak, to monitor how well the media listens to the results of these analytical centers.
Popova: Sorry when you are saying strategic communications you mean a center of excellence like in Riga or anti-disinformation center like in Brussels?
Burmahin: Yes, that was created in the 2015 and last year, the European Union increased its funding and when its funding increased, enlarged the staff and actually strengthened it, so to speak, the rhetoric of the European Union and European parliament changed significantly last year compared to the years 2017 and 2018. They have understood all the dangers and so to speak, the level of these dangers and will reinforce all these institutions. Euro MEPs saying that such an institution should be present in every country and not just within the European Union. Because those countries that disseminate this disinformation and use informational technology are essentially making democracy versus democracy, they spend far more money on these tools to use them, so there must be an adequate response. But again, it has to be a jewelry mechanism that will balance all of these sensitive topics, not an ax for sure.
Popova: What does your organization think about instruments in other European countries? Because the Minister Borodiansky is claiming that there is anti-disinformation court in the UK, there is an anti-disinformation law in France. But this law is actually absolutely different, without prisons for journalists.
Schaaf: Oleksandr is absolutely right that there is no one standard dealing with information. But there are many things that can be done. We talked about that in the report “Freedom in the Net” which is specifically about Internet freedom in Ukraine and in many other countries. Because one of the main conclusions of the recent report is that democracy will depend on how we deal with this question. Disinformation in social media and other things. You know it’s great to hear the Minister talking about fact-checking. Fact checking is essential, it needs to be a part of the solution, but not fact-checking that could lead to criminal sanctions and another types of things. Fact-checking should be independent and it should help educate people and inform them rather than be part of a sanction system. Education of media consumers, of people using the internet, is a part of the disinformation concept and it’s good. It should be part of the formal education system, it should be informal education system, being able to tell what is fake and what isn’t. Only 11% of Ukrainians I believe were able to identify a fake, based on a survey, study that was done by “Internews”. Those are two areas. One other thing that Oleksandr had mentioned earlier that I think is important is that efforts not focus on content, but focus on tactics and acts of disinformation. Disinformation can be in any area. It can be national security, it can be on health issues, it can be on political issues, on anything. We should be focusing on bots and things of that sort and developing a policy that will protect against those types of actions rather than singling out specific topics or types of news or something of that sort to be developing a policy.
Popova: But tell me in a conditional way, if some alternative draft law will be adapted to the French one – do you think will it work in Ukraine?
Burmahin: The French law first and foremost is about elections only. And these are extraordinary procedures that only relate to the election process.
Popova: Well, three months before the elections, I was told by a French MP who drafted this law, they have elections almost every six months. Therefore, it will work for six months and then for six months it won’t work.
Burmahin: I think that this experience is practically absent at the level of the law – it is indeed can be Germany, but again they criticize these approaches. In essence, France could be more at the level of legislation.
Popova: Well Malaysia seems to be but this is not a good example. Russia and North Korea, China and Belarus.
Burmahin: Just those ones who are using disinformation as a tool of international influence. The most important point is to start a discussion with the analysis of the problem, because in fact, everyone speaks about disinformation, but they put their own meaning into this and there were discussions when we worked on the media draft law questions regarding our national council. And industry officials said please tell how many facts of disinformation were there and there was no answer.
Everyone was mentioning some high-profile cases but they were 5 or 4 in a period of 5 years. Where is analytics, where is understanding, what, how, in what ways, and so on. It then depends on the mechanism itself and the tool to prevent it.
Popova: Well, look at Stop Fake there are over 100 different fakes that they at one time denied. I remember 100 in 2015 Texty.org made a great tool when they analyzed the sites that reposted much from Russian sources and they showed what percentage of false information was on those sites.
Burmahin: On Russian sites?
Popova: On Ukrainian sites that reposted Russian sources. And if it could be an application on my phone that would allow me to watch for example if I google 10 links – that I could see immediately what percentage of false information this site had – I would install such an application but it all should not be forced with these disclamers on every site.
Burmahin: My colleagues and I discussed this when this draft law from the ministry appeared, about all these markings and index. In fact, if an analytical center was created to provide analytics what sources are reposting and redistributing in Ukraine for example Russian sources – there would be a general idea to create a register of disinformation sources in Ukraine for everyone to check and see, but it should be also the proper procedure, guarantees and the possibility of reviewing this registry and exclusion, not only the inclusion and the order of inclusion should be developed, but not obliging all Ukrainian media to mark these materials which, in the opinion of the Commissioner, are disinformative. By the way, regarding to Minister’s speech, he spoke about judges and so on – these are only criminal cases, there will be a large number of actions at the administrative level without a court decision.
Popova: So there will be the Commissioner only.
Burmahin: Yes, the decision will be made by the authorized person. And if you disagree you can then go to court to appeal his actions. That is, the guarantees he said about judicial protection, they concern only criminal prosecution.
Popova: Unfortunately, both Golos and the European Solidarity Parties are not much dependent on the solution, but what do you think will it be possible to pass this draft law in a contemporary form and in a more soft form?
Burmahin: I think that neither the first nor the second variant is acceptable today. In my opinion and as I also spoke with my colleagues with legal experts – firstly there should be no unnecessary emotions in our opinion, there should be a professional discussion in the first stage, the common touch point is that this problem exists and it’s disinformation. Almost everyone agrees that this problem exists. The second point that should be discussed at the level of specialists in different fields is perhaps the creation of a working group in one format or another. To take two three steps back and to start working on how to solve this problem, but first, to formulate this problem as it really is today, in what manifestations and what meaning we put into the content of the word disinformation. And stage 3 it is already directly working out of a new possible draft law with the possibility to take certain things from previous one but well let’s say not more than 15-20 percent and it is something that can be borrowed when creating a new regulation.
Popova: 15-20 percent is rather a good amount as I think for the first draft law of the Ministry of Culture.
Schaaf: Considering the fact that this is a very important issue that does need to be addressed, there’s more that the government can be doing, there’s more that the public can be doing, the media can be doing to address this. This particular law does not seem to be the right one for solving this problem. It’s hard for me to tell what the politicians will do based on the response that we’ve seen from various different political actors. It has not always been clear and their willingness to receive criticism, to process the criticism and then make changes is also unclear. There is a lot of concern than this law would be passed in a version similar to the proposals, and I think it would be a mistake. But I hope that we can use this as an opportunity to actually have a real dialogue, that identified real solutions, that strike the right balance between taking meaningful action to address this challenge and also guarding against threats to the growth and strength of democracy in Ukraine. And you can have a democracy where people are scared to express themselves or media can’t function and so on. So the potential impact is enormous and the discussion, the consultation and the development needs to be taken very seriously.
Burmahin: In my opinion it is clear that there may be a political will and the majority of the Parliament the mono majority, but in my opinion if there is an attempt to lobby this draft law in such variant or in a softened but basic one then it will lead to open confrontation with the public with media journalists because despite how divided they are today – this question of such threats will unite them all.
Popova: Let’s hope that our government and the Ministry of Culture will understand that it’s impossible to protect democracy using non-democratic methods, and they will withdraw this law proposal or change it. The new government and the new president came with freedom of speech idea and with support for journalists. So, let’s hope that they will understand that this is a wrong way of uniting journalists, foreign partners, former “porohobots” and other people against this law.
