On the campaign trail, then-presidential candidate Volodymyr Zelensky promised to curtail oligarchs’ influence on Ukrainian media.
Now, as president, Zelensky is instead on the verge of curtailing independent journalism.
New draft bills that are supposed to regulate the media market are draconian and pose a threat to freedom of speech, journalists and experts say. But that hasn’t stopped the government from going ahead.
Zelensky is a former television personality and media manager. In early 2019, he spoke in favor of restricting the endemic influence of oligarchs in the Ukrainian media. In November, he ordered the government to draft a law regulating the media market.
A month later, two draft laws were introduced. But they offered unpleasant surprises for the media.
In late December, members of the 248-member pro-presidential Servant of the People party registered a draft of the so-called Media Law.
If passed by parliament, the law will introduce a process for distributing and revoking media licenses for television and radio broadcasters and allow a regulatory commission to ban media outlets.
But the Media Law has been overshadowed by the Disinformation Law, a bill introduced by the Ministry of Culture and Information in early January.
This draft law proposes dividing journalists into categories, creating a state-controlled association of professional journalists and introducing an information commissioner with the power to block and fine journalists and media outlets.
The law will also create criminal penalties for disinformation, a norm that many fear can be used to silence the independent press.
Journalists, media experts and the opposition in parliament have heavily criticized the law.
“If this law is adopted, it will completely change journalism as we know it,” Anna Babinets, the chief editor of the Slidstvo.info investigative journalism project, told the Kyiv Post. “We will follow countries like Azerbaijan and Russia, where there is no (free) journalism at all.”
The Media Law is expected to be passed in its first reading in February, while the more controversial Disinformation Law will only be submitted to parliament in March.
Media Law
In 2016, the Council of Europe recommended that Ukraine adopt a single law that would regulate the country’s media. Currently, Ukraine has at least six laws that regulate print media, television and radio. Most of them were adopted in the late 1990s.
The new Media Law, proposed by lawmakers, unifies all laws concerning media. It also regulates online media sources, something absent in previous legislation. Additionally, it expands the power of the State Television and Radio Broadcasting Commission, appointed in equal shares by the president and parliament.
The law gives the commission the final say in licensing television and radio broadcasting companies. The commission can also revoke licenses if companies broadcast illegal content. The bill defines illegal content as media content containing pornography, violence, hate speech, attacks on the territorial integrity of Ukraine, calls for overthrowing the state system and propaganda. Fortune tellers will also be banned from advertising in the media.
The commission can ask the court to block websites in case of illegal content.
The law also bans media monopolies, making it illegal for one individual or company to hold more than 35% of the media market. All media outlets will be obliged to reveal their owners prior to receiving licenses.
Suggestions expected
The Institute of Mass Information, a non-profit media monitoring organization, says that the Media Law isn’t particularly dangerous but is “poorly written.”
According to the institute, the law is underdeveloped and often doesn’t define the terms it introduces. The law also doesn’t specify licensing procedures and doesn’t explain what is considered propaganda or calls for overthrowing the state system.
However, the institute also identifies what it sees as positives in the bill: quotas for Ukrainian-produced content in the media in line with Ukraine’s language law and restrictions on Russian influence over Ukrainian media for as long as Russia’s war against Ukraine continues.
According to the draft law, Russian citizens and companies cannot own Ukrainian media outlets.
Lawmaker Mykyta Poturaev, co-author of the media law and deputy head of the parliament’s information policy committee, says that the authors are open to suggestions on how to improve the bill. Changes can be made after the bill is passed in the first reading in February.
“The less government intervention there is in the industry, the better,” Poturaev says. “The government must create a framework under which the media works.”
Tetiana Popova, a media expert and member of the Freedom of Speech and Protection of Journalists Council, an advisory body to the president, says that the authors of the law are indeed open to proposals.
At the council’s suggestion, the authors excluded a catastrophic provision that would have introduced sanctions against media that are unprofitable. “It would have killed Ukraine’s media,” says Popova.
In Ukraine, most media outlets are unprofitable and are funded by their owners, the state or by grants. Ironically, the person who proposed introducing sanctions against unprofitable media was Oleksandr Tkachenko, a lawmaker and long-time president of 1+1, a holding of TV channels owned and sponsored by oligarch Ihor Kolomoisky.
Disinformation Law
The Disinformation Law goes much further in regulating and punishing journalists and media owners. The Ministry of Culture’s bill divides people into three categories: information distributors, journalists, and professional journalists.
The “information distributors” are individuals who write or share information through blogs or social media. The “journalists” are those who create news content, while the “professional journalists” are those who create content and are members of a government-sponsored journalist association, which is yet to be created. The members must comply with the association’s code of ethics. It has also yet to be written.
To be a member of this association, one needs to possess a Ukrainian work permit, have three years of experience and to fit “additional criteria,” which have yet to be determined.
Only members of this association will have a press card and will be allowed to attend officials’ press conferences. They will also have legal support and government protection in case of attacks. Journalists who aren’t members of the association won’t have that privilege.
Additionally, a new information commissioner will be introduced. His or her sole purpose will be to sniff out “fake news.”
The commissioner, who will be appointed by the government, will have the power to question any information, to ask for evidence and to fine journalists in case of unsubstantiated claims. The commissioner will have the right to ask courts to open cases against journalists for disinformation and to forcefully remove articles or shut down media outlets.
The law sets the minimum fine for repetitive deliberate disinformation at Hr 4.7 million ($195,000). Receiving this fine would give the journalist a criminal record. The law would also introduce criminal penalties for cases of constant disinformation.
The parliament’s Committee on Freedom of Speech will be the key body to approve the bill and pass it on for a vote. Poturaev, the author of the Media Law draft and the committee’s deputy head, supports the Disinformation Law’s general idea, but wants to make a few changes.
He doesn’t support the introduction of an information commissioner or criminal liability for journalists. As for the government-sanctioned journalist association, Poturaev is on the fence.
“It’s important that we don’t come up with a Soviet-style journalist union,” said Poturaev. “We mustn’t have a monopoly on journalism.”
Pathway to censorship
The Disinformation Law targets the independence of the press and violates the European Convention on Human Rights, according to media experts.
The Institute for Mass Information writes that labeling people who repost news articles as “information distributors” is a gateway to prosecuting everyone who shares something online. And giving special status to journalists who join a state-sponsored professional organization can be used to control journalists’ independence.
Volodymyr Borodyansky, the culture minister and former head of the StarLightMedia group, defends the law his ministry drafted. In a recent interview with the Detector Media news site, he said that the Disinformation Law is intended to help create a self-regulatory institution for journalists.
But journalists aren’t impressed.
“You can’t force people to join a certain union. We’re not in the Soviet Union anymore,” Babinets told the Kyiv Post.
According to the Institute of Mass Information, the law would also give extensive powers to a government appointee who can ask a court to fine and block a certain outlet. The court will have 48 hours to comply, but the defendant won’t have a formal trial and won’t be able to mount a defense in court.
“Too much power will be in the hands of one person,” says Babinets, noting that the commissioner will be appointed by the government without any additional oversight.
The law also introduces prison sentences for those “systematically spreading disinformation” or funding such activities.
“The law is extremely toxic,” says media expert Popova. “How the Servant of the People party and the president will get out of it, I don’t know.”
According to Popova, investigative journalism projects such as Slidstvo.Info and Bihus.Info are at the most risk of being harassed under the new legislation.
“With this law, (Denys) Bihus can be prosecuted right away,” says Popova, referring to the head of the Bihus.Info team, which conducts many corruption investigations.
According to Borodyansky, the Disinformation Law isn’t intended to punish journalists, but rather to “force journalists to stick to the facts.”
“I have said many times that I am in favor of investigative programs, but they must have accurate facts,” Borodyansky told Detector Media. “Investigative programs make value judgements.”
Investigative journalists don’t believe that.
“I don’t see a single section of this bill that can be normally implemented,” Bihus told the Kyiv Post.
Others were even more direct.
“It looks like straight-up censorship,” Babinets says.
