Ukraine: New draft Bill Risks Interfering with the Editorial Policy of the Public Service Media

Update: 07 Jun 2018 Resolved
Year 07 Feb 2018 Country Ukraine Category Other acts having chilling effects on media freedom Source of threat State Partner EBU , Article 19 , AEJ , EFJ/IFJ , Index , RSF Alert level Level 2
07 Feb 2018 Ukraine Other acts having chilling effects on media freedom State EBU , Article 19 , AEJ , EFJ/IFJ , Index , RSF Level 2

Verkhovna Rada of Ukraine is scheduled to discuss a draft Law No. 7395 "On Amendments to Certain Laws of Ukraine Regarding the Procedure for Informing on the Activities of the Authorities or Public Officials”. One of the proposed provisions in the draft Law reads “Members of Parliament of Ukraine shall have the right to have their representative activities covered by the public joint-stock company “National Public Broadcasting Company of Ukraine” (UA:PBC) according to the procedure established by the UA:PBC in a programme which lasts as least 25 minutes. The MPs activity shall be covered by a corresponding separate structural subdivision of UA:PBC. The right to have their activities covered shall be held by the MPs elected in a single-member constituency or in a national multi-member constituency and assigned to a certain region of Ukraine by a parliamentary faction (group). UA:PBC shall cover the activities of MPs of Ukraine exclusively in the manner prescribed by this Law”. The above mentioned provision in the draft Law prescribing how the public broadcaster should cover the activities of MPs risks interfering with the editorial policy of the public broadcaster. Imposing such an obligation is not in line with international standards for editorial independence of public service media, and in particular CoE Recommendation of the Committee of Ministers of the Council of Europe No. R (96) 10 on "The Guarantees of Independence of Public Service Broadcasting". According to CoE Rec 1996 (10) on the independence of PSM, under Guideline VI, PSM should be obliged to transmit content, which is not under its editorial control only in exceptional circumstances. “ The cases in which public service broadcasting organizations may be compelled to broadcast official messages, declarations or communications, or to report on the acts or decisions of public authorities, or to grant airtime to such authorities should be confined to exceptional circumstances expressly laid down in laws or regulations”.

Resolved On 7 June 2018, after consideration of the authorities’ response and of the fact that draft law 6681 was not put to the vote of the Ukrainian Parliament, the partner organisations of the Platform declared this case to be "resolved”, concluding that it was no longer an active threat to media freedom.

Updates

16 Apr 2018 : On 17 April 2018, the Ukrainian parliament is expected to debate and vote on a new amendment to the Ukrainian Law on Public Television, which would limit the independence of the national Public Broadcaster (The link to the Draft Law can be found here: http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=62229 ). Article 18 of the draft Law (#6681) on Amendments of the Law would oblige the public service broadcaster "to cover the activity of executive authorities, other state authorities, local self government bodies, or their officials as defined by other laws". If adopted, this means UA:PBC will be obliged to provide free air time quotas for every member of Parliament (20 minutes per month on state-owned or funded channels) alongside other possible requirements which can be defined by later laws. The current Law on Public Broadcasting excludes UA:PBC from such obligations, leaving it up to the discretion of the broadcaster and its editorial judgment to decide on which activities to cover. The CoE's Recommendation (No. R (96) 10) on the guarantee of the independence of public service broadcasting states that "the legal framework governing public service broadcasting organisations should clearly stipulate their editorial independence and institutional autonomy, especially in areas such as...the editing and presentation of news and current affairs programmes." It also says that: “the cases in which public service broadcasting organisations may be compelled to broadcast official messages, declarations or communications, or to report on the acts or decisions of public authorities, or to grant airtime to such authorities, should be confined to exceptional circumstances expressly laid down in laws or regulations.” These amendments, if adopted, would risk jeopardising the independence of UA:PBC and could derail its current reform to transform it into a genuine service to the citizens. On 22 February 2018, following the withdrawal of the draft bill by the Verkhovna Rada, the partner organisations to the Platform had declared this case to be ”resolved”, concluding it was no longer an active threat to media freedom. Given the new circumstances and the new threat to the independence of the public broadcaster, the partner organisations of the platform decided to reopen the alert which was closed on 22 February 2018, and called on the Ukrainian parliament to reject the amendments.
16 Feb 2018 : On 7 February 2018, the draft has been withdrawn.

State replies

06 Jun 2018 : Reply from the Government of Ukraine

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20 March 2018

On 20 March 2018, the European Court of Human Rights issued its Grand chamber judgment on Mehmet Altan’s case. The Court found there had been a violation of Article 5 § 1 (right to liberty and security) and a violation of Article 10 (freedom of expression) of the European Convention for Human Rights. With regards to article 5 §1, according to the Court findings, “Mr Altan’s continued pre-trial detention, after the Constitutional Court’s clear and unambiguous judgment of 11 January 2018 (…), could not be regarded as ‘lawful’ ”. The Court held that “for another court to call into question the powers conferred on a constitutional court to give final and binding judgments on individual applications ran counter to the fundamental principles of the rule of law and legal certainty, which (…) were the cornerstones of the guarantees against arbitrariness”. Under Article 10, the Court held in particular that “there was no reason to reach a different conclusion from that of the Constitutional Court, which had found that Mr Altan’s initial and continued pre-trial detention, following his expression of his opinions, constituted a severe measure that could not be regarded as a necessary and proportionate interference in a democratic society”. The Court pointed out in particular that “criticism of governments and publication of information regarded by a country’s leaders as endangering national interests should not attract criminal charges for particularly serious offences such as belonging to or assisting a terrorist organisation, attempting to overthrow the government or the constitutional order or disseminating terrorist propaganda”.

20 March 2018

On 20 March 2018, the European Court of Human Rights issued its Grand chamber judgment on Şahin Alpay’s case. The Court found there had been a violation of Article 5 § 1 (right to liberty and security) and a violation of Article 10 (freedom of expression) of the European Convention for Human Rights. With regards to article 5 §1, according to the Court findings, “Mr Alpay’s continued pre-trial detention, after the Constitutional Court’s clear and unambiguous judgment of 11 January 2018 (…), could not be regarded as ‘lawful’ ”. The Court held that “for another court to call into question the powers conferred on a constitutional court to give final and binding judgments on individual applications ran counter to the fundamental principles of the rule of law and legal certainty, which (…) were the cornerstones of the guarantees against arbitrariness”. Under Article 46 (binding force and execution of judgments) of the Convention, the Court held that it was incumbent on the respondent State to ensure the termination of Mr Alpay’s pre-tria detention at the earliest possible date. Under Article 10, the Court held in particular that “there was no reason to reach a different conclusion from that of the Constitutional Court, which had found that Mr Alpay’s initial and continued pre-trial detention, following his expression of his opinions, constituted a severe measure that could not be regarded as a necessary and proportionate interference in a democratic society”. The Court pointed out in particular that “criticism of governments and publication of information regarded by a country’s leaders as endangering national interests should not attract criminal charges for particularly serious offences such as belonging to or assisting a terrorist organisation, attempting to overthrow the government or the constitutional order or disseminating terrorist propaganda”.
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