Ukrainian service of radio “Liberty”: The discussion about the rights of journalists and citizens for obtaining information
Nadiya Sherstiuk: Since 1 January 2004 the new Civil Code will become operable in Ukraine. Lawyer Tetiana Montian reckons that the new Code contains a great number of contradictions, which may cause the essential damage to workers of mass media. Our Kyiv correspondent Viktor Miniaylo asked Tetiana Montian to explain her position.
Tetiana Montian: It seems that people, who wrote and adopted the Code, did not adjust the separate articles.
The most surprising is the provision reading that any negative information spread about a person is regarded as false (article 277, item 3). Sorry, what the negative information is? Firstly, this is an evaluative category, and everybody, who dislikes the information spread about him, may declare that this information is false. The new Code also contains the definition of positive information. So, let us read Article 302 item 3: “The information communicated by state officials and published in the official sources is regarded as true”. Yet, our state officials are different. They say different (and sometimes absolutely opposite) things. Certainly, it is understandable what the authors wanted to say. They meant that in the first case the negative information must be proved by the person, who spread it. The second provision means that if a person quoted the words of a state official correctly and without changes, this person is not responsible for the contents of these words.
Viktor Miniaylo: Tetiana, the deputies adopted and the President signed the law, which determined the concept of censorship. How do you think, will this law facilitate the work of journalists?
Tetiana Montian: I think that this is a mere declaration and nothing more. It is very good that this law was adopted, but it seems doubtful to me that it will have some practical use, especially after the new Civil Code will come into force. You see, there are too many contradictions. Judges will have the opportunity to use one norm in one case, and another norm – in another case. And all this will be legal. In other words, the ambiguity of the legislation is purposefully created.
Nadiya Sherstiuk: The law on censorship that was mentioned above was signed recently by President Leonid Kuchma. This document introduces changes into several legal acts of Ukraine: the Administrative Code, the Laws “On information” and “On state support of mass media and social protection of journalists”. The changes concern both the rights of journalists and of citizens, in particular, the right for information.
Taras Marusik: For the first time the definition of censorship appeared in Ukraine legislation. The article that was added to the Law “On information” reads: “Censorship, as a demand to a mass medium, journalist, editor-in-chief, organization that publishes the mass media, founder (co-founder), publisher or distributor to agree the information before the publication… or impediment in any form to the distribution of information on the side of the organs of state power, organs of local self-rule and their officials, is prohibited”.
Besides, the Law envisages the criminal responsibility for deliberate impediment to the professional activities of journalists and persecutions of journalists for criticism committed by a state official or group of persons.
One of the main provisions of this law is the statement that nobody may be brought to responsibility for expressing the opinions.
The administration of the all-Ukrainian public organization “Association of lawyers of mass media” protested against this legislative innovation. On the eve of the signature of the law they sent the letter to President Kuchma with the demand to veto the law. By the way, this letter was not signed, although it is known that the Association is headed by Viktor Petrenko, a deputy head of the State Committee of radio and TV broadcasting.
I will quote an excerpt from this letter: “It is noteworthy that the Law of Ukraine “On information” was supplemented with new Article 47-1, part 3 of which states that a person must not be responsible for spreading the information with the restricted access, if the court would establish that this information is socially important”. Yet, this norm disagrees with the Criminal-Procedural Code, which envisages the criminal responsibility for divulging secret or confidential information. Besides, Article 32 of the Constitution of Ukraine prohibits to spread the information about a person without his/her consent”.
Mykola Tomenko, the head of the Supreme Rada Committee in charge of the freedom of speech and information, has another opinion.
Mykola Tomenko: I cannot agree with this statement, since the constitutional rights of citizens are indisputable, as well as democratic values, which must dominate over the restrictions in any country. Secret information also may be related to the restrictions. This is a very complicated problem. We are going to declassify a great amount of the information with the restricted access listed in the resolutions of the Cabinet of Ministers. I have already declassified the staff lists of Presidential administration, but the staff lists of tax administration and custom service still remain secret.
If a person spread some socially important information, and it would be proved that it is really socially important, then this person would be regarded as not guilty. A journalist or common citizen, who dares to publish some information, must be protected, if the goal of these actions is to communicate the truth to other people.
Radio “Liberty”, 1 May 2003, http://www.radiosvoboda.org