An Appeal to the President of Ukraine to veto the Law “On Television and Radio Broadcasting”
On 3 February the Ukrainian Helsinki Human Rights Union (UHHRU) and the Media Law Institute addressed an appeal to the President of Ukraine asking him to use his power of veto against the Law of Ukraine “On Television and Radio Broadcasting”, passed in its new version by the Verkhovna Rada (Parliament) on 12 January 2006.
A press-release issued by the Press Office of UHHRU states that: “This law does not comply with many international standards and recommendations concerning freedom of speech and regulation of television and radio broadcasting, nor is it in keeping with the positive practice seen in European countries”.
Media experts from both organizations point to significant flaws in this Law:
1. The Law does not provide a satisfactory definition of owners of television and radio organizations which runs counter to recommendations of the Council of Europe, the EU and the Organization for Security and Co-operation in Europe. Terminology is used in the Law which makes it impossible to discover who the real owners of the television and radio organizations are, and which allows for the situation to remain unclear leaving the public still in the dark as to who really owns this or that television or radio organization.
2. Restrictions on the involvement of foreign capital in Ukrainian television and radio organizations are abolished by this Law. There is a strange reference to the Economic Code however the latter does not contain any special norms regarding television and radio broadcasting. There is also a contradictory general provision concerning the prohibition on foreign individuals and legal entities founding Ukrainian TV and radio organizations (Article 12). In effect, one of the most powerful levers of influence on the public could in the space of a few years end up entirely under the ownership of foreigners, or could continue to be controlled by unidentified individuals via offshore companies.
3. The Law does not at all regulate the rights of journalists of television and radio organizations as regards collecting and broadcasting information.
4. The principle of licensing is changed by the Law: at the present time the National Television and Radio Broadcasting Council of Ukraine issues licences, this being determined by the fact that television and radio broadcasting organizations use a limited radio frequency resource. Under the new law however the regulatory executive body shall issue a licence for the right to carry out broadcasting in any form, and the law is effectively aimed more at regulating the content of the broadcasting which is entirely out of step with European practice in regulating TV and radio broadcasting and freedom of expression
5. Under this Law (Article 6) television and radio organizations “are obliged to provide information about the position officially published through any means of all political factions represented in State executive bodies”. This violates the principles of independence of the media and freedom of speech, and of identical and objective coverage of events, as well as of equal access of political factions to the Mass Media. The law also allows for “motivated” interference by State executive bodies or bodies of local self-government, public associations in the area of professional activity of television and radio organizations, this also contravening standards of journalist and Mass Media independence.
6. In addition, the Law effectively bans political advertising by establishing the general prohibition on “any direct or indirect financing of television and radio organizations by political parties, political figures …” (Part 3 of Article 19).
7. The Law contains a considerable number of terminological inaccuracies and discrepancies, as well as of value concepts a broad interpretation of which could lead to an unwarranted restriction on freedom of expression For example, the Law prohibits “unwarranted display of violence” (Article 6), “scenes which could be terrifying” or “scenes appealing to sexual instincts” (Part 5 of Article 28), yet a broad application of these provisions could lead to an unjustified ban on 70-90 % of the programs of television and radio broadcasting organizations and to corruption of the entire sector.
8. There are a large number of contradictory provisions in the Law concerning the procedure for licensing which would allow the National Television and Radio Broadcasting Council to sift out “unneeded” television and radio broadcasting organizations. For example, the application for a licence needs to indicate “the number of households on the foreseen territory where the programs will be transmitted” (this is particularly equivocal in the case of those TV and radio broadcasting organizations applying for a licence for the first time). Where inaccurate information is submitted, the application will be ignored. Yet how can each TV and radio broadcasting organization know the number of households in a given populated area? And what difference does it make from the point of view of the licence? These and other provisions of the Law encourage corruption and deprive the licensing procedure of transparency.
9. The Law sets out unclear provisions concerning tender guarantees since its non-payment does not constitute grounds for being excluded from the tender nor for being refused a licence.
10. The Law unjustifiably provides for extremely wide grounds for revoking a licence with court sanction. This can be, for example, where there has been a refusal by the licence-holder to allow employees of the National Council to undertake a check in accordance with demands set down in Ukrainian legislation. Not even the Tax Administration can have such sanctions applied to taxpayers who impede their checks. Not to speak of the fact that there is no law in the country defining the grounds, the procedure and the consequences of a check by representatives of the National Council. The scope for abuse in the application of these provisions is obvious.
11. The Law does not define offences for which the National Council could impose sanctions on the TV and radio broadcasting organization which runs counter to the principle that a law must be clearly defined and clear in content.
12. The final text of the Law did not undergo any expert analysis by international organizations such as the Council of Europe or OSCE which always kindly offer their services. The recommendations from the international organization “Article 19” added to the text approved during the first reading were not taken into consideration. There was no public debate of the final text of the Draft Law in Ukraine at all. And the Deputies simply did not read the text since it was handed out at the last moment before the vote.
Furthermore, in the opinion of experts from UHHRU and the Media Law Institute, there also remain such extremely equivocal issues as the appointment of managers of the Ukrainian National Television Commission and the Ukrainian National Radio Broadcasting Commission; the unwarranted extension of the term of office of members of the National Television and Radio Broadcasting Commission from 4 to 5 years which is in no way connected with the passing of this Law; the obligation to dub in a Ukrainian audio translation ALL films and programs OF ALL television and radio broadcasting organizations; the grounds for reregistering licences within the framework of a territorial segment of the licences force for only 5 times the minimum before tax; the licensing of operators of a program service (cable operators).
Given the above-mentioned flaws, human rights activists would urge the President to use his power of veto again the Law “On television and radio broadcasting” and resubmit the Law to the Verkhovna Rada for serious revision.