Journalists lack of legal awareness is hindering the development of the Ukrainian media
On 11 October, as part of the Second Kyiv International Media Forum, a roundtable was held on “How legal problems are impeding the democratic development of the Ukrainian mass media”.
The failure by officials to provide information; court practice which does not allow for the presumption of innocence; the blindness of the state in “not seeing” the inalienable right to express ones views, the violations of authors rights; the impunity of people who anonymously write defamatory things about others on websites and forums – these were some of the issues discussed by participants in the roundtable.
The discussion on impediments to the democratic development of the media was organized by the Media Law Institute, and attended by representatives of the media and lawyers who considered a range of legal questions which journalists most often encounter.
Western court practice is based on the principle that a claimant must prove his or her allegations, whereas in Ukraine the accused has to prove his or her innocence. Yet after all there is an inalienable right to expression which for some reason gets forgotten in court practice. Is it acceptable that it should be journalists as respondents who have to prove their innocence, and not the state which needs to prove that it may restrict the right of expression?
Defence lawyer Tetyana Shmaryova drew peoples attention to case law in Ukraine on issues involving defence of honour and dignity. She gave a specific example where the court allowed the claim of the widow of a prominent person who had died demanding that the journalists information contained in a question be refuted. According to moral norms she, perhaps had the right to such a claim, yet according to our legislation, she did not, since she had the right to protect only the memory of the deceased.
Judges do not consider printouts from the Internet to be proof, although they sometimes include them in the case file. Lawyers told of several cases where printouts had been considered as evidence, and advised what needed to be done for this. It was necessary that the witnesses make a formal affidavit confirming that the material was printed specifically from the given site, and this document needs to have all their signatures.
Member of the International Association of Media Lawyers Viacheslav Yakubenko presented several legal issues from court practice. One was the fact that the Law “On Information” is not adequately functioning, in particular the legal norm on a 30-day period in which officials must provide responses to formal requests for information from journalists. In the 1990s this period was, perhaps, justified, however nowadays, given almost total computerization, it could be at least 10 times shorter. Viacheslav Yakubenko spoke of his own experience in receiving official responses to requests for information from the former Prime Minister Yulia Tymoshenko on making public her income and that of her family (two copies were sent – one in her name, and one to the Cabinet of Ministers). The response was received half a year later, having gone through a number of institutions, including the tax inspectorate, from the “Batkivshchyna” Party.
The official 30 days for a response to a request for information is feasible only perhaps for journalists carrying out an investigation. However at the present time, Viacheslav Yakubenko says, this genre of journalism is in a state of decline in Ukraine.
The lawyer also raised the issue of adequate and full understanding of precedents from the consideration by the European Court of Human Rights of cases of human rights violations in Ukraine. The problem was also discussed of the status and liability of Internet media outlets. According to Mr Yakubenko, if we do not know who the owners of the publications are, it is not possible to bring them to answer. “It would perhaps be worth using Russias experience and registering Internet publications as media outlets. I respect Ukrainska Pravda [Ukrainian Truth] but dont understand how their journalists can get to press conferences with prominent state figures. How do they get accreditation if they dont consider their site to be a form of the mass media?”
The roundtable participants considered the issue of liability for advertisements, as well as questions of authors rights. For example, some managers of media outlets do not know whether they have to pay royalties for authors works to their creative staff. The answer from lawyers clarified the situation. If a contract of employment has been signed with the creative employee, then all material which he or she produces during working hours is work-related, and therefore royalties do not need to be paid. If however s/he wrote or photographed something in his or her free time, then the publication must pay royalties. It would be necessary also to pay royalties to a film director of a television and radio broadcasting company who wrote, for example, a film script for the company since this was not one of his or her direct duties.
One of the main problems impeding the democratic development of the media in Ukraine is the very low level of legal awareness both of journalists, and of those in charge of media outlets. The capital can still more or less boast of having professionals, however in the regions people with other qualifications are often working as journalists, and have a low professional level, not to speak of their legal knowledge.
When asked by “Telekritika” whether there is a textbook or anthology in Ukraine containing all legal acts which a journalist must be aware of, the Director of the Media Law Institute Taras Shevchenko replied that there was not. In our country over 30 institutes train journalists and virtually none of them has professionals who can provide a fully-fledged course on media law (with the exception of isolated seminars). The Media Law Institute is presently working on this important problem.
However the roundtable participants considered that a person learns when s/he wants to, and that a person who decides to learn without courses, studying up the legislation alone, can do so. There are unfortunately few such people.
The failure of state authorities or bodies of local self-government to provide information is also an obstacle to the development of the media. Journalists complained more not about refusals to provide such information (over recent years officials have understand that this is an offence), but at delays in receiving answers to formal requests for information, or receiving incomplete or non-specific and vague answers. From the personal experience of correspondent from the weekly “Komentari” [“Commentaries”], Lesya Hanzha, the record holders in this are the Ministry of Culture and the Arts of Ukraine and the State Department of Television and Radio Broadcasting.
Lawyers advised the journalists in such cases to submit their requests of the forms of the institution, but with the signature of the member of staff who wants to receive the information, since some officials refuse to give information when they see only the directors signature. The roundtable participants suggested establishing a “blacklist” on one of the well-known sites and adding those state bodies and officials who either dont provide or provide shoddy information. Tetyana Shmaryova suggested another means of education: where necessary media outlets could unite and issue an open letter. Up till now some campaigns have been fairly infrequent.
With regard to trends which one can observe at present in Ukraine with regard to all the above-mentioned issues, these can be defined as follows:
The number of defamation suits against journalists and media outlets is not decreasing however there are significant qualitative differences: the amounts demanded in moral compensation have decreased considerably. The point is that they are now subject to a rising level of state duty, and claimants in general demand 1,699 UH and not a million as before. Over the last two years (since the Orange Revolution) there have been far less suits brought by state authorities.
Suits defending authors rights are far fewer than there could be. This shows inadequate awareness by representatives of the creative professions of their rights and duties.
Journalists and media outlets are not in a hurry to take slack officials to court for not providing information. This is done for them by civic organizations (approximately 95 % of the suits are lodged by the latter). Suits over texts not having been agreed with the person they were written about are also few. This confirms the view of the Chair of the Committee of the Verkhovna Rada on freedom of speech and information Andriy Shevchenko that the majority of state officials simply do not realise that there is such a norm in the law. If they knew about it, journalists lives would become unendurable.