More about the draft law on combating child pornography
The second reading of the draft law “On amendments and additions to some legislative acts (on combating the spread of child pornography)” did not take place as planned on 4 November however is likely in the near future. The Head of the Board of the Internet Association of Ukraine [InAU] Tetyana Popova is, like many, critical of the bill.
She explains that InAU, as well as members of the Ukrainian Union of Industrialists and Entrepreneurs, was actively involved in work on the draft law following the tabling of its first version by Deputy Pavlo Unhuryan on 8 October 2008. The latter then gathered members of the public to discuss the bill. Most of those present, she says, expressed opposition to the proposed approach. In the preparation of the second version they had a lengthy meeting with Mr Unhuryan at which they expressed comments and reservations, and proposed concentrating on amendments to the Criminal Code and a clear definition of the very term “child pornography”.
Their views were not, regrettably, taken into account. She also points out that the manner in which changes were requested at the last minute “today or tomorrow” was inappropriate for such an important area.
InAU was working on an alternative draft law when the scandal over “Artek” broke out and the draft law in parliament was urgently reviewed and passed in its first reading. Nothing remained but to analyze what the Deputies were proposing and to send an open letter in an attempt to draw attention to the serious failings in the draft law.
The draft law proposes amendments to the Laws on the protection of public morality (Articles 1 and 7), “On telecommunications” (Articles 33 and 39) and to Article 301 of the Criminal Code.
Tetyana Popova explains that the profile Committee on legislative backup of law enforcement work, in preparing the draft law for its second reading, did heed most of their suggestions.
- the term “child pornography” in the Law on the protection of public morality is provided in accordance with international documents which Ukraine has ratified, with clarification regarding sexual motives or behaviour. Family photo albums can no longer be suspected of pornography, which was not the case in the previous version.
- “motivated submission” has disappeared in the law “On telecommunications”, with there being only a court ruling as we suggested. The previous version had contained the following: “On the basis of a motivated submission from law enforcement bodies telecommunication providers are obliged to take measures to restrict their clients’ access to resources via which unlawful information content is being spread”, while the new version states that providers must do that in compliance with a court ruling.
- We are no longer providers of communications, but operators – telecommunications providers which do not retain information in general, but data in accordance with Directive 2006 / 24 / EU of the European Parliament and Council of Europe.
- The amendment has also been removed to Article 33 of the Law “On telecommunications” which was to oblige users to inform providers and / or law enforcement agencies about everything. There is only the obligation to inform of production containing child pornography.
“There remain several extremely dangerous places in the law “On the protection of public morality” which can be treated as one likes and used selectively. This is primarily the amendments to Article 7 where I is prohibited to retain production containing child pornography while there is no specification as to the purpose it is being kept. We proposed that the legislators add the words “deliberate keeping” or “keeping for the purpose of circulation”.
There is also a ban on the offering or providing of access without specification of the purpose. …
These norms leave the opportunity of provocation via inputting from outside into your computers or servers images with “child pornography”. If these norms are passed, I would suggest that all deputies to be on the safe side stop using the Internet, computers, SMS. After all the election campaign has only just begun and who knows what reason will be used for choosing figures in the next scandals. That applies to other politicians, judges, prosecutors, high-ranking public officials and others”.
There are corrections which are stricter as far as providers and users are concerned, for example, amendments to Article 301 of the Criminal Code which introduce criminal, not just administrative liability for bringing into the country production of a pornographic nature for the purpose of sale or circulation, or their preparation, or coercion to take part in such creation if this involves receiving large amounts of income. Large amount means 200 or more times the monthly minimum wage before tax (from 3400 UAH). There was previously no norm on income. That means that if somebody has normal pornography, not child pornography, for their own purposes at home, they must cost less than 3,400 UAH. Such disks are usually 150 UAH.
“In Article 39 of the Law “On telecommunications” the legislators have removed one small word “or” which could lead to the sale of all without telecommunications services being on presentation of ones internal passport (i.e. ID), including SIM cards or Internet services in Internet café’s or clubs.
Ms Popova believes that serious reworking is still required to the amendments to the law on the protection of public morality, with changes needed regarding the purpose of storage, as well as returning the above-mentioned “or”.
“I think it would be worth studying the Directive 2000/31/EU of the European Parliament and Council of Europe and, in accordance with the Law “On a nationwide programme for adapting Ukraine’s legislation to EU legislation” to carry out its adaptation. The provisions of its article 12, for example, clearly stipulate in which instances the provider of services is freed of liability for information transmitted”. Article 13 concerns freedom from liability for autonomous, temporary retaining of information for the single aim of more efficient transfer of information to their users at their request.
From an interview at http://www.telekritika.ua/svoboda-slova/2009-11-04/49013