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07.02.2011

Regarding the new Law on Information

   

One of the co-authors of the Law on Information, Roman Holovenko from the Institute for Mass Information, has responded to criticism of the new version of the Law in his article: “Now interference by the media owner in the creative process will also count as censorship”.  In it he sets out the new opportunities that he believes the new version provides and why it is not as flawed as sceptics are suggesting.

“The proposal to produce a new version of the Law on Information (draft No. 7321) came from two Party of the Regions Deputies, Olena Bondarenko and Volodymyr Landik, with Our Ukraine Deputy Yury Stets soon joining them.

At first No. 7321 was essentially an alternative to the draft law on access to information, however after a compromise was reached regarding combined efforts on the two draft laws by the representatives of the government, the opposition and of NGOs, the draft law was significantly reworked. This made it possible to agree the two draft laws, and to seriously revise the Law on Information in general. “

Positive changes in the new version of the Law on Information

The Law now provides a list of journalists’ rights

The current version of the Law on Television and Radio Broadcasting does not contain such a list, with it giving only the duties of television and radio journalists. The same applies to journalists of Internet publications, freelancers who do not have special laws for their segment of activity.

Journalists’ rights are now fixed in Article 25 of the new version of the Law on Information. These can be loosely divided into those common not only to journalists, and journalists’ rights.

The first include:

the right to take photos / make recordings, circulate their material under their own name or a pseudonym; visit the premises of representatives of the authorities.

They are included in the law since the exercising of these rights specifically by journalists can arouse objections. A fair number of journalists receive threats from people they are photographing during ambiguous or conflict-fraught events;

The right of a journalist to use a pseudonym may also be disputed due to the problem of holding them to answer for material they published.

While these are specifically set out for journalists, the author stresses that according to Article 19 § 2 of the Constitution there must be direct indication in law for the legal denial of such rights.

Journalists’ rights include the right:

to receive an individual audience from a public official or civil servant;

to keep their sources secret;

to gather information in areas of natural disaster, catastrophe, accidents, mass riots, military action;

to refuse to accept authorship of material which has been changed through editorial corrections.

The author explains that the right of a journalist to be received by an official differs in that a reasonable timeframe may be a day or two, while the times when members of the public are seen are likely to be more regulated, at certain times during working hours.

He notes that the principle established in European Court of Human Rights case law that journalists may only be forced to reveal their sources by court order is now set down in the Law on Information.

“It would be desirable to also make the relevant amendments to the Criminal Procedure Code since this in some cases allows for the issue to be decided by the Prosecutor, and not the court”.

The right of journalists to circulate information of public significance on limited access even against the wish of those holding it was set down in amendments from 2003 and is retained in the new version. In the 2011 version, Article 29 § 2 there is also an approximate list of items of information which are of public interest: information which suggests a threat to State sovereignty or territorial integrity; which safeguards the enjoyment of constitutional rights, freedoms and duties; which suggests the possibility of human rights abuse, of the public’s being misled; which indicates harmful environmental and other adverse consequences from the actions (inaction) of individuals or legal entities, etc.

Updating of norms regulating accreditation

At present legal regulation for accreditation of journalists from printed press outlets (the Law on the Press) does not comply with the general norms on regulating accreditation (in the Law on the Rules of Procedure for Coverage of the Activities of the Authorities and Bodies of Local Self-government by the Media).

This is to be rectified by removing the norms from the Law on the Press which could be seen as allowing the authorities to provide accreditation or withdraw it at their own discretion.

The author stresses that the absence of accreditation cannot be grounds for refusing to admit journalists to open events run by those in authority.

Removal of the concept of “right of ownership of information”

This concept was introduced in the 1992 version of the Law on Information.  The author stresses that the nature of information means that property rights cannot be applied, except, obviously, where intellectual property rights apply. 

He mentions that this fundamental change may seem revolutionary to lawyers, not to mention deputies, many of whom may be alarmed at the disappearance of property rights to information. He says that they therefore retained mention of information production and information services, replacing the norms on the right of ownership of property.  This mention does not specify legal regulation of the relations regarding information production and services, but refers to the Civil Code and the Law on Authorial and Related Rights.

Updated definition of censorship

The new definition states: “Censorship is any demand aimed, for example, at a journalist, media outlet, its founder (co-founder), publisher, head, distributor, to agree information before its circulation or prohibition or obstruction in any other form of publication or circulation of information” (Article 24 § 1). “For example” here is crucial since in the previous version censorship could only apply to journalists and media outlets.

The previous mention that censorship comes from the authorities, from public officials, has been removed, acknowledging that censorship can come from interference by the media owner). A court ban on circulation of information (in connection with a law suit in accordance with Article 278 of the Civil Code) is not deemed to be censorship.

Similarly, in Article 24 § 2 of the Law which prohibits interference in the professional activities of journalists, there is no list of those from whom such interference may originate. The author points out that it is not only the authorities, but also media owners, who can impose censorship.

Refinement of the definition of value judgments

The 2011 version reads that “Value judgments, with the exception of defamation, are statements not containing factual data, criticism, evaluation of actions, as well as statements which cannot be interpreted as containing factual data, for example, due to the nature of the use of language and stylistic means (the use of hyperbole, allegory, satire) ”

The previous version had been criticized, including by the IMI, for establishing unwarranted exceptions to the concept of value judgments (offence and defamation), the formal need to have used language means. Thus in the new version, “for example” means that language and stylistic means are a possible, but not obligatory, element of a value judgment, while offence is now considered a value judgment, with those feeling “insulted” having the right in law to a response.

Roman Holovenko writes that there has been criticism of the norm in the new version allowing the right to demand moral compensation “if the subjective opinion is expressed in a brutal, degrading or indecent form denigrating dignity, honour and professional reputation”.  Well-known media journalists have predicted that this norm could be abused. The author, however, points out that the norm has been in legislation since the beginning of 2009 (in Item 19.5 of the Resolution of the Verkhovna Rada Plenum No. 1 from 27.02.2009 on Court practice in cases involving defence of honour and dignity of individuals, as well as the professional reputation of an individual or legal entity. He says that this has had no negative consequences, but suggests that the unwarranted statements of critics predicting attempts to extract money from a norm already in existence could lead to an increase in the amounts demanded in compensation claims.

The astronomical amounts that had been demanded have only been seen in a few cases over the last two years. The author notes, however, that with influence and money, any norm of the law can be interpreted “as needed”, with the root of the problem in no way in the text of the law.   He considers that Ukrainian legislation does contain sufficient safeguards against excessive court suits against journalists from those in power.  The same Resolution stipulates that the limits of acceptable criticism of a political figure or other public figure are considerably wider than for the average person.  A Cabinet of Ministers’ Decree on State Excise establishes a progressive scale for the size of court fees from defamation suits, while Article 17 of the Law on State Support for the Mass Media and Social Protection of Journalists obliges claimants to prove the journalist’s intent in order to get moral compensation.

What they did not succeed in rectifying

The term “Ukraine’s information security”

The new version is with justification criticized for fixing among the directions of State information policy “ensuring Ukraine’s information security” which can be interpreted in favour of restricting the movement of information across borders. However, he says, the argument that the Constitution in Article 17 § 1 speaks of the duty of the State to protect information security proved impossible to budge. Given the norm in the Constitution, he suggests that it would be simpler to change the interpretation of the concept from restriction of circulation of information to safeguarding information balance and pluralism.

Too many theoretical definitions and classifications

This failing is typical also of the 1992 version. The classification of information into types and their definitions have been retained since their removal would not have been appreciated by a part of officialdom and lawyers. For example, the Tax Service would have worried where the definition of tax information, just introduced in the new Tax Code, had gone to. 

Roman Holovenko concludes by saying that as co-author of the new Law, he cannot agree that the Law on Information is not entirely unflawed, and believes there are more advantages than disadvantages. He points out that in today’s Ukraine, flaws in application of laws arises not from their inadequacies, but from the indifference of members of the public and the government to their duty to implement them. Problems arising from the new version of the Law will be generated by the lack of will to enforce the law at all.

Roman Holovenko, Deputy Executive Director on Legal Issues of the Institute for Mass Information and one of the co-authors of the new version of the Law on Information

From the article at http://osvita.telekritika.ua/material/1580

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