Analysis: Researching violations of digital rights and netfreedom in Ukraine in 2018. Key 10 cases

Author of the analysis Maksym Dvorovyi in the center, CEDEM

This report provides an analysis of key cases of Internet freedom restriction and digital rights violations that occurred in Ukraine during April-October 2018. It turned out to be a relatively calm period for several reasons. On the one hand, it was partly a summer time, during which the activity of state bodies slows down, and respectively the number of submitted legislative initiatives decreases as well. On the other hand, public discussions on the draft laws were mainly focused on the regulation of traditional media, namely television.

At the same time, the Parliament of Ukraine continued its attempts to put on the agenda the draft law No. 6688, actively criticized by civil society in the summer of 2017.

In addition, the President of Ukraine issued a new Decree on imposing sanctions No. 126/2018  that stipulated blocking of almost 200 Russian websites. However, this Decree was not as high-profile as in the case of sanctions against Russian companies (Yandex, Mail.ru Group) in May 2017. The new Decree did not cause some real indignation, perhaps due to the fact that it concerned mainly the  Russian TV channels’ websites, which re-transmission was banned by the National Council of Ukraine on Television and Radio Broadcasting’s decisions of 2014-2017.

The report carries on the analysis of the Unified Register of Сourt Decisions for conviction for abuse of freedom of expression on the Internet, which was started in the previous report of April 2018. For detailed analysis, several key cases were selected from these decisions, which were covered in the media — in particular, on the website netfreedom.org.ua

 

  • Analysis of the court register on restriction of freedom of expression on the Internet

 

During the period under analysis, the Ukrainian courts continued to deliver judgments on statements in social networks. Unlike Russia, Ukraine has no special regulations for users’ activities on the Internet and social networks. Therefore, Ukrainian law enforcement agencies open proceedings under Articles 109 and 110 of the Criminal Code of Ukraine. They provide for punishment for public appeals to forced change or overthrow of the constitutional system, seizure of state power, as well as to change of the boundaries of the territory or the state border of Ukraine.

An outstanding trend is the absence of court cases on the abuse of freedom of expression on the Internet under Article 161 of the Criminal Code of Ukraine, which provides for liability for inciting hatred.

As part of the search in the Unified Register of Court Decisions, 12 sentences associated with the Internet have been found. At the same time, it should be noted that the Security Service of Ukraine reported detention of more than 100 Internet users in 2017. It evidences that a significant number of proceedings have not yet reached the judicial stage or were closed, despite the application of law enforcement measures.

The main trends in sentencing for the period of April-October 2018 are as follows:

  • a post or comment for which the sentence was awarded had been made on the Russian VKontakte or Odnoklassniki social network;
  • calls for support of the so-called Donetsk People’s Republic (DPR) and Lugansk People’s Republic (LPR), or topics on joining Southeastern Ukraine to the territory of Russia;
  • in most cases, the criminal case ends with a plea agreement with the prosecutor, approved by the court;
  • if a person does not admit his/her guilt, the court determines the punishment of up to 5 years of imprisonment, but with release from serving a sentence with a probation period of 1 to 3 years;
  • the real terms of imprisonment are appointed by the court in cases where a person commits the second offense, that is, conviction for distribution of harmful appeals is not the first for the convicted person.

It should be noted that in three sentences the persons are condemned for their posts in VKontakte after blocking of this social network by the Decree of the President of Ukraine in May, 2017. It presumes that the sanctions imposed are not very efficient.

The courts also fail to assess the extent to which the post that has become the subject of the sentence was distributed. The courts have generally observed that the Internet should be deemed as a mass communication medium, or that “access to [materials] is available to unlimited number of social network users”. In consideration of one of the cases, the court pointed out that “as of 26.09.2017, “Friends” section of the page (account) of “PERSON_1” in VKontakte social network listed 32 users, and “Subscribers” section listed 15 VKontakte users“. In this case, the author of publications was sentenced to 5 years’ imprisonment with a probation period of 3 years. This can be considered too harsh a punishment despite the absence of serving the sentence.

It should be noted that the European Court of Human Rights, in its August judgment in the Savva Terentyev v Russia case stated that “the potential impact of a statement made online for a small number of readers is different from the impact of a statement published on mainstream or frequently visited web pages“.

Given this conclusion of the European Сourt of Human Rights, national courts in Ukraine should accurately assess the impact of the information distribution from each account in each case.

 

Key court cases under Article 109 of the Criminal Code of Ukraine

http://reyestr.court.gov.ua/Review/75317463 — a post in VK.ru, 2 years of imprisonment, 1 year of probation

http://reyestr.court.gov.ua/Review/75430051 — posts in VK.ru, 6 years of imprisonment (renewed adjudication and violation of Articles 110, 295, 436 of the Criminal Code of Ukraine)

http://reyestr.court.gov.ua/Review/77145570 — moderator functions in OK.ru, 2 years of imprisonment, 2 years of probation (without a plea bargaining)

http://reyestr.court.gov.ua/Review/77087942 — posts and moderator functions on VK.ru, 4.5 years of imprisonment (renewed adjudication)

 

under Article 110 of the Criminal Code of Ukraine

http://reyestr.court.gov.ua/Review/73486397 — a post in VK.ru, 5 years of imprisonment, 3 years of probation

http://reyestr.court.gov.ua/Review/74315767 – a post in VK.ru, 3 years of imprisonment, 1 year of probation (a post with a video of armed forces deployment)

http://reyestr.court.gov.ua/Review/74602428 — a comment in VK.ru (“Dnipropetrovsk People’s Republic”), 3 years of imprisonment, 1 year of probation

http://reyestr.court.gov.ua/Review/74485406 — a post in VK.ru, 3 years of imprisonment, 1 year of probation

http://reyestr.court.gov.ua/Review/75430051 — posts in VK.ru, 6 years of imprisonment (renewed adjudication + Articles 110, 295, 436 of the Criminal Code of Ukraine)

http://reyestr.court.gov.ua/Review/75467243 — a post in VK.ru, 3 years of imprisonment, 1 year of probation;

http://reyestr.court.gov.ua/Review/75914659 — svpressa.ru 3 years of imprisonment, 2 years of probation;

http://reyestr.court.gov.ua/Review/76031811 – a repost in OK.ru, 3 years of imprisonment, 1 year of probation; (without plea bargaining)

http://reyestr.court.gov.ua/Review/76252508 — a repost in VK.ru, 3 years of imprisonment, 1 year of probation; (without plea bargaining)

 

2) A case with the draft law No. 6688

During the spring-autumn of 2018, people’s deputies intensified their attempts to re-consider the draft law No. 6688 (on combating threats to the national security in the information field) drawn up by people’s deputies Vinnyk, Tymchuk, Chornovol. This draft law includes a well-developed provision on the court procedure of blocking websites, however, it involves a lot of threats:

 

  • a wide range of crimes (serious and especially serious) to which blocking can be applied. In practice, it means blocking any resource if an offense was planned through it (for example: a message sent in Facebook);
  • the categories of “blocking” and “temporary blocking” are distinguished, and the court may arbitrarily determine the period for which the blocking is applied;
  • blocking of websites for up to 48 hours by decision of the prosecutor and the investigator in exceptional cases (saving lives and preventing the commission of serious crimes);
  • excessive expansion of “technological terrorism” definition, which threatens to qualify terrorism as calls for demonstrations in order to pass a certain draft law;
  • creation of a Unified Register of court decisions enforcement and application of sanctions in telecommunications field. There is no list of information to be contained in the register in accordance with international standards.

On June 19, 2018, 172 deputies voted for the draft law No. 6688 to be included in the agenda of the Parliament session. Two days later, the draft law was included in the agenda of the session, for which 234 deputies voted. The National Security and Defense Committee was assigned as a specialized committee for the draft law. On 4 July 2018, the committee recommended to adopt the draft law as a basis with follow-up revision, taking into account the practice of the European Court of Human Rights in this area (a case Ahmet Yildirim v Turkey).

On July 5, 2018, the voting to consider this draft law at the plenary session of the Parliament failed, it was supported by 158 of 225 deputies.

And as soon as in September 2018, the draft law was included in the agenda of new plenary session that will last until January 2019. There is a low risk of adopting this text at first reading. That is why civil society has to continue close monitoring of its possible appearance on the agenda of the plenary meetings and respond appropriately to any attempts to endorse them, while at the same time offering alternative solutions in this area.

 

3) court sentences “for extremism” in the occupied Crimea

The practice of pressure on bloggers and activists in the occupied Crimea continues. Its goal is to intimidate voters who disagree with the local authorities. The Criminal Code of the Russian Federation includes four articles, which prosecute for the distribution of materials on the Internet. In addition, three articles stipulate that the Internet use is an aggravating circumstance. Most often sentences are awarded under Article 280, which provides for responsibility for public calls for extremist activity.

The definition of extremist activity may include a very wide range of expressions distributed daily on the Internet. As the cases against Pro-Ukrainian activists show, such uncertainty provides courts the opportunity to use Article 280 to suppress freedom of speech in Crimea. Under international law, only incitement to violence or the hate speech can be punishable by deprivation of liberty (para. 115 of the judgment of the European Court of Human Rights in the case of Cumpănă and Mazăre v Romania). Accordingly, the penalties provided for in the Criminal Code of the Russian Federation are questionable in terms of proportionality as well.

In 2018, the European Court of Human Rights carried out active consideration of the cases against Russia, which can be further used for defense in the courts of Pro-Ukrainian activists and journalists (Mariya Alekhina and Others v Russia, Savva Terentyev v Russia, Ibragim Ibragimov and Others v Russia, and the like). In particular, the case of Stomakhin v Russia considered the imprisonment of an activist and journalist for 5 years with deprivation of the right to engage in journalistic activities for a period of 3 years under two Articles of the Russian Criminal Code (including extremist activity); the applicant served a full sentence.

The ECHR admitted that the convict criticized Russian policy in Chechnya, not exceeding the limit of permissible criticism of the government. The court called on national authorities to exercise caution in determining the “hate speech” and to avoid undue interference with freedom of expression under the pretext of “hate speech” when the charge relates solely to criticism of the government, public institutions or their policies.

This case is a precedent and may serve as a basis for lawyers who protect victims of political persecution in the occupied Crimea, because the European Court clearly distinguishes between different categories of statements and qualifies them in a proper way. An appeal to the European Court of human rights should be a priority for lawyers in the occupied Crimea.

 

4) the Decree of the President of Ukraine No.126/2018 and further websites blocking

The President of Ukraine for the second time applied the mechanism provided by the Law of Ukraine “On Sanctions” in respect of websites — on May 14, a new Decree No.126/2018 on imposing sanctions was signed. The Decree stipulated blocking by Internet Services Providers of access to resources 1) associated with the leaders of the so-called DPR, LPR and occupied Crimea, 2) to a number of Russian websites, such as Webmoney, RIA-Novosti, RTR, First Channel, VGTRK, NTV+, Zvezda, TNT, Radio Vera, RT, Sputnik News, OTP, Ren-TV, Nashe Radio, etc. and their sub-domains.

This decree was reasonably criticized by civil society on the grounds of non-compliance with international legal standards in the field of freedom of expression. The Decree uses different terminology to refer to the same sanction. Regarding the content of the Decree — the Law of Ukraine “On Sanctions” does not contain a description of such measures. At the same time, the open list allows for other types of sanctions if they meet the principles of legality, consistency of purpose and effectiveness.

The category “legality” implies compliance with the criterion “provided by law”, according to Article 19 of the International Covenant on Civil and Political Rights and Article 10 of the European Convention on Human Rights. Presently, restrictions on access to information (not the entire resource/website as it is) are provided by law only in the framework of the Law of Ukraine “On Copyright and Related Rights” and concerns protection of copyright and related rights. And resource blocking is carried out upon the court decision only in case of child pornography distribution (Article 39 of the Law of Ukraine “On Telecommunications”).

Legislative regulation of blocking information and websites on the Internet procedure is enshrined in the Information Security Doctrine of Ukraine as a priority in the case of hate speech spreading. However, this mechanism has been under development so far.

In the context of blocking websites on the Internet, the European Court of Human Rights has expressed its position in the cases of Ahmet Yildirim v Turkey and Cengiz and Others v Turkey. In both of them, the Court conveyed a negative opinion about the compliance of this restriction with the criterion “provided by law” and Article 10 of the European Convention on Human Rights, since the Turkish legislation at that time provided exclusively for the possibility to block access to individual pages, but not to the whole websites. Even taking into account controversy nature of publications on the websites that were included in the sanctions list, the legislation of Ukraine does not contain rules for such restrictions.

Restrictions stipulated by the Presidential Decree are also not effective. Such sanctions in the world of modern information technologies will not ensure the achievement of a legitimate goal as well. At the moment, there are wide possibilities of using anonymizers, VPN and proxy, as well as a variety of mirrors, thanks to which a wide range of people will have access to such materials.

In addition, due to their wording these sanctions provided for by Decree No. 126/2018 impose a blocking obligation on third parties, such as Internet Services Providers, without determining the mechanism for the implementation of such an obligation. The audience of these websites is smaller than the audience of websites subject to blocking by the Decree No. 133/2017 on the imposition of sanctions. However, the issue is the ability to use the mechanisms of this Decree to censor information field in the future. Accordingly, the use of this mechanism to block web resources, despite the need to protect the information space in Ukraine from the spread of hate speech and disinformation, is dangerous and contrary to standards of human rights.

 

5) The pressure on YouControl

2017 and 2018 were also marked by the pressure on one of the leading Ukrainian companies that had begun to use the opportunities opened by the reform in the field of data discovery, that is YouControl. The company holds itself out as an analytical system for business intelligence and verification of Ukrainian counterparties, which forms a dossier for each company in Ukraine based on open data, monitors changes in state registers and visualizes the relationship between affiliates.

On March 23, 2017, the Security Service of Ukraine conducted searches in the office and apartments of YouControl service employees. On the same day, the Security Service of Ukraine reported on its website that its employees exposed Kyiv commercial structure in respect of “illegal collection and sale of information that has restricted access and that is the state property.” On December 27, 2017, the SSU charged the founder of YouControl Serhiy Milman with suspicion of allegedly unauthorized interference in the operation of computer networks. On January 2, 2018 Shevchenkinvskyi District Court of Kyiv City decided on a pledge of 51 thousand UAH for Mr. Milman. However, the suspicion was withdrawn on February 20, 2018, and on July 11, 2018 Shevchenkivskyi district court of Kyiv City obliged the Security Service of Ukraine to finish pre-judicial investigation of criminal proceedings within two months.

What are the challenges concerning Internet freedom and data freedom in this case? First, law enforcement agencies still view information contained in registries as a public property and information with restricted access, rather than as a public benefit. Second, any Internet user who uses the benefits of open data for his or her own economic profit may be at risk of persecution.

 

However, as of autumn 2018, the suspicion against YouControl founder was withdrawn, and the criminal proceedings were over. That gives us hope that such persecutions will stop and will not threaten the development of open data.

 

6) Sentence  4,5 years for repeated appeals and moderation of VK.ru group in Kirovohrad region

http://reyestr.court.gov.ua/Review/77087942

In this case, the person was convicted of committing a crime under part 3 of Article 109 of the Criminal Code of Ukraine, that is, for sharing materials calling for violent change and overthrow of the constitutional system and the seizure of state power.

The convict violated the terms of probation for previous sentence and became one of the few who received a real sentence for posts on the Internet – namely for the image with the text “Soldiers of Ukraine, unite with Donbass in the fight against Kyiv criminal regime (junta) and oligarchs in your regions. United we win!” and the post with text “..Sweep away any manifestations of the existing regime and the current government! Seize the power! We don’t have to be a part of Ukraine! Together we will put the historical record straight!“, and their distribution in Vkontakte group.

Given the fact that it was a second offense, it can be argued that deprivation of liberty can be a legitimate restriction, since words can be qualified as calls for violation of the territorial integrity of Ukraine. The possibility of imposing criminal sanctions for such posts is confirmed by the decision of the European Court of Human Rights in the case of Smajic v Bosnia and Herzegovina (the applicant was convicted of inciting ethnic hatred for a post at the Bosnahistorija forum, in which he described a detailed plan of attack on a part of Republika Srpska; the sentence of 1 year of imprisonment with a probation period was recognized as proportional). On the other hand, the court did not take sufficient account of the audience of this post distribution, since only 300 users are subscribed to the group whose moderator was convicted, as follows from the text of the court decision. Therefore, the direct punishment could be not so harsh.

 

7) Sentence 1 year of probation for a OK.ru user in Mariupol Town http://reyestr.court.gov.ua/Review/76031811

The map of Ukraine, part of which is painted in the colour of the Russian Federation flag, signed “STOP FEEDING BANDERA AND KYIV, SOUTH AND EAST — JOIN RUSSIA!”, for reposting this information a user of Odnoklassniki social network was convicted in Mariupol Town under part 1 of Article 110 of the Criminal Code of Ukraine. It is noteworthy that this is one of those cases where the sentenced person did not agree to a plea bargain, although the court once again did not investigate the scope of a post distribution.

If we talk about the proportionality of this punishment, on the basis of the precedent already mentioned in the case of Smajic v Bosnia and Herzegovina, the punishment could be considered proportional, since the convicted person will not serve a real sentence. Another issue is to what extent a person can be liable for reposting information without expressing his or her own position, comment on it. The person in such cases is not the author of the information, but he or she only distributes it in a neutral way. In such cases, a very careful approach should be taken to the study of the mental element of the crime, that is the guilt of the person and his or her intention to share information.

 

8) Sentence 2 years of probation for a social network user in Cherkasy

http://reyestr.court.gov.ua/Review/75317463

The user was convicted of distribution of public appeals to violent change or overthrow of the constitutional order or seizure of state power, as well as distribution of materials with appeals to commit such actions. It follows from the court decision that the user posted on his wall in VKontakte social network the article “May 9, VICTORY DAY, will come very soon…”and a video called “Fighters of Evpatoria division and the Prizrak squadron appealed to President Poroshenko, the Armed Forces of Ukraine and the Ukrainian people”, “Struggle for Ukraine is just beginning…”.

The user was released from serving a sentence with probation. However, the court did not analyze in detail neither the content of the articles and videos, nor the scope of their distribution. Moreover, there is no information about whether the actual information was posted or it was only a hyperlink. In the case of the latter, the question would arise as to whether such dissemination of information or appeals has occurred, since a hyperlink is nothing but a pathway to information.

 

9) Detention of OK.ru group moderator in Odesa City

In this case, there is no court verdict yet, there is only an application of a pre-trial restriction, that is detention of a person, that is, the analysis of the situation is rather difficult. From information available from the notice of the Security Services of Ukraine, it is possible to claim that the detainee is the moderator of some Odnoklassniki social network group. However, it is hardly possible to consider that the audience of this group is wide. Facebook page photo made by the SSU shows that it has 5326 subscribers. This factor should be taken into account by the court when deciding on this case.

 

10) The user is likely to face a sentence of up to 3 years for posts in social networks in Cherkasy region

In this case, we have information from the prosecutor’s office about the end of the pre-trial investigation and filing of the indictment to the court. It should be noted that if there is an indictment, the court shall carefully analyze a number of factors that may affect the liability of  a person. One of the main factors, as already mentioned, is the scope of appeals and information.

As can be seen from the verdict of this user, the court did not conduct a proper analysis of his actions. Although a person was not convicted of serving a real sentence, in cases where the material is distributed to a small audience, that is, not in a group with a large number of subscribers or not by a user with a large audience, the penalty should be lower than for distribution of the material in groups with a large audience or by a hypothetical leader of public opinion.

 

Summary

Law enforcement agencies and courts continue to follow the trend of excessive interference with Internet freedom and digital rights. At the same time, law enforcement agencies lack an understanding of the Internet  nature as a platform for information distribution, and knowledge of international (and sometimes the few current national ones) standards for regulation in this area. In the situation of many unsettled aspects of network regulation, a state of false understanding of the Internet as a media, open data as data that are owned by the state and the like is created.

 

The courts should be more accurate in justifying their own sentences and take into account a number of factors regarding true coverage of the information distribution, and analyse the damage caused or the potential of certain material to cause harm. While deprivation of liberty (including probation) is proportionate for such violations in accordance with the practice of the European Court of Human Rights, the lack of adequate motivation for sentences (those that do not claim a plea bargain) may be grounds for their potential appeal in the future.

 

The tendency of law enforcement agencies to excessive publicity of their own activities in this area is also worth mentioning.  From the analyzed sentences we can see that only a few of them really concerned users with a large audience, while most of the punishments were imposed on users with a small audience. Although such activities can be considered, in some ways, successful, and however it does not resolve the main issue with the spread of illegal information by major players.

 

Recommendations

 

  1. Continue to oppose legislative initiatives that disproportionately restrict the Internet freedom (as a draft law No. 6688), while proposing our own regulatory approaches based on international standards in this area;
  2. Call upon law enforcement agencies and courts to improve the quality of their work and proper motivation of decisions on cases of abuse of freedom of expression on the Internet, in particular, to take into account such factors as the user’s status, the scope of information distribution and its ability to cause negative consequences;
  3. Conduct an educational campaign with government authorities to explain the nature of the Internet and human rights issues in the digital world.

Author: Maksym Dvorovyi, CEDEM

The analysis was prepared within the project “Protecting Internet Freedom in Ukraine by Engaging Stakeholders” implemented by Internews Ukraine funded by USAID through Counterpart International, Inc.

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