The main feature of the field of Internet regulation in Ukraine is the absence of a systematic approach by the state to questions regarding «digital rights» (definitions, integrated mechanisms, procedures and rules). The question of access to the Internet, its use, and especially restrictions (blocking and filtering) are described in passages of regulations contained in various legislative acts.
First, regulations which relate to regulating the Internet can be found in general laws of Ukraine. For example, the Law of Ukraine «On Freedom of Information» stipulates the principles of publishing and disseminating certain categories of information in the Internet world by information managers, the rights to active and passive access of users to information, etc. According to Article 5 of the Law, access to information is ensured by systematic and prompt disclosure of information on official web sites on the Internet, on a single state web portal of open data.
The Law of Ukraine «On Information» of 13.01.2011, establishes only general rules and guarantees in the sphere of information legal relations, without highlighting the features of regulation of the Internet. But since the Internet is a universal means of communication and a way of transmitting, disclosing and disseminating information, most of the provisions contained in this Law regulate the issue of “digital rights.” The definition of «mass media» in the current wording of the Law of Ukraine «On Information» makes it possible to include websites or even pages on social networks and blogs as mass media: «Mass media are means intended for the public dissemination of print or audiovisual information» (Part 2 of Article 22 of the Law).
Vital additions appeared in 2017 in the Law of Ukraine «On Copyright and Related Rights». This was the first time that the terms «national website», «web page», «owner of web site», «hyperlink», «electronic (digital) information», «camcording», «cardsharing», «account user», «hosting services provider» appeared in national legislation. In new point 52-1 of the Law provision is made enabling the extra-judicial blocking of web sites in cases of violation of copyright and absence of appropriate reaction by the owner of a website in claims regarding such violations.
The Law of Ukraine «On Fighting Terrorism» sets out restrictions on the dissemination of information that can also be applied to the Internet. Article 17 prohibits the dissemination, through the mass media or via any other means, of information aimed at promoting or justifying terrorism, which contains statements by people resisting or calling for resistance towards an anti-terrorist operation, etc. However, by establishing such prohibitions, the Law does not provide an answer to the question of who and how should respond to such violations.
In the Criminal Code of Ukraine, to which law-enforcers are turning more and more often, the Internet is considered as a way of disseminating information. The courts apply several articles of the Criminal Code to bloggers and Internet users, namely:
Article 109 of the Criminal Code of Ukraine: public calls for violent change or overthrow of the constitutional order or calling for the seizure of state power, as well as the distribution of materials containing calls for such actions.
Article 110 of the Criminal Code of Ukraine: intentional acts committed with the aim of changing the boundaries of the territory or state border of Ukraine, or violation of the order, as established by the Constitution of Ukraine, as well as public calls or the distribution of materials with appeals for such actions.
In fact, for law-enforcers and the courts there is no difference as to how «criminally punishable information» is disseminated, whether this be via the handing out of postcards, a rally before a crowd, broadcasts on radio or TV, a post on a social network, in a blog or other online resource.
It is difficult to carry out presidential decrees and decisions of the National Security and Defense Council
A series of Ukrainian presidential decrees affect the regulation of the Internet:
– President’s decree № 287 of 26 May, 2015 «On the decision of the National Security and Defense Council of Ukraine dated 6 May, 2015 «On the National Security Strategy of Ukraine»;
– President’s decree № 96/2016 «On the decision of the National Security and Defense Council of Ukraine dated 27 January, 2016 «On the Cybersecurity Strategy of Ukraine»
– President’s decree № 47/2017 «On the decision of the National Security and Defense Council of Ukraine dated 29 December, 2016, «On the Information Security Doctrine of Ukraine».
The mentioned documents detail the urgent need to develop high-quality legislation on cybersecurity and information security of Ukraine from the viewpoint of Russia’s aggression against Ukraine, which is also taking place in virtual space. These decrees establish obligations for the Cabinet of Ministers of Ukraine and the relevant sectoral law-enforcement bodies, scientific bodies to develop the necessary legislation. However, as of October 2017, the only step taken in the direction of implementation of these Strategies and Doctrine is the adoption of the Law of Ukraine “On the Basic Principles of Ensuring the Cybersecurity of Ukraine” (draft bill № 2126а), which is controversial from the point of view of provisions contained in the Constitution of Ukraine.
Using special provisions of legislation to regulate the Internet
The Law of Ukraine «On Telecommunications», the Law of Ukraine «On the Basic Principles of Safeguarding Cybersecurity in Ukraine» and the Ukrainian presidential decree On the Decision of the National Security and Defense Council of Ukraine of April 28, 2017 «On the Application of Personal Special Economic and Other restrictive measures (sanctions)» are special pieces of legislation on the Internet sphere.
The Law of Ukraine «On Telecommunications» contains the definitions «Internet address», «wireless access to telecommunication network (wireless access)», «domain», «Internet», «telecommunications provider», «telecommunications (electrical telecommunication)», etc. The purpose of this law is ensuring the provision of telecommunication services. Articles 32 and 33 of the Law make provision for the rights and obligations of consumers of telecommunication services. So the law gives operators and telecommunication providers the right «to disconnect, on the basis of a court decision, the final equipment, if it is used by a subscriber to commit unlawful actions or actions that threaten the interests of state security.» This law also establishes an obligation on providers, on the basis of a court decision, to restrict access of their subscribers to resources through which child pornography is disseminated. This law contains no other grounds for limiting access to resources on the Internet.
The law came into force in 2004 and does not contain any dangerous regulations regarding Internet Governance in terms of international standards.
The Law of Ukraine «On the Main Principles of Safeguarding Cyber Security in Ukraine» (draft bill № 2126а) was adopted in October 2017. It defines the goals and principles of state policy in the field of cybersecurity, the powers of state bodies in the field of cyber defense. Part 3 of the new Article 19-1 in the Law of Ukraine «On Information» should have included a definition of «technological information», according to which socially significant information should have been classified as restricted information. Socially significant information is an emergency situation that may adversely affect the health and safety of people, the environment, economic, political, social stability of social relations or the operations of business entities. According to MP Olha Chervakova, this regulation was removed from the final version of the draft law that was passed. It will be clear when the text of the law is officially published whether this threat was canceled. At the same time, this law is a framework one and it cannot solve urgent issues in the field of the country’s cybersecurity.
President’s decree On the Decision of the National Security and Defense Council of Ukraine of April 28, 2017 «On the Application of Personal Special Economic and Other restrictive measures (sanctions)» resulted in the restriction of access to a number of Russian social networks and sites (VK.com, Yandex, Mail.ru. OK.ru) by mobile operators and Internet service providers. However, this law does not meet the requirements of international standards in the field of digital rights (a decision adopted by a court or an authorized administrative body, which is an exact restriction limited in terms of a fixed time limit, and which should not be of a general nature). Furthermore, the decree is not based on provisions of law, because it only provides for blocking through a court.
Dangerous draft bills as of October 2017
– Draft Law №2133а of 19.06.2015 «Draft Law On Introducing Changes to certain Acts of Ukraine on increasing responsibility for offenses committed in the field of information security and fight against cybercrime» envisages the granting of extra-judicial powers for law- enforcement agencies to block websites in the absence of clear grounds (any content that «contravenes the law»).
– Draft Law №6688 of 12.07.2017 «On Introducing Changes to certain Acts of Ukraine on countering threats to national security in the information sphere» contains defects at the level of definitions of terms (“technological terrorism”, which may include large volumes of socially meaningful information) and envisages extra-judicial blocking of sites by investigating authorities, an unlimited period of blocking by a court, and so on.
– Draft Law №6754 of 17.07.2017 «On Introducing Changes to the Law of Ukraine «On the Protection of Consumers Rights» and to certain legislative acts of Ukraine on measures to reduce the level of activity of E-commerce entities in the shadow economy, includes the possibility of the body in the area of consumer rights protection blocking the sites of producers who fail to publish information about their products on their sites, as is provided for by legislation.
Conclusions and recommendations
- As of 2017, state institutions in Ukraine have still not developed a systematic and qualitative approach towards Internet Governance, even in conditions of military aggression perpetrated by Russia;
- The Supreme Council (Parliament) of Ukraine has, over the course of 2016-2017, adopted draft bills which point to poor understanding by MPs of digital rights and modern standards of regulation of the Internet. As a result, legislative steps taken by the state are subject to criticism from civil society as well as international organizations;
- The Government’s policy in the sphere of Internet Governance has revealed violations of international standards of regulation of the Internet;
- The state fails to fulfill its obligations of guaranteeing the digital rights of its citizens, which also include protection from manipulations and abuses in the Internet;
- Government institutions may potentially use the powers of the authorities in the field of regulating the Internet not only with the aim of ensuring national security but also to restrict the freedom of expression of opponents;
- Ukraine, in fact, lacks a structured and logical legal framework in the area of digital rights. On the one hand, this can be a guarantee of non-interference by the state in the field of rights. On the other hand, this allows deprives Internet users of guarantees of protection in accordance with international standards;
- Ukraine needs to modernize its legislation in the area of digital rights and Internet freedom, taking into account the circumstances of military aggression by the Russian Federation on the territory of Ukraine.
What is necessary
- In order to prepare changes to legislation on Internet Governance, civil society should present a “roadmap” to the authorities, the first step of which should be the creation of a working group from the ranks of representatives of state authorities, experts from non-governmental and international organizations, professional lawyers;
- Civil society should exercise all-encompassing oversight over the activities of bodies of state power in order to prevent the introduction of bans and the committing of violations of international standards in the field of Internet Governance. The mechanism for such control is the continuous monitoring of legislative initiatives and the activities of the relevant state institutions.
Author: Oleksandr Burmahin, media lawyer, NGO “Platform for human rights”
The research was conducted within the project Protecting Internet Freedom in Ukraine, implemented by NGO “Internews Ukraine” with the support of Counterpart International
Read also the prospects for regulation of the Internet in Ukraine in 2017-2019, risk assessment.