The Internet in Ukraine remained beyond the confines of legal regulation for a long time. In the Freedom on the Net rating, prepared by Freedom House, Ukraine was rated up till and including 2013 as a country with a free Internet. After the Revolution of Dignity of 2013-2014 the rating of Internet freedom in Ukraine worsened, with the country moving from “free” countries to “the partially free” countries.
And so draft bills have started to appear more and more often on the daily agenda of the Supreme Council (Parliament) aimed at significantly restricting the digital rights of Internet users. The reasoning given for such legislative initiatives was the necessity to safeguard Ukraine’s information security at a time of war and to reduce the scale of Internet piracy.
Despite the generally successful countering by civil society of initiatives that contained risks for Internet freedom, in March 2017 the Law of Ukraine “On State Support of Cinematography in Ukraine” was adopted, the transitional provisions of which for the first time introduced the “notice-and-takedown” procedure, which is a procedure for blocking content or, in exceptional cases, web pages which violate copyright. However, the operation of this procedure is restricted and extends only to objects of copyright and related rights that belong to broadcasting organizations.
Furthermore, a bill on the principles of cyber security in Ukraine was adopted. It sets out the main areas of state policy and establishes the division of powers between bodies of state authority in the cyber security field. Given the bill’s framework nature and the deletion of dangerous amendments due to pressure from civil society, the bill adopted by the Supreme Council is not a serious threat to digital rights in Ukraine at the present time.
In addition, the sphere of blocking of content or websites still remains largely unregulated at the legislative level.
The most important step taken in this area was the adoption of the decree on sanctions issued by the President of Ukraine, №133/2017 of 15 May 2017, on the basis of which mobile operators and Internet providers restricted access to a number of Russian social networks and Internet resources (first and foremost, the most popular sites among Ukrainians vk.com, ok.ru, mail.ru, yandex.ru).
The application of decree №133/2017 prompted criticism of the actions of the authorities from some civil society organizations and society. At the same time, it became a trigger for stepping up attempts to regulate the Internet through legislation.
As of October 2017 three draft bills which can have a significant influence on the state of Internet freedom in Ukraine are at the consideration stage:
- 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 (№ 2133а of 19.06.2015);
- Draft Law On Introducing Changes to certain Acts of Ukraine on countering threats to national security in the information sphere (№ 6688 of 12.07.2017);
- Draft Law On Introducing Changes to the Law of Ukraine «On the Protection of Consumers Rights» and to certain legislative acts of Ukraine on measures to bring the activities of E-commerce entities out of the shadow economy (№ 6754 of 17.07.2017).
Draft bill № 2133а. The original text of this draft bill contains serious threats to freedom of expression and the right to privacy of Internet users.
First, bodies will receive powers to block sites though this it is not intrinsic for them to do this: National Commission for Regulating Communications and Informatization and the Security Service of Ukraine. In accordance with international standards, any decision to restrict freedom of expression on the Internet should be based on a court decision or an independent administrative institution.
Second, the fuzzy definition of banned content as “information, whose dissemination is contrary to the law” provides broad scope for interpretation within the framework of law- enforcement.
Thirdly, the Security Service of Ukraine receives the opportunity to demand receipt of any information about the digital life of a person from telecom operators. In fact, this means the ability of employees of the Security Service of Ukraine to totally control any actions on the part of the person, which, subject to Ukrainian realities, could result in excessive and disproportionate interference in a person’s private life.
Draft bill № 6688. This bill shook up the general public in the middle of summer 2017, at the same time becoming the starting point for public debate on the need for further lawmaking in the sphere of content blocking.
It offers a judicial mechanism for blocking sites as the main mechanism. It also provides for the possibility of appeal against a decision to block within the auspices of criminal proceeding. It is worth mentioning that it proposes several safeguards – the need for a court, when adopting a ruling on blocking, to take into account the reasonableness and proportionality of blocking with the actual purpose of the proceedings, to indicate the appropriate grounds for the decision and to set a period for it.
Despite this, the bill should be regarded as being negative for digital rights, given the number of threats that it contains:
- An overly broad range of crimes (serious and extremely grave), in the proceedings of which blocking can be applied. In practice, the consequence may be the blocking of any resource if (for example, via a message on Facebook) a crime was planned or prepared;
- The existence of separating the concepts of «blocking» and «temporary blocking», аs well as unrestricted discretion of a court on defining the term for which the blocking can be set for;
- The ability of the prosecutor and investigator to block access to sites for up to 48 hours in exceptional emergency cases related to saving the lives of people and preventing a serious or extremely grave crime from being committed;
- Excessive broadening of the definition of “technological terrorism”, which poses a threat of qualification as terrorism, amongst others, calls for demonstrations with the aim of adopting a specific draft bill;
- The creation of the Single Register of Execution of Court Rulings and application of sanctions in the field of telecommunications, which will not envisage for an appropriate list of information to be included in this register in accordance with international standards.
Draft bill № 6754. In accordance with this bill, the powers to «suspend access to websites» are provided by the State Service for Consumer Goods and Consumer Protection. The reason for such blocking is a seller not ensuring access for consumers to a specified list of categories of information about goods and information about the seller on the seller’s own website.
In the view of the Internet Association of Ukraine, this bill is an attempt to step up administrative pressure on Ukrainian business and in no way helps to protect the rights of consumers from poor quality provision of E-commerce services. In addition, the provision of powers to the State Service for Consumer Goods and Consumer Protection to block sites is not inherent to it, despite the fact that it is a regulator in the field of consumer rights protection.
There are currently no draft laws being considered in Parliament aimed at fighting online piracy. The revocation of two Government proposals of draft bills on making changes to certain legislative acts of Ukraine regarding the protection of copyright and related rights on the Internet was quite resonant: № 3353 dated 23.10.2015 and № 4629 dated 10.05.2016. Both drafts included the introduction of the “notice-and-takedown” procedure, which allowed unscrupulous complainants to restrict access to any content for at least three weeks.
In addition to the risks of over-regulation of the Internet, as contained in internal state regulations, it is worth mentioning key challenges that are of an international nature:
First. In conditions of the fight against hate speech, fake news and extremist content, there is a tendency to place a greater burden of responsibility on «intermediaries» – social networks, online stores, search engines, etc. This is due both to reform of the legal system of the European Union and by the ECHR’s ruling in Delfi AS v. Estonia.
Second is the implementation of the right to be forgotten, as outlined by the Court of Justice of the European Union in the judgment in Google Spain v AEPD and Mario Costeja González. The threat of the formal stipulation of this right is that, in the absence of appropriate safeguards, the mechanisms of de-indexing information about oneself in search engines can be used by public persons in order to delete awkward information for them. This is precisely what was done in Russia by a former minister of agriculture regarding the deleting of information about criminal cases opened against her.
The third challenge for the regulation of the Internet at both the European and global level is the fight against fake news. In 2017, special rapporteurs on freedom of expression issued the Joint declaration on freedom of expression and “fake news”, disinformation and propaganda, which provides examples of good practices and policies for fighting disinformation and propaganda.
And finally, it is worth noting that in the European Union reform of the protection of personal data is currently taking place, which is aimed at unifying rules in member states. New regulations include increasing the level of protection of personal data of users of electronic communications, including communication content and metadata, particularly when using messengers. Stepping up the fight against spam and simplifying cookie rules are also anticipated.
The above-mentioned trends in the regulation of the Internet and digital rights should also be considered in the context of Ukraine’s situation in the fourth year of military conflict.
It is precisely from the situation in the East that state policy on regulation of digital rights will depend. So, the Doctrine of Information Security of Ukraine determines the priority of state policy in the information sphere, legislative regulation of the mechanism for the blocking and removal of prohibited content from the country’s information space.
In the context of this Doctrine, draft bills № 2133a and № 6688 may be actualized as part of the discussion on giving security bodies the right to interfere in Internet communications and remove a number of obstacles for establishing a longer list of sites that are subject to sanctions.
According to pessimistic predictions about the circumstances, responsibility for the use of prohibited sites may be introduced, which has already been discussed in the press. Under extreme circumstances, the threat exists of prohibition of VPNs and Tors, in line with the Russian model. A total shutdown of the Internet seems very unlikely and permissible only in exceptional circumstances, such as the introduction of emergency or martial law throughout the territory of Ukraine. In addition, it would require Ukraine to retreat from its obligations in international treaties and laws.
The risk exists of reactivation in the area of legislative initiatives on potential blocking of sites ahead of the coming elections in Ukraine in 2019. Restricting the rights of users to access information could be used under the pretext of using their right to be forgotten or to protect copyright. However, one can assume that this risk is not high given the active involvement of the Internet community in political processes in Ukraine and, quite likely, the high level of its protest potential.
On the basis of the above we recommend:
MPs of the Supreme Council of Ukraine:
- To revoke all draft bills that restrict the rights and freedoms of users and intermediaries online and are that are included on Parliament’s agenda;
- To refrain from introducing new legislative proposals until common approaches have been developed for regulating the Internet with the participation of civil society and the IT sector;
Тhe Cabinet of Ministers of Ukraine:
- To initiate dialogue between all stakeholders on developing common approaches to regulating the mechanism of blocking resources and ensuring privacy on the Internet, including on the basis of the judicial procedure proposed by draft bill № 6688, as well as taking into account the requirements of observance of intellectual property rights;
- When developing approaches to regulating the Internet to generally include international standards in the field of regulating freedom of expression of opinions and privacy in the Internet – particularly the three-part test on restriction of human rights (predictability of restrictions through legislation, the existence of a legitimate aim for restriction, the necessity to restrict in a democratic society and its proportionality), the possibility of blocking resources online exclusively through a court decision, immunity for intermediaries as to user content posted on intermediary platforms, as well as a limited list of content categories, for the posting of which a resource may be subject to blocking;
- In the event of adoption of more stringent regulations related to Russia’s aggression on the territory of Ukraine, provide for their temporary nature until the aggression has ceased.
- To take a proactive stance on the elaboration of relevant legislative provisions in Ukraine and, through dialogue with representatives of the authorities, ensure proper protection of the online rights of citizens;
- To advocate and explain to society the provisions contained in agreed draft amendments to legislation;
- To continue to play the role of watchdog, which will monitor the harmful nature of initiatives on regulating the Internet and will carry out counter advocacy regarding their adoption.
Representatives of the IT sector:
- To provide constructive proposals for regulating the Internet taking into account the interests of business and the need to balance the rights of business and users with the protection of national security by the state;
- To encourage the sector to develop self-regulatory mechanisms in order to eliminate excessive influence by the state on the Internet industry.
Аuthor: Maksym Dvorovyi, Centre for Democracy and Rule of Law
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 research based on the expert survey titled “Internet Freedom in Time of Military Conflict” conducted by NGO “Internews Ukraine” in period of Dec, 12, 2016 – Jan 12, 2017.