The curious case of Uncle Fyodor: burn after reading
Kateryna Dronova examines whether Ukraine has struck a proper balance between national security and freedom of expression while ensuring information security.
depositphotos / everett225
“The greatest dangers to liberty lurk in insidious encroachment
by men of zeal, well-meaning but without understanding.”
Louis Brandeis, Dissenting, Olmstead v. United States, 277 U.S. 438, 479 (1928).
The 1925 “Battleship Potemkin” was banned at various times in the US, the UK, the USSR, and France. In 1973 Stanley Kubrick’s “A Clockwork Orange” was withdrawn from the British release. In 2007 Burma banned “The Simpsons Movie.” In 2016 Ukraine added “Three from Prostokvashino” and “On the Trail of the Bremen Town Musicians” to the blacklist of films banned from demonstration and distribution.
These two cartoons along with over 6oo other motion pictures were banned in Ukraine during the last four years. This sweeping ban is a part of a larger information strategy undertaken by the Ukrainian authorities to retaliate against Russian propaganda machine. Although propaganda threatens the freedom of the media it also often becomes a justification for governments to restrict all unsympathetic messages regardless of their origin.
This article attempts to evaluate whether this ban is legitimate and strikes a proper balance between a state’s obligation to enforce national security and a freedom of expression.
The Law of Ukraine
The Constitution of Ukraine guarantees the freedom of expression and establishes State’s obligation to defend territorial integrity and sovereignty . However, it also provides that the freedom of expression is not absolute and may be restricted by the law on a number of grounds, including in the interests of national security, territorial integrity, and public order. These provisions are further reflected in a number of other regulations . For instance, the Law “Оn Information” forbids the use of information to incite violence or hatred, spread the war propaganda and call for the violation of the territorial the integrity of Ukraine . At the same time, this law guarantees the right to accessible and complete information, as well as freedom of expression and information security . The censorship is prohibited under article 24 of this law, while article 30 guarantees that “[n]o one can be held liable for expressing a value judgment.”
In 2015 Ukraine adopted the Law “On Introducing Amendments to Some Laws of Ukraine concerning the Protection of Information Television and Radio Space of Ukraine” (hereinafter the PITeRS Act) which amends the Law “On Cinematography.” Under Article 15 of the amended Law “On Cinematography” the Ukrainian State Film Agency (hereinafter USFA)  issues a state permit that endows distribution and demonstration of a particular film. The USFA reserves the right to withhold such a permit for a number of reasons listed in the text of Article 15, including cases when a film contains any materials that propagate war, violence, incite hatred and/or threaten Ukraine’s independence. Another ground to deny state permit is participation in the production of this film of a person, who is included in the List of individuals posing a threat to national security . In addition, Article 15 refers to Article 15-1 to introduce the whole other list of grounds for a film prohibition.
First, Article 15-1 outlaws the films that “promote government bodies of the aggressor state and Soviet state security agencies”, in particular motions pictures that “propagate” such state body or their action, that create an overall positive image (any slightly positive direct or indirect description or mentioning) of the staff members of these bodies, or films that justify occupation of Ukrainian territory. This ban applies to any film produced after August 1, 1991 regardless of the country of origin. Second, those films that contain no such propaganda produced by individuals and legal entities of aggressor state are also falling under the ban if they were produced and/or demonstrated for the first time after January 1, 2014. The USFA is obliged to annul those permits that have already been issued retroactively. The law establishes administrative sanctions for the violators of its provisions.
Similarly, Article 6 (paragraph 2) of Law “On Television and Broadcasting” prohibits “propaganda and incitement to war, acts of aggression, national, racial or religious hatred” and recites the restrictions on broadcasting discussed above. In cases of the law infringement, Article 72 enables the national regulator to annul the broadcasting license on the basis of a court decision. This article does not specify the type of violation that would trigger this sanction and, hence, violation of Article 6 may apply.
The USFA published lists of banned films in 2014-2017 on its official website. These published lists are based on the decision of the Expert Commission on distribution and demonstration of films at USFA. These decisions are not published and are “communicated” to the applicant for the USFA permit . The USFA lists do not identify a particular reason for the prohibition of each film. Instead, they have a general statement that these films violate the Law “On Cinematography”. Therefore, one can only assume the actual definite ground for the ban of a motion picture.
Both the International Covenant on Civil and Political Rights (hereinafter ICCPR) and the European Convention on Human Rights (hereinafter ECHR) protect freedom of expression and the right to receive and impart information and ideas. This protection covers not only the substance of the information or ideas but also their form, including radio broadcasts, films, and novels . Each one of these Conventions does not extend its protections over activities directed against human rights, including incitement to violence and hatred . However, the European Court of Human Rights repeatedly maintained that freedom of expression applies not only to those ideas that are seen as inoffensive or sympathetic but also to those that offend, shock or disturb the State or any section of the community.
Since the freedom of expression is not absolute, both Conventions prescribe certain conditions, which any lawful restriction on freedom of expression should satisfy . The limitations put by a state on the freedom of expression must be established convincingly and are subject to a cumulative three-part test: restrictions must a) be provided by law, b) be aimed at protecting a legitimate public aim, and c) be necessary and proportionate. The Ukrainian PITeRS Act is very unlikely to pass this three-part test.
Provided by law
This requirement demands that the restriction is prescribed by the text of a law, which is accessible  and precise . Such law should not grant executive or administrative authorities excessively broad discretion to limit the freedom of expression . However, in Başkaya and Okçuoğlu v. Turkey the Court recognized that states and national courts enjoy a certain degree of flexibility in defining and assessing what constitutes a separatist propaganda aimed against the territorial integrity of the state.
The PITeRS Act is introduced in the form of the law. However, it is impossible to lead a discussion on whether a particular forbidden film incites to violence or amounts to unprotected speech in the context of this law since its text makes this factor practically irrelevant. Regardless of how vaguely “propaganda” is defined, this ban currently has non-selective nature and forbids films on the territorial principle. It is necessary to amend the text of law in a manner that would require decisions of the Expert commission to mention a specific reason for prohibiting a particular film.
Moreover, the USFA’s authority is extremely broad since this executive body has complete discretionary power in granting or denying permits for film distribution and whose decision the broadcasting license is contingent upon. In addition, the law does not outline provisions concerning a) the review procedure of the film and obligation to publish the results of such a review (decisions of the Expert commission at the USFA); b) how exactly sanctions are enforced. Hence, the accessibility and clarity of the PITeRS Act are in question.
Both the ICCPR and the ECHR name national security in the exhaustive list of interests, protection of which may justify a restriction of the freedom of expression. In Kommersant Moldovy v. Moldova, the Court recognized that the state’s interference with the newspaper’s right to freedom of expression may have pursued the legitimate aim, namely protection of national security. However, Moldovan national courts failed to indicate in what way the articles in question endangered the national security. Consequently, the closure of the newspaper warranted by the state was acknowledged an unlawful interference. Similarly, in Erdoğdu and İnce v. Turkey, the Court has found that the government’s pursuit of the protection of territorial integrity in the light of the situation in south-east Turkey at the time corresponded with the demands of Article 10 . Nevertheless, the Court has found the lack of incitement to violence in the analytical interview with a Turkish sociologist who explained his opinion on the government’s attitude to the Kurdish question.
The explanatory note to the Ukrainian PITeRS Act expressly states: “ the purpose of the bill is to introduce a legal mechanism for the protection of Ukraine’s national security in the information sphere by restricting in Ukraine all forms of propaganda used by the invading state.” In the context of Crimean occupation and ongoing armed conflict in Eastern Ukraine, this claimed objective of the Ukrainian authorities is likely to be recognized as a legitimate aim.
Necessity and Proportionality
This requirement establishes whether the limitation of the right happened due to a “pressing” or “substantial” social need, whether it was relevant, sufficient and proportionate  to the legitimate aim pursued, being the most efficient and the least intrusive measure employed reasonably, carefully and in good faith.
Four years of protracted armed hostilities and loss of the territory, abundant propaganda distributed by Russian media in total definitely satisfy the requirement of “pressing need” to establish the necessity for State’s counteraction. However, the PITeRS Act is very far from fulfilling the proportionality requirement.
In the beginning of this article we mentioned two cartoons: “Three from Prostokvashino” (the story of a teenage boy squatting in a nature retreat with friendly crew of animals) and “On the Trail of the Bremen Town Musicians” (the tale of a groupie princess escaping with a music band being chased by royal detective) released in 1978 and 1973 respectively. Both cartoons are banned under the PITeRS Act, but the particular reason is unspecified.
Article 15 of the PITeRS Act forbids demonstration and distribution of the films a) containing any materials that “… propagate war, violence, cruelty […]; are aimed at eliminating Ukraine’s independence; incite ethnic, racial, religious hatred; humiliate a nation, […] humiliate persons; promote […] disrespect for parents …” and/or b) if a person listed as an individual posing a threat to national security  participated in a production of this film and this film was released after 1991. Interestingly, both cartoons do not fit the definition.
They should not be banned due to the participation of artists listed as people who threaten national security since they have been produced and released before 1991. Hence, the government implies that both animations somehow propagate war and incite to violence. We are left to wonder in which way exactly. The case of “On the Trail of the Bremen Town Musicians” is especially ironic since the cartoon was itself a satire of the controlling Soviet government condemning “the Western” influence and of Brezhnev’s personal drama with his free-spirited daughter.
Both cartoons share the leitmotif of a runaway child that might be interpreted as encouraging “disrespect for parents”, outlawed by the PITeRS Act and the Law “On the protection of public morals” (2003). However, they were broadcasted on the territory of Ukraine for 25 years (and almost 40 years in total) and the State has never made an attempt to ban them before, even though norms that forbid disrespectful or violent speech have already existed. Ukraine also has never made an attempt to ban Pixar’s “Brave” showcasing Merida’s similarly rebellious stage. Ukrainian morals functioned just fine. These two cartoons are not an exception: there are plenty of motion pictures on the list that contain no signs of incitement to violence and hatred.
Another argument against this ban is its inefficiency: all prohibited movies are accessible online. This point has been emphasized several times by Central Scientific Experts Office of The Verkhovna Rada of Ukraine, OSCE Office of the Representative on Freedom of the Media, Digital Defenders Partners. Hence, the PITeRS Act and the manner in which it is executed are not sufficient and proportionate to the claimed government’s aim.
It is not only an option but also an obligation of a State to keep its informational space free from various forms of abuse. Therefore, the legitimacy of the government’s concerns regarding information security in Ukraine is not questioned in this article. Neighboring states have actually succeeded in imposing the restriction on the spread of hate speech originating from Russian media stations. For example, in 2018 the European Commission reviewed Lithuanian notification about the content of programmes broadcasted by RTR Planeta and found that Lithuania’s suspension for 12 months of the retransmission of a channel on the grounds of incitement to hatred was lawful, proportionate, and in compliance with prescribed procedure. Lithuanian government’s ban is limited in time, it is based on concrete materials in the broadcast that fit the definition of incitement to war and hatred. In contrast, the Ukrainian ban is overgeneralized, has no specifics or time limits. It is a vivid example of how sound and necessary measure may be compromised by poor hasty execution.
Therefore, it is no surprise that the latest amendments in the legal framework regulating Ukrainian media space, including Information Security Concept face severe criticism e.g. by Human Rights Watch, OSCE. International monitoring bodies recommend to use alternative and less intrusive tools to counter biased and misleading information, such as rules on accuracy in broadcasting; ensuring media plurality; refraining from introducing new restrictions whenever existing laws ensure media security; investing in media literacy for citizens; drawing a clear distinction between fact and opinion in journalism, and transparency of media ownership.
In 1950 UN General Assembly declared that “propaganda against peace” includes not only “incitement to conflicts or acts of aggression” but also state measures tending “to prevent their peoples from knowing the views of other States Members.” It is crucial for the government to recognize and embrace not only the obligation to protect the citizens from abusive information, but also a citizen’s right to receive full and unbiased information to make up own mind.
 Article 17 of the Constitution stipulates “[d]efence of sovereignty and territorial integrity of Ukraine, providing of its economic and informative safety are the major functions of the state, a matter of concern for all the Ukrainian people.” The guarantee of the freedom of expression is set forth in the Article 34 of the Constitution: “Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs. Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.”
 Article 28 of the Law prohibits to use the information “for calls to overthrow of the constitutional order, violation of the territorial the integrity of Ukraine, the propaganda of war, violence, cruelty, incitement to interethnic, racial, religious hatred, terrorist acts, an attack on human rights and freedoms”.
 The law names “central body of the executive that enforces national policy in the field of cinematography,” which is currently the USFA.
 The law defines “participation” as the functions of an actor, artist, scriptwriter, music composer, narrator, director and/or producer of a film or TV program. This article does not question the nature of this list since it involves another set of rights and freedoms at issue.
 Clause 2.4.3. of the Regulation “On the Expert Commission on the distribution and demonstration of films at the State Agency of Ukraine on Cinema”
 Article 19 of the ICCPR guarantees the freedom of expression, which includes “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”
 In a similar manner, the ECHR protects the freedom of expression in Article 10, which specifies “this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
 Article 20 of the ICCPR stipulates state’s obligation to ban propaganda for war and incitement to discrimination and hatred. Thus, war propaganda and speech that incites to discrimination, hostility or violence are not covered by protections bestowed on the freedom of expression. The General comment No. 34 by the UN Human Rights Committee specifies that Artciles 19 and 20 complement each other and those restrictions based on Article 20 are also required to comply in strict conformity with permissibility requirements under article 19(3)(paras. 52, 54). Article 17 of the ECHR contains a prohibition of abuse of rights. Therefore, analogously to Article 20 of the ICCPR, the ECHR does not extend its protections over activities directed against the human rights (e.g. right to life and non-discrimination). See e.g. Garaudy v. France, Pavel Ivanov v. Russia, Molnar v. Romania.
 Baka v. Hungary, paras. 168, 171, 175; Stoll v. Switzerland, para. 101; Mouvement raëlien suisse v. Switzerland, para 48; Animal Defenders International v. the United Kingdom, para 100.
 Article 19(3) of the ICCPR; Article 10(2) of the ECHR.
 The General comment No. 34 stipulates that the law restricting freedom of expression should be “formulated with sufficient precision” and must be accessible, while it may not “confer unfettered discretion […] on those charged with its execution.” (para 26) In addition, those restrictions imposed on the freedom of expression must be proportional and not overbroad. (para 29)
 The Court observed that the domestic authorities “failed to have sufficient regard to the public’s right to be informed of a different perspective on the situation in south-east Turkey, irrespective of how unpalatable that perspective may be for them.” Erdoğdu and İnce v. Turkey, para 52.
 These general principles for assessing necessity of an interference with the exercise of freedom of expression, were set by the Court in the case of Handyside v. the United Kingdom, summarized in Stoll v. Switzerland and restated more recently in Pentikäinen v. Finland and Bedat v. Switzerland (para 48).
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