Media reform

Section I: Monitoring of the implementation of recommendations on reform priorities for 2020–05.2021

1. To adopt a law on media that regulates new media, strengthens the powers of the regulator, introduces co-regulation in the field, regulates community broadcasting and strengthens the protection of media consumers' rights, taking into account the recommendations of Council of Europe experts.

Partially done

During 2019-21, work to finalize the bill in the field of audiovisual services, online platforms and other media players has been underway. Despite the proportional involvement of representatives of the regulator and the media community and representatives of civil society, work on the bill has not been completed yet. The main areas of conflict are the strength of the regulator, the sanctions mechanism and language requirements.

It should be noted that Ukraine has exceeded the time limit for its own commitment under the Ukraine-EU agreement on the implementation of Directive 2010/13/EU "On audiovisual media services" for 2 years. In addition, there is the question of the ability to respond effectively to violations of the Internet due to the lack of a single point of entry, architecture and lack of jurisdiction, as well as reluctance to implement mechanisms used in authoritarian countries such as Russia.

At the same time, on June 17, 2021, the Parliament adopted legislative changes to increase the independence of the regulator - the National Council of Ukraine on Television and Radio Broadcasting (draft law №4107). Provided that the President of Ukraine will sign this draft law, it will improve the procedure for electing members of the regulator, specify their rights and responsibilities, improve the procedure for remuneration of members of the regulator and staff.

One of the tasks of the bill was to introduce competitive procedures for the election of members of the regulator, who are appointed by both the Parliament and the President of Ukraine in accordance with their powers enshrined in the Constitution of Ukraine. However, the draft law provided only for the possibility of forming a tender commission for appointments under the quota of the President of Ukraine. Such a position is based on the interpretation of constitutional law experts that the introduction of a tender commission restricts the rights of the President of Ukraine. An important provision of the adopted bill is the grounds for termination of the powers of members of the regulator, which eliminates conflicts that arose when members either wanted to leave on their own, or the subject of oppointment wanted to withdraw them.

2. To elect a new composition of the Supervisory Council and the Board of Public Broadcasting in a transparent and open manner.

Done

At the end of 2020, a number of conferences of public organizations were held, which elected new members of the Supervisory Council of Public Broadcasting; the rest of the members of the body were elected by parliamentary factions and groups. The election process was open, inclusive and transparent, provided by the National Council on Television and Radio Broadcasting.

Moreover, in early 2021, the Parliament adopted amendments to the Law on Public Broadcasting, which eliminated the legislative conflict within the terms of office of members of the Supervisory Council of Public Broadcasting, delegated by parliamentary factions of various convocations.

In April 2021, the competition for the position of Chairman of the Board of Public Broadcasting ended, and in May, members of the Board of Broadcasters were elected. NGOs and international institutions noted the transparency of this competition, conducted by the Broadcaster's Supervisory Coucil.

Threats

The Council of Europe Platform for the Protection of Journalism and the Safety of Journalists has registered a complaint through the initiative of the representative of the Office of the President Kyrylo Tymoshenko to appoint the head of the Supervisory Council of Public Broadcasting. In a public interview, a senior official of the President's Office criticized the way the Public Broadcaster's supervisory council is formed, since it includes a majority of members from NGOs, while the chairman of the supervisory council is elected by the council members. He suggested that the chairman of the supervisory council should be appointed by the government. This comment was accompanied by criticism of the Public Broadcasting Company of Ukraine's (UA:PBC) editorial policy from a representative of the President's Office. Changing the structure of the supervisory board in this way may call into question its independence and subject UA:PBC 's editorial policy to political influence.

The political elite, in general, remains dissatisfied with the existence of an independent media that not only does not serve as a PR resource for them, as state broadcasting did previously, but also remains completely out of control in terms of its editorial policy. This means that attempts to take control of Public Broadcasting will continue.

3. To provide full funding for Public Broadcasting for 2021 and introduce a new, more secure, model for financing Public Broadcasting in line with Council of Europe standards.

Partially done

The Law on Public Broadcasting establishes a guarantee of its financing by the state, namely "the state provides adequate funding to the UA:PBC, which is provided for in a separate line in the State Budget of Ukraine and is not less than 0.2 percent of the general fund of the State Budget of Ukraine", however, since the creation of the broadcaster in 2017, this requirement has never been met.

In 2021, for the first time, the State Budget provides for formally full funding of Public Broadcasting at the level of 100% - UAH 2.2 billion. However, in contrast to the legal guarantee, UAH 400 millions of this amount, which was to go to the broadcaster's capital expenditures, should come from a newly created source of revenue - license fees from gambling companies.

For a long time, the gambling business was illegal in Ukraine but the government has legalized it in 2021. Yet still, it is extremely difficult to predict the number of companies that will pay license fees, so this source of revenue is risky and may lead to a lack of capital expenditures. In addition, the implementation of this rule may be formalistic, i.e. the money will eventually be allocated at the end of the year, but due to the length of tender procedures it will not be possible to use it, which may create an additional justification for further cuts in the budget of the Public Broadcaster.

Threats

During the reporting period, no formal steps were taken to change the model of financing Public Broadcasting to turn it into a more predictable and secure one. At the same time, the statement of the chairman of the parliamentary committee on humanitarian and information policy Mykyta Poturayev about the importance of such a change was proclaimed. Thus, the model of financing Public Broadcasting remains vulnerable and may lead to a recurrence of the situation with underfunding of the company in 2022.

In general, any changes in the legislation on Public Broadcasting, in the absence of its strong supporters in power, carry the risk of "political hacking" - when additional rules can be introduced under the pretext of useful changes that will negatively affect the editorial freedom of the broadcaster.

4. To take measures to limit the impact of hostile misinformation, including assessment of the need to update the legislation.

Partially done

Ukraine, due to a number of historical and financial features, is forced to seek its own approaches in the fight against the agents of information influence of the aggressor country. In particular, those that would allow for a quick response to misinformation spreading online.

The system of sanctions, although minimal in law, has been criticized by a number of media organizations for its lack of transparent mechanisms. In February 2021, the President put into effect the decision of the National Security and Defence Council on sanctions against three TV channels associated with pro-Russian politician Viktor Medvedchuk. Sources close to the investigative bodies claim that the sanctions are caused by participation in the financing of the channels of companies operating in the occupied areas of Eastern Ukraine. Thus, the decision was connected to security and did not formally concern the information policy of the TV channels.

However, the results of monitoring of (pro)Russian propaganda testified that these three channels were responsible for more than half of the cases of dissemination of Kremlin messages in the Ukrainian media space. The National Council on Television and Radio Broadcasting has applied legal sanctions to these TV channels almost 40 times (warnings, fines, appeals to the court to revoke licenses, etc.). The vast majority of NGOs supported the introduction of sanctions and called them an adequate step in the fight against misinformation.

At the same time, Ukrainian legislation requires a national and supranational system of analysis not only of nominal ownership and control, but also of financial influence on the media, in particular by the aggressor country.

Moreover, pro-Russian oligarchs and big business with a pro-Russian orientation also have considerable media influence in Ukraine, which poses a threat to the country's information security in the conditions of a hybrid war. There is room for the regulator to work in the direction of preventing the influence of owners at least on information content, as well as monitoring the balance and neutrality of news. At the same time, today the regulator does not have the ability to carry out systematic work in this direction.

5. To ratify the Tromsø Convention and develop amendments to the Law of Ukraine “On Access to Public Information” in order to strengthen it, harmonize it with the provisions of the Convention and eliminate intersectoral contradictions.

Partially done

In May 2020, the Parliament ratified the Council of Europe Convention on Access to Official Documents, becoming the tenth country to do so. The international document entered into force on December 1, 2020. In 2021, preparatory work on the formation of a group of experts began. The Ministry of Culture and Information Policy of Ukraine has developed and approved the procedure for nominating two experts from Ukraine, and in July 2021 Ukraine must select and submit its candidates.

Simultaneously, a working group is working to improve existing legislation in the field of access to public information, which should take into account some aspects of the Convention that have not been addressed before.

6. To introduce the limit of the amount of expenditures from election funds for campaigning and increase the transparency of such expenditures in the Electoral Code.

Not done

During 2020-21, no changes to the Electoral Code to limit those spendings were made. A working group is currently working on a package of amendments to the Electoral Code.

0 comments

Only authenticated can comment

Section II: The current major challenges to the implementation of the reform (the time of monitoring).

Public broadcasting

In the near future, the attempts to replace the newly elected governing bodies of the company - the Supervisory Council and the Management Board, will be the main challenge for reform due to the general dissatisfaction of the ruling elites with the independent editorial policy of the broadcaster. Any legislative initiatives on the work of the Public Broadcasting and other decisions of the authorities during this period should be carefully analyzed for risks to its editorial and personnel independence and, if necessary, received a response from civil society and the international community.

An equally important challenge for the reform is the possibility of repeating the practice of significant underfunding of the broadcaster, which took place in 2017-2020, which will lead to the impossibility of expanding the broadcaster's audience. Legislative constraints to make co-production of audiovisual content, financing of long-term production projects and optimization of own fixed assets also need to be addressed - this makes the broadcaster uncompetitive in today's market.

In addition, the lack of widespread public support remains a challenge for Public Broadcasting: despite the fact that the Public Broadcaster is confidently gaining its audience on both radio and digital platforms, Ukrainian consumers are corrupted by the excessive number of national TV channels that provide a variety of content to any political and common taste, while the public broadcaster with its chronic underfunding loses in the effectiveness of the "picture".

Introduction of new regulations of market of the audiovisual market in accordance with EU standards

Procrastination in the adoption of the Law "On Media" continues to delay Ukraine's obligations under the EU Association Agreement on the implementation of Directive 2010/13/EU "On Audiovisual Media Services". Adoption of the law requires political will and the consent of the main stakeholders - participants of the media market.

0 comments

Only authenticated can comment

Section III: Recommendations on Reform Priorities for 2021-2022 (next annual period, until URC 2022).

The monitoring revealed that progress on key issues of media reforms during 2020–2021 was insignificant (the mark “Partially implemented” mostly means only the presence of bills or developments that to some extent cover the relevant recommendations, and “completed” tasks became possible mainly due to efforts civil society). The recommendations provided for priority actions for 2020-2021 remain relevant in the future.

The priority steps in media reform in the near future should include:

Preservation of the institutional independence of Public Broadcasting: non-interference in the work of the governing bodies and the company's editorial policy by the authorities. In particular, civil society and the international community need to monitor attempts to introduce legislative changes or other governmental actions that could lead to an early change in the broadcaster's newly elected leadership.

Ensuring full funding of Public Broadcasting for 2022 and introduction of a reliable model of UA:PBS funding, in accordance with the recommendations of the Council of Europe - through a new special fund of the state budget, which will be replenished by radio frequency rent.

Removal of legal restrictions for the effective operation of Public Broadcasting in the modern media market, namely the joint production of audiovisual content and property management.

Implementation of Directive 2010/13/EU on audiovisual media services, which will regulate the activities of non-linear audio individual media, strengthen the powers of the regulator, introduce co-regulation in the field, regulate community broadcasting and strengthen the protection of media consumers' rights.

Legal regulation of new media formats, in particular in view of the future EU regulation on digital services in the context of players such as Telegram channels, which belong to the category of "News and Media", to increase the transparency of online media.

Strengthening the financial transparency of the media: improving the legal requirements and mechanisms for monitoring financial transparency, introducing restrictive measures for media with non-transparent funding and/or Russian capital.

Maintaining a balance between the protection of fundamental freedoms and the interests of the state and society in the development of state initiatives and policies to combat misinformation and the introduction of any restrictions.

Collaborate with global companies (Facebook, Google, TikTok, etc.) to find solutions to combat misinformation and develop media literacy based on democratic values.

Promotion of media literacy, in particular through the education system, production of accessible content on media literacy (or one that integrates this topic) for different audiences with the involvement of NGOs, productions companies, local media, and public libraries.

0 comments

Only authenticated can comment

Media reform

Sectoral brief “Media reform”