Media reform

In accordance with Clause I.10 of the Toronto Principles, the main tasks in the media field were to protect Public Broadcasting, including the introduction of a more secure funding model, the updating of media legislation, and the enhancement of media literacy and critical thinking through educational programs. In addition, clause I.3 stipulates the need to limit the size of electoral campaign expenditures and increase the transparency of such expenditures, while clause I.9 guarantees the right of access to public information, in particular by setting up an independent supervisory body (information commissioner).

With the new composition of the Verkhovna Rada of Ukraine (hereafter – the Parliament), the sphere of media regulation has largely come under the jurisdiction of the Parliamentary Committee on Humanitarian and Information Policy. Among its first steps was the initiation of a working group to revise the bill on audiovisual media services with an extension of its scope to print and online media. The Committee also initiated an appeal to the Ministry of Foreign Affairs of Ukraine (hereafter - MFA) for re-submission of the Council of Europe Convention on Access to Official Documents No. 205 (Tromo Convention) to the Parliament. Request for ratification of the Convention was also proposed by the Council on Freedom of Speech and Protection of Journalists under the President of Ukraine. In addition, the committee initiated changes to the current law on television and radio broadcasting to improve the procedure for dismissal and appointment of members of the National Council for Television and Radio Broadcasting, which came into force on 3 October 2019. The bill was approved to prevent the incapability of the media regulator, as well as batch voting for candidates for the positions of members of the National Council.

During the first session of the newly elected Parliament, the Ministry of Justice, on the request of the MFA, organized the coordination of the Troms Convention with the authorities concerned. As a result, on 31 January 2020, the President of Ukraine registered the bill on ratification of Convention No. 0032, and on 19 August 2020, the credentials were submitted to the Council of Europe. It is thanks to Ukraine's efforts that the Convention has received a minimum of 10 ratifications and will enter into force on December 1, 2020. The Ukraine's representatives will become co-founders and members of international advisory bodies aimed to develop best practices for access to public information.

At the same time, the working group on updating the Law of Ukraine "On Access to Public Information" should analyze the practice of implementing the law since May 2011, as well as the draft laws submitted to the Parliament, and develop a set of amendments that will strengthen the law, harmonize it with certain provisions of the Convention, and eliminate cross-sectoral  contradictions.

The Audiovisual Media Services Bill (today - draft Law of Ukraine “On Media” № 2693-d) was designed to adapt Ukrainian legislation to the requirements of the Audiovisual Media Services Directive (AVMSD) to implement the Association Agreement with the European Union. At the same time, given the obsolescence and incoherence of the media law, as well as the challenges posed by Russian military and information aggression, MPs decided to extend its scope from audiovisual media to all types of media. The bill envisages strengthening the powers of the regulator while attempting to introduce co-regulation – a mechanism for engaging market players to develop codes of conduct on complex issues. Another important step in this respect is the introduction of prescriptions – as a precautionary measure against media abuses.

The next substantial element of the project is the transition from a purely licensing system to a registration system where licenses will be issued only for broadcast. In all other cases, the media will register and interact with the regulator through the online cabinet system. The online press and information sharing platforms will then independently decide whether they need a registration. New powers of the regulator include working in the field of media literacy. Such a duty is provided in the directive and implies the direct work of the regulator without creating additional burdens for registrants or licensees.

Community broadcasting becomes a new area of regulation as a non-commercial broadcasting and intends to ensure the informational interests of territorial communities or other groups. Today, there are some initial attempts to introduce such broadcasting, but current legislation does not provide for any features of its registration or licensing. Smart-regulation mechanism is envisaged in the context of social platforms, where the national regulator interacts with such giants as Youtube, Facebook, etc. through memoranda and agreements. The law covers the activities of traditional radio and television, regardless of the delivery technology (linear broadcast), as well as application directories (non-linear services), traditional print and online press, as well as entities providing TV channels packaging and digital broadcasting.

During its development, the bill was coordinated with the experts of the Council of Europe, who pointed out both its strengths and inconsistencies. At the same time, the reaction of the media community varied. Some supported it, while others opposed. The main concerns include the fears that a strong regulator could become repressive, that online press requirements could lead to censorship, while the oligarchic clan did not like the possibility of competition with global players, as well as the risks of severe sanctions for violating the law, and the risk of losing the status quo had existed for decades in the media sphere. The supporters of the bill stress that the regulator cannot be effective without proper tools, and the rules of the game must be balanced for the media, regardless of the delivery platform.

Consideration of the bill in the first reading is scheduled after the 2020 local elections. However, the bill has received strong opposition from various stakeholders, such as media groups oppose having a strong regulator, an online community that feels comfortable without regulation, and media representatives who have an openly pro-Russian vector because they understand the risks of liability. If the bill would be adopted, experts should prepare the clarifications, similarly to how it was carried out in the first two years of operation of the law on access to public information: recommendation, guidelines, and scientific and practical commentary, and foremost - systematic trainings for various stakeholders.

The approved Electoral Code of Ukraine, unfortunately, proved to be rather sterile and did not take into account most initiatives related to media activities during the elections. However, some there still was some progress, and pre-election debates and discussions organized by broadcasters have been identified as election support rather than election campaigning – a matter that NGOs have been trying to address for over 10 years. At the same time, the ban on the media commenting on election programs creates a disproportionate interference with freedom of speech and violates the right of citizens to receive objective information about the candidates.

Prior to the transformation into the Ministry of Culture and Information Policy of Ukraine, the Ministry of Culture, Youth and Sports of Ukraine attempted to draft a law on misinformation. A flurry of criticism led to the complete failure of this initiative. However, the issue of misinformation remains acute and needs to be discussed at the intersection of the media, education and security sectors in order to identify problems, as well as the possible ways to counteract and determine the need for changes in legislation.

In 2020, the Public Broadcaster did not receive full funding, as required by law (0.2% of the state budget expenditures for the previous year – author's note). Despite a formal increase in funding from 50 to 85%, the Public Broadcaster was forced to repay a debt of about UAH 350 million to Euronews on the initiative of Azarov's government. In addition, the financing was reduced for about UAH 200 million due to the budget cuts. Broadcaster, experts and international institutions in the field of freedom of expression should continue the dialogue with the responsible authorities and strengthen the advocacy of the more protected National Public Broadcasting Company of Ukraine (UA:PBS) funding model.

The state also aims to provide informational coverage of the occupied territories. In particular, in May 2020, amendments to the law on foreign broadcasting legitimized the launch of the TV channel House (“Dim/Dom”), directed at the occupied territories. The main purpose of the channel is to convey the Ukrainian agenda to the Ukrainian citizens living under occupation. At the same time, Ukrainian broadcasting is facing significant opposition from Russia, in particular through a system of direct or covert jamming and the launch of more powerful transmitters, which block Ukrainian stations with their signal, even on the controlled territories.

An important milestone in the activities of the Public Broadcaster is the election of a new Supervisory Board, which will take place during September 2020 - January 2021. The activities of the future board and the protection of the independence of all public broadcasting depends on the quality of its elected members.