Legal Analysis of the Draft Information Security Concept of Ukraine (July 2015)

I. Summary

The aim of the Information Security Concept (the Concept) is to create preconditions for developing Ukraine’s information potential to ensure growth and avoid negative external influences. For this purpose measures are suggested that involve different stakeholders. The Concept is unsurprisingly influenced by what is recognized in the national law as the war and the external aggression and it appears as if the main aim is to prevent propaganda targeted at the country from abroad. Although the desire to take action against propaganda is well understood and legitimate, the adoption and implementation of new rules is nevertheless problematic. This is due to the difficulty in defining propaganda and the risk with setting out limitations on content in law or regulation, rather than assessing it ad hoc based on general rules (like prohibition of incitement). Consequently the report highlights a number of problems with the Concept, where its content could lead to undue limitations on freedom of expression. Furthermore, the legal nature of the Concept and its relationship with law and regulation is unclear.

The Concept is evaluated based on international standards and OSCE commitments. Freedom of expression is not an absolute right, but limitations must be carefully made given the importance of the right—not just as a basic right but also as a prerequisite for exercising other human rights and fundamental freedoms. Proportionality and necessity of any limitations to free speech are essential.

In the article by article analysis concerns are pointed out and explained in detail. Several terms are potentially ambiguous and not suitable in a normative document. The fact that the nature of the document is not clear adds to the possible complications. In some definitions, the aim of the Concept to protect Ukrainian interests has led to definitions that are not neutral (like information sovereignty or information aggression). In the list of fundamental principles, rule of law and protection of human rights and freedoms are prominent. This is important, as these principles should play an important role for interpretation of the Concept. Having this in mind means that the possible restrictions set out elsewhere must be seen through the prism of freedom of expression and thus not be disproportional. Even so, it is not good to build in complicated interpretation issues in the legal text and potentially ambiguous terms should be avoided. This includes how the following is set out: protection of information sovereignty, national sovereignty, constitutional order and territorial integrity of Ukraine; construction of Ukrainian identity in the information space, such identity being an integral part of politico-social discourse; and promoting development of the content in the information space to safeguard and protect universal human values, as well as intellectual, spiritual and cultural potential of Ukrainian people. The content of the principles is legitimate but their strong emphasis on national identity indicate that they may be interpreted to limit foreign content or foreign or minority subjects in Ukrainian media as well as to prescribe a certain interpretation of what is Ukrainian identity. Provisions banning discrediting authorities are worrying as this could have a chilling effect and restrict the possibility of media to exercise its watchdog role.

The only way to maintain real freedom of expression is to stay on the moral high-ground of not doing the same as those one wants to oppose. By setting out to defend Ukrainian interests there is a danger that legitimate discussions in media (for example about what Ukrainian identity is), pluralistic Ukrainian voices (including those of national minorities) and relevant international content are blocked. Creating media content should not be a state task. A pluralistic and free media market shall cater for content, with public service media complementing private media and in addition access to international media. Even in times of crisis, proportionality and necessity of restrictions to freedom of expression are essential. There is an impression that the legislator wants to provide the courts and other implementing authorities with a tool to defend limitations. To avoid such a perception it is recommended not to introduce new provisions. Existing human rights and freedoms allow for some limitations and it is better to emphasize the proper and proportional application of these.

The National Security and Defence Council has a major role and wide mandate, including drafting law and exercising control over other organs. It is not clear how this relates to the role of other existing authorities. The provisions on non-governmental monitoring and public-private partnership for implementation, including special expert councils, are unclear on how the real independence of the bodies is to be ensured.

Quelle: Office of the OSCE Representative on Freedom of the Media, <http://www.osce.org/fom/173776?download=true>