What is happening?

On January 20, 2020, the Ministry of Culture, Youth and Sport of Ukraine presented for public discussion the draft comparative table to the draft Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Ensuring National Information Security and the Right to Access Reliable Information”.

What is the situation now?

On November 8, 2019, President of Ukraine Volodymyr Zelensky in his Decree No. 837/2019 “On Urgent Measures for reforming and Strengthening the State” with the aim of “ensuring the further implementation of structural economic reforms, introducing additional mechanisms to accelerate the socio-economic development of Ukraine, improving welfare of the population, harmonious development of regions, continuous implementation of European standards of living, strengthening of the state” decreed the Cabinet of Ministers to take measures in the sphere of culture, youth, sports, and information policy on drafting and submitting to the Verkhovna Rada of Ukraine draft laws on “regulating the activity of the media in Ukraine, including, in particular, provisions on the requirements and standards of news, mechanisms for preventing the dissemination of inaccurate, distorted information, its refutation,…, and providing for increased responsibility for breach of information law.”

Currently, the regulation of the media in Ukraine does not envisage the proposed provisions and mechanisms. However, as of January 1, 2020, amendments to the legislation on the whistleblowers of corruption, defined by the President as urgent and which TI Ukraine analyzed earlier, came into effect.

Deputy Minister Anatoliy Maksymchuk in a comment for Radio Svoboda explained that the finalized draft is to be submitted to parliament for consideration by the end of February, and the Ministry of Culture, Youth and Sport does not consider refusing it.

What is suggested? Commentary

According to the ministry, the draft law is intended to ensure the exercise of the right of citizens to access reliable and balanced information through the introduction of mechanisms to combat disinformation in the information field of Ukraine and increase the level of media literacy of the population in the conditions of hybrid aggression of the Russian Federation.

The following new terms are introduced in the draft law:

1) “media disseminator – a natural or legal person, including a media entity that creates and/or collects and distributes mass media”;

2) “mass mediaany information that is accessible to an unlimited or indefinite number of persons or which can be accessed by any person from any place and at any time of their own choosing, including with the consent or permission of the disseminator of such information”

3) “false information – false information about persons, facts, events, phenomena which did not exist at all or that did exist, but information about them is incomplete or distorted”;

4) “disinformationunreliable information on issues of public interest, in particular concerning national security,…” (in accordance with the current Decree of the President of Ukraine “On the Decision of the National Security and Defense Council of May 6, 2015 ‘On the National Security Strategy of Ukraine”, corruption and inefficient public administration are among the topical threats to Ukraine’s national security (paragraph 3.3).

The draft law involves a number of risks for whistleblowers:

  • the risk of revealing the identity of the whistleblower to the person he/she exposes
  • the risk of accusing the whistleblower of disseminating disinformation or unreliable information via external channels, with a considerable fine for incomplete information, in the credibility of which the whistleblower is reasonably confident;
  • increased risk of collision of the whistleblower with a lawsuit from the body whose officials he/she reveals;
  • the risk of demand for public disclosure of the whistleblower’s public information and breach of anonymity and confidentiality;
  • the broad powers of the proposed Information Commissioner.

Article 22 (6) of the draft law provides that the verification of the authenticity of information of public interest, in particular concerning national security, territorial integrity, sovereignty, defense capacity of Ukraine, the right of the Ukrainian people to self-determination, life and health of citizens, and the state of the environment, before its mass dissemination, includes verification of its truthfulness from the information owner, establishing an official source of information, and absence of statements on the Commissioner’s website regarding disinformation. Such a requirement may reveal when verifying the truthfulness of the information owner (although the law does not determine who is the owner) the identity of the whistleblower to the person he/she reveals.

Although the term “whistleblower” is not explicitly mentioned in the draft law, it may fall under the definition of “media disseminator” under certain conditions. Such a provision may be detrimental to the whistleblowers, who, through external channels, will disclose information about possible corruption or corruption-related offenses, other violations of the Law on Corruption Prevention, i.e. through individuals or legal entities, including through the media, journalists, civic associations, trade unions and more. Since according to Art. 53-2 of the Law of Ukraine “On Corruption Prevention”, the whistleblower independently determines which channels he/she uses for communication: internal, regular or external channels.

The requirement for the whistleblower is first and foremost the strong belief that the information provided is truthful. At the same time, there is no requirement for this information to be exclusively complete in the whole situation, as the whistleblower may not have the proper knowledge and access to provide 100% exhaustive information.

The information should only contain factual data confirming the possible corruption or corruption-related offense or other violations of this Law that can be verified. This is the task of the relevant bodies, including the search for additional facts, persons, events, phenomena for completeness of the situation. If the information disseminated by the whistleblower via external channels is found to be incomplete in the course of the investigation by the relevant bodies, it will be automatically deemed unreliable under this draft law.

Article 21-1 of the draft prohibits the dissemination of disinformation and other unreliable information, and it is the duty of public bodies, local self-government, state and communal enterprises, institutions and organizations to ensure continuous monitoring of the disseminated information concerning such body, enterprise, institution. and the organization and its officials. Based on the results of this monitoring, these bodies should take immediate action to respond to or refute inaccurate disseminated information involving them, including to the court. And if in the course of proceedings against a claim by a natural or legal person to refute inaccurate information about such a person which has been disseminated in a mass manner, the court shall establish the inaccuracy of information about such a person, the court makes a decision on imposing a fine of ten to one hundred minimum wages on the disseminator (s) of the mass media for each violation. Therefore, not only can the whistleblower be sued by the body whose officials he/she is exposing, but also in the event of losing a case or incomplete information, he/she will also have to pay a considerable fine of UAH 47,230 to 472,300.

Another drawback of the draft law is the requirement for non-media media disseminators to place in a location accessible to the recipients of information and to immediately update their identification information, such as the first name and last name of the individual, e-mail address or other electronic communications. Such a requirement is contrary to the provided by the Art. 53-1 of the Law “On Corruption Prevention” state guarantees of encouragement and provision of conditions for reporting information, in particular by appealing to the mass media and journalists, and the right of the whistleblower to the privacy and anonymity enshrined in Art. 53-5 of the Law “On Corruption Prevention”.

This article prohibits the disclosure of information about the identity of the whistleblower, his close persons or other data that may disclose the identity of the whistleblower or his close persons to the third parties who are not involved in the consideration, verification and/or investigation of the facts reported by him/her, as well as to the persons, whose actions or inaction are related to the facts reported by him/her. Third parties may also be those information recipients who will have access to the identity of the media disseminator. In fact, the proposed provision eliminates any possibility of reporting corruption anonymously by external channels (even if the requirements for an anonymous reporting are met – they are subject to review if the information it contains pertains to a certain individual, contains factual data that can be verified).

Equally threatening to the anonymity and confidentiality of the whistleblower is the broad powers of the proposed Information Commissioner. According to the draft law, he/she will have the right to contact the relevant persons to establish the identity of the disseminators of information who are not subjects in the media sphere; to apply to the court with claims for recognition of the relevant information as disinformation, on the response or denial of disinformation, on the obligation of the disseminator of the mass media to meet the requirements of this Law, to apply to foreign enterprises, institutions and organizations, international organizations, foreign courts and other bodies of state power for the purpose of identifying media disseminators. Failure to reply to the Commissioner’s statement or request within the time limit set by this Law will entail a fine of five minimum wages for each violation.

Thus, the proposed draft law partially eliminates the rights and safeguards of defending whistleblowers by imposing excessive requirements on disseminators of media information that may also include whistleblowers, including the mandatory public disclosure of the identity of the whistleblower when communicated by external channels. Moreover, it violates Article 22 of the Constitution of Ukraine, which does not allow the content and scope of available rights and freedoms to be narrowed down when enacting new laws or amending existing laws.

Legal analysis prepared by legal advisor of TI Ukraine Oleksandr Kalitenko