by Oleg Soldatov

Context

Internet is playing an important role during inter-state conflicts both as a propaganda tool and as an alternative source of information for those who choose not to follow the points of view prevalent in traditional media.

The Office of the Prosecutor of the International Criminal Court in its preliminary examination of the situation in Ukraine concluded that “the information available suggests that the situation within the territory of Crimea and Sevastopol amounts to an international armed conflict between Ukraine and the Russian Federation”. The Russian aggression in Ukraine (a term, coined by the Council of Europe), naturally, has implications for freedom of speech in both countries. The present piece focuses on the Ukrainian side of the equation.

On May 15, 2017, Ukrainian President Petro Poroshenko issued the Presidential Decree 133/2017 , which imposes sanctions on 1228 individuals and 468 legal entities based in Russia, the occupied Crimea, and the territories of Donetsk and Luhansk regions, over which the Ukrainian government does not exercise effective control. Among the entities affected are some of the largest Russian-owned Internet companies, including the owners (and their local subsidiaries) of the Yandex search engine as well as the Mail.ru, Vkontakte and Odnoklassniki social networks. Recent estimates based on Alexa rankings place these websites in the top ten most popular websites in Ukraine. Some lesser-known IT companies, such as Kaspersky Lab (known for their antivirus and network security solutions) and 1C (known for their accounting software) are also included in the list of entities under economic sanctions.

According to the Decree, the Ukrainian internet service providers will be required to block access to the above mentioned Russian web-platforms for a period of three years, the assets of their owners in Ukraine would be blocked and the intellectual property transfer to/from the relevant entities would be prohibited. This legislation can be examined from two different perspectives: that of national security and that of freedom of expression. Some think that Ukrainian authorities are frank and sincere fighters against the Russian propaganda machine, while others believe that the Decree was enacted with the aim of reducing freedom of expression in the country, fortifying the positions of the pro-Presidential elites and stifling the voice of the opposition. Since the ban, the Ukrainian civil society has attempted taking several avenues with a view of getting the decree either quashed or annulled. The justifications expressed by the Ukrainian authorities and the courts so far shed some light on the roots of the ban, although the most important legal battles around this legislation are still to be played out. The evolution of the arguments employed over the last three months is also rather interesting.

The Official Line of Reasoning

Initially, in April 2017, the Cabinet of Ministers’ submission to the President justified its proposal to impose the sanctions in question under the general formula “the lasting aggression of the Russian Federation against Ukraine.”

The first legal test * came on June 14, 2017, when the Higher Administrative Court of Ukraine refused to quash the impugned Presidential decree. In particular, the Court reasoned that the plaintiff, a Ukrainian citizen, did not have legal standing to bring the action concerning the decree, as the imposed sanctions had not concerned him directly. At the same time, the Higher Administrative Court, in a rather detailed manner, pointed out the differences between the present situation in Ukraine and the 2009 situation with the Google Sites in Turkey, considered by the European Court of Human rights in its famous Ahmet Yildirim v. Turkey judgment . This might be an indication that the Ukrainian legal community, including the judges of the high-level national court, does not rule out a possibility that it would eventually be necessary to defend the ban’s proportionality before the Strasbourg Court.

An online petition on the website of the President of Ukraine, calling for the annulment of the decree was answered by the President on June 29, 2017. The President’s main arguments revolved around the allegations that the websites under consideration share the personal data and correspondence of their Ukrainian clients with the Russian security services. To support his line of thinking, the President pointed out that by using the websites in question, the Ukrainians agree with their Terms and Conditions of Service, which, in turn, allow the transfer of users’ personal data to third parties. He further provides examples of social network users acting from Russian IP-addresses stirring up anti-governmental protests in Ukraine.

On July 17, the Government of Ukraine also issued an official reply to a “level 2 media freedom alert” on the “Platform to promote the protection of journalism and safety of journalists ”, managed by the Council of Europe. The main thrust of the reply was similar to that of the President’s statement of June 29, accusing Russia of leading a “hybrid” war against Ukraine; moreover, the Russian Law "On Countering Terrorism" and the Russian Code of Criminal Procedure were specifically mentioned as legal bases under which the Russian intelligence agencies stored and used personal data of Ukrainian citizens stored on servers located in the territory of the Russian Federation.

Roman Holovenko, Deputy Executive Director on Legal Issues of the Institute of Mass Information , interviewed by the author of this article, describes the situation as follows: “The Decree and the documents it is based on are lacking motivation –typical for individual legal acts passed by Ukrainian governmental bodies – which makes them hardly consistent with the rule of law. Another legal problem is the absence of any precise legislative regulation of web sites and Internet content in Ukraine. I would examine the ban on social media and news web sites separately because the social media are not producing their own content and their ban is not an act of censorship, rather a violation of privacy rights of the users due to absence of transitional period for their data copying/transfer (that is, the users did not have enough time to back up their social network profiles). Traditional media like newspapers or TV in Ukraine need a court decision to be shut down. However, news web sites do not have the status of media, the legal regulation of which contains certain guarantees.”

Future Tests

It should be pointed out that currently the constitutionality of the Decree is being considered by the Constitutional Court of Ukraine, which did not declare the petition to consider the case prima facie inadmissible. The grounds for examination are rooted in several articles of the Ukrainian Constitution , namely, Article 15, which prohibits censorship; Article 34, which guarantees the right to freedom of thought and speech to everyone; and Article 41, which protects private property. According to the Constitutional Court’s Rules of Procedure, in absence of any extraordinary events, the examination should be finished by mid-September 2017.

Roman Holovenko continues: “I suppose, the Constitutional Court of Ukraine will not pass its decision until the end of 2017 or even mid-2018. The Russo-Ukrainian conflict clearly tends to be long term and the ban may be prolonged and/or the Presidential Decree may be amended. The precedent is quite unique and complex; its different aspects should be analyzed separately but in the context of Russo-Ukrainian relations.”

Finally, in addition to the Higher Administrative Court, local commentators also refer to the likelihood of future examination of the proportionality of the block by the European Court of Human Rights (ECtHR). It is going to be an extremely interesting legal exercise, although - given that the ECtHR’s docket is overwhelmed - any examination will, most probably, take place after the initial three-year term of the block will have expired. At present, it is unclear whether the justifications for the ban, provided by the Ukrainian authorities would withstand the scrutiny of the ECtHR, which has a rather limited case-law concerning the Internet as of today.

In the meanwhile, Russian IT companies already started their exodus from Ukraine (although some hope that VPNs may solve the access problems), and only time will show whether their fears about the (im)possibility to keep their businesses running in Ukraine are misguided. One may only hope that Ukraine will not follow in the steps of Russia, its Eastern neighbor, and will not proliferate the questionable policies of blanket-banning websites in the future.

* This hyperlink can only be accessed from Ukraine. Otherwise, you can refer to this article. 

** Oleg Soldatov is a PhD researcher at Bocconi University in Milan, Italy and a visiting researcher at the University of São Paulo, Brazil. He worked as a lawyer at the European Court of Human Rights from 2011 to 2014 and as a legal advisor at the Council of Europe in 2015-2016.

Tags: Access_to_Information Content blocking and filtering Digital_rights Social_media Internet_ownership Online_news_Online_media Media_freedom Media_Law Media_ownership National_security European_Court_of_Human_Rights
Publication Date: 01/08/2017
Research and Editorial Team: Oleg Soldatov