Scandalous bill No. 14057 has been registered in the Verkhovna Rada. Media criticized it and stated that it threatens the existence of journalistic investigations. Speaker of the Verkhovna Rada Ruslan Stefanchuk claims that this bill is not about media, but about expanding the personal rights of every person, UNN reports.
Media community criticism of bill No. 14057
Analyzing the bill on amendments to the Civil Code of Ukraine, the media criticized several provisions. In particular, the proposal for automatic recognition of information as unreliable if it is not enshrined in a court verdict, as well as permission to punish for subjective opinion, caused concern.
The media also criticized the proposal to remove any information if it is irrelevant or has lost public interest. Journalists note that the definitions of these two categories are not specified in the draft law.
The Institute of Mass Information stated that this bill poses a risk of censorship and contains excessively strict requirements for the media.
Another very problematic aspect of the bill is the expansion of the right to refutation and the right to reply in the media. This means that any mention of a person in the media implies that this person has the right to reply if, in their opinion, their "personal rights" have been violated in the publication. At the same time, this person may not even be explicitly named - it is enough "that the information allows for the identification of a specific person or that it includes them in the circle of persons to whom the information relates." The right to reply is proposed regardless of the fault of the disseminator and even regardless of the accuracy of the information that affected the personal right.
Speaker of the Verkhovna Rada Stefanchuk, who is one of the authors of the bill, decided to refute the main claims against the bill.
The first caveat that Stefanchuk refutes concerns "journalist's liability without fault."
This is not the case. Refutation is not liability, but a means of protection that does not entail legal sanctions. The current version of Article 277 of the Civil Code already stipulates that "refutation of unreliable information is carried out regardless of the fault of the person who disseminated it." The right to refutation as a means of protection is consistent with the practice of the ECHR (Axel Springer SE v. Germany, 2023; Eigirdas v. Lithuania, 2023)
He notes that, at the same time, Part 13 of Article 277 of the Civil Code in the draft law provides: "Peculiarities of refutation of unreliable information are established by law." In particular, such peculiarities are established by Article 43 of the Law of Ukraine "On Media," which, among other things, provides for cases when a media entity has the right to refuse to disseminate a refutation or a response.
Conclusion: there are no new obligations for the media here
"Prohibition of investigating corruption until a court verdict"
This is not the case. The presumption of innocence is enshrined in the first part of Article 62 of the Constitution of Ukraine. The presumption of innocence is also one of the standards of journalism (paragraph 22 of Resolution 1003(1993) of the Parliamentary Assembly of the Council of Europe on ethical principles of journalism)
According to him, the obligation to observe the presumption of innocence is consistent with the practice of the ECHR ("Du Roy and Malaurie v. France", 2000, "Worm v. Austria", 1997).
At the same time, observing the presumption of innocence in no way "makes it impossible to investigate corruption before a court verdict"; it only means that a person should not be called guilty until their guilt is legally proven and established by a court's guilty verdict ("Butkevičius v. Lithuania", 2002; "Gutsanovi v. Bulgaria", 2013)".
Conclusion: the bill does not restrict journalistic investigations and fully complies with the Constitution of Ukraine
"Courts will be able to prohibit the dissemination of information before its publication, block websites, and seize print runs"
Stefanchuk emphasizes that this statement is also untrue. According to him, the relevant article has existed in the Civil Code for 23 years.
The proposed changes only clarify modern channels of information dissemination (websites, social media pages, messenger channels, video hosting sites, other web resources). At the same time, the list of such methods of information dissemination in the current version of the Civil Code is not exhaustive. An example of an ECHR decision, which found no violation of the European Convention on Human Rights in the application of Article 278 of the Civil Code ("Anatoliy Yeremenko v. Ukraine", 2022). Conclusion: the bill in this part does not provide for new or additional restrictions on freedom of speech, including regarding journalistic investigations and the publication of their results
"The right to reply, regardless of the accuracy of the information. This allegedly means that even truthful investigations will be obliged to publish an alternative version of the persons involved"
This is a misconception. The right to reply already exists (in the current version of Article 277 of the Civil Code and Article 43 of the Law of Ukraine "On Media"). This is not a "refutation," but merely the right to express one's own point of view. The right to reply as a means of protection is consistent with the practice of the ECHR ("Ediciones Tiempo v. Spain", 1989, Melnychuk v. Ukraine" (dec.), 2005). At the same time, the right to reply is also subject to the limitations provided for in Article 10 of the Convention
In conclusion, he notes that the bill does not create risks for journalists.
"The bill allegedly provides for the right to reconciliation, apology, which can be considered an additional tool of pressure on journalists"
Stefanchuk also refutes this statement and explains that Article 277-2 "Right to Reconciliation" of the Civil Code in the draft law proposes to provide for the right of a person who has violated the personal rights of another person as a result of disseminating unreliable information to make an offer of reconciliation.
It is not about "forced apology," but about the initiative of the person who disseminated unreliable information. Conclusion: no new risks for freedom of speech and journalistic activities are foreseen
"The right to be forgotten, if applied without balancing with public interest – possible removal of important journalistic materials"
This is not true. Article 302-2 of the Civil Code in the draft law proposes to enshrine the "right to be forgotten" in civil law. The need to enshrine the right to be forgotten in national legislation is due to Ukraine's European integration obligations. Such a right is provided for by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) - Article 17 "Right to erasure ('right to be forgotten')"
Stefanchuk notes that the right to be forgotten is recognized and protected in accordance with the practice of the ECHR (("Węgrzynowski and Smolczewski v. Poland", 2013; "M.L. and W.W. v. Germany", 2018, "Biancardi v. Italy", 2021; "Mediengruppe Österreich GmbH v. Austria", 2022; "Hurbain v. Belgium" [GC], 2023).
Article 302-2 of the Civil Code in the draft law provides for the need to ensure a balance between the right to be forgotten and the right to freedom of thought and speech and the free expression of one's views and beliefs (part three of this article). This article should be applied in a systemic interpretation with Article 29 "Dissemination of socially necessary information" of the Law of Ukraine "On Information", which provides that "Information with restricted access may be disseminated if it is socially necessary, i.e., it is a matter of public interest, and the public's right to know this information outweighs the potential harm from its dissemination."
Conclusion: the bill in this part provides for a new right of an individual – the "right to be forgotten", which is due to Ukraine's European integration obligations. At the same time, the bill provides for the conditions for exercising such a right (part two) and cases when such a right does not apply (part three). In a systemic interpretation with Article 29 of the Law of Ukraine "On Information", the exercise of the right to be forgotten is conditioned by the need to establish a balance with the public's right to know socially necessary information that is a matter of public interest
"Now, an evaluative judgment expressed in a form that humiliates dignity, honor, reputation, may impose an obligation on the person who disseminated it to compensate for moral damage"
This is not entirely true. Such an obligation has existed for 23 years (Articles 23 and 280 of the Civil Code, the Law "On Information"). The ECHR recognizes this practice (Błaja News v. Poland, Timpul Info-Magazin v. Moldova). Conclusion: the bill in this part does not provide for imposing new obligations or additional responsibility on the media, compared to current legislation
In addition, the Speaker of the Verkhovna Rada proposed to hold a meeting with journalists and representatives of civil society specializing in media law issues in early October to discuss all aspects of this bill and jointly find balanced and effective solutions.
After all, the main goal of the bill is to create a modern system for protecting human and citizen rights, the affirmation and provision of which is the main duty of the state (Article 3 of the Constitution of Ukraine)
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What other changes does the bill propose regarding the protection of human rights
In particular, the bill proposes:
- the right to informational peace, which enshrines the right of an individual not to participate in work communications (calls, letters, messages) during non-working hours, which is a response to the blurring of boundaries between work and personal life in conditions of remote employment and protects the right to rest;
- prohibition of satisfying an individual's request to end their life, including all types of euthanasia, assisted suicide measures;
- physical punishment of minors, underage children, and wards by parents (adoptive parents), guardians, trustees, other legal representatives, educators, as well as any other persons is not allowed;
- in the event of cruel or degrading treatment of an individual by another individual who is in a helpless state, measures established by this Code and/or other law shall apply;
- an individual who defended the independence, sovereignty, and territorial integrity of Ukraine, ensured the performance of official duties and an oath of allegiance to the Ukrainian people, after their death (demise) may be buried at the National Military Memorial Cemetery with military honors on the grounds and in the manner determined by law;
- the use of direct mental influence methods (hypnotic therapy, administration of psychotropic substances carried out outside medical practice or in violation of established clinical protocols, etc.), hidden mental influence technologies (use of "25th frame" technology, subliminal audiovisual stimuli, ultrasound, infrasound, binaural beats, etc.), conducting medical, scientific, and other research, experiments, procedures related to neuromonitoring, neurostimulation, or instrumental diagnostics of a person's psychophysiological state, as well as any other method of medical, mental, psychological, psychophysiological, emotional, spiritual, and other intervention in an individual's psyche may be carried out only with their informed written consent or in cases and in the manner determined by law. An individual may at any time refuse any of the interventions in their psyche specified in the first paragraph of this part, including after its commencement, and demand that such intervention be stopped;
- an individual has the right to protection from the behavior of another person that causes psychological violence, emotional pressure, manipulation of consciousness, or other forms of interference with mental health.
This protection also extends to the digital environment, information technologies, etc.;
- an individual may give informed written consent to the donation of their organs and other anatomical materials in the event of their death or prohibit it;
- an individual whose name is illegally used by other persons has the right to demand the cessation of such use, as well as compensation for the damage caused to them;
- the use of an individual's image, voice is allowed only with their informed consent, unless otherwise provided by law.