Digital Civil Rights in Europe

Article published in the EDRi-gram 5.24

A public workshop held in Ukraine on 12 December 2007 was aimed to discuss the issues regarding the regulation of the new online media. The workshop was organised by Internews Ukraine together with the Council of Europe and the National Commission on Freedom of Speech and Development of the Information Sphere under the President of Ukraine.

Besides the Ukrainian participants – from online and offline media – from Kiev and other important cities in Ukraine, the Council of Europe invited two experts – Thomas Schneider, Chairman of the Council of Europe Group of Specialists on Human Rights in the Information Society and Bogdan Manolea from EDRi as observer in the same Group mentioned above.

The present law on media in Ukraine requires the offline media to register with a special office within the Ministry of Justice in order to be recognised as a journalist and have access to press conferences and have other rights, such as the protection of sources used in their journalistic activities. Although from the Ukrainian participants’ interventions this process resulted to be more a notification than a registration, the main question of the seminar was whether the online media should be the subject of the same rules.

The two Ukrainian speakers that were supposed to speak pro and against the regulation of the online media (Mr. Roman Skrypin , Media director, “RBK-Ukraine” independent Ukrainian information agency and Ms. Tetyana Popova, Board Chairman, The Ukrainian Internet Association respectively) reached similar conclusions – that a general obligation of the registration of online media is not possible and therefore such an obligation can’t be put in the legislation. But they both agreed that a voluntary registration should be possible for any online media. Mr.Skrypin was even more trenchant in declaring that in order to be called online media, one should register with the Ministry of Justice, thus having the same rights and obligations as the other professional journalists. He also added that blogs of other websites can still exist with no problem, but they wouldn’t be trusted as the other registered media. Ms. Popova also explained that three years ago the Ukrainian authorities were looking into regulating the Internet as much as possible, but now the situation has changed.

Mr.Manolea intervened in pointing out that the discussion should also consider whether the mandatory registration with a state institution for offline media can be considered legal, especially under art.10 of the European Convention of Human Rights. He also asked for some clarifications regarding the advantages of registering as an online media with the Ukrainian authorities. From the later-on discussions, no specific advantages arose and the fact that almost all of the online media representatives at the seminar were not registered proved that the registration as such is doubtfully useful in any case. In fact, it appears that some of the online media representatives present saw the registration as a potential problem, since they could have been more easily dragged into defamation law-suits by the local oligarchs.

Thomas Schneider’s presentation focused on the definition of media and media regulation, as seen through the standards developed by the Council of Europe (CoE). He also underlined that “Any requirement to register online media may qualify as a prior restraint on freedom of expression that may contravene Art 10”, presenting the ECHR decision in the case Gaweda vs. Poland on registration requirements for print media. Also he discussed the CoE experience in trying to identify what is online media and the difficulty to find a comprehensive definition in this respect.

He emphasised that there should be no stricter regulation for online media than for offline media, according to the CoE Declaration on freedom of communication on the Internet from 2003 “Member states should not subject content on the Internet to restrictions which go further than those applied to other means of content delivery.” But there could be an obligation to publish information of editorial responsibility and possibilities of contact (“Impressum”). However a distinction should be made between professional and individual websites and between those of relevance for public opinion shaping and others, respecting though the principle of secrecy of source of information.

Pavlo Moiseev, Chief of Law Service from Internews Ukraine explained the legal details of the online media regulation, starting with the freedom of expression principle in the Ukraine’s Constitution and the fact that the present laws do not foresee an obligatory registration for online media.

Bogdan Manolea entitled his presentation “The limits of freedom of speech and the no-limits of the Internet” and he presented the European legislation on the limits to the freedom of speech, but also the practical problems the states face when they try to enforce these rules on the Internet content. The speech concentrated on the specific cases – most of them already reported in the EDRI-gram – that prove the Internet content faces tremendous difficulties to regulate, although if there are some national regulations on online content that may be considered illegal, harmful or infringing third parties’ rights. He also explained by practical cases that any solution of filtering by governments can’t be efficient and creates more problems than it solves.Therefore as a practical recommendation before taking into consideration any kind of regulation regarding the Internet content should look if the specific norms will not endanger the freedom of expression, if they can be realistically implemented and if the result will not be just to move the content unde the jusrisdiction of other countries, but still online.

There was a lot of discussion about whether and how online media could and should be sued by the government or private persons for content that was not true or harmful in some way. In that respect, Thomas Schneider argued that, although there should be clear legal procedures about how to sue media that abuse their freedom of expression, going to court should in a democratic society only be the very last remedy. Sometimes, he said, things can be viewed from different angles and there might not be only one single truth. So people who do not agree with some media statement should make use of their right to reply and other ways to assure the diversity of opinions on an issue, before going to court too often.

In its closing statement, Andriy Kulakov, Director of Internews Ukraine summarised some of the key aspects of the seminar including that the registration of the online media is not obligatory in Ukraine and that the online media should look more into self-regulation, like the off-line media. He also concluded that the most efficient way forward in talking about Internet content is to use awareness raising and educational programs.

Bogdan Manolea – The limits of freedom of speech and the no-limits of the Internet (12.12.2007)

Thomas Schneider – Regulation of online media:europe’s experience (12.12.2007)

Seminar Regulation of on-line media: boundaries of freedom and willfulness (only in Ukrainian, 14.12.2007)

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