Censorship or protection: mandatory moderation of comments in the media

16 January 19:59
ANALYSIS FROM Komersant ukrainskyi

Recently, the Verkhovna Rada supported the draft law No. 11321 “On Amendments to Certain Laws of Ukraine on Strengthening Certain Guarantees of Media, Journalists and Citizens’ Access to Information”. Some of the amendments to the law “On Media” caused a stir, including the mandatory removal of readers’ comments if they are offensive to the government and beyond. What revolutionary innovations are waiting for Ukrainian online media?

Deleting comments avoids court

The press was outraged by the provision that, if signed into law by the president, the Law of Ukraine “On Media” will include a provision that provides for a three-day period for deleting comments. During this time, the media outlet is released from liability after receiving a complaint or an order from the National Council, or after receiving a court order to open proceedings.

Yaroslav Yurchyshyn, chairman of the Committee on Freedom of Speech and author of the draft law, said that the information circulating in the media that the draft law allegedly restricts freedom of speech and introduces punishment for media outlets that do not remove a reader’s negative comment about officials is untrue. On the contrary, he said, the draft law strengthens the protection of the media. He claims that “no one will oblige the media to remove critical comments, like any other, without legal grounds for doing so.”

According to the Media Law, media outlets can file a complaint with the National Council or go to court for spreading false information if an account leaves a comment under their material. Going to court is time-consuming, expensive, and a risk to the media’s reputation. And after the bill is passed, in the event of court proceedings, the media will have a choice:

“The media outlet can decide what to do with the commentary affected by this decision. The media can either delete such a comment within three days of receiving information from the court and not be held liable for it, or, sharing the position of the commentator, leave the comment and defend its position in court,” Yurchyshyn said.

Censorship for readers

The Institute of Mass Information (IMI) also supported Yurchyshyn, who was attacked by critics. They emphasized that draft law No. 11321 does not create new obligations for the media to remove readers’ comments. It only clarifies an existing provision of the Law “On Media”.

As IMI noted, the rule on media liability for third-party comments on their resources has been in place for a long time (in Ukraine, at least since 2009) and has been shaped by case law, in particular by the European Court of Human Rights.

In short, media outlets and owners of public pages are obliged to promptly remove reader comments that may offend people, be defamatory or violate the law, in order to avoid being sued or summoned for questioning by an investigator.

As for false information, it is really important that this information does not offend the honor and dignity of a particular person – any citizen of Ukraine, not just an official. Thus, the provision of Article 117 of the Media Law and the amendments to it introduced by Draft Law No. 11321 create an additional guarantee of protection of the media from litigation for the actions of third parties. This article and the draft law do not introduce censorship or prohibitions, they detail exceptions to the existing obligation to filter and moderate media content, which essentially includes reader comments, in order to avoid violations of the law or insults to the honor and dignity of individuals, IMI assures.

Additional pressure on the media

As it turned out, the former head of Yanukovych’s presidential administration, Andriy Portnov, contributed to the emergence of this bill. And all because, according to Yurchyshyn, he “consistently files lawsuits to protect his ‘honor and dignity'”. It is he who the MP accuses of manipulation.

“It is much easier for him to work with the courts than with the National Council. Therefore, I would not be surprised if Portnov’s name is somehow involved in the channels of distribution of this manipulation,” Yurchyshyn said.

Few people remember or followed this lawsuit, so let us remind you that in September 2020, Portnov filed a lawsuit for the protection of his honor and business reputation against the journalist of Skhemy and a number of media outlets: NV, Hromadske, Pryamyy Kanal, Channel 5 and others for spreading “false” information about him. In October 2019, Portnov published on his Telegram channel the personal data of Borys Mazur, the driver of the Schemes program. When Mazur’s car was set on fire, journalists accused Portnov of involvement in the crime. The court ordered the media outlets to refute the false information after the decision came into force.

According to the lawyers, while previously a court decision was required to resolve the issue of protecting honor, dignity and business reputation, under this draft law, it is enough to file a lawsuit. And without waiting for the court’s conclusions, which examines the evidence and, in case of violation by the media, renders a verdict, remove the unwanted comment within three days.

“In fact, this is additional pressure on the media. After all, you can simply threaten to go to court. Without proof of guilt, the media will already be considered guilty of writing a comment that offends, say, an official in their subjective opinion,” says lawyer Vasyl Sereda.

Now it remains to be seen whether the president will sign the bill.

Author – Alla Dunina



Мандровська Олександра
Editor