October 26, 2011
On 18 October 2011 Verhovna Rada of Ukraine (the Ukrainian Parliament) adopted in the first hearing a law amending the “Law on the Protection of Public Morality” (project No. 7132). The goal of the amendments is the “protection of public morality and the regulation of the distribution, production of audiovisual materials which may have a negative impact on physical, intellectual, moral and psychological development of a human being” (from the preamble to the law).
Many provision in the law are questionable in the light of international standards for the protection of freedom of expression. The law expands the role of the National Commission on the Protection of Public Morality (NCPPM), which received competences to control audiovisual materials.
NCPPM will be able to control radio, television and the Internet content. The NCPPM received competences to block the distribution of material which endangers “public morals, has a sexual or erotic character and includes elements of violence and brutality”. The law attempts to define the elements justifying NCPPM intervention, however the definitions proposed are very broad. The NCPPM has no competences when it comes to “audiovisual materials of a sexual character, which have a medical, educational, scientific and historical purpose”, however, NCPPM may use its competences in relation to artistic (e.g. modern art paintings), politic and social expressions (e.g. coverage of a mass protest).
The NCPPM will be able to conduct controls and prepare evaluations at every stage of production and distribution. In case of a negative result of the control, NCPPM will be obliged to inform government and local administration authorities about the non-compliance with public morality standards. Moreover, the Commission will have to inform investigation authorities, e.g. the prosecutor, police etc. On the basis of the NCPPM decision the authorities will be able to commence criminal, administrative and civil proceedings. The law on administrative proceedings is also being amended. The possibility to impose a fine for a breach of moral standards has been introduced (the fine will be proportionate to the person’s income).
Moreover, the law imposes the obligation on internet providers to block within 24 hours, access to web pages, which according to the NCPPM are violating moral standards, e.g. have an “erotic character”.
NCPPM received competences to collect materials on the evolution of morality of the Ukrainian society. The assessment of the public morality will be included in the “General Register of Data on Public Morality”.
The lack of precise definitions, as well as the wide margin of appreciation granted to the officials working with the NCPPM may lead to censorship. In the light of article 10 of the European Convention of Human Rights and article 19 of the International Covenant on Civil and Political Rights, the lack of court control over the NCPPM’s decisions should be a serious cause of concern.
The introduction of the Hungarian media law at the end of 2010 was widely criticized in Europe. Both the EU and the OSCE appealed to the Hungarian authorities to comply with democratic standards. The possibility to censor audiovisual materials due to “public morality” reasons, seems equally disturbing, especially when it is introduced in a country which is on the way of signing an association agreement with the EU. Let us recall that Point (iii) chapter 2 of the EU-Ukraine Association Agenda from November 2009 focuses on the need for Ukraine to “promote the legal and administrative framework necessary for the enjoyment of freedom of expression with a particular emphasis upon the mass media and the rights of journalists”.
Lenur Kerymov, expert of the Helsinki Foundation for Human Rights and Dominika Bychawska-Siniarska, “Europe of Human Rights”Author : Europe of Human Rights