[ANALYSIS] Playing with the Fire of Democracy: Ukraine’s Choice of National Security over Media Pluralism

[ANALYSIS] Playing with the Fire of Democracy: Ukraine’s Choice of National Security over Media Pluralism

Greta Di Mattia
Cover by TNGO illustrator Andrea Ruffoni Semidey.

The presidential decree which unplugged three pro-Russian TV channels overnight on 2 February 2021 was hailed by pro-Western Ukrainians as the first bold move by Ukraine President Volodymir Zelensky to counter Russian propaganda. But, wasn’t it a bold move towards the European Union too? Well, according to a statement by High Representative Josep Borrell, it was indeed, since “the fight against disinformation should not come at the expense of freedom of media”.

Admittedly, freedom of speech is solemnly included in the Charter of Fundamental Rights of the European Union, Article 11, and with Ukraine being the closest partner of the European Neighbourhood Policy since 2014, Zelensky’s crackdown on media pluralism raises some concerns. However, all international conventions protecting freedom of speech establish a few motives based on which a state can restrict such freedom. One of the most popular ones is a pressing, though, historically abused necessity: national security.

It is precisely in the name of national security that the President of Ukraine enacted the National Security and Defence Council decision to impose sanctions on TV channels 112 Ukraine, NewsOne, and ZIKaccused of spreading disinformation supporting the Russian narrative about the internationally condemned annexation of Crimea by Moscow in 2014 and the ongoing war in Donbas.

Ukraine's President Volodymyr Zelensky looks on during a press conference after a meeting with president of the European Council at the European Council in Brussels on June 5.
Volodymyr Zelensky became President of Ukraine in 2019 following a career as a popular comedian. Photo credits: EMMANUEL DUNAND / AFP. Source: Gettyimages.com

These channels had a quite large viewership in Ukraine and were owned by MP Taras Kozak, from the Opposition Platform – For Life Faction. The leader of the party – representing the second-largest faction in the Parliament after Zelesnky’s Servant of the People – is MP Viktor Medvedchuk.

Medvedchuck is a pro-Russian oligarch who is believed to be the true owner of the three media outlets, and who was put under house arrest on May 13 with the accusation of treason and attempted theft of government property in Crimea.

The measures affecting the trio include the prohibition of using radio frequencies in Ukraine, a freeze of the broadcasters’ assets, and a ban on financial operations within the country. What exactly did the journalists say to trigger such drastic measures?

The Pro-Russian Narrative of the Three TV Channels

The anchors working for the three TV channels which have recently been blocked on youtube too, often called the Ukrainian government’s conflict with Russia-backed separatists in the southeastern region of Donbas a “civil war” instead of an international conflict against Russia, said that Crimea’s population overwhelmingly supported their peninsula’s annexation by Moscow in 2014, and called for the restoration of peace and trade with Moscow.

In this excerpt of a talk show hosted by TV channel ZIK and included in a joint statement of Ukrainian NGOs countering disinformation in support of Zelensky’s decision, the speaker says in Russian that back in 2014 Russia did not commit an act of aggression against Ukraine, but undertook a defensive operation instead, on the part of the Russian-speaking population of Crimea who risked being subject to “mass killings” as the ones that happened in Independence Square.

In order to understand the meaning of such statements and why they were deemed to pose an actual threat to the national security of Ukraine, it is necessary to briefly describe the relations between Ukraine and Russia over the last few years.

From the Russian Annexation of Crimea to the Ongoing War in Donbas

The so-called “Ukrainian crisis” began back in November 2013 when a wave of protests known as Euromaidan flooded Independence Square in Kyiv, demanding the resignation of pro-Russian President Viktor Yanukovich after his about-face on longstanding plans to sign an Association Agreement with the European Union.

The Yanukovich government was widely believed to be a conduit for the corrupt power system tying Russian and Ukrainian oligarchs and its plan to pursue closer ties with the Russian-led Customs Union (today’s Eurasian Economic Union) further exacerbated the discontent of pro-European protesters.

Protesters storm the streets of central Kyiv, 8 December 2013. Photo credits: AFP. Source: businessinsider.com

Tensions reached a peak in February 2014, when several people were shot dead (the above-mentioned “mass killings”).

Yanukovich was accused of having ordered the shootings and on February 22 he fled the country, leading the Ukrainian Parliament to approve the impeachment against him and to form a new ad interim government with Oleksandr Turcynov as its Prime Minister.

The new government discussed, but never approved, a law proposal withdrawing the official language status of Russian, whose speakers represent the majority of the population residing in Crimea and the south-eastern region of Donbas.

With the pretext of protecting the Russian-speaking population of Crimea from a discriminatory Ukrainian government and based on an invitation from ousted President Viktor Yanukovich, Russia undertook a military intervention in Crimea on March 1, 2014, and supported the organization of a referendum which, following the Unilateral Declaration of Independence of Crimea on March 11, asked the Crimean population whether they wanted the peninsula to join the territory of the Russian Federation.

The majority of votes cast in the OSCE disapproved poll marked the victory of “yes” and Crimea has thus been de facto annexed to the Russian Federation since March 18, 2014, an event that was widely condemned by the international community triggering the imposition of several sanctions against Russia that are still in force today.

Threats to Ukrainian territorial integrity did not end there, and during the same period, groups of armed men seized industrial enterprises as well as municipal buildings in the Region of Donbas, launching a pro-Russian uprising meant to oppose the Euromaidan movement in the wake of a longstanding discontent stemming from a feeling of isolation shared by the Donbas residents, mainly old workers of a once flourishing Soviet industry.

On 11 May 2014, the eastern regions of Donetsk and Lugansk proclaimed their independence from Ukraine, creating the so-called Donetsk and Lugansk People’s Republics.

The eastern uprisings thus triggered the war of Donbas that could be defined as a civil war between the central government of Ukraine and the separatist forces, if it wasn’t for the involvement of a foreign country.

President Putin has always denied the involvement of Russian military forces in the Donbas war on the side of the rebels, thus signing the 2015 Package of Measures for the implementation of the Minsk Agreements as a “third party” mediating between Ukraine and the self-proclaimed Republics, along with France and Germany.

From left to right: Volodymyr Zelensky, Angela Merkel, Emmanuel Macron, Vladimir Putin. Source: formiche.net

Nevertheless, beyond the early accusations of several third states, the Prosecutor of the International Criminal Court issued a report in 2016 recognizing that Crimea was occupied by Russia and that Russia was militarily involved in the conflict in Eastern Ukraine.

Several factors like the ambiguity of the position assumed by Russia led to the failure of the Minks agreements and the war in Donbas is still ongoing nowadays, with the parties to the conflict regularly accusing each other of violating the cease-fire.

To date, the war in Donbas has caused over 14,000 deaths.

Were the Banned TV Channels Indeed Spreading Disinformation?

In the light of the above, qualifying the war in Donbas as a typical civil war is not accurate and it clearly supports the Russian narrative aimed at diminishing the degree of its involvement in the conflict.

As for the statement about the “mass killings” supposedly threatening the Russian-speaking population of Crimea, the ZIK channel guest was referring to the above-mentioned shootings that killed about 100 people in Independence Square of which then-President Yanukovich had been accused.

Yanukovich accused Ukrainian far-right forces of seeking to frame him, a vision supported by Russia.

According to a leaked conversation between the Estonian foreign minister and EU HP Cathy Ashton – which was later retracted by the Estonian government -the same snipers seem to have targeted both protesters and policemen, raising questions about why snipers should be responding to the Yanukovich government and target their own colleagues.

However, according to international law, such unproved suspicions do not constitute an actual threat to the Russian-speaking population of Crimea.

Furthermore, the above-mentioned discriminatory law withdrawing the official status of the Russian language was never approved by the Ukrainian Parliament and Russia could have protected the rights of the Crimean population by engaging in a peaceful dialogue with Ukraine, instead of resorting to the use of force, an option that the Charter of the United Nations restricts to extremely limited circumstances.

Thus, Russian military intervention in Crimea is to be considered unlawful, and saying otherwise could be considered as spreading disinformation in the context of an undeclared war, something that could pose a threat to the national security of Ukraine.

Were the Measures Adopted by the Zelensky Government Appropriate?

They were indeed according to the US, whose embassy in Kyiv tweeted: “The US supports Ukraine’s efforts yesterday to counter Russia’s malign influence, in line with Ukrainian law, in defense of its sovereignty and territorial integrity . . .”

Yet, despite the weight of US support, it appears that more voices rose against Zelesnky’s move.

Apart from the above-mentioned concerns raised by Europe, journalists had fewer doubts when condemning the ban of the three TV channels, both in Ukraine and abroad.

The National Union of Journalists of Ukraine and the Independent Media Trade Union of Ukraine expressed their disapproval of the government decision, calling it an attack on freedom of speech and democracy.

The General Secretary of the International Federation of Journalists, Anthony Bellanger, said, “This arbitrary and politically-motivated ban is unacceptable in a democracy. The ban puts at risk the job of hundreds of media workers who have nothing to do with their media owners’ political affiliations.”

The General Secretary of the European Federation of Journalists, Ricardo Gutiérrez, stated, “Banning broadcasts is one of the most extreme forms of restricting media freedom. These bans should only be applied in very exceptional circumstances […] It seems clear that the presidential ban is not at all in line with international legal standards on Freedom of Expression and the broadcasting media”.

What are the international legal standards when it comes to government restrictions of freedom of expression?

The “Three-Part Test” of the European Court of Human Rights

As a member of the Council of Europe, Ukraine signed the European Convention on human rights, whose guardian institution is the European Court of Human Rights.

The Court has repeatedly stated that freedom of expression “constitutes one of the essential foundations of a democratic society” and when assessing a State’s interference with the freedom of expression, it uses the three-part test.

Three cumulative conditions are to be fulfilled for domestic authorities to legitimately interfere with the freedom of expression:

  1. The interference is prescribed by law
  2. The interference is aimed at protecting one or more of the following interests or values: national security, territorial integrity […]
  3. The interference is necessary for a democratic society

As for the first part of the test, the Ukrainian government decree banning the three TV channels uses provisions in Article 4 of Ukraine’s sanctions law for economic sanctions in cases of “participation in terrorism”.

Nevertheless, in the Leander v. Sweden judgment, the Court said that the wording of the law must be sufficiently clear as to give individuals an adequate indication of the legal conduct and the consequences of acting unlawfully.

Considering that an internationally recognized definition of “terrorism” is still lacking, the consequent vague character of the concept makes it doubtful as to whether the Ukrainian government’s decree will pass the first part of the test.

Regarding the second part, national security is the official motive given by President Zelensy as a justification for the decision. Looking at the separatist regions of Donbas, territorial integrity could also be an interest that the Ukrainian government intends to protect.

However, interests such as national security were seen as overriding the interest of protecting freedom of expression in cases where the expression sanctioned by the domestic authorities was aimed at the destruction of the rights outlined in the Convention.

Particularly, in Sener v Turkey, the Court held that incitement to violence against the State and dissemination of hate speech is to be considered the only circumstances enabling a Contracting State to restrict the right of the public to be informed about a different perspective on a given issue – in that case, the separatist political agenda of the PKK – “irrespective of how unpalatable that perspective might be for the State” (in Surek and Ozdemir v. Turkey).

The pro-Russian narrative conveyed by the three banned TV channels is certainly questionable, especially considering the international consensus around Russian breaches of international law at the expense of Ukraine.

Nevertheless, the unplugged trio was not accused of conveying statements inciting violence or disseminating hate speech, unless the Ukrainian government will do so in the future.

To conclude, in light of the above, it is doubtful that the banning of three pro-Russian TV channels constitutes a “pressing social need”.

Nevertheless, there is one essential difference between the Kurdish separatist propaganda in Turkey and the pro-Kremlin propaganda in Ukraine: the military presence of a foreign State, Russia, on the territory of Ukraine, with the former accused by the latter of using a means of hybrid warfare.

That is why, despite hardly meeting the three requirements established by the European Court of Human Rights, it is also true that the present issue can hardly fit in the court case law.

With the presidential decree having been contested in court, it will be interesting to learn the details of the Ukrainian government position and to see if the case will attain the European Court of Human Rights.

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