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il rc il ffi m' mH wftfrt$ ffi{,'i,": : x* ffi CONTENTS Pref ace bg Alexeg Simonoa 4 l. Armenia ... .' 5 Bg Mark Grigor7qn 2. Azerbaij an Bg Eldar Zeinalou 3. Belarus Bg Michael Pastukhou and Natalga Doanar 4. Georgia Bg Anna Jaania and Daaid Berdzeneshaili 5. Kazakhstan Bg Sergeg Vlasenko 6. Kyr gyzia By Lea Bardin 7. Moldova Bg Valentina Odazhiu, Sergeg Os taf 8. Lithuania, Latvia and Estonia Bu Marus Lukashunas 9.. Russia By Michsel Fedotoa 10. Taj ikistan Bg Said Unusoa I l. Turkmenia Bg Andreg Aranbagea 12. Uzbekistan Bg Ramil Gafuroa 'Ukraine 13. t4 27 ! Bg Ramil Gafurou 14. Comparative analysis of the media law in the CIS and the Baltic countries By Peter Krug 15. Freedom of the press under the European Conventions on Human Rights (from the book'Mass Media Laws and Practice in Eleven Democracies of the World') By Sandra Coliaer 39 48 6t 75 87 99 115 t27 139 153 r65 191 IVDK/ 34 : 659 .3(47 +5Tl=29 IBBK/ 67.404.3(2) L41 THE GLASNOST DEFEI{SE FOUNDATTON OI'VES AND Patricia O'Donnel Manana Aslamazian Volfgang Reuter Fransis Dnsouza E'@RESSES tTS GRATITUDE TO: Prcss Attache at tlre Embassy of Great Britain in Moscow - peOutV Director General of the ,Inter-News' _ Russia - Iht UNEs-qo Representative inthe Russian Federatio!,.' Directorof ---- -- the --- Moscow Bureau - Executive Director ofthe ,Article XD(, organization - -- For zupport, assistance and patience while carrying out this project. PUBUCATIoN oFTHE BooKWAS FINANCED BY Ile hfusyof Great &:itairrin Mosqw llilt$[0 The Book complies with the concept drafted by 'Article XD(', Intemational .MASS Non-Governmental org;anization, which was initially implemented in the book MEDIA TAWS AND PMCTICE - IN EUROPE, AMERJCA, AND .IUSTMLIE, - scientific Editon v'N' Monallhov, JD, a member of the Judicial chamber Federation. for Informational Disputes under the president of the Russian project Managen AK Simonov Editorand pmject Coordinatoc E.G. Kandybina Translated from Russian by Natalie V. Baeramiants AII ofthe materials used are valid at the time ofpublication ofthe L41 Russian edition, August l, 199g. Mass Media Laws and practice in the cls and Baltic Countries, - 2nd Revised Edition. - Galeria publishing Company, 20oo. -2O4p. /UDK/ 34 : 659. g (47 +ST!=2O BK/ 67.404.9(2, I S BN B {5t-91370016- I {5- miltililil I 785581 I [ililtifiilfiil, Copyright O 2000 by the Glasnost Defense Foundation copyright 2000 by Galeria publishing company I 9opyright @ by Arricle XIX (Chapter t5) copyright @ 2000 by Natalie v. Bigramiants (Translation) r53 UKRAI NE 1,2 Chapter 13 II'IIASS TI,IEDIA LAVIIS AND PRACTICE IN UKRAINE By Andrey Rikhter Among the countries comprising the Commonwealth of Independent States (CIS), Ukraine has a second largest population. 50 million people live in Ukraine. During the 1989 census 73 per cent of population identified themselves as being 'Ukrainiso', and 22pet cent as'Russian'. LJkraine is comprised of 24 regions, and an Autonomous Republic of Crimea. The cities of Kiev and Sevastopol' have a special status. Ukraine's legislation concerning mass media is quite extensive. The Verhovna Rada (Ukrainian Parliament), was the first arnong the newly independent states of the former Soviet Union, whose lawmakers enacted three new laws, regulating mass media activities: 'on Information' (L992), 'on Printed Mass Media (the Press) in Ukraine' (1992), 'On Television and Radio Broadcasting' (1993). Ukraine also diffen from the other CIs countries by its unusually large number of TV companies, which are independent from the state (in 1993 there were 918, by 1998 their number decreased to 383)t and newspapers. The key problems of Ukrainian mr$s media - are economic difliculties, pressure by the authorities, T described therein is guaranteed. The Constitution bans gathering, storing, using and disseminating of confidential information about a person, without his consent (Article 32), establishes the right pf everyone to his dignity (Article 28). The Constitution guarantees judicial defense of the right to retract the untruthful information about oneself, govemmental organizations, instances of non-judicial members of one's family, BS well as the right to receive compensation for damage to property, or physical, CON5TITUTIONAL PROVISIONS ao (Article 15) In accordance with Article I of the Ukrainian Constitution, the country recognizes and gives preference to the rule oflaw. It means that laws and other legislative acts are enacted based on the Constitution and must comply thereto. The Constitutional provisions are deemed norms of direct application. Direct claims to the courts, or the basis of the Constitution in order to safeguard the civil rights and liberties of a person, practical limitations of access to inforrnation from closures of newspapers, attempts on j ournalists' lives, etc. rr- in international conventions to the Ukrainian leglslation, the provision of the second part of Article 10, contained in the European Convention on Human Rights, where it discusses that such limitations must not onlybe written in laws, but also be 'necessary in a democratic society', somehow got omitted. The Ukrainian Constitution banns censorship The current Ukrainian Constitution was passed on June 28, 1996 at the Fifth Session of the Verhovna Rada of the XIII Convention. Article 34 of the Constitution is dedicated to freedom of speech. It says: 'Everyone is guaranteed the right to freedom ofthought and speech, to a free expression of his views and beliefs. Everyone has a right to freely gather, store, use and disseminate information, in oral or written form, or by any bther means of his own choosing". ' The Constitution of Ukraine does allow to limit freedom of speech 'in the interests of national security, territorial inte:grity, or public order, with the aim of avoiding disturbances or crimes, for safeguarding of the population's health, for safeguarding of reputation, or rights of other people, for avoiding the disclosure of information, which was obtained confidentially, or for preserving of authority and impartiality of the judiciary' (Article 34), which is in accordance with international norns. However, during the transfer of norns contained mental, or emotional harm, suffered as a result of gatheritrg, storage, use and dissemination of such untruthful information (Article 32) . The rights and liberties listed above (except for those, contained in Article 28) may be limited in the conditions of the state of war, of the state of national emergency (Article 64). At the same time, the Constitution may not be amendod, if such amendments may include elimination or limitation of civil rights and liberties of an individual. 2. DISTRIBUTION OF AUTHORITY BETWEEN CENTRATAND REGIONAL ORGANS OF POWER Ukraine is a unitary state (Article 2). The only - the Verhovna Rada of Ukraine (Article 7 5). The Autonomous Republic of Crimea has its own Constitution, and does have a right to enact legislative acts, however, the latter may not contradict the laws of Ukraine, and according to distribution of authorities between Kiev and Simferopol', ffi&y not regulate body of the legislative authority is the parliament O ' Kachkaeva, Anna and Andrei G. Richter. The Emergence of Non-State TV in the Ukraine. Canadian Journal of Communication, 4, Vol. t7 (t992). '?The Constitution of Ukraine (# 254/96-BP). See full Russian-language text of the Constitution of Ukrraine in 'Vedomosti Verhovnoi Rady Ulcaixi' # 3O of July 23, 1997, and in the book 'The Constitutions of the CIS countries. Collection of documents (in 2 volumes). Published by 'Mhitar Gosh' Yerevan, 1997. 154 UKRAI NE 3, 4 information iszues (chapters IX -XI of the Ukrainian - The State Agency on Copyrights and Related Rthts (created for non-mandatory state regisuation of Constitution). The $ate organs, rcgulating activity ofmass media are: such rights in accordance with the Law 'On Copyrights andRelaledRights'of 1994). The Committee on Issues of Freedom of - Speech and Information of the Verhovna Rada of Ukraine, which deals with law-drafting issues in the area of mass media, it takes part in creating temponry special commissions as well as temporary investigative commissions for preparation, study and investigation of questions related to mass media and bodies of mass media self- regulation. The Ministry of Information created upon Presidential Decree of Ukraine in 1996. It deals with the issuance of registration papers to the national printed mass media and information agencies, as well as with otherissues ofregulation concernfu€ printed mass media. The regtonal, clW (in Kiev and Sevastopol'), as well as Crimean republican office of the Ministry of Information deal with registration of local printed matter. National Council on Issues of Television and Radio Broadcasting, the creation of which has been provided for in the Law 'On Television and Radio Broadcasting'3. The National Council is a Constitutional, pefinanently existing non-ministerial state organ, reporting to both the Verhovna Rada, and the President of Ukraine. It deals with the issuing licenses to TV and radio organizations,'controls the implementation of conditions carried by such licenses, as well as the use of the radio frequencies of the country, along with other similar tasks. The National Council has representative oflices (representatives) in the Ukrainian regions. The latter are supposed to follow if the legislation in the area of TV and radio broadcasting is being properly implemented, and coordinate the activity of the local TV and radio otganaations. - The State Committee on Television and Radio Broadcasting of Ukraine (Gosteleradio), created in 1995 under Presidential Decree and at the same time included into Article 4 of the Law 'On Television and Radio Broadcasting'. The Committee carries out financial, programming, political, and perspective management of the state TV and radio broadcasting, controls the activity of national, regional and district TV and radio companies. National Agency on Issues of Informatics created under Presidential Decree in L995. The Agency issues expert opinions, without which the drafts of information systems and networks may not be confirmed; the Agency also has its representatives in the regions. - The State Committee on Issues of State Secrets and Technical Safeguarding of Information created under Presidential Decree in 1996. - fuiti-Monopoly Cornmittee of Ukraine, which controls the area of advertising (has been created and is in functioning according to the Iaws of Ukraine' On Limiting of Monopolistic Activity, and NonAllowance of Bad Faith Competition in Entrepreneurial Activities' of 1992 and 'On Safeguardug of Bad Faith Competition' of 1996), as well as othen. The Council of National Security and Defense, with which pursuant to Presidential Decree of July 22, - 1998, &try potential'organaational-structural changes in the areaof safeguardrng informational security' must be coordinated'. 3. ROLE OF COURTS IN TNASS MEDIAACTIVITY In Ukraine, there is a Constitutional Court, as well as courts of general jurisdiction, the highest of which is the Supreme Court of Ukraine (see ChapterVIII ofthe Constitution). The Constitutional Court decides issues of laws and other legal acts, existing in accordance with the Constitution of Ukraine, and provides an official interpretation of the Constitution of Ukraine, as well as the laws of Ukraine. The system of the courts ofgeneral jurisdiction is structured according to the principles of territoriality and specialization. The most important court decision in Ukraine, concerning development of informational sphere, is the decision of the Constitutional Court of October 30, L997 on the claim of K, Ustimenko on the interpretation of Laws 'On Information' and 'On Prosecutor's Office' (see Chapter 110, as well as Resolution # 4 of the Plenary session of the Supreme Court of March 31, 1995 (see Chapter 10). 4. STATUS OF INTERNATIONAL HU'IIAN RIGHTS TREATIES IN THE NATIONAL LAVV In accordance with the Ukrainian Constitution, all international agreements in forco, 'which the Verhovna Rada had deemed necessary, and consented to' became part of the national legislation of Ukraine (Article 9). Everyone has a right upon exhausting all national means of judicial defense to apply to the appropriate organs of international organrzations, of which Ukraine is a member or a participant, in. order to safeguard one's rights and liberties (Article 55). The Law 'On Information' provides that international agreements and treaties, ratified by Ukrairo, as well as principles and norms of 3 An&€i Richter, Ukraine: New President, New Decree, New Broadcasting Council. Post-Soviet Media ladand Policy, (1995), Andrei Richter, Ukraine: New law establishing the National Television and Radio Broadcasting Council. IRIS (kgal Observations of the European # 8 ( 1997). Audiovisual Observatory), Vol.III - r55 UKRAI NE 5,6 internationallawbecomepartofUkrainianlegislation well as'creative workers of TV and radio in this area (Article 4). If an international treaty organizations', the rights of the audience, determines establishes rules dilfering from those contained in the responsibility for violations of legislation on TV and Ukrainian legislation, then such international norms of radio broadcastingl. In it, in particular, a provision is a treaty signed by Ukraine are applied (Article 50). (in little made for establishing of the National Council on issues Ukraine had signed and ratilied (on July l7 ,1997) of TV and radio broadcasting. the European Convention on Human zuhts and The lgg5IawoOnlnformationAgencies'isaimed 1973) the International Covenant on Civil and at limiting activity of foreigners and foreign agencies in Political Rights. However, these documents are the sphere of news dissemination from Ukraine and in knownbythejudgesandarenotbeingimplementedby Ukraine, creation of more favorable conditions for the courts. Their practical worth is not very significant. functioning of the state information agencies5. The European Court of Human Rights did The 1994 Iaw'On Copyright and Related Rights' consider any cases connected to possible violations created legally favorable conditions for a forthcoming freedomofspeechinUkraine. not of joining by Ukraine of appropriate international colwentions. 5. STATUTORY FRAITEWORK A base law for judicial regulation of mass media activities in Ukraine is the Law of Ukraine 'On Information'. Enacted on october 2, 1992 the law became the first actinterpreting the Constitutional (the L978 Constitution) freedom of speech in the new socio-political and economic circumstances. The Law establishes a general framework of mass media regulation, interprets in the widest way possible the right of Ukrainian cituens for information, determines the kinds and directions of informational activities, the principles of access to informatior, the questions of property of fuformation, etc. Article 46 of this Law banns the use of information for among other things calls to destruction of constitutional regime, violation of territorial integrity of Ukraine, propagation of war, violence, cruelty, instigation of racial, ethnic, religious animostty, violations ofhuman rights and civil liberties. All the following laws, regulating activity in the sphere of information, were enacted in accordance and the spirit of the Law'On Information'. The 1992 L^aw'On Printed Mass Media (the Press) in Ukraine (hereinafter the Law 'on the Press') recognizes the right to establish a printed media outlet for every individual, notwithstandmg his citizenship. The Law establishes the procedure of state registration, the rights and obligations of journalists, regulates relationships between the editorial boards of media outlets, citizens and organizations. The I-,aw 'On Television and Radio Broadcasting' (enacted in 1994) establishes a procedure of setting up TV and radio organmations, licensing of broadcast channels, offering air time for conducting election campaigns and dissemination of oflicial information, regulates the rights and obligations of broadcasters as Other laws were enacted, which would be examined in the following chapters. In addition, influencing mass media are legislative acts of the Ministries and Departments. Examples of such may be Resolution of the State Committee for Publishing Houses, Polygraphic and Book Distribution 'On State Registration of Printed Media in Ukraine' (1993) and 'A List of Information Comprising State Secrets of Ukraine', passed in 1995 by the State Committee for State Secrets. Important for understandings of favorable conditions for printed media are resolutions 'On Subscriptions to Printed Periodicals', which are enacted annually by the Cabinet of Ministers. In case these acts contradict any laws, the former may be appealed in court. 6. REGUTATION OF OWNERSHIP In the Ukrainian hformational sphere, subjects of various forms of ownenhip exist; nevertheless, all these mins media outlets with different forms of ownership enjoy the same rights. The state assures safeguarding of rights of all subjects. However, such ownership shall not be utilized to cause harm to individuals or society at large. 6. I Antl-ltonopoly Llmitotlons The monopolmation of markets in the sphere of informational activity is not allowed6. In the areaof the press, it means that an individual or a legal entity may not be the founders (co-founders) or control more than 5 per cent of all national or regional political editions. Under control, here is meant an ability to financially influence the activity of a printed media outletT. r- t*- oo *T o c\ Krug, Peter and Andrei Richter. The New Ukrainian Statute: A Commentary. Post-soviet Media law and Polisy, (1994). 'sAndrci Richter' Ukraine: New Law on News Agencies IRIS (Legal Observations of thc EuropeanAudiovisual Obsenatory;, Vol.I (1995); Andrei Richter: InformationAgencies as Subjects of law. .Srpda, # l(7-8), 1996. 6 The Iaw 'On State Support of Mass Media and Social Security ofJoumalists'. ' The Iaw 'On Printed Media (the Press) in Ukraine,. - #6 r56 UKRAINE 7 In the area of TV and radio broadcasting it means that one TV and radio argaruzation has no right to conduct broadcasts on more than two TV channels and three radio charmels (except for cable networks and foreign broadcasts). One cannot be a founder ofTV and radio organizations that in their totality conduct broadcasts, which violates the above-mentioned limit in any part of the country's territory. The all-state TV and radio companies may not simultaneously utilize more than half ofbroadcast channels in the country, of in part thereof , 6,zStste Support of lllclss lltedlq The Ukrainian state developed a package of legal, economic, organizational and other measures for state support of mass media. Such support does not extend to: Mass media outlets of advertising, or pornographic nature; Mass media outlets, established with participation of foreign individuals or legal entities; Mass media outlets, whose content is for more than 50 per cent comprised of materials taken from foreign (Russian) mass media. The state support may be in the way of tax breaks of various kind, berng allowed to get credit with favorable mtes, favorable rate for selling currency to the state, - payments of customs duties, payment for land and rent of office space, services having to do with communications And delivery, etc. The State Treasury of Ukraine, annually delivers to local ofiices of the Ministry of Information subsidies designated to district and middistrict, town newspapers, and TV and radio companies. The law prescribes to local organs of self-governance' which are founden (co-founden) of mass media outlets, to implement financial obligatiorn to editorial ofiices under a threat of a judicial proceeding. More.over, donations for a particular pulpose may be earmarked for foreign legal entities and individuals from establishing TV and radio orgafizations and finance them in the amount, which is more that 30 per cent of the foundmg capital. Foreign investment into TV and radio organizations in Ukraine, is being implemented under control and with consent of the National Committee, In practice, however all of this means that Russian ORT owns 30 per cent ofthe national TV channel 'Inter'; British company'CMI' has control over the' 1+ 1' gfoup, which broadcasts on Second national channel; the founding capital of 'ICTV' is comprised of forergn investment by 50 per cent; the founder of 'Gala-radio' radio station is anAmeric ancttaen; the agency 'Interfa:rUkraina' notwithstandlng its obvious closenms with the Russian 'Interfax', ws neVertheless registered in 1992by Ukrainian individuals, and in 1998 , a Nonregian company bought the controillng stock of closed stock companies, which rule over major newspapers' such as 'Vysokiy Zamok' (the city of Lvr$, 'Industrial'noye Zaporczhye' and' Panorama' (the city of Zaporozhye), 6.4The Speclflcs of Prlvqtizqtion ond Sources of Funding ltass Media The national legislation banns privatization of mass media and enterprises, which provide informational activity, if they have been recognized by the Parliament as being 'key' in the area of information activity. It is not allowed to privatize the property of editorial boards, objects of communications and polygraphic enterprises of statewide importance. In all other cases the legal nonns of Ukraine on privatization l of enterprises ate implementedro. Among sources of funding mass media in Ukraine are: budget subsidies, as well as funds received from advertising, subscription, foundersl investment, sponsors, state organs, charity or'other public funds, as well as individuals. children's editions and 'sepamte mass media outlets'e. 7. REGISTRATION REQUIRETTIENTS 6.3 The Right of Forelgn Persons to MtlsE lblediq C)wnershlp The Law 'On the Press' stipulates the right for an establishment of a printed media outlet of individuals and legal entities, who may be citizens of Ukraine or other countries (Article 8), Foreign citizens and legal entities may not be founders of information agencies (Articles 9 and 10 of the Law 'On Information Agencies'), but may have the role of co-foundels. As for electronic mass media, the Law 'On Television and Radio Broadcasting' (Article 13) banns s All printed mass media, which are issued in Ukraine, irrespective of the areaof their dissemination, number of copies or production, are subject to state registratioll. Following its familiarlr;lng itself with a registration applicatior, the registering olgan has a right to request from the founders documents confirming their civil, legal and physicat ability. The creation of a legal entity is not necessary in this regardrr. The registration carries a fee, which ranges from 2 to 15 minimal salaries. The state registration of informaticin ageneies proceeds in the same manner, * zubjects of information activityt2. The law'On Television and Radio Broadcasting'' and Social Security of Joumalists'. law 'On State Support of Mass Media 'The r0 The law of Ukraine 'On State Support of Mass Media and Social Security ofJournalists'. Ir The law of Ukraine 'On PrinteO MiAa lttre Press) in Ukraine' (# 2782-Xll). Articles 8, 9, l l, 12. rr The Law of Ukraine 'On Informational Agencies' (# 74/95-BP). Articles 9, 12' 13. 157 UKRAI NE 8, 9, I O In order to create and use a broadcast channel, a written license from the National Council is required. (The term channel me€urs a package of technical means with frequency particulan, meant for broadcast TV and radio programs inthe tenitory, whichis determinedby importing newqpapers and magazines, which is defined by the customs lawr6. On May 8, 1998, the Cabinet of Ministers adopted parameters of technical means of br-oadcast. ) domestic polygraphic industry. According to the 'Kievskiye Vedomosti' newspaper, this Resolution 'relates first of all to Russian printed matter', which In order to get a license, the founder submits an application and copies of foundation documents of TV and radio or$aruzation into the National Council. In the application, he states all the basic information regarding the founder and broadcast plans. Therefore, for carrying on broadcastirrg, one must register in the form of a legal entity. The National Council keeps a Registry of TV and radio companies operating in the country. A license is issued for a fee, the amount of which is set by the Cabinet of Ministers. In accordance with Resolution of the Government of June 5, 1995'3, the arnount equals to a monthly tarifffor the use of the state receiver, as of a decision to grant a license (around US$2,000). This tariffis lowered by 90 per cento when a license is being issued to the state-owned TV and radio companies. It increases twofold; if foreign made programs of the TV and radio company being licensed comprise more than}A per cent of the total volume of its broadcast, and becomes fivefold, if such programs comprise more than 35 per cent of the total. The Law provides criteria in accordance with which the National Council selects the recipient of a license in a bidding situatiolt. The license is issued for a time period requested by the applicartt, but for no less than 5 years for air broadcasts and 10 years for cable (wire) broadcastsra. The legislation does not demand that broadcaster receives an additional license for communication sewicesrs. Mass media outlets, being subjects of business activity, shall be registered according to the Law oOn Enterprises'. A denial of registration or in the issuance of a license may be appealed in court. 8. REGULATION OF ITIIPORT AND EXPORT OF PUBLICATIONS The law prohibits impeding printed m€Ns media in Resolution on increasing for 20-20 per cent of import fees rates to periodicals due to the need to support constitutes around 90 per cent of the imported pressrT. In 1995, due to a discriminating multiple increase of tariffs for postal seroices, Russian newspapers which were previously less expensive occurred to be more expensive than Ukrainian ones. fuid on September 1o 1996, the Law 'on Issue of Patents to Certain Types of Entrepreneurial Activity' was enacted according to which under Resolution of the Cabinet of Ministers a paid patent (160 ecu per month) was introduced for the owners of kiosks selling foreign printed editiors, which fact has substantially limited options for distribution of Russian newspapers and magazines (their number distributed through kiosks has decreased threefold)'*. The state subsidizes subscription (through 'Ukrposhta' association), delivery, and transportation of printed mass media (except for erotic and commercial advertistng matter), as well as editions the content of which is comprised of more than half by forergn mass media materials. The list ofthe latter shall be determined by the Ministry of Information and its branchesre. 9. IIECHANISN,IT OF PRESS SELF.REGULATION The professional Union of Ukrainian Journalists (UUJ), The Guild of Chief Editors (Heads) of Mass Media, the Crimean Union of Independent Journalists, other or$anuations and clubs of mass media employees, operate in Ukraine. In 1997, &t the IX session of the Union of Journalists the Code of Professional Ethics of Ukrainian Journalists was adopted2o. The norms contained in the Code have no legal force and the courts do not refer thereto. IO. DEFAfrIATION legal dissemination of their products. At the same time in order to disseminate a forergn printed edition, it is necessary to get permission. A fee shall be paid for t! The Constitution of Ukraine acknowledges honor and dignity of a person as one of the major social values Resolution of the Cabinet of Ministen of Ukraine 'On the Amounts of Monetary Fees for Licensing the Right to Use Broadcastirg Channels of Television and Radio Companies' (# 392). 'r The l-aw of Ukraine 'On Television and Radio Broadcasting' (# 3759-XII). Articles l, 5, 14, 17, 18. The I-aw of Ukraine 'On Communications' (# 160/95-Bp). article Z+. '5 '6The law of Ukaine 'On Printed Media (the Press) ih Ukraine' (# 2782-Xll). kticles 30, 39. " Legislation Bulletin for the Media (Kiev). # 4. 1998. 'tThe Press in the CIS: Conflicts and Offense of Iaw. 1996. (The Glasnost Defense Foundation). Moscou, 'Prava Cheloveka,, 1997 p.409-410. 'e Resolution of the C-abinet of Ministers of Ukraine 'On Subscripaion to Periodic Printed Matter in 19991 (dated September 4, 1998, # l38s). 'The Code on Professional Ethics of Ukrainian Journalists. Published by 'Joumalist' (Kharkov), # 16. April 30-May 6, 1998. UKRAI NE I1 (Article 3). The Constitution guarantees to all judicial defense of the right for retraction of untnre information on oneself and family membos, as well as the right for compensation of damage caused to property, or physical, mental, or emotional haryr caused by collectiono safekeeping, use and dissemination of such untnre information (Article 32). I^awsuits against m€$s media on protection of honor and dignity are the most frequent category of court ca"ses. Accordmg to the Supreme Court, in 1993 there were over 600 such lawsuits admitted by the courts of Ukraine, and in 1997 there were 2.6 times more than in I993't. The issues related to protection of honor and dienity of individuals, and business reputation of legal entities, are subject to regulation by the Civil Code in the fint place (articles7 , 440, 440-1). A citizen or an organization shall be entitled to demand in court a retraction of discrediting them or untrue information, as well as to claim compensation of physical, mental, and emotional damage, and damage to property caused by dissemination through m€NS media of such information, unless the personwho has disseminated such information proves it to be true. Pursuant to the commentary issued by the Supreme Court22, information shall be deemed as discrediting, if it 'encroaches upon honor and dignity of a citizen or an organization in the opinion of the public, or certain citizens from the point ofview of complying with the laws, generally admitted rules ofhuman co-existence, and the principles of public morals'. A lawsuit may be instituted by both the rnjured party and his close relatives. Mass media outlets shall act as defendants in this category of cases, includmg the editorial board, agency, other outlet, which issued the disputed information, or a journalist (the author of the disputed material). Courts shall consider these c€Nes irrespective of whether the rn$ured party has initially appealed to the media outlet. Responsibility for dissemination of untrue information may be relieved in the instances, when such information: was contained in oflicial documents; was received from information agencies or press seryices of the state authorities or public associations' - bodies; is a verbatim quotrng of official speeches of employees of the state authorities or public associations (save for speeches of people's deputies, A.Richter); wurs contained in the original author's speeches berng broadcast on TV and radio with no prior recordlng; 158 - was received from the founder (co-founders) of printed media; - was contained in a reply to oflicial request in regards of access to oflicial docurnents, and in a request of oral or written information to be provided; is a verbatim presentation in the press of any materials published by other printed media23. Analysis of judicial practice in Ukraine gave no precedents of filing lawzuits in regards of compernation of damage to properly caused, under Article 7 of the Civil Code2a. The manimum and minimum amounts ofphysical, mental, ffid emotional damage compensation are not yet defined in the law. Resolution ofthe sesion ofthe Supreme C.ourt explains that the court shall determine the amount of physical, mental, ffid emotional damage compensation within the claimed demand, considering in each case the degee of the defendant's guilt, the natre and amount of sutrerings, health condition ofthe injured party, whetherthe injured parly had to change zubstantially his way of life or work, decrease of respect, bminess reputation, prcftssional activity, title, time and efforts necessary to rc-establish the initial state of affairs, motivations of the offender, etc6. Circulation ofprinted matter, the area ofdisseminathg radio and Tvprograms are of account injudicial practice. In certain cases, plaintiffs set forth urue€Nonable to compensate amounts of physical, mental, and emotional damage. Thus, M. (Volynslcy region) filed a lawsuit on compensation ofphysical, mental, and emotional damage caused by the vertal offensive expression 'committed hooligan actions', in the amount of 500 million grivnas (approximately US$ 250,000,000). In the course of the judicial proceeding, he decreased this amount to 1 grivna, and this claim was satisfied by the court. Another court the Arbitrage Court in 1998, imposed payment of compensation on the 'Vseukrainskye Vedomosti' newspaper in the amount of 3,5 million grivnas in favor of the 'Dynamo' soccer club for the statement published in the said newspaper, as if the president ofthis soccer club said that the Italian soccer club 'Milan' was going to buy the Dynamo's forward. Accordlng to the laws in force, 50 per cent of all proceeds of the newspaper are to be deducted in favor of the Dynamo. Soon after the court judgment, the newspaper seized its operation. According to experts' opinion, judicial practice in Ukraine is oriented first at-defense of reputation of individuals and orgarfizations, &s opposed to defense of freedom of speech and the press26. "2 I-egislative Bulleting for Mass Media (Kiw). # 2, 198. p.10. Resolution of the Sesion of the Supreme C,ourt of Ukraine 'orr Application by Courts of Iaws Regulating Protection of Honor, Dignity and Buiness Reputation of Citizens and Organizations', dated September2S, 1990, asamendedonJune 4, 1993, March 31, 1995, December25,l9 4f,. sThelawofUkraine'OnTelevisionandRadioBroadcasting'(#3759-Xll).Article48. ThelawofUkraine'OnPrintedMedia(thePrcss) in Ukraine' (# 2782-XIll. Article 42. n'Analysis ofJudicial Practice by the Supreme Court of Ukraine'. kgislative Bulletin for Mass Media (Kiev). # 2. 1998. sResolution of the Sesion ofthe Supreme Court of Ukraine # 4 'On Judicial Practice in the Cases of Compensating Physical, Mental, and Emotional (Non-Proprietary) Damage'dated Marsh 31, 1995. xlegal Aspects of Journalists' Activity in Ukraine, 1998. Pp. 8-10, 17-18. 159 Criminal prosecution for an insult and defamation is provided by law. A criminal case may be instituted in the procedure of private accusation under article I25 ('Defamation') and 126 ('Insult') ofthe Criminal Code of Ukraine. The corpus delicti under article Lzsshall be dissemination of intentionally false information, discrediting dignity of other person. onty individuals may act as the injured party to the case. Subjectively, such an offense is charactettzed by presence of intent: the accused was aware of untruthfulness of the disseminated information, which discredited other person, however was williru to disseminate them. The corpus delicti under article 126 shall be intentional humiliation of honor and dignity of a person, expressed in a nulgar form (for example by using foul language or rude expressions), The quahfying instance shall be indecency of the form of expressions addressed to the u$ured party. Same as to defamation, this corpus delicti is characterued by the intent. Simultaneous dissemination of defaming and insulting information shall constituted a combined crime. The criminal code stipulates up to 5 years of imprisonment for defamation (article lzs), as to an insult up to 1 year of correctional worla (article 126). criminal prosecution, acknowledgment of guilt and sentenchg p punishment, shall not relieve of fuiancial liability to the irfured party for causing physical, mental, and emotional damage bythe said offerue. Acivil lawsuit in this regards may be subject to consideration both in criminal procedure, and in separate civil procedure. The said articles of the Criminal Code are applied in practice, in association with the fact, obviouslv, that the burden of collecting witness and proving the accused guilty (save for the cases of defamation combined with a deliberate crime against the state, or any other severe crime) shall be borne by the i4iured party. UKR,AI NE I 1, 12 information on private life of a crtaen without his consent, if such information is 'of public importance' (Article 37-3), but this term is not defined in the law. The Law 'on Information' defines the term of 'information on an individual (penonal data)' as all of the documented or publicly disclosed information on a person, the basic among which are nationality, educatior, marriage status, religion, health condition, as well as place ofresidence, date and place ofbirth (Article 23). The practice of interpreturg of information related to laws of Ukraine on protection of secrecy of private life by the Constitutional Court is contained in the judgment of october,30, 1997 on the claim filed by K. Ustimenko. Mr. Ustimenko was in the records of psychiatric clinic in 1988-1990, however he learned about it only in 1990. At the same time he requested the management of the clinic to provide to him the reasons why his name was entered in the clinic's records, whom the clinic ever disclosed that information to, and the like. Following the head physician refusal to provide him with the requested information due to protection of doctor's secrets, Mr. Ustimenko applied to the prosecutor's oflice and courts of various jurisdictions numerously. The Constitutional Court decided that Article 23 of the Law 'On Informationo prohibits not only collection, but also safekeeping, use and dissemination of confidential information on a person without his consent, except for the cases determined by law, and only in the interests of national security, economic well being, and rights of an individual. Medical information shall be deemed confidential. Handting over such information to a patient may be restricted only in the instances when such may cause damage to his health or treatment. A refusal to provide such information may be appealed in higher authorities, prosecutor's oflice, as well as directty in court28. II.]NVASION OF PRIVACY 12. THE RIGHT OF REPTY AND/OR RETRACTION The Constitution prohibits an invasion of private The right of citizens and organizations to request and family life of a person, including collection, in court reiraction of information which is luntnre or safekeeping, llse, and dissemination of information interpreted inaccurately, which discredits their honor, relatingtoanindividualwithouthisconsent.Exceptions dignity or business reputation, or encroaches upon are defined by law and only in the interests of national their interests, or the person in disclosure of such security, economic w9ll__b9ing, and rights of an information prove$ them to be true', is stipulated in individual. Everyone shall be guaranteed a judicial Article 7 ofthe Civil Code. of the right to claim a withdrawal of any Underthelaw'OnthePress'(Article3T)citizens, 9tft*" information(Article32).Theseprovisionsaredeveloped legal entities and state bodies shall have ifrir riehi inthelawstaswell.Thelaw'OnTelevisionandRadio within a period of one year as of the moment of Broadcasting' determines an option to disseminate disseminaiion of the retracted information. If the ? The Iaw of Ukraine 'On Information' (# 2657-XII). Art.23,47. The Law of Ukraine 'On Printed Media (the pres) in Ukraine , (# XII).tut. 3. The Iaw of Ukaine 'On Television ana RaOio Broadcasting, (# 3259-XII). AIt. 37(3), 41. ! Analysis of the Decision of the Constitutional Court on the 27g2- Case of bmciut Interpretation of Articles 3 , 23 , 3l ,47 ,4g of the Iaw ,On Infonnation' and Article 12 of the Iaw 'on Prosecutor's office'. 'Uryadovi Kurier' of \iovember zz,Iwi. *-zz6*;22l. l4-ls. UKRAI NE I3, 14 editors have no evidence of such information being tnte, they shall be obligated to place retraction or a reply in the next to follow issue of a periodic edition. The editors shall have no right to claim that the size of retraction would be less than a half of a standard typed page text. The editors iri their turn cannot be requested to place a retraction, which is larger than a twofold size of the material befug retracted. As to television and radio broadcasting, laws allow the persons beug interviewed, or from whom information is obtained othenrise, to request viewing or listemng of the final material before its broadcast. In the instance of a refusal to do so, they may reqtrest withdrawal of such material from the program. A Television and Radio company shall provide citizens and representatives of orgarraations, whose interests were damaged by the disseminated information, an option of reply, demand a retractior or personal interpretation of the case subject matter. In the event of any information insultfuU honor and digtity ofindividuals orbeing untrue, it shallbe subject to retraction within a month's term. Disputes on the matter of exercising the right of reply and/or retraction may be subject to consideration in courtze. Retraction of information throueh mass media shall not release editors of their financial liability for any damages caused by dissemination of any information. 13. INSULT OF STATE INSTITUTIONS AND OFFICIAUi 160 5,000,000 grivnas. In addition,Z7 ,000 grivnas were to be paid by the two journalists of the newspaper. At present, the c€Ne is being appealed in courts above. As one of the Ukrainian newspapers recently reportod, there exists an order of the city prosecutor's office addressed several district prosecuting attorneys of the city of Kiev in regards of 'prosecuting' to a number ,of left-wing editions, which 'discredit, compromise and insult the President of Ukraine as the head of the state and a cttnen'30. The chief editor of the 'Opposition' newspaper was earlier convicted and sentenced for two years of imprisonment for defamation with regard to the President3r. In this regard, it is interestrng to remember the request of the National Council on Television and Radio Broadcasting ofApril 25, 1997, taterminate broadcasting of the 'Pislyamov' weekly news progmm on the Znd national channel. This resolution followed the demarche of the Cuban ambassador caused by to showing in the same program the piece on prostitution in Cuba32. The Constitution requires citizens of Ukraine to respect its state synrbols (Article 65), which are the flag, coat of anns and national anthem. Ljnder the Constitution, freedom of speech may be srrbject to restriction by law 'in order to support the authority of justice' (Article 34). The [-aw 'On Advertising' prohibits the use or imitation ofthe state symbols of Ukraine, other countries, and international organizations in commercial advertising. Nothing is known on judicial practice in regards to these provisions. Insult of the President, govemfir€nt, parliamentary deputies, afined forces, representatives of foregn states is not deemed as independent offense of law under the Ukrainian laws. At the same time, the Constitution stipulates liability for discrediting honor and dignity of the President of Ukraine (Article 105), though it only says that such responsibihty arises 'under the law'. The law of Ukraine contains no specific provisions on protection of honor and dignity of the President. The President, deputies, and officials may bring lawsuits in court in the established common procedure, In June 1998, the Starokieysky district court of Kiev satished the claim ofthe Minister of tnternal Affairs, Yuri I(ravchenko, or deferue of honor, dignity, and business reputation filed against the 'Kievskiye Vedqmosti' newspaper. The reason to file a lawsuit was a series of articles in which the Minister was accused of taking US$ 14. STATE SECRETS AND ACCESS TO THE GOVERNI,IENTAL I NFORTNATION The Iaw 'On Information' regulates the legal status of information. Pursuant thereto, information may be open and with limited access. Access to open information is ensured by its systematic publication in official printed media, Limitation of access thereto shall be prohibited by law. Citizens, who require such information to perfonn their professional duties, includrng journalists, shall have a pre-emptive right to obtain it. Journalists shall be guaranteed access to statistical data, archives, libraries and museurns' funds, save for certain exceptions. They shall be entitled to visit state authorities, local selfgoverning bodies, enterprises, institutions and orgarrrzations, and to be admitted by officials thereoi as 1 15,000 from the charity fund to buy himself a Mercedes, ns well as of other offenses of law. [Jnder the court judgrnent, the newspaper was obligated to publish a well as to make notes or to perform open audio recordings. Editors shall also have the right upon agreement with state organs and management bodies of retraction without editorial commentary within a month's term, as well as to pay the injured party public associations to accredit theirjournalists with them free of charge. These organs shall create all the necessary 8 The Constitution of Uluaine, art,32-4, The Iaw of Ukraine 'On Printed Media (the Press) in Ukmine' (# 2782-XID. Art. 37. The l-aw of Ukraine 'On Television and Radio Broadcasting' (# 3759-XII). Art . 42,43. r Legislation Bulletin forthe Media (Kiev). # 4, 1998. p.26,30. ItThe Press in the CIS: Conllicts and Offense of law. 1995. (The Glasnost Defense Foundation). Moscow 'Prava Cheloveka', 1997 p.401. n The Glasnost Defense Foundation MonitorirU.//Mass Media Laws and Practice. # 5,1997. p.34 l6l UKRAI NE I5, I6 conditions for journalists' work, and notrfy them in advance on the place and time of holdlng meetings and sessions, as well as provide shorthand reportso minutes and other materials. Accreditation may be withdrawn in regards of those journalists who fail to perform their duties and exercise their iights in bad faith. As aRy other citizen, a journalist shall have the right to address state authorities with an informational request and demand provision of official documents notwithstanding that they may be related to him personally, except for the documents of limited access. Informational requests ofjournalists shall be satisfied free of charge. under the law, such a request may be processed within 10 days during which a notilication on whether such a request will be satisfied shall be given. A denial shall be motivated. A motivated denial may be appealed in a higher authority and then brought in court. A reply to request shall be delivered within one month. Officials shall bear responsibility for the information provided by them to be authentic. " Any information, disclosure of which may cause damage to an individual, tlre state, or society, constitutes a state secret or other secret protected by law. The Iaw oOn state secrets' defines the criteria upon which certain information maybe referred to as secret. The Law'On State Secrets' states that any information containing zuch secrets may include information on the armed forces, economy, external relations, national security, and maintainfu€ public ordet'3. Rrsuant to this Iaw in 1995, the State Committee on State Secrets approved the 'Collection of information constituting state secrcts of Ukraine', representing a detailed list of secret information spheres. The Collection was published in the press numercus time,s. The constitution (Article 50) and the Law 'on State Secrets' (Article 6) guarantee the nght of everyone to free access to information on environment, quality of food products and household objects. Article 46 of the I-aw of Ukraine 'on Information' prohibits dissemination of inforrnation corutituting a state secret or other secret protected by law. But at the same time, Article 47 of this law imposes responsibitity for disclosing such information only on the person whose duty is to safeguard such information, and Article 42 of the l^aw 'on Printed Media (the Press) in Ukraine' directly releases journalists from liability, unless the disseminated secret was received illegally. fn other cases, the Criminal Code provides a penalty of up to 8 years of imprisonment for disclosing state secrets, 15. ACCESS TO J{JDICIAL PROCEEDINGS AND PUBTICATION OF COURT DOCU'IIENTS Pursuant to the legislation in force, openness and publicity of a judicial proceeding constitutes the basic principle of performiru justice. Due to this principle, 3 The judicial proceedings are, as a rule, open for citizens and the press, except for the cases, which in the interests of the minors or by any other reason stipulated by law are subject to closed hearings. Disseminating general information on judicial proceedings shall be deemed legal. However, in order to conduct videotaping or filming of a proceeding, it shall be n€cessary to obtain consent of all the participants of the case. As to publication of certain facts or evidence, BS well as their evaluation under certain criminal or civil cases, general prohibitfuU provisions come in force. They are based on the fact, that any too thorough detailing or preliminary subjective comments in mass media may harm the rights and lawful interests of the parties to the case, or affect impartiality ofjudges and court judgment. The Criminal Code stipulates punishment for interference into judicial procedure by up to 3 years of imprisonment (Article 176-1), and for disclosure of preliminary investigation information of up to 1 year of imprisonment (Article 181). 16. ACCESS TO TEGISTATIVE PROCEEDINGS AND PUBLICATION OF TEGISLATIVE DOCU'i,IENTS sessions of the Verhovnaya Rada are hetd openly. During the first years of independence, all of the plenary sessions of the parliament were berng broadcast live by the lst channel ofthe national radio and the Znd channel of the state television. All of the laws passed by the Rada arc published by the 'Golos Ukraini' ('The Voice of Ukraine') official daily newspaper published in the Ukrainian and Russian languages. Since L997,.the issues of parliamentary activity coverage are subject to regulation by the special Law 'on the Procedure for Coverage by Mass Media of Activity of State Organs and Local Self-Governing Organs in Ukraine'3a. Pursuant to this Law, the bodies of state power must give mass media full information on their activity, provide journalists with free access to such information, except for the cases stipulated by the Law 'on State Secrets' (Article 2). Under the Law 'On the Procedureo the VerhovnayaRada passes resolutions on the procedure for covering its sessions. Accreditation ofjournalists and technical personnel of mass media with the state organs, shall be performed upon oflicial request of a media outlet, or an application of those being accredited upon showing the documetrb, which certify their professional activity, or upon a recommendation of a professional journalists' association (Article 3). Pursuant to the information provided by the press service of the Verhovnaya Radao over 600 journalists are beurg accredited at every session of the Verhovnaya Rada, however only around 30-40 journalists work perrnanently in the parliament35. l-aw of Ukraine 'On State Secrets' (# 38j5-)ql). Art. 6. r The Glasnost Dcfense Foundation MonitorfuU./4"Iass Media laws and Practice. # 5, 1997 . p.34 UKRAI NE 17,I8, 19 162 Journalists may be refused accreditation rather often by the reason for example, that 'to cover activity of the city councilan official state-owned newspaper exists'36. (Article 47).Thrn, the Criminat Code stipulates up to 2 yean of imprisonment for disclosing commercial secrets (Article permitted to do translation of their own of official information from Ulcrainian to other languages, perhaps due to 'authentic' officialtranslationto follow (Article 4). The law allounVerhovnaya Rada to use 3% ofannual air time to broadcast their sessions on the state television and radio. Parliamentary decisions shall also be covered in the news proeFams ofthese clrannels. However, inpractice the state-owned television and radio companies refirse to 18. PRIOR RESTRAINTS It seems interesting that mass media are not broadcast plenary sesions, for example 'by reason that no financial agreement wtrs executed between the Management Board of the Verhovnaya Rada of Ukraine and the National television and radio companies'37. National printed media disseminate official parliamentary information under the contracts executed between the editors and organs of the state power. Ofiicial printed media have the right to publish laws and other decisions of the Verhovnaya Rada, whereas independent media may publish them only under a relevant contract \Mith the Management Board of the parliament (articles 9, L6,20 and 22 ofthe l-aw 'on the Procedure for Coverage by Mass Media of Activity of State organs and Local Self-Governing organs in Ukraine'). 17. COMMERCIAT SECRETS AND ACCESS TO INFORMATION HEID BY PRIVATE PERSONS Inficrmational legislation gives no definition of a 'commercial secret'. However, the Law 'On Information' mentioru'confidential information', being zuch information that is held, used or diqposed ofby individuals or legal entities, and disseminated upon their discretion in compliance wittl the rules provided by them. Any private penorls or legal entities which possess information'ofprofessional, busines, indusftial, financial, commercial and other nature', obtained by them at their owrr expense, shall individrrally determine the access regime to such information, Ets well as the means ofits protection. Any information, tlre legal regime ofwhich 148-6). Censonhip is prohibited (Article 15 of the Constitution). The I^aw 'On the Press' also prohibits requirement of 'prior counseling of announcements and materials on the part of officials of state bodies, enterprises, institutiorn, organizations, or public associations, except for the cases when an official is the author of the information bemg disseminatgd, or was interviewed' (Article 2). However, accordmg to the information provided by the Glasnost Defense Foundation, state officials often app.ly the ban to use state-olvned printing houses as means ofpolitical censonhipT. The [.aw'On Television and Radio Broadcasting' is lw consistent than other laws in this regard. It prohibits 'interference ofstate bodies, local and regional self-governing organs, their officials, as well as pr$lic associations and individmls into crmtive activity ofTVand radio companies', as well as censorship 'in a way of control over ideolqgical contents of programs', meanwhile permittirU control over the contents of 'hformation protected by law' (Article 6). Nevertlreless, according to the New York Committee on Pnotection ofJoumalists,'private rnanufrcturers oftelevision products are forced to do self-censoring in the cines ofhighpitched political matten if they want their programs to be brcadcast on national channels'3e. Participants of the parliamentary hearings entitled 'Freedom of Speech in Ukraine: Current Situatioil, Probleffis, Perspectives', which took place on April 10, 1997, came to the general conclusion that censorship (open and hidden) does exist in mass media. It aims 'not at protection of the fundamental state interests (as if it then would have the right to exist!, A.Richter), but at protection of interests and images of certain political parties and politicians'o. 19. PROTECTION OF SOURCES OF INFORMATION is deterrnined by the parliament and which relates to Journalists must preseffe confidentiality of sources statistics, environment, taxes, bank transactioru, health and security ofpeople, shall constitute the exception ofthe above (Article 30). Disclosure of secrets by the person oblieated to of information if such is requested. A journalist shall have the right to keep his sources of information confidential, except for the cases when othenrise safeguard ttrem, is srrbject to prosecution under the law 32 requested by the courtar. Irgislative Bu[etiqg for Mass Media (Kiev). # 3, 1997. p.10. * Ukrainian Media Bulletin (Kiev) # 6. 1997. p.l7. 3'Iegislative Bulleting for Mass Media (Kiev). # x The Press inthe CIS: 392-393. 4,l9g1. p.2. Conflictsand Ofense ofkw. 1996. (The Glasnost Defense Foundation). Moscow'Prava Cheloveka', 1997 pp. 388, Bult.tiog fol_lr{ass (Kiw). Media # 4, 1998. p.23. See also: According to Joumalists, Political Censorship in Ukraine Exists. --'kgislative IJkrainian Media Bulledrr (Kiw). # 3.1997. pn.9-ll. o !rce{om of Speoch in Ukraine: Status, Problems, Perspectives. Kiev, Parliament Publishing House, 1997. P.4. " The law of Ukraine'On Printed Media (the Press) in Ukraine' (# 2752-Xn). Art.26. ttre Iaw oiUtraine ,On Television and Radio Broadcasting' (# 3759-XII). Art. 37-s. 163 UKRAI NE 20,21 ,22,23 2O.. RESTRICTIONS ON INSUTTING EXPRESSION TARGETING DEFINED GROUPS OF PEOPTE advertisurg designated for the minors, &s well as on advertisurg of banking and insurance services, and various types of weapon, do exist in the Ukrainian lauff. The laws 'on Information' (Articl e 46), 'on the Press' (Article 3), 'on Television and Radio Broadcasting' (Articles 2 and 37), 'on Informational Agencies' (Articke 2) prohibit stiffing up of racial, Advertising of tobacco products, alcoholic beverages and drugs, as well as advertising which affects sub-conscience of audience (hidden advertising), shall national, and ethnic animosity. The Criminal Code envisages up to 3 years of imprisonment for violating people's equality due to their race or nationality (Article 66). According to the Glasnost Defense Foundation, in 1996 a newspaper was shut down under the court judgment for stirring up hatred towards Russians and Jews in Poltavaaz. be prohibited on television and radio. Advertising of medical drugs and products, as well as methods of treatments, preventiono and diagnostics, cosmetics, food products and additives, may be performed only upon permission in regards of their consumption and disposal, issued by specifically authorized healthcare bodies of ukraine. Advertising shall not contain in its text or images anything, which may cause physical, "mental, or emotional damage to the youngsters and children. Advertising in programs designated for children (up to 14 years of age) shall be 2I. BLASPHEMY, OBSENIW, AND PROTECTION OF PUBLIC IIORALS The Iaws 'on Information' (Articl e 46), 'on the Press' (Article 3), 'on Television and Radio Broadcasting' (Articles 2 and 37), 'on Informational Agdncies' prohibit stirring up of religious animosity. The Criminal Code envisages up to 3 years or imprisonment for violating people's equality due to prohibitedos. The 1996 Law 'on Protection against Bad Faith Competition' permits comparative advertising, if information given therein is evidenced by facts. The Law 'on Advertising' shall not be applied in regards to political advertising. their relations with religion (Article 66). The Law 'on the Press' prohibits utiliziru mass media to disseminate pornography; a breach of tnis provision may result in termination of publishing the edition upon the court judgment (Artictes 3 and 1g). Thus in 1996, prosecutor of the city of Kharkov temporarilybanned the issue of an erotic newspaper, by the reason of its oseducmg the minors and rgnoring public morals'a3. The I-aw oon Television and Radio Broadcasting' bans dissemination of pornography as applied io television and radio companies, as well as their creative employees (Articles 2 and 39), and the Law ,on Informational Agencies' to agencies (Art icle Z). The criminal code- envisages up to z years of imprisonmbnt for manufacturing, dispojal and dissemination of pornography (Article zrl). 22. RESTRICTIONS ON ADVERTISING The 1996 Law 'on Advertising' is t*re basic legislative act, which regulates advertising activity in Ukraine. In the press, a{vertisfurg of alcoholic beverages and tobacco products bn the cover and back pages of magazines shall be prohibited. such advertisrng shall not demonstrate the process of smoking. Other restrictions are applied as well. Some restrictions on 23. THE TTIIASS MEDIA AND EtEcTIoNs Provisions on equal access of candidates to mass media are stipulated in the laws on presidential elections of Ukraineo people's deputies of Ukraine, os well as in decisions of the Central Election Commission. They determine the amount of paid and free newspaper space and air time granted to candidates. The latest law passed in this field, is the Law 'on Election of People's Deputies of Ukraine' (September 1997). Pursuant to this law, any political parties, election blocks of parties, and candidates shall be given the right to use mass media at the expense of the state budget, the founder (co-founders) of which are the bodies of the state power, state or*anaations and institutions, and local self-governing bodies. political advertising through independent mass media shall be carried out under the condition of equal payment by the candidates for the air time or newspaper space given thereto, and shall be limited to the amount of election fund of their owntr. According to the latest amendments to the Law 'on Television and Radio Broadcasting' signed by the President in March 1998, broadcasting of unpaid (in the sense of 'politicat') advertising shall be prohibited. Organizations, responsible for transmitting television and radio signals, shall not be allowed to reject access 4 The Press in the CIS: conllicts and ofense of I'aw. 1196. (The Glasnost Defense Foundation). Moscow .prava chelovoka , , 1997 p. 3g9. o Thc Press in the cIS: conflicts and otrense of law. 1996. ifttr crmnoJ oirense rounoationi. Mo*o* ,rrauu cheloveka,, 1997 p,391. { The Iaw of Ukraine .On Advertising, (# 270/96-/f/y, s rhe Iawof ukraine'on ert.Z, t9_Zt. Raaio Broaica.*ing; ti s75s-xll). Art. 31. { The Iaw of ukraine 'on Television-and Election of pr"prm (* o.p"tirs ortitraine, i+ijif:inl. Arr. 34, 35. UKRAI NE 23 164 to broadcastrng frequencies to those licensed TV and radio companies which have no indebtedness in payment for the use of such. Directors of TV and ra'dio eoanpanies strall not ar:ry longer bear responsibility for defamatory statements in political programs, being broadcast during pre-election campaign (unless these statements are in breach of the Constitution). As of the moment of announclng the date of election, none of the TV or radio companies may be deprived of its right to broadcast unless by a court judgment. The central Election commission and relevant regional cornmissions shall perform control over the use of mass media. In the preliminary report of the European Institute for the Media oon covering Parliamentary Election in Ukraine by Mass Media in March 1998', certain violations of the pre-election law are highlighted, in particular ofthe provision which prohibits rendering of advertising seruices free of chargeaT. coNcrusloN In the early 90s, Ukrainian mass media were going through the process of legal strengthening or lneir freedoms and liberties. state authorities were busy with establishing financial and economic fundamentals for the new independent state, and thus paid no serious attention to the laws beurg adopted one folowiqg anothEr, which werE creatirrg an extremely democratic legal field for the press, TV and radio companies. In 1993 in Ukraine there were adopted three fundamental laws on information, the press, TV and radio broadcasting, about which Moscow liberal lawyers and journalists might have only dreamt at that time, and perhaps still dream such laws even now! However, with the growing counter actions of the branches of power and holdirrs a series of election campaigns in 1996-1998, certain qystematic attempts to limit the granted' freedoms were noticeable: lawsuits for incredible amounts of money as compared to other countries of the CIS were being initiated by officials, amendments were beuU introduced to the legislation in force, the cases of battery against joumalists became more frequent, It is sd, that courts became active discriminaton of mass media, in particular arbitration courts. As it stands now, the process of legal strengthening of freedom of information and mass media in the country cannot be turned back, and the society is able to encounter a temporary invasion of one of its most important democratic rights. Llsr of Leglslorlve Acts The Constitution of Ukraine (# 254/96-Bp). The Iaw'On Information' (# 2657-XII). The I-aw'On Printed Media (the press) in Ukraine, (# 2792_XIl). The I-aw'On Television and Radio Broadcasting' (# 3759-XII). The Iaw'On Informational Agencies, (# l + 1 l S -nq. The Iaw 'On State Support of Mass Media and Social Security of Journalist s, (# 540/97 -Bp). The l-aw'On Communications, (# 160/95-Bp). Thg Law'OnAdvertisrng' (# 270/96 -Bp). The law 'On State Secrets' (# 3855-KI). 'On the Procedure for Coverage by Mass Media ofActivity of State OreS and Local Self-Goveming Organs in Ukraine' (# 539/97-Bp). The Iaw 'on Elections of people's Deputies of ukraine; 1* s+t1ll-w'y. G' ffiUfi.,,ffilE n?ll CRAWLI N G TOWARDS .FR EEDOM{ ''oFsPEE=dH'1'