Observance of Digital Rights in Ukraine

An analytical report on the results of monitoring of the violation of digital rights in Ukraine in 2019-2021 revealed the importance of tracking negative trends related to the violations of, or restrictions on, human rights in the digital environment, as well as the lack of possibilities to effectively protect them. There is an obvious need to exercise appropriate civil control over the actions of the authorities in this area and to develop recommendations for eliminating or at least minimising the identified threats. Promote Ukraine publishes the main highlights of the report.

The main trends identified in the course of monitoring conducted by the NGO “Human Rights Platform” can be described as follows. On the one hand, Ukraine introduced a mechanism to restrict freedom of speech on the Internet, in particular by blocking access to various web resources or removing certain information. On the other hand, our country sees a problem with the protection of personal data accumulated by the authorities who do not exercise proper control over its storage.

Practical difficulties also arise with the removal of unlawfully disclosed private information from the network. According to researchers, the most serious threats to digital rights in Ukraine at the moment are:

• Blocking of access to web resources without legal action through imposition of sanctions on the basis of decrees of the President of Ukraine
• Blocking of access to web resources by judicial procedure through seizure of “intellectual property rights of users,” although the Criminal Procedure Code of Ukraine contains no such instrument to ensure criminal proceedings
• Court rulings on the removal of disputed information without providing a legal justification and/or without describing the reasons for such a judgmentor describing such in violation of applicable law
• Inadequate differentiation between facts and evaluative judgments by courts resulting in limited dissemination of opinions
• Abuse of the procedure for establishing facts of legal significance to declare disputed information inaccurate and refute it
• Threats, attacks, and harassment on the Internet, pressure on journalists
• Illegal collection and/or dissemination of personal data
• Legislative initiatives that carry the risk of restrictions on or violations of digital rights
• Dissemination of malicious content and software, etc.

Blocking access to web resources

After the independence of our state was restored, the legislation of Ukraine moved towards liberalisation and strengthened guarantees for freedom of expression. This was essential for building democracy as the communist regime tightly controlled the dissemination of information in society.

In view of this, a provision was included in Article 15 of the Constitution of Ukraine that censorship is prohibited in Ukraine. Part 1 of Article 24 of the Law of Ukraine “On Information” specified this provision somewhat. It states that censorship is prohibited, i.e. any requirement addressed, in particular, to a journalist, media outlet, its founder (co-founder), publisher, manager, distributor, to coordinate information before its dissemination or prohibition or obstruction of any other form of replication or dissemination of information.

This prohibition does not apply to cases when prior coordination of information is carried out on the basis of law, as well as in the case of a court ban on the dissemination of information.

Thus, as can be seen from the above, the said Law gives courts only the right to restrict the dissemination of certain content.

The emergence and development of the Internet amplify the ability to search for, transmit, and receive information and ideas, giving everyone a real chance to send a message to a specific person, a certain community or to inform the general public 24/7, regardless of borders, without prior agreement with anyone. This has undoubtedly had a significant positive impact on freedom of expression.

At the same time, the Internet as a special technology carries a number of serious risks for the protection of state interests, human rights and freedoms, and so on. In particular, the dissemination of inaccurate information about a person or personal data or other information about his or her private life on the Internet can cause much greater damage to a reputation or the right to privacy than the publication of such information in traditional media.

The Internet is also actively used to commit crimes (for example, to disseminate information about the sale of drugs or pornographic images, other products prohibited by Ukrainian law, to seize property by misleading people, to organise illegal gambling activities, etc.). All these and many other challenges require an effective response from the state.

Hybrid aggression

In 2014, with the beginning of the Russian armed aggression against Ukraine, the lack of such special regulation became even more noticeable as, in addition to armed confrontation, an information war is constantly being waged against our country, accompanied by massive misinformation and manipulative messages, calls for violent overthrow of the constitutional order, violation of territorial integrity, etc. This kind of message is spreading on the Internet, exerting its negative impact. Of course, this also requires an appropriate response from the state.

However, even after that, high-quality legislation in the field of Internet regulation has not appeared in Ukraine. Even the Law of Ukraine “On Sanctions,” adopted by the Parliament of Ukraine in August 2014, as amended in 2017, 2020, and 2021, does not provide for sanctions directly aimed at restricting access to illegal information disseminated on the Internet. Such norms are also missing in the Code of Criminal Procedure of Ukraine, which determines the procedure for pre-trial investigation and judicial examination of cases, including those related to the commission of crimes against national, public security, public order and morality, etc.

As a result, public authorities try to combat illegal influence through the use of legal instruments, applying the rules of existing legal acts.

Monitoring of digital rights shows that the actual blocking of access to websites and other information web resources is currently carried out in two most common ways: through decrees of the President of Ukraine, which enact the decisions of the National Security and Defence Council of Ukraine to impose sanctions, and court rulings to seize intellectual property rights allegedly vested in users of web resources and to oblige Internet providers to restrict access to them.

The application of these methods for restricting access to information produces an impact on an unlimited number of Internet users and, therefore, poses the greatest threat. That is why such actions are qualified as a violation of general digital rights.

Natalia Tolub