HUMAN RIGHTS AND RULE OF LAW
May 2015 р.
Opinion of DGI (Directorate of Information Society and Action Against Crime, Information Society Department, Media and Internet Governance Division)
Prepared on the basis of the expert opinion by Epp Lauk
Cees van Zweeden
/ The (draft) Law of Ukraine
On Reforming of the State and Communal Print Mass Media № 1123 from 01.12.2014
DGI (2015)_, 25 May 2015 р./
Ukraine has over 550 newspapers owned and controlled by central, regional and local authorities, a heritage of the Soviet past. Privatising them is considered long overdue, not least by many of these papers’ journalists themselves. It would also bring Ukraine closer to compliance with international provisions on freedom of expression and to the free press market.
In 2005, the Parliamentary Assembly of the Council of Europe urged Ukraine to privatise the aforementioned newspapers. Although the Ukrainian authorities lent a sympathetic ear to this recommendation, ten years later the relevant legislative framework is still pending.
The latest attempt to have the draft Law on Reforming of the State and Communal Print Mass Media adopted, failed on 17th April 2014, when Parliament rejected that bill, sending its proponents back to the drawing board.
However, early 2015, an amended version of the draft Law on Reforming of the State and Communal Print Mass Media was ready. The prospects of this bill being adopted seemed brighter, if only because a political party (Svoboda) that had been critical of the bill was no longer represented in Parliament.
Still, the Speaker of Parliament asked the Council of Europe to review the draft law.
In May 2015 two experts co-signees commissioned by the Council of Europe, paid a visit to Ukraine with the objective of drafting a Legal Opinion on the new bill. The experts reviewed the bill from the perspective of the freedom of expression and the need for ensuring editorial independence of the newspapers undergoing the reform.
A line-up of several stakeholders (official bodies and NGOs) briefed the experts extensively, many of them urging speed.
The stakeholders’ urgency, sometimes bordering on impatience, stemmed from frustration about the slowness of the legislative process thus far.
The declining fortunes of many papers had fuelled that frustration. Newspapers’ revenues were falling as sales and subsidies declined, whilst expenses were on the rise as a result of the sharply increased price of paper. In some cases newspapers had folded.
The experts share the stakeholders’ sense of urgency, and believe that the Law on Reforming of the State and Communal Print Mass Media should be promulgated before the autumn 2015 elections.
• Promulgate the Law on Reforming of the State and Communal Print Mass Media before the autumn 2015 elections.
The experts believe that even in its current form the adoption and implementation of the law would constitute a leap forward. Over 550 newspapers controlled by authorities, would fall into the private domain. That would greatly enhance media pluralism and journalistic autonomy.
Privatisation of the state and communal press would also contribute to the formation of a free and competitive press market, functioning on the basis of supply and demand.
On the other hand, under the current political and economic circumstances in Ukraine, it is necessary to create conditions where the small local privatized newspapers can compete within the market. These conditions should be in accordance with the requirement of the Council of Europe to create equal conditions for functioning of all media.
Whilst viewing the draft law as a definite progress in reforming Ukrainian media, the experts also would like to point out some critical aspects in the draft law that need attention.
The draft law On Reforming of the State and Communal Print Mass Media lacks clarity and - taken together with the existing law On Print Media in Ukraine - gives too much leeway for government intervention in the press, both at the local and the national level.
Therefore, whilst acknowledging the need for urgency, the experts propose a limited number of amendments to the draft law On Reforming of the State and Communal Print Mass Media.
They also recommend Parliament to revisit the law On Print Media in Ukraine, without making the implementation of the law On Reforming of the State and Communal Print Mass Media contingent on it.
The purpose of the draft law On Reforming of the State and Communal Print Mass Media, as set out in the first paragraph, is to “establish the mechanism for reforming of print mass media”.
The scope of the law applies to the print media founded and financed by the central, regional and local authorities and the editorial staffs of these publications.
Articles 3 and 4 of the draft law On Reforming of the State and Communal Print Mass Media leave too many questions open about the process of the reform. These articles also compromise journalists’ independence and social security benefits.
2.1. Issue of maintaining the title, purpose and thematic scope of a privatised newspaper
Sub-article 3.1.2 obliges the new owners of a paper to retain the “title, purpose, and thematic scope”.
Other sub-articles use the same wording.
Sub-article 5.4 establishes that “the central body of executive power”, a State institution, shall monitor the privatised media so as to ensure compliance with the obligation set out under sub-article 3.1.2.
Sub-article 9.1 makes the transfer of ownership dependent on compliance with the obligation set out under sub-article 3.1.2, adding maintaining language as one further condition.
Sub-article 12.1 stipulates that only those newspapers that comply with the obligation set out under sub-article 3.1.2 shall (potentially) qualify for state subsidies.
The experts believe that the requirement to retain the “title, purpose, and thematic scope” is too restrictive for a newspaper. What if the existing title bears the hallmark of the Soviet era? What if thematic scope, as will often be the case, entails giving undue coverage of the ruling mayor? What if the editor would like to add a section on a theme not covered before?
Amending sub-article 3.1.2 and hence sub-articles 5.5, 9.1 and 12.1 enables papers to lay off their straightjacket, break free from the past and modernise, perhaps venturing into new thematic areas. This would remove one obstacle to freedom of expression.
Newspapers should be free to choose their title, purpose, and thematic scope. Restrictions of their freedom of expression should be limited to those set out under general laws that protect the interest of others, such as the laws on defamation, privacy, hate speech and copyright.
Nevertheless, the experts believe that it is legitimate for Parliament to protect one particular function of the overwhelming majority of newspapers that are to be privatised: their focus on covering local news and current affairs.
Therefore it would suffice to replace the words “title, purpose, and thematic scope” by “focus on covering local news and current affairs, except for those newspapers founded by the central bodies of executive power”.
• Amend sub-articles 3.1.2, 5.4, 9.1 and 12.1.
2.2. Article 15 of the law On Print Media in Ukraine and its impact on the draft law On Reforming of the State and Communal Print Mass Media
However, even if sub-articles 3.1.2, 5.4, 9.1 and 12.1 of the draft law On Reforming of the State and Communal Print Mass Media were amended as proposed, the newspapers would remain subject to registration under the law On Print Media in Ukraine. Article 15 of that law provides that the State may refuse registration if “the name of the print media outlet, its program goals (fundamental principles) or thematic focus conflict with Articles 3 and 4 hereof”.
Articles 3 and 4 of law On Print Media in Ukraine impose wide-ranging restrictions on newspapers, including a ban on “interfering with the private life of individuals” and on “using abusive and harsh words”.
Thus, registration could be refused if a privatised newspaper decided to add a celebrity gossip column as one of its themes.
Article 8 of the European Convention on Human Rights provides for a “right to respect for private and family life”, subject to exceptions. However, under the Convention it shall be up to an independent court to rule whether that right has been violated, and any sanction should be proportionate to the damage caused.
Article 18 of the law On Print Media in Ukraine not only enables the Court to terminate a newspaper’s registration, which amounts to closure, if it deems the first part of article 3 dealing with war propaganda and hate speech) to have been infringed.
Article 18 also enables the Court to terminate a newspaper’s registration if it deems the law On Reforming of the State and Communal Print Mass Media to have been violated.
Closure, the most drastic of all sanctions, should never be justified.
Therefore, the law On Print Media in Ukraine does not fully comply with the European Convention on Human Rights and the European Court of Human Rights’ case law.
• Delete the words “of requirements of the Law of Ukraine ‘On Reforming of the State and Communal Print Media’” from the law On Print Media in Ukraine.
• Revisit the entire law On Print Media in Ukraine in order to approximate it to European standards, once the law On Reforming of the State and Communal Print Mass Media has been adopted.
2.3. Decision about reforming and its method
Sub-article 4.1 of the draft law On Reforming of the State and Communal Print Mass Media stipulates that “the decision on reforming the Print Media and the Editorial Offices is taken by the founders (co-founders) with participation of the employees” and that “the employees of the Editorial Office have a priority right for selecting the method of reforming”.
The law proposal excludes the possibility that the employees could take the initiative of deciding about privatization.
Sub-article 4.2 of the draft law provides further details on how the employees of the Editorial Office shall submit their “proposal on the method of reforming”.
Subsequently, as sub-article 4.3 sets out, the founders (co-founders) shall make the final “decision on reforming and its method”.
Under article 4, therefore, the employees shall come up with a proposition whilst the current owners decide.
If the employees do not come up with a proposition, sub-article 4.4 specifies that the founders (co-founders) will make the decision.
Therefore, in all cases the founders (co-founders) decide.
That could perhaps be justified, except that articles 3 and 4 of the draft law On Reforming of the State and Communal Print Mass Media provide scant details on how to reform.
That carries the risk of the founders (co-founders) making decisions that are detrimental to the newspapers, willingly or unwillingly.
As article 4.3 stipulates, the founders (co-founders) decide on “reforming and its method” (italics added for emphasis).
The experts believe that, first, the law must establish who exactly will make the decision and who will approve the decision. They hold that the local council, as opposed to the mayor or a governor, should approve the final decision.
Second, the law should set out the “method” of reforming in detail with an aim of ensuring editorial independence.
Sub-article 3.2 now describes the process of reforming as follows:
“Withdrawal of the public authorities, other government bodies and local self-governance bodies from founders (co-founders) of the Press Media and Editorial Offices with further transformation by the employees of the Editorial Office into the economic entity with the same title, purpose and thematic scope of the Print Media.”
One question is: What kind of economic entity are the Editorial Offices to be changed into? Analysing the advantages and disadvantages of - for instance - a limited company and a joint stock company falls outside the scope of the experts’ assignment.
However, Parliament might want to consider imposing one type of company.
Subsequently, the experts believe that the draft law On Reforming of the State and Communal Print Mass Media should spell out the formula for distributing shares (e.g., the link between the number of shares and number of years in the company) with an aim to give journalists majority ownership.
For instance, journalists receive 60% of the total number of shares between them following the abovementioned formula whilst non-editorial staff receives 40%.
Media ownership of newspapers is to be preferred to non-media ownership, as media owners tend to value editorial independence more. Ensuring journalists have a majority ownership reduces the risk of the privatised newspapers quickly falling in the hands of businessmen imposing an editorial policy with the sole purpose of furthering their own businesses.
Further fostering editorial independence, the draft law should prohibit the local authorities from replacing editorial staff the moment the law is promulgated.
• Articles 3 and 4 must stipulate that the local council decides on reforming, and spell out the “method” of reforming in detail.
• The law should establish which type of company the newspapers will be transferred into, and detail the distribution of shares with an aim of ensuring that journalists gain majority ownership.
• The law should prohibit the local authorities from replacing editorial staff once the law has been promulgated.
2.4. Forms of Government support
Article 12 of the draft law On Reforming of the State and Communal Print Mass Media lays down the forms of state support for the privatised media.
State support for media is in principle uncontroversial. It is justified – even encouraged - by international covenants and declarations as a legitimate means to foster media pluralism and the right to freedom of expression, which includes the right to impart information.
Resolution 1636 (2008) of the Parliamentary Assembly of the Council of Europe states that member states should take concrete positive action to promote media pluralism. However, the resolution emphasizes that state support must be fair.
The Report on Resolution 1636 (2008) establishes: “Media freedom in a democracy requires fair and neutral state subsidies to the media. It could unduly limit media freedom, if a state subsidized individual media in a preferential way. The latter could be abused for political influence.”
Sub-article 12.1 of the draft law On Reforming of the State and Communal Print Mass Media states that “locally distributed reformed Print Media” may receive government support from the state budget.
Sub-article 12.2 lists three forms of support:
As to the second form of support (targeted support), the experts hold that the draft law On Reforming of the State and Communal Print Mass Media should be explicit.
First, sub-article 12.2 should define the criteria for subsidizing local newspapers. If small papers that might not be sustainable without state support are targeted, criteria could be the size of the subscription base (no more than x copies) or the size of the distribution area (no more than x inhabitants).
Second, an independent body must distribute the subsidies so as to ensure they are allocated in a neutral manner. In many European countries the powers to allocated state funds are entrusted to self-regulatory bodies such as press councils.
As to the third form of support (provision of a priority right for execution of agreements for covering the activities of local executive bodies and local self-government bodies), the experts suggest that the draft law On Reforming of the State and Communal Print Mass Media details the mechanism.
One option would be for the State to buy a certain amount of space in each local newspaper that would be available for local authorities to publish their information. The price to pay for this space would be relative to the circulation of the newspaper.
Such a set-up would not interfere with the editorial independence. It would also exclude the possibility of local authorities buying space on the condition of a favourable coverage.
• The direct subsidies to ‘targeted’ local newspapers must be allocated by an independent body according to clearly defined criteria, set out in the law.
• The law should detail the mechanism by which local authorities can gain access to local newspapers to publish their information. This mechanism must be designed with an aim of avoiding political interference by local authorities.
Having reviewed the draft law On Reforming of the State and Communal Print Mass Media, the experts conclude in complete agreement that the law, when adopted, will improve the media environment in Ukraine. It will:
• Advance democratisation and plurality in the press system
• Enlarge the editorial independence of the news media
• Contribute to the development of free market
Notwithstanding, the experts have identified several segments of the law that would benefit from being amended. They hope that their suggestions for improvement of the draft law will contribute to the positive result of its reading in the Parliament.
Other segments of the law raised questions the experts decided not to draw upon, in part not to unduly slow down the legislative process, and in part because they do not touch upon freedom of expression principles.
These segments relate to labour issues such as the compensation of employees who are laid off and payment of wage arrears, and purely financial issues such as payments of debt.
Prof. Epp Lauk, University of Jyväskylä, Finland
Cees van Zweeden LL.M, media law expert, Paris, France
Jyväskylä/Paris, 25th May 2015