On October 18 2011 the Ukrainian Parliament adopted at first reading amendments to the Law “On protection of public morality” (#7132).
The law deals with pornography, eroticism, hate speech, violence, and explicit language, however it is written in a way that anything could be considered erotic, hate speech or explicit language, especially on the Internet.
The National committee of Ukraine on protection of public morality, according to article 11 of that law “To prevent the production and distribution of products that harms the public morality” could require internet-providers to:
(without court order – ed.) Immediately (within one day) restrict free access to electronic information resources (or their parts) that were declared by the National committee of Ukraine on public morality protection to be erotic;
In case of a court order, within one day to technically provide for the removal of content that harms the public morality, including child porn, from the national segment of the Internet, and in case of its location outside of Ukraine – to securely block access to it from the national segment of the Internet”.
Therefore this government body (National committee) becomes the Internet regulating body and could block access to websites in Ukraine and abroad; and remove the content of websites in Ukraine.
So what is considered harmful to public morality? In addition to erotic and violent movies article 10 of this law also forbids:
“the usage of obscene, vulgar and brutal words in printed media, in TV and radio programs that are distributed within the 6:00 to 23:00 timeperiod, except for channels with limited access, in advertising, mobile content, computer games and other games for children, in publications aimed at children, in video and audio for children, in movies that have no restriction of audience or that are aimed at an audience under 16 years old”.
Looks like no word about the Internet? However article 11 says “Publication and distribution in telecommunication networks of the productions defined by article 10 this this law is prohibited”.
This way on the Internet, the usage of obscene vulgar and brutal words is totally forbidden. Of course there is no list of such words attached to the law. Moreover the law defines that “the products of an erotic character are the products that has an image (or description) of the human body or sexual acts that are the continuation and confirmation of the depth of emotional experiences of a person, and are aimed at disclosure of manifestation of sensuality and achievement of aesthetic effect”.
As a result it would be enough for someone to write in an Internet forum, site comments or social network 1. Obscene words, 2. Something erotic so the content of this site (aka “electronic information resource”) could be defined by National Committee as erotic and the Internet provider would be required to block access to this site. The equally applies to picture sharing. There would always be a possibility that this “someone” is a hired provocateur.
This law also introduces administrative responsibility for “distribution of products of sexual and erotic character, products that contains obscene vulgar and brutal words, elements of eroticism”. That means that if a state controller would spot a website with a word he considers “brutal” or some “element of eroticism” then not only the author of this content could be fined, but also the site’s owner or editor. And the content could be destroyed.
If that site is abroad then it can be considered by the courts to be erotic (we have no doubts in the possibility of such rulings of Ukrainian courts about any site) and ALL Ukrainian providers would be required to “reliably block it”.
And who actually decides what is erotic and what is not? The National Committee of Ukraine on the prorection of public morality. And who oversees it? The law says: “The procedure of monitoring public morality is defined by the National committee of Ukraine on protection of public morality.” This recursion contradicts article 19 of the Constitution of Ukraine which states that government bodies could act only in accordance to the Constitution and the law and have no right to define their own powers.
So this law is in fact unconstitutional and also directly contradicts article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms which says: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
There is no oversight over the National Committee and no way to dispute its decisions. As we mentioned above, the National Committee could require providers to block content without any court orders.
Its necessary to note that neither this law nor any other Ukrainian law contains a definition of obscene vulgar and brutal words neither as a phrase nor as singular words.
We have no doubt that it could be used to remove opposition content from the Internet. There are similar examples in the former USSR – in Belarus the government blocked the social network VKontakte; in Kazakhstan – blog platforms LiveJournal and BlogSpot, opposition sites; in Russia a blogger was ordered by the court to destroy his computer as a tool of crime.
In June the UN issued a report where the access to the Internet was named as one of most vital tools of human rights protection, for years the UN is stressing that access to the Internet should be declared a human right. In 5 countries the status of internet access as a human right had been already confirmed by legislative framework (e.g. Finland, Estonia, France, Spain, and Greece).
Ukrainian members of Parliament instead want to follow the path of Belarus and Kazakhstan. Instead of promoting the basic human right – freedom of expressions – they want to introduce state regulation of the Internet and the tools for total Internet control and repressions of opponents.
What we will be doing about it?
In order to become a valid legislation this law should be passed at least in second reading. Date is unknown. Until then.
We will issue an alert about this to international human rights watchdogs and all members of the European Parliament.
We will ask members of the Ukrainian Parliament to reject this law on second reading.
What you can do about it?
Share this article with your friends and associates, especially with those who have an influence on Ukrainian politics.
Natalka Zubar, CEO, Civic Information and Methodology Center “Vsesvit”
Olexander Severyn, doctor of law
Viktor Garbar, Board Member, Civic Assembly of Ukraine
Addendum: Translation of some relevant parts of the law.
Note: translation done “as is” and is meant to be as close to the legal terms as possible. If some parts seem to be lacking in any logic please rest assured that it’s not the translator’s fault. We did not improve the language of that law.
The Law On Protection of Public Morality
This law defines the legal framework for protection of public morality and is aimed at regulation of relationships associated with production and distribution of products that negatively influence physical, intellectual, moral and phsychological development of a person.
Chapter I. General provisions
Article 1. General definitions
For the purposes of that law the terms and notions are used in such meanings:
information in telecommunication networks – electronic data including those in mail, messages, books, articles, notes, illustrations (maps, diagrams, organigrams, drawings, schemes, etc.), photos, videos, audiorecords, databases or full or partial reproduction of its elements;
products – any product, picture, engraving, sculpture, printed media production, printed production, photo, audio, movies, video, TV and radio programs, advertising, information in telecommunication networks, including in the Internet, messages and materials, information on digital media including those for laser readers, computer and video games, mobile internet;
products of erotic character are the products that have the image (or description) of the human body or sexual acts that are the continuation and confirmation of the depth of emotional experiences of a person, and are aimed at disclosure of manifestation of sensuality and achievement of aesthetic effect;
Chapter ІІ. State politics in public morality protection
Article 10. Prohibition of production and distribution of products that harms the public morality
To prevent the production and distribution of products that harm public morality it is forbidden:
1) to organize entertainment activities, production and distribution of any products that:
promote war, change by violence of the consitutional order and territorial integrity of Ukraine, terrorism, other manifestations of criminal activity;
promote national, racial and religious hostility, namely racism, xenophobia, ukrainophobia, antisemitism;
promote fashism and neofashism;
humiliate or offend a nation or personality on national grounds;
promote disrespect for national and religious shrines;
humiliate personality, is a manifestation of victimization of mentally retarded, aged, people with disabilities (injury);
promote usage of toxic, narcotic, psychotropic substances, alcogolic drinks, smoking;
promote violence and brutality;
promote prostitution, procurement, human trafficking, production and distribution of pornographic products;
2) production and distribution of pornographic products;
3) production, distribution, offering and providing access to products that may contain child pornography;
4) placement of advertising for intimate meetings for a fee in any media, and the distribution of those by any other way;
5) usage of obscene vulgar and brutal words in printed media, in TV and radio programs that are distributed within the 6:00 to 23:00 timeperiod, except for channels with limited access, in advertising, mobile content, computer games and other games for children, in publications aimed at children, in video and audio for children, in movies that have no restriction of audience or aimed at audiences under 16 years old.
The cancellation of print media that is used for distribution of information that does not meet the requirements of this law, the ban on demonstration of movies, programs, informational materials, entertainment activities, etc. that harm public morality is performed by court order.
Article 11. Prohibition of placement and distribution in telecommunication networks of products that harm public morality
The placement and distribution in telecommunication networks of products defined by article 10 of this law is prohibited.
Operators and providers of telecommunication services that provide the services of placement, storage and access to electronic information resources (websites), as well as Internet access services are required to:
when concluding agreements about service providing it is mandatory to warn consumers about the prohibition of placement and distribution in telecommunication networks of products, that harm public morality, also about the legal restriction on distribution of erotic products;
immediately (within one day) restrict the free access to electronic information resources (or their parts) that were declared by the National committee of Ukraine on protection of public morality as erotic;
In case of court order within one day to technically provide for the removal of content that harms public morality, including child porn, from the national segment of the Internet, and in case of its location outside of Ukraine – to securely block the access to it from the national segment of the Internet”;
in response to request from law enforcement bodies as a part of prevention measures against the distribution in telecommunication networks of the products that harm public morality, immediately provide information that could be used to determine:
type of information service, the user person and other information that could be obtained from the service agreement;
placement of telecommunication devices, time and place of creation, functioning of information resources and data about the access to these by the users of telecommunication systems.
TV and radio companies, providers of programming services that work in Ukraine are forbidden to create, distribute, translate (retranslate) movies, audio, video products, TV and radio programs, provide viewing or listening services of products that are prohibited on the territory of Ukraine according to article 10 of this law.
Chapter V. Performing the monitoring of public morality protection
Article 17. Monitoring of public morality protection
The procedure of monitoring of public morality is defined by National committee of Ukraine on protection of public morality.