The Media Law was the first major update of media legislation since back in 1991-1993, when the Verkhovna Rada passed the first media laws. In addition to the formal incorporation of several laws and the repeal of a couple of completely undemocratic ones, the media law changes the approach to the relationship between the state and the market and covers more content delivery technologies than before (since there were no online media and video platforms in the 90s).
Well, actually no, it does not cover the infamous Telegram – this is the issue of implementation of the DSA and DMA, as well as the issue of a common European vision of what to do with this “Middle Eastern player of Russian origin”.
The main goals of the law are to establish more balanced rules of the game for all market players, as well as to move from the “Cerberus State” paradigm to a partnership, where the market produces and agrees on the rules, and in case of violations, the state first warns, and only then begins to fine. And, of course, the transition to electronic document management is an excellent optimization of the time and resources of all stakeholders.
The Centre for Democracy and Rule of Law has prepared 10 major amendments to the law, so let’s take a closer look.
#1. Paradigm shift – forget about the term ‘means of mass information’ (almost)
Ukrainian legislation by its very nature became a ‘child’ of the Soviet Union legislation and adopted all its shortcomings: over-regulation; attempts to define everything, even the unnecessary things; and also copypasting the Russian laws. The concept of ‘means of mass information’ came to us from the totalitarian USSR and actually describes the attitude of the state and political elites to the media: they were treated as servants.
Similar ideas have been discussed in many parliamentary debates in a time when Ukraine turned back its independence. And also in electoral laws where the authors directly envisioned an article “use of means of mass information”. In these debates about “means of mass information”, two different concepts were gradually mixed up: the form of content delivery and the entity (actor) that issues it.
Instead, the law now defines media as a means of disseminating mass information in any form that is periodically or regularly released to the world under editorial control and a permanent name as an individualizing feature.
From now on, media is just a form of embodiment: for example, classic TV, or online press. The mention of means of mass information (and only in parentheses) was left solely for the sake of norms written into dozens and hundreds of by-laws, which will take a long time to replace.
If, however, we are talking about a person engaged in creating/managing media, then this would be the appropriate “entity (actor) in the sphere of…” (e.g. print media).
In addition to the transition from the means of mass information to media, the law put terminology in the field of audiovisual media in place. After all, the Law “On Television and Radio Broadcasting” created complete confusion.
To begin with, when people say ‘electronic media’, what do they usually mean? Of course, websites and various online broadcasters. But the law on television and radio broadcasting considers otherwise and refers to radio and television as electronic media.
When we say that we saw something on channel/TV channel “X”, we are referring to a remote control button where a picture with a certain recognizable logo appears. But here again the law says “no” and means by channel the frequency range in which a particular radio station or multiplex is placed, that is, a package of channels. And what we call a TV program (show), for example Breakfast with Ukraine, is actually called a telecast under the law. Because the program is the TV channel itself. After all, the legislators themselves got so confused that in the electoral laws they started writing ‘program (telecast)’ just to be on the safe side.
The Media Law sorts everything out: now a program is a unit of content (that is, what used to be called a telecast), such as a movie. A TV channel/radio channel is what we program on the remote control or load into a playlist, and the person that creates everything is a TV broadcaster/radio broadcaster (an entity (actor) in the field of linear audio/audiovisual media service). And we leave the telecast to original television.
#2. Bloggers get too regulated!!! (not really)
Will the new law regulate Youtube and bloggers – this question was discussed so heatedly that the number of lances broken resembled the consequences of another princely squabble in the times of Rus.
And while the question of why a blogger with an audience of two million people is a sacred cow and some newspaper should be responsible for the violation is open, let’s not jump to conclusions and start finger-pointing.
If a blogger wants to register a page about Botany and stuff as popular science online media, the law allows them to do so. But there is no direct requirement, because, excuse me, the number of bloggers has been skyrocketing recently, and the National Council of Television and Radio Broadcasting of Ukraine (media regulator) is one and only. And this year, its budget has been reduced (due to war) by 30%, while the National Council has to prepare an impressive number of by-laws by June 30.
Who is regulated by the law then? You can find the answer in Articles 13 and 14:
#3. Now there are only two cases when a media outlet needs a license
According to the current Law on Television and Radio Broadcasting, a license is required for all types of radio and television, and even though the procedure from the Print Media Law is called registration, it resembles licensing. Moreover, in Ukraine there is a separate law on licensing of business activity, but the definition there is very vague. Generally, licensing exists for several things:
- The object of licensing is the property of the people, such as a salt deposit,
- The object is dangerous – explosives, precursors, radioactive substances, etc., or is historically profitable, like alcohol.
In the case of the media sphere, licensing has historically applied to broadcasting that uses the radio frequency spectrum. But the legislator could not be bothered and brought cable and satellite broadcasting under licensing as well. The only difference was that non-broadcast licenses were issued without any competition.
The new media law contains only two cases in which media are licensed and it takes place on a competitive basis:
- Terrestrial broadcasting: analog radio, digital radio and DVB-T2, popularly known under the trademark T2;
- Licensing activities of a provider of electronic communication services for broadcasting needs using the radio frequency spectrum Admittedly, there is a somewhat more complicated story here, related to the transitional provisions of the Law.
Licensing will still take place at the so-called ‘beauty contests’.
Competition for a broadcaster is announced if:
- There are new “spots” for broadcasting;
- There are frequencies of the previous user who either left or was forced to leave;
- Multiplex* has been condensed and there are new spots due to technology optimization or upgrade.
Competition for a provider is announced if:
- Technology has changed;
- The previous provider failed to renew or lost the license.
* multiplex is kind of a frequency multi-tenant house where on one frequency band, where one analog channel used to broadcast, dozens of digital ones do now.
The requirements for the competition include:
- Geographical category, technical characteristics of the radio frequency spectrum and coverage area;
- Requirements for the program concept of broadcasting (if necessary):
- Format or
- Future licensee’s obligations to ensure minimum scopes of program distribution aimed at a particular audience or
- Thematic area.
For the provider, the competition will include:
- Technical specifications and
- Coverage area of the ethereal multi-channel electronic communications network.
#3(a) Temporary permits stay
Temporary broadcast permits appeared even after the start of the Russian-Ukrainian war in 2014. Back then, this phenomenon emerged de facto as a response to Russia’s military agression and the impossibility of using the licensing mechanism in the conditions of actual war. Later, this principle was legalized by the Verkhovna Rada.
The Media Law leaves a mechanism for temporary broadcasting permits. They will entitle the media to carry out temporary broadcasting for up to one year on a non-competitive basis.
There are two modes of issuing temporary broadcasting permits:
- During martial law or a state of emergency (Art. 50);
- In the absence of a legal regime of martial law or a state of emergency and for the purpose of countering informational aggression (Art. 122)
In particular, the Ministry of Defense, military administrations and civil-military administrations will be able to obtain temporary broadcasting permits after the Verkhovna Rada recognized a certain state as an aggressor and within 5 years after the cancellation of such status (Article 118, 125).
#4. A clear list of those for whom registration is mandatory…
Anyone who does not need to obtain a license must or might register. Depending on the type of service, it is mandatory or voluntary. Or compulsory, which under certain conditions is still compulsory or completely voluntary.
Mandatory registration is required for:
- Broadcasting without the use of radio frequency spectrum (cable TV channel, radio stream;
- Entities in the field of on-demand audiovisual media (Megogo and TaxFlix should get ready);
- Providers of audiovisual services (IPTV and OTT);
- Providers of video sharing platforms (we don’t know these yet, and no, we’re not registering YouTube, because it’s in California).
Registration for print media becomes mandatory if the Verkhovna Rada of Ukraine recognizes a certain state as an aggressor state (occupying state). Media outlets that are already working must register within 2 months from the date of the decision. And the new ones must do so if they start work during its validity and five years after the parliament cancels this decision. (Art. 118, 124).
However, publications registered under the current print media law will have more time. The Media Law will enter into force on March 31, and actors in the field of print media (let’s get used to this definition) will have a year to re-register. After March 31, 2024, their old certificates will expire.
#5. For online media, registration is voluntary, but the laws are mandatory
When the war which russia waged against Ukraine is over, russia capitulates and a 5-year transitional period ends, then the regime of voluntary registration of print media will be reinstated.
But for online media outlets, registration will be voluntary from the very beginning. We want to remind you that now “online media” = “online newspaper (magazine, etc.)” (like the media outlet in which you are reading this material now). Portals that broadcast video or offer audio podcasts are not online media. For agreeing to register, online publication will receive bonuses: official status for journalists and a slightly different system of sanctions.
And the registration of bloggers in social media (platforms of shared access to information) is completely voluntary – an owner of a public group on Facebook or YouTube channel will become an online media if they voluntarily register as an actor of this sphere in the manner prescribed by Article 63 of the Law.
However, if online media staff chooses not to register, it will not be invisible to the National Council of Television and Radio Broadcasting of Ukraine.
If the actor runs a website as a media outlet (publishes news and articles there) and decides to play with the restrictions established by law, then sooner or later it will come under the watchful eye of the regulator. And the lack of registration will by no means protect it from sanctions. Crocodile tears and appeals that this is just a page of some unknown person and this person simply wrote the contacts of a famous propagandist on the website will not help. After all, the National Council (together with the co-regulatory body, if they manage to create one) will independently approve the criteria by which the website will be classified as an online media outlet.
#6. Injunction (this is not a sanction)
“An injunction is not a sanction” – this motto could be placed above the entrance to the National Council. Indeed, an injunction will be a response to violations, as will fines and more serious actions.
However, it is important to have a look at Article 100 of the Law, which states: the injunction is designed to prevent the actor from committing further violations, so in it the National Council will describe in detail what exactly is wrong with the media. Even more so, a dissenting actor can file a counter-statement and present its vision of the problem. If the National Council agrees with it, it will cancel such an injunction.
The main purpose of this mechanism is to move away from the purely punitive system that the Kuchma-Yanukovych-era politicians loved so much and to cultivate the sprouts of trust so badly needed in our society.
Each type of entity will have its own limit of injunctions (for example, 5 per year). After these, the next response link comes into effect – fines.
#7. Fines are steep, but reasonable
Fines are the first response from the National Council, which will be a financial loss to the licensee or registrant.
The regulator will fine for three types of violations: minor, serious and gross. For each type of media there is a separate list of violations, classified depending on the degree of public danger, and corresponding fines.
Amount of fines:
* after injunctions, see below.
When the fine is imposed
#8. The National Council will be able to terminate an entity if it has got itself into trouble
Obviously, most market players are not particularly interested in being sanctioned by the regulator. However, even after the Russian invasion of Ukraine, it turned out that some players feel too entitled.
As you have already noticed, in most cases the principle “first an injunction and only then a fine” will apply.
However, in some cases, the National Council will apply tougher sanctions: it will terminate the activity of the entity on its own or through the court. A separate chunk is Section IX powers, which allow the National Council to respond to an occupation or an aggressor country’s efforts to promote its media.
#9. About the National Council
Critics of the media law have chosen the independence of the regulator and its name as one of the main areas of attack. Let’s not go into the basics of democracy and who should ensure independence not only de-jure, but also de-facto.
First, it is impossible to rename the National Council into, say, the National Council of Ukraine on Media or the Supreme Council of Media Priests, because the Constitution tells us:
“The Constitution of Ukraine cannot be amended under conditions of martial war or state of emergency.”
We would like to remind you that the Constitution of Ukraine stipulates that the Verkhovna Rada of Ukraine has the authority to:
20) Appoint and dismiss half of the members of the National Council of Television and Radio Broadcasting of Ukraine.
And also that the President of Ukraine shall:
13) Appoint and dismiss half of the members of the National Council of Television and Radio Broadcasting of Ukraine.
Therefore, the list of entities that appoint members of the National Council, as well as the name of the body, will remain unchanged until the Russian Federation capitulates, despite the wishes of the legislators.
However, they took a step towards the independence of members of the National Council. Firstly, the law stipulates the creation of the procedure for appointing members of the National Council on the basis of the presidential quota. To recap, there is simply no such procedure in the current law on television and radio broadcasting. According to this procedure, the President must create a competition commission. It receives applications and preliminary discusses the proposed candidates. For each of them the commission prepares a submission to the President with its opinions and recommendations.
The President, based on the recommendations and principles of gender balance, appoints the members of the National Council: at the same time for all vacant offices within their quota.
In addition to the new procedure, the law provides guarantees of financial independence for the members of the National Council. In particular, their official salary is set at the level of 75 living wages (approximately UAH 200,000). It is obvious that such salaries are unrealistic in the times of war, but in the post-war period, the financial guarantee should work (simultaneously with the public control over the activities of members of the National Council).
Another important task for the National Council is to switch to proper planning of its activities. We are talking about two basic documents: Strategy of the National Council and Strategy Implementation Plan.
The strategy should define the main goals and areas of the work of the National Council. In particular, this document should contain information about the state of development of the media sphere, the needs of users in obtaining information and media services. And also to determine the creation or change of broadcast channels, multi-channel electronic communication networks that involve the use of the radio frequency spectrum, in particular, the introduction and change of broadcasting standards, the main broadcasting formats, the need to ensure the scope of certain programs that are aimed at a certain audience or have a certain thematic focus. The National Council must review the strategy at least once every three years. The regulator should adopt the first such document for 2024-2026.
Another document – the annual implementation plan – will focus on the implementation of strategy tasks. It will include information on the current state of regulation, international obligations and tasks defined by national acts, planned activities regarding temporary broadcasting, areas of interaction with co-regulatory bodies, media literacy activities and others.
Another key innovation is the online personal account, which should be created and administered by the National Council (it will also interact with other state registers).
In the personal account, users (media outlets) will be able to register themselves and submit mandatory information, such as ownership structure or changes to contact details. Or send an application for registration or licensing. And the National Council will send a message to these entities.
#10. The Law provides for a co-regulation mechanism for the first time
Co-regulation to replace purely state control is another innovation in the media space. Unlike in many Western countries, self-regulation has not yet become a reality in Ukraine. However, there were some attempts to jointly solve the issue back in 2005-2007, when the Independent Expert Council on Mass Media Activities during Elections was functioning. This agency used to issue opinions about the admissibility of broadcasting campaign videos during election campaigns.
The authors of the law realized that self-regulation is still a rather vague prospect, and therefore provided for a mechanism of co-regulation, a combination of state and “in-house” regulation. It is designed to give market players the opportunity to develop certain policies and build trust.
The main task for the co-regulatory bodies:
- Develop codes (rules) for the creation and dissemination of information in areas of co-regulation. They must be approved by the National Council, then the documents will be opened for signature by entities in the media sphere.
- Create expert panels that will develop opinions on the compliance of information disseminated by media outlets with the codes (rules) of co-regulation. The National Council or media outlets will be able to make a submission to this effect.
In addition, it is through the efforts of co-regulation participants that criteria in the field of child protection, classification of media types, broadcasting requirements and many others should appear.
The process of establishing co-regulatory authorities will begin on October 1, 2023.
Co-regulatory bodies will be created in the following areas:
- Audiovisual media services;
- Audio media services;
- Print media;
- Online media;
- Video sharing platforms.
The procedure for the creation of co-regulatory bodies is described in Section VII of the Law..
Stay tuned for CEDEM updates, as we will be covering a lot of the media law’s innovations.