(this document was prepared for OSCE)
Structure of the document
- Introduction
- Obligations of Ukraine under international treaties on minority languages.
- Main actors in language regulation:
- Key state actors.
- National minorities` participation in the decision-making on language issues.
- State regulation of broadcasting in minority languages:
- General overview and major trends.
- Current regulation of the language of TV- and radio-broadcasting.
- Transfrontier broadcasting in Ukraine.
- Satellite broadcasting.
- Cable multichannel services.
- The digital switchover.
- Non-linear audiovisual media.
- International broadcasting in Ukraine.
- Minority languages and public service broadcasting.
- The actual use of languages in broadcasting.
- Languages in screening and cinematic production.
- Minority languages in print media.
- Regulation of the language of advertising.
1. Introduction
The topic of languages had always been very much politicized inside the Ukrainian society. It came on the apex of the political agenda in 2004 when the demands to give the Russian language the status of the official language were put by the Yanukovych supporters and became one of the reasons for the Orange Revolution. During the presidency of Yushchenko, the trend towards Ukrainization of media sphere started. However, it was reversed after 2010 – when Yanukovych became the President of Ukraine.
The majority of language legislation was quashed in 2012 with the adoption of the Law on Principles of State Language Policy (the so-called “Kivalov-Kolesnichenko” law, named after two authors of the draft). [1] The adoption of this law was met with huge protests from the Ukrainian-speaking majority of the population including street actions and hunger strikes. The law itself was adopted with many procedural violations and is presently subject to review in the Constitutional Court of Ukraine. [2]
While the “Kivalov-Kolesnichenko” law was formally adopted to implement the provisions of the European Charter on Regional or Minority Languages, in fact, it was aimed at giving a de-facto official status for the Russian language. Even though the under-regulated regime gave possibilities to develop the use of all minority languages, mentioned in the law itself, in fact only the Russian-speaking minority was able to benefit from it.
2. Obligations of Ukraine under international treaties on minority languages
General regulation of television and radio broadcasting in Ukraine is subject to the obligations taken by signing European Charter for Regional or Minority Languages and Framework Convention for the Protection of National Minorities. Under these documents, separate provisions are provided for the broadcasting in minority languages, in particular for the production of audiovisual products in various languages.
Under Article 11 of European Charter for Regional or Minority Languages, Ukraine shall undertake[3], for the users of the regional or minority languages within the territories in which those languages are spoken, according to the situation of each language, to the extent that the public authorities, directly or indirectly, are competent, have power or play a role in this field, and respecting the principle of the independence and autonomy of the media:
- to the extent that radio and television carry out a public service mission to make adequate provision so that broadcasters offer programmes in the regional or minority languages;
- to encourage and/or facilitate the broadcasting of television and radio programmes in the regional or minority languages on a regular basis;
- to encourage and/or facilitate the production and distribution of audio and audiovisual works in the regional or minority languages, etc.
Under Article 9 of Framework Convention for the Protection of National Minorities [4] Ukraine shall ensure, within the framework of its legal system, that persons belonging to a national minority are granted the possibility of creating and using their own media.
3. Main actors in language regulation:
- Key state actors
The main actors responsible for public administration and regulation of broadcasting in minority languages are Verkhovna Rada, the Ministry of Culture and the National Television and Radio Broadcasting Council of Ukraine (hereinafter – the National Broadcasting Council) with the latter being closest to the implementation of state language policy.
The Parliament determines in general terms public policy on television and radio broadcasting, the legislative framework of its implementation and the social and legal guarantees for the persons engaged in this industry. [5]
Despite the formal obligation of the Ministry of Culture under paragraph 3.1 of its Statute [6] to guarantee the development and implementation of public language policy and the protection the rights of national minorities, practical participation in this process is limited to preparation of draft legislation and distribution of financial support on minority language print outlets. In 2016 there has been established a separate Department of Language Policy in the structure of the Ministry responsible for the issue of minority languages through the development of legal acts and other program documents. As it was stated in the response of the Ministry to an information request #77/22-1/55-17, this Department has submitted to the Cabinet of Ministers a policy proposal “New approach on the perception of official language”. The text of this proposal has not been published or made available in any other form. Another result of the work of the Department is the development of the Draft Law #5670 “On official language” [7] which will be described further. As it appears from the Ministry`s activities as a whole, it focuses mainly on the protection of Ukrainian language with a little focus on minority languages.
The main role in regulating broadcasting in minority languages belongs to National Television and Radio Broadcasting Council of Ukraine [8]. In principle, the National Broadcasting Council has two types of competencies: supervisory and regulatory. In accordance with article 13 of the Law on the National Broadcasting Council, the body is responsible for the supervision of compliance of broadcasters and providers with the legislation in the field of broadcasting, conformity with the license conditions, broadcasting during elections, technical standards of broadcasting, share of national audiovisual product, share of songs in Ukrainian language and the languages of the EU, share of hosting in Ukrainian, etc. The body is entitled to conduct official monitoring and, if necessary, to impose sanctions for the breach of legislation in this field. [9]
The regulatory powers of the National Broadcasting Council are specified in Article 14 and comprise licensing of broadcasters and program providers, development of the conditions of radiofrequency resource use and defining its users, guaranteeing and facilitation of competition, maintenance of the State Registry of television and radio information providers, etc. [10]
Furthermore, the National Broadcasting Council takes part in the development of public policy in its area of competence, establishes and maintains relationships with international organizations, as well as conducts the analysis of current situation in the field.
- National minorities` participation in the decision-making on language issues
As the information was received from the National Broadcasting Council in their letter #7/44 from 3 May 2017, national minorities are not consulted on issues related to minority media operation and development and no consultative bodies exist on this matter. Accordingly, no consultation was made on digital switchover or other issues of minority media operation and development. Nevertheless, the regulator has its mechanisms of decision-making, which shall count the interests of national minorities.
Under the relevant provisions of the Law on TV- and Radio-Broadcasting, [11] the National Broadcasting Council, upon holding the competition for licenses, shall take into account the protection of rights and interests of the national minorities. What is more, while assessing the application for obtaining the broadcasting licenses, it shall also give priority to a broadcasting organization that, inter alia, satisfies the information needs of national minorities. Formally, there are no special licensing regimes for minority language television and radio broadcasters are provided under the current legislation. Still, the National Broadcasting Council can give preference to a broadcaster claiming to exceed the Ukrainian language quota by minimum 5%. In practice, this provision allows for the body to establish specialized competition in order to stimulate broadcasting in minority languages and, therefore, satisfy the minorities’ needs.
Additionally, according to the Law on PSB one of the members of the Supervisory Council of the PSB represents the civil society organizations which act in the sphere of national minorities’ protection.
4. State regulation of broadcasting in minority languages:
- General overview and major trends
In 2006, when the new edition of the Law on TV- and Radio-Broadcasting was adopted, there existed a quota for national broadcasters. It was established at a rate of 75% of daily programming in Ukrainian. However, this norm was quashed by the “Kivalov-Kolesnichenko” law and since 2012 this law remained valid. With the start of Russian aggression in 2014, society, as well as state authorities, started to push for the introduction of more Ukrainian language on TV and radio. This was presented as the question of information security rather than the question of minorities’ rights. This discussion in the society led to the adoption of amendments to the Law on TV- and Radio-Broadcasting, described above.
More importantly, the discussion in the society also led to the calls for the adoption of the new linguistic legislation in general. In the December 2016 – January 2017, three draft laws, which were aimed at regulation of the status of the official language, were introduced in the Parliament: Draft Law #5556, [12] Draft Law #5669 [13] and Draft Law #5670. [14] Among three of them, the Draft Law on Official Language #5670, which was prepared by the working group established by the Ministry of Culture, is worked out slightly better than the others and is also supplemented by the Draft Law #6348 with corresponding amendments to the Law on National Minorities. [15] Though still Draft Law #5670 has proved to be quite controversial as the changes proposed in its text concerned, in particular, the establishment of a separate post of language inspector and extension of legal responsibility for various types of infringements, such as “disregard of official language” as a criminal act. Moreover, printed media published in Russian language, under the draft, shell be compulsory also published in Ukrainian language with at lease 50% of its circulation. However, none of these drafts currently have significant chances to be adopted by the Parliament. The discussion on a possible merger of these drafts is currently ongoing.
Under the relevant provisions of the Draft Law #5670, supplemented in relevant part by the norms from the Draft Law #6348 on programming in national minorities’ languages for regional and local broadcasters, which merit to be mentioned in this report, the obligation of broadcasters to broadcast in Ukrainian is established. At the same time, the draft leaves the room for broadcasting in foreign languages: 10% of daily programming for national broadcasters, 20% of daily programming for regional and local broadcasters, 60% of daily programming for Ukrainian international broadcasting.
- Current regulation of the language of TV- and radio-broadcasting
The language of broadcasting is currently regulated by the Law on TV- and Radio-Broadcasting (Articles 9 and 10) [16] and the Law on Principles of State Language Policy (Article 24) [17].
The general rule provides for 50% of total television and radio broadcasting to consist of the national audiovisual product [18]. Its definition is not connected to the language. It stands for any program, film or any other audiovisual product created by physical or legal persons of Ukraine. Therefore, any content, satisfying this requirement which can be in Ukrainian or in any other minority language should be counted towards Ukrainian content.
Afterwards, two separate regimes of the regulation shall be distinguished: the regime for TV- and the regime for radio broadcasters.
TV-broadcasting. Under the current law, the only norm regulating the language of TV-broadcasting is contained in Article 24 of the Law on Principles of State Language Policy. [19] It states that the official information about the activities of state authorities and local governments shall be distributed in the official language (that is Ukrainian), while it is also possible to distribute this information in regional languages in certain regions – but with the obligatory translation. However, this norm has no practical effect as to the language regulation on TV.
However, on 23 May 2017, the Draft Law #5313 was adopted – but it is yet signed only by the Head of Parliament but not by the President. [20] The President had publicly declared his intent to sign this law. [21] This draft law significantly changes the regime for the TV-broadcasters and establishes quotas for broadcasting in Ukrainian for them. It shall be born in mind that these quotas apply only to the TV-broadcasters, who obtained broadcasting licenses in Ukraine – but not to foreign broadcasters, which can be retransmitted in Ukraine.
Under the provisions of that law, the general quotas for broadcasting in Ukrainian for the national and regional (these are the broadcasters, which broadcast or are retransmitted by the providers on the territory of more than one region (oblast’)) terrestrial, digital terrestrial, satellite and cable TV-broadcasters will be established at a rate of not less 75% of duration of filming and programming [22] in 7:00-18:00 and 18:00-22:00-time intervals. The very same quota for the local (these are the broadcasters, which broadcast or are retransmitted by the providers on the territory of a single region (oblast’)) terrestrial, digital terrestrial, satellite and cable TV-broadcasters will be established at a rate of not less than 60% of duration of filming and programming in the same time intervals. This 60% quota also applies to the TV-broadcasters, which use other broadcasting technologies (that is IPTV, cable, etc.). Contrary to the radio broadcasters, the quotas for the TV-broadcasters shall be provided on a weekly, not on a daily basis.
Special quotas are established for the news programming of all the terrestrial, digital terrestrial, satellite and cable TV-broadcasters. They must ensure that not less than 75% of weekly news programming in 7:00-18:00 and 18:00-22:00-time intervals is broadcasted in Ukrainian.
A separate regime will also apply towards the broadcasters, who broadcast in Crimean Tatar. All such broadcasters, notwithstanding the type of broadcasting, shall ensure that not less than 75% of their weekly programming is broadcasted in Ukrainian and Crimean Tatar, whereas not less than 30% of programming shall be broadcasted in the Ukrainian language.
The new requirement is introduced with regard to the obligatory broadcasting in Ukrainian of all the audiovisual products, which are not produced by the broadcasters. This norm does not apply to the films and programming, created before 1 August 1991 (except for child and animation programming and filming). All the audiovisual works, which are permitted to be broadcasted in foreign languages, shall nevertheless be subtitled in Ukrainian.
Quota requirements, established by the aforementioned draft law, do not apply towards:
- state international broadcasters;
- abroad TV- and radio-broadcasters (broadcasters, which broadcast outside the territory of Ukraine under the licence issued by the National Broadcasting Council);
- TV- and radio-broadcasters, whose main programme concept of broadcasting consists of scientific and educational programming in one or more EU official languages;
- TV- and radio-broadcasters, who, in accordance with the licence issued by the National Broadcasting Council, are providing satellite broadcasting and whose programme concept of broadcasting consists of educational programming exclusively aimed at learning foreign languages;
- radio-broadcasters (except for the quotas for broadcasters, who are licenced to broadcast in Crimean Tatar; see next sub-chapter).
Non-compliance with the language quotas for the TV-broadcasters is to entail the penalty of 5% of the total licence fee of all the licences of the broadcaster.
Radio-broadcasting. Language of radio-broadcasting is a more regulated subject than the language of TV-broadcasting as the amendments to the Law on TV- and Radio-Broadcasting were adopted in June 2016 and became effective from 8 November 2016. [23] The law was adopted after long debates between the stakeholders: MPs, media NGOs, representatives of the media and Ukrainian patriotic movements, – and became a product of consensus. Regime of regulation of radio-broadcasting can also be divided into two separate ones: the requirements for the broadcasting of songs and the requirements for the broadcasting of their programming, including the news and entertainment programming (non-songs broadcasting).
As to the broadcasting of songs, after the aforementioned amendments, radio broadcasters shall ensure the amount of songs broadcasted in Ukrainian at the percentage of not less than 35% per day, including the need to ensure the 35% quota between 7:00-14:00 and 15:00-22:00. If the radiobroadcasters are licensed to broadcast not less than 60% of songs in EU official languages, then the very same quota of broadcasting in Ukrainian is lowered from 35 to 25%. These quotas will be gradually implemented over the three-year period. During the first year of the law in force, radio-broadcasters shall ensure that not less than 25% of songs being broadcasted in Ukrainian. During the second year, this amount raises to 30% – and 35% starting from the third year. This gradual implementation does not cover the broadcasters, who are subject to 25% quotas.
As to the non-songs broadcasting, all radio-broadcasters shall ensure that not less than 60% of daily programming is broadcasted in Ukrainian per day. This quota is also to be implemented gradually during the three-year period. During the first year of the law in force, radiobroadcasters shall ensure that not less than 50% of programming is being broadcasted in Ukrainian. During the second year, this amount raises to 55% – and 60% starting from the third year.
Non-compliance with all the mentioned language quotas for the radio-broadcasters entails the penalty of 5% of the total licence fee of all the licences of the broadcaster. In general, fines are imposed only if a broadcaster does not terminate the violation after the warning but, with regards to this type of violation, the broadcaster shall pay 5% of its license fee for the incompliance with the quotas without previous warning.
The aforementioned Draft Law #5313 also introduces the 30% non-music quota, which applies towards the radio-broadcasters (including the news and entertainment programming), who are licensed to conduct their programming in Crimean Tatar.
- Transfrontier broadcasting in Ukraine
Article 4 of the Law on TV- and Radio-Broadcasting prescribes that the government shall not impede direct reception of television and radio programmes and broadcasts transmitted from other states in a minority language or a regional language similar to it. [24] This means that population of the areas, close to the border of Ukraine with other states, is free to catch the signal of foreign broadcasters and watch their programmes via analogue terrestrial television and satellite transmission. However, there is no data, either official (answer from the National Broadcasting Council in their letter #7/44 from 3 May 2017) or unofficial, as to the level of penetration of such broadcasting.
At the same time, the Law on TV- and Radio-Broadcasting establishes certain criteria for retransmission of TV- and radio-broadcasting in Article 42. In general, retransmission of all television and radio programmes the content of which complies with the requirements of the European Convention on Transfrontier Television (ECTT) is not subject to limitations in the territory of Ukraine. These are, primarily, the programmes of the broadcasters, established on the territories of State Parties to the Convention and the programmes of the broadcasters, who use frequencies, satellite capacities or satellite up-links, located in the State Parties (as per terms of Article 5 of the ECTT). [25]
Hence, the providers of cable multi-channel and satellite services are free to include into their services all the programmes of States Parties to the ECTT. If the providers are under Ukrainian jurisdiction, wish to include the retransmission of programmes and received the permission for that from the copyright holder (producer), who does not come under the jurisdiction of an EU member state or another state party to the ECTT, they will only be able to retransmit them only in case programming complies with the requirements of the Ukrainian legislation and the ECTT. What is more, such programmes must be included by the National Broadcasting Council into the list of programmes, available for retransmission. This list currently includes 161 programmes. [26]
At the same time, 80 broadcasters are prohibited from retransmission, as is stated by the National Broadcasting Council. [27] The majority of these broadcasters were banned from retransmission for their violation of national legislation of Ukraine. The restrictions were done on the case by case basis – the grounds included both the national security grounds and the violation of advertising requirements, sometimes combined in the reasoning made by the regulator. Some broadcasters were also prohibited from retransmission since they stopped broadcasting on the territory of Ukraine.
Out of 80 broadcasters, 44 are banned on different grounds, connected with national security – and mostly are Russian broadcasters (see Annex 1). Such grounds are prescribed in the Law on Information and Law on TV- and Radio-Broadcasting and include:
- appealing to launching a war or aggressive actions or promote the idea of such war and/or inciting national, racial or religious hostility or violence;
- broadcasting of television broadcasts produced after 1 August 1991 that popularise aggressor state’s public authorities as well as its actions that justify or legitimise occupation of the Ukrainian territories;
- broadcasting of audio-visual materials (any films, television programmes, except for informational and analytical ones), one of the character of which is the person included in the List of the Persons who Pose a Threat to the National Security. [28]
Assessment on the impact of prohibition of those broadcasters on supply of minority language broadcasting is not made by the National Broadcasting Council. However, since there is a significant amount of programming in Russian language on national broadcasters, it is safe to assume that the viewers, who prefer Russian-language content, still have possibilities to access it both via Ukrainian broadcasters, as well as through other platforms, including the satellite and Internet. The decisions of the National Broadcasting Council can be appealed to the administrative courts. However, no precedents of successful reversals of the Council’s decisions on this matter are known up to date.
- Satellite broadcasting
The satellite-based broadcasting is regulated by the provisions of the Law on TV- and Radio-Broadcasting of Ukraine. [29]The National Broadcasting Council issues licences for the satellite-based broadcasting for 10 years without the competition – merely on the basis of application made by the broadcaster. In the application, the broadcaster must, among general information, submit the data on the parameters of the satellite broadcast channel and the coverage area. It is important to note that licencing of foreign broadcasters is prohibited.
- Cable multichannel services
The language of cable multichannel services is currently subject to regulation of telecommunication networks under article 39 of the Law on TV- and Radio Broadcasting which allows for Ukrainian language, regional languages or languages of national minorities to be used in the course of their activities. [30] Therefore, the responsibility to ensure the amount of national audiovisual product lies exclusively on the broadcasters rather than on the providers of the service. No dubbing or subtitling is currently required. However, under the aforementioned Draft Law #5313, the cable broadcasters as well as providers will carry certain obligations. [31]
Firstly, cable broadcasters will be subject to general Ukrainian language quota regulation, as was mentioned in General regulation of the language of TV- and radio-broadcasting section of this report. Thus, subtitling, which was used in practice in the cinemas (data available for 2013-2015 [32] and 2016 [33] by the “Prostir Svobody” volunteer movement) and by the TV-channels (no formal data available), will become the requirement of the law. Previous tries to provide subtitling rules for the benefit of the deaf persons (the strategies of the government [34] and the Draft Law #6031 [35]) were ineffective in establishing any formal rules. Besides, it is worth mentioning that under the relevant provisions of the Draft Law #5670, subtitling of all non-Ukrainian-language programming into Ukrainian must be provided. [36]
Secondly, it provides for obligatory subtitling into the official language of all the programming, which is permitted to be broadcasted in foreign languages. Hence, subtitling will be obligatory and will not count towards broadcasting in the official language.
Some obligations are also placed on the providers (cable operators). If the providers of cable multichannel services would like to retransmit the programmes of foreign TV- and radio-broadcasters on the territory of Ukraine, they must ensure that the programming will be made with the use of sound track, which complies with the 60% official language quota requirements.
If the providers of cable multichannel services would like to retransmit the programmes of TV- and radio-broadcasters, whose main programme concept of broadcasting consists of scientific and educational programming in one or more EU official languages, they must ensure that the programming will be made only with the use of sound track in EU official languages, Ukrainian language or the language of the indigenous peoples of Ukraine (Crimean Tatar language).
As to the must-carry provisions, Article 1 of the Law on TV- and Radio-Broadcasting, which was amended in October 2016, [37] defines “universal programme service” (which is a must-carry under Ukrainian legislation) as the list of TV- and radio-programmes, which are mandatory for receipt by all the subscribers of the provider of the service and includes the programmes of:
- the JSC “Public Broadcasting Company of Ukraine”;
- regional and local broadcasters if they broadcast on the territory of a single region (oblast’), where the provider uses a certain network, in accordance with their licences for terrestrial or digital terrestrial broadcasting. These broadcasters shall not possess licences, which enable broadcasting in other regions of Ukraine or on national level and shall not retransmit the programming of other broadcasters;
- “Parliamentary TV-channel “Rada””.
Before the mentioned amendments, must-carry covered all the broadcasters, which conducted terrestrial broadcasting on the territory where the used multichannel network was located. In practice this meant that all national broadcasters were covered by the must-carry provisions and their broadcasting should have been ensured by the providers of the network for free.
The list of programmes for must-carry is adopted by the National Broadcasting Council for every separate territory (village, city, district, region, entire Ukraine) where the provider conducts his activities, taking into account the technology, used for such activities. All the lists, currently adopted by the National Broadcasting Council, can be found on the Council’s web-site. [38] Must-carry for the entire territory of Ukraine currently includes:
- Rada TV-channel (satellite broadcasting);
- UA:Pershyi TV-channel (PSB; terrestrial, digital terrestrial, satellite broadcasting);
- Kultura TV-channel (PSB, 2nd channel; digital terrestrial, satellite broadcasting);
- UA:Krym TV-channel (PSB; satellite broadcasting);
- First Channel of Ukrainian Radio (PSB; terrestrial, satellite broadcasting);
- Radio “Promin’” (Second Channel of Ukrainian Radio) (PSB; terrestrial, satellite broadcasting);
- Radio “Kultura” (Third Channel of Ukrainian Radio) (PSB; terrestrial, satellite broadcasting). [39]
There is no regulation of the possibility to use several voice tracks for one channel.
- The digital switchover
Ukraine intends to complete the digital switchover on June 30, 2017. This is the date chosen by the Cabinet of Ministers of Ukraine in its Decree [40] of April 6, 2017 in order to turn off the analogue television which will mark the full completion of the switchover. However, the possibility of implementation of this transition till the given date remains implausible.
Up to now, the original deadline, June 17, 2015, according to the Regional agreement on planning of the digital broadcasting service (Geneva, 2006), has been postponed in view of several reasons which are still in place: the monopoly of “Zeonbud” company on the market of digital terrestrial television of DVB-T2 standard, an incomplete coverage of the territory of Ukraine by the digital signal, a lack of set-top boxes necessary for receiving this signal, an absence of licenses for digital broadcasting, etc. [41]
When it comes to effects the digital switchover might have on the minority language broadcasters, there are some risks. For instance, as the digital broadcasting provides for the limited radio spectrum to be divided between different channels the competition might leave most of the minority channels aside. Nevertheless, ensuring the needs of national minorities is one of the balanced multiformat broadcasting requirements to be met in every territorial segment of Ukraine, according to the Action Plan of the development of national tele- radio information environment.
Up to now, no plans for migration of existing television services in minority languages have been made available for the public in response to potential risks during the digital switchover.
- Non-linear audiovisual media
The language of non-linear audiovisual media currently is not regulated. The operators of television platforms that do not use radio spectrum are licensed if their system of content distribution is subject to licensing. The National Broadcasting Council grants licenses to broadcasters with such systems of content distribution: satellite, terrestrial, cable, wire and multichannel. Broadcasting in the Internet is not covered by the provision on the matter.
Exceptional in this regard is the case of “Hromadske” television which was established in 2013 as an Internet broadcaster. In 2016 the NGO “Hromadske” has been granted a satellite license for 10 years and, consequently, this broadcaster is now subject to language quotas.
5. International broadcasting in Ukraine
One of the main principles of the state policy in the sphere of television and radio broadcasting, as established in Article 4 of the Law on TV- and Radio-Broadcasting is the need for the government to meet cultural and informational needs of ethnic Ukrainians residing abroad. [42] To fulfil this principle, two categories of broadcasters are established in Ukrainian legislation: abroad broadcasters and international broadcasters. However, abroad broadcasting in this sense is not regulated apart from the need to receive the licence for this category of broadcasting. Besides, the only broadcaster, who currently possesses a licence for abroad broadcasting (jn1 – Jewish News One), is not broadcasting since 2014 and in the end of May 2017 the National Broadcasting Council has filed an application to the court for annulment of their broadcasting licence. [43]
International broadcasting is regulated by the Law on System of International Broadcasting of Ukraine, adopted on 8 December 2015. [44] Before the adoption of this Law, STRC “UTR” functioned as the international broadcaster of Ukraine. In line with this Law, the international broadcasting of Ukraine comprises the “Multimedia International Broadcasting Platform of Ukraine” (MPIU), a state enterprise established on the basis of the STRC “UTR” and the Ukrainian National Information Agency “Ukrinform”. The aim of international broadcasting is to ensure the provision of information about events in Ukraine in the form of messages, news, programming, etc. It is subordinated to the Ministry of Information Policy of Ukraine and is financed, inter alia, from the state budget (at a rate of not less 0,06% of the expenditures of the general fund of State Budget of Ukraine for the previous year).
The programming policy of MPIU, which broadcasts under the logo “UA:TV” is determined by Article 7 of the Law. First of all, the broadcasting of MPIU shall be satellite-based, or electronic-based (with the use of Internet). Terrestrial, digital terrestrial and cable broadcasting of MPIU can be made exclusively outside the territory of Ukraine, except for the cases involving the occupied territories of Ukraine, the territories of anti-terrorist operations and the zones of martial law or state of emergency. Secondly, the programming of MPIU shall be produced in English and other languages, giving due weight to the need of use of certain language to achieve the goals of the international broadcasting. At the same time, not less than 50% of programming shall be made in English. Ukrainian language quotas, adopted in the Draft Law #5313 do not cover the international broadcasters. At present, “UA:TV” broadcasts online in English, Ukrainian, Russian, Crimean Tatar and Arabic languages [45].
While no other requirements other than the need to conduct programming in English is mentioned, under the Draft Law #5670 on Official Language it is proposed to allow the broadcasting in foreign languages on international broadcaster at a rate of no more than 60% of time. [46] This would create a de-facto quota of not less than 40% of air-time in Ukrainian.
As to the trends in regulation of international broadcasting, the talks in the professional sphere suggest that MPIU be united with the public service broadcasting, as is done with DW in Germany. However, this unification is not likely to happen till the Russian aggression on the Eastern Ukraine will be finished.
6. Minority languages and public service broadcasting
The system of state-funded broadcasters existed in Ukraine till the recent reform of the public service broadcasting (PSB). Such system existed in the form of regional broadcasters and included district (oblast’) state TV- and radio-broadcasting companies (so-called DSTRCs, located in every oblast’ of Ukraine), 5 more regional STRCs (STRC “Krym”, Kyiv Regional STRC, Sevastopol Regional STRC, Novhorod-Siverskyi Regional STRC “Siverska”, Kryvyi Rih Regional STRC “Kryvorizhzhya”), National Television Company of Ukraine (NTCU), National Radio Company of Ukraine (NRCU) and STRC “Kultura”.
While the establishment of the PSB was planned already in mid-90s and the necessary law was adopted in 1997 (but never became working in fact), [47] the reform had only commenced in 2014 with the adoption of the Law On Public TV- and Radio-Broadcasting of Ukraine (with amendments in 2015 and 2016) on 17 April 2014. [48] On 19 January 2017, UA: PBC was formally registered as a legal entity and the Supervisory Council of the UA: PBC, already elected (representatives of the NGOs) and nominated (by parliamentary factions) by the end of 2015, has gained the ability to start the process of election of the new management. On 10 April 2017, Zurab Alasaniia was elected as the Chair of the UA: PBC Board, while the rest of the Board was elected on 15 May 2017.
As to the situation with the minority language programming on state-funded broadcasting (which literally consists of the PSB and the international broadcaster, described below), current laws of Ukraine do not require state-funded broadcasters to produce programming in minority languages.
Prior to the establishment of the public service broadcaster in Ukraine, the broadcasting in minority languages was organized through the procedure of state orders for the production of content in minority languages. The procedure itself is governed by the Regulation on State Order on Production and Distribution of TV- and Radio-Programming, [49] which was adopted by the Cabinet of Ministers of Ukraine.
State orders on such a production were placed by the State Committee on TV- and Radio-Broadcasting of Ukraine – and the financing for such a production was given to the predecessors of the public service broadcaster – NTCU and NRCU. However, the budgets from 2012 to 2017 (and beforehand) included merely a general line called “Production and broadcasting of TV- and radio-programming for state purposes” – and were aimed at general financing of the system of state broadcasting. What is more, the typical form of such state contract, prescribed by the aforementioned Regulation, merely includes the quantity of the content, which must be produced by the broadcasters – and also does not include a separate line regarding the minority language content.
In 2009-2015 audio and audio-visual products in the national minority languages were developed by the STRC “UTR” (now part of the international broadcaster), NRCU, STRC “Krym”, Sevastopol Regional STRC, Zhytomyr, Zaporizhzhia, Zakarpattia, Luhansk, Lviv, Odesa, Kharkiv, Kherson and Chernivtsi STRCs. The most up-to-date data on the quantity of the programming made in the languages of national minorities is available in the Fourth Report of Ukraine on implementation of the Framework Convention for the Protection of National Minorities. [50]
As to the establishment of the PSB itself, one of the main tasks of JSC “Public Broadcasting Company of Ukraine”, mentioned in the Law on Public TV- and Radio-Broadcasting of Ukraine, is the promotion and strengthening of the status of the Ukrainian language and culture, as well as the promotion of languages and cultures of national minorities. [51] What is more, one of the members of the Supervisory Council of the broadcaster represents the civil society organizations which act in the sphere of national minorities’ protection, which outlines the importance of this topic. Important role in the future of minority language programming will be played by the new management of the public service broadcaster.
Just recently, on 15 May 2017, the new management board of the public service broadcaster was formed. The team had not publicly announced yet their plans as to the national minority programming. However, in the strategy of development of the public service broadcasting in Ukraine, which was the obligatory document for the candidates pursuing this post, the newly elected Chair of the Board, Zurab Alasaniia stated that it is planned to move the programming in national minorities’ languages onto the second channel of the PBS (that is “Kultura” TV-channel).
Zurab’s strategy, which is formulated in accordance with the Supervisory Board’s Main Directions of UA: PBC Activities for 2017, [52] envisages the try to move from the concept of “cultural reservations” for minorities – when the content is provided for the viewers from the very same minority and in its own language. So, he considers that minorities rather need to be represented in the information field in general than have their own programming aimed at the very same minority as the chief audience. [53] From this perspective, it is hard to make any conclusion as to the future of the teams of minority language journalists, who are currently on a payroll at regional broadcasters.
In the aforementioned Main Directions, there also exists an obligation for the UA: PBC Board to develop and submit for adoption by the Supervisory Board the Concept of Broadcasting on National Minorities’ Issues. However, no information is currently available as to the process of drafting of such Concept.
At the very same time, it must be noted that certain private minority broadcasters operate in Ukrainian media environment. They are:
- ATR (Crimean Tatar) – https://atr.ua/ (TV);
- Lale (Crimean Tatar) – http://lale.ws/ (TV);
- Meydan FM (Crimean Tatar) – http://meydan.fm/ (Radio);
- Pulzus FM (Hungarian) – http://ukrtvr.org/telekanali-ta-radiostantsiji/51/5914 (Radio);
- Chiriklo (Roma) – http://radiochiriklo.com/ (Internet Radio; plans to move to FM during the year).
From these broadcasters, ATR received state funding from the state budget in 2016 only as an exception after the adoption of the necessary legislation. However, the precise data on the amount of state financing of ATR is unavailable.
7. Actual use of languages in broadcasting
No formal assessment of the demand for broadcasting in minority languages is available in open access. However, the key factors, which determine such demand and supply, include the existence of minorities in certain regions of Ukraine as well as the calls to provide Russian-language content for both Russian minority and Russian-speaking part of the population in general.
No formal assessment is available in open access as to the use of languages in different spheres of broadcasting either. The National Broadcasting Council in its letter #7/44 from 3 May 2017 stated that it does not collect such information as the broadcasters are currently freely able to use any language during their broadcasting.
However, prior to the provisional adoption of the Draft Law #5313, it conducted monitoring of the national broadcasters and their use of Ukrainian language during the broadcasting on 12-27 February 2017. [54] It showed that 12 TV-broadcasters made 75%+ of their programming in Ukrainian, thus provisionally complying with the quota requirements, established in the Draft Law #5313, 2 TV-broadcasters being only 1-2% short of sustaining the quota, and 9 broadcasters providing 26-59% of programming in Ukrainian. The lowest numbers are shown by Ukraina and Inter TV-channels – they used only 26% of Ukrainian language.
Another study, conducted by the “Prostir Svobody” volunteer movement for 2014-2015 [55] and 2016 [56] respectively, aimed at monitoring of 8 most popular Ukrainian TV-channels. While in December 2014 only one channel (5 channel) broadcasted 50%+ of its programming in Ukrainian and one more (Novyi Channel) was on the 50% level (however, the levels of bilingual content – that is one using both Russian and Ukrainian languages at some channels amounted to 80%), in October 2016 the slight improvement, mostly due to the increase of bilingual programming, has been observed (see Annexes 2 and 3).
The level of compliance with the quotas on Ukrainian songs is overall quite satisfactory. According to the monitoring conducted by the National Broadcasting Council from November 2016 to January 2017, only 2 out of 14 monitored radio stations have violated the 30% quota (“Shanson” and “Kiss FM”). When it comes to radio broadcasting the violations of quotas, geographically they took place predominantly in the Eastern and Central Ukraine, Odesa and Kyiv region. [57]
Still, on April 10, 2017, 8 radio broadcasters have already been fined 5% of their license fee for the incompliance with the quotas. One fine has been imposed as a result of the breach of the general quotas for the language the radio and 7 fines for the insufficient share of songs in the official language. The total amount of the imposed fines has reached almost EUR 20 000. [58]
As for the share of broadcasting in Russian language in television and radio broadcasting for the last five years, according to the analytical review conducted by “Prostir Svobody”, the following data has been gathered based on the monitoring of most popular TV channels (such as “Inter”, “STB”, “Ukraine”, “1+1”, “New”, “ICTV”, “NTN”) and top listened radio stations (such as “Lux FM”, “Shanson”, “Our radio”, “Melody”, “Hit FM”, “Autoradio”) in Ukraine:
|
|
Share of Russian language in television broadcasting of top channels |
Share of Russian language in radio broadcasting of top channels |
|
2016 [59] |
34,4 |
37,6 |
|
2014-2015 [60] |
43,5 |
54,9 |
|
2013 [61] |
50,3 |
41,3 |
|
2012 [62] |
43,8 |
37,0 |
Overall, the share of broadcasting in Russian language has decreased as a result of such measures as taking off channels on security grounds or particular tele- and radio content. At the same time its share remains high on top watched Ukrainian channels, as proved by the abovementioned review. It is interesting to notice that the biggest share of Russian songs in radio broadcasting of top Ukrainian channels has been in 2014-2015 already after the Revolution of Dignity. When it comes to Russian television and radio channels, they are all accessible to the viewers via satellite and on the Internet.
8. Languages in screening and cinematic production
When it comes to screening, currently no restrictions are provided in Ukrainian legislation for the language as such. In the 90s, dubbing or subtitling in Ukrainian has been a rather rare practice and no formal requirements have been present therein. In 2006 the Cabinet of Ministers of Ukraine has adopted an obligation of mandatory dubbing of foreign films in Ukrainian to be gradually introduced. [63] This has been an impetus for gradual increase of screening in Ukrainian but at the same time for the attempts to annul this provision.
A rather clear norm of Article 14 of the Law on Cinematography has been reviewed by the Constitutional Court of Ukraine, which has reiterated in its judgement in 2007 [64] that foreign films should be dubbed, voiced or subtitled in official language, they could also be dubbed, voiced or subtitled in minority languages. The Court has interpreted this provision as indispensable for every movie rental license. However, in 2012 on the wave of language changes by Kivalov-Kolesnichenko Law, this provision has been removed from the text the Law on Cinematography in order to be in line with the Law on Principles of State Language Policy. No changes have been introduced to the regulation of screening ever since.
The Draft Law #5670 [65] on Official language provides for the mandatory demonstration and distribution of films in Ukrainian language. The share of foreign films in original language with Ukrainian subtitles cannot be higher than 10% of the films demonstrated in a particular cinema monthly.
Overall, currently the regulatory framework does not constitute any obstacles for any language to be used in film production and screening. According to paragraph 4 article 23 the Law on Principles of State Language Policy, even the films of foreign production on the territory of Ukraine can be demonstrated “in original language, dubbed or subtitled in official language, regional languages or minority languages as ordered by distributors in view of language needs of consumers”. [66] Despite this fact, the total share of screening in Ukrainian language tends to grow from 42,3% in 2014 to 58% in 2016. [67]
There are no restrictions or requirements on cinematic production in Ukraine in terms of language use. Pursuant to article 6 of the Law on Cinematography [68], the language in the field of cinematography is regulated by the Law on Principles of State Language Policy. The latter in its Article 23 provides that the state does not interfere with the creative activities of the artists, which allows producing films in any language. [69]
On 23 March 2017, the Law on State Support to Cinematography in Ukraine was adopted. According to article 5 the Law, state support is granted for the creation, dissemination, demonstration and popularization of national films. [70] In terms of language, only films made predominantly in Ukrainian or Crimean-Tatar language are considered to be national for the purposes of the Law. These films can get reimbursement from 50 up to 100% of total expenditures depending on the genre. Films in different languages can also be subject to remuneration but only of a part of qualified expenditures. The allocation of funding is decided by the Council on State Support of Cinematography on the basis of special evaluation procedure. This Law has been publicly presented as a result of consensus between the Parliament, the President and key stakeholders in the field of filmmaking. The previous version of the Law has been vetoed by the President and has been subsequently amended in line with his proposals. As it appears from the reports of Ukrainian State Film Agency, in previous years films supported by the state are only in Ukrainian. [71]
9. Minority languages in print media
As for the number of print outlets in minority languages, we do not possess any information on the quantity of private and state-funded outlets separately. The overall picture as reported by the State Committee for Television and Radio Broadcasting in “Statistical data on print media production in the first half of 2016” [72] is the following (number of outlets by minority language/total circulation):
- Russian – 496 (748 879,6 thousand copies),
- German – 3 (20,9 thousand copies),
- Hungarian – 3 (15,5 thousand copies),
- Polish – 3 (4 thousand copies).
Demand and supply for these outlets would be difficult to assess in absence of specific surveys on the matter but the comparison of circulation can help to clarify a picture. It is interesting to compare the correlation between Russian and Ukrainian language outlets in terms of their number and circulation. While there are 1599 outlets in Ukrainian which is three times more than the number of outlets in Russian (496), the latter have an incomparably wider circulation. In average Ukrainian outlets have almost 6 times smaller circulation than the Russian ones (411 047,6 thousand copies to 748 879,6 thousand copies respectively). [73]
As it was indicated in the Fourth Report of Ukraine on implementation of the Framework Convention for the Protection of National Minorities [74] in 2010-2015 financial support has been granted for publication of newspapers which are co-founded by the Ministry of Culture of Ukraine: Armenian newspaper “Arahats”, Crimean Tatar newspaper “Holos Krymu”, Polish newspaper “Dziennik Kyjowski”, Jewish newspaper “Yevreiski Visti”, Romanian newspaper “Concordia” and Bulgarian newspaper “Roden Krai”. Due to the temporary occupation of Crimea, financing of the newspaper “Holos Krymu” has been suspended in August, 2014.
The budget program for the abovementioned newspapers was indicated as financial support of newspapers in the national minorities` languages. It will be interesting to know that according to State budget of Ukraine 2017 [75] the Ministry of Culture should receive EUR 250 000 for a broader range of assistance: to provide financial aid to print periodicals dedicated to culture studies, publication of press in minority languages and financial aid to tour activities of national artists, in one budget program. The distribution of the funds, indicated in the mixed budget program already in 2016, remains uncertain as the Ministry does not report in detail separately on support for minority language outlets.
10. Regulation of the language of advertising
When the Law on Advertising has been adopted in 1996 it provided for the advertisements to be produced in Ukrainian. [76] Along with the text in Ukrainian, a text in a different language could be additionally displayed. In this regard, the language of advertising in the press has been a disputable question for some time as print outlets registered as regional ones using a particular language other than Ukrainian considered it to be illogical to be subject to Ukrainian language requirement in advertising. To address this issue the State Committee for Technical Regulation and Consumer Policy has published a letter № 9251-3-11/17 from 13.10.2004 [77] stating that it is allowed for the print media to use the language indicated in the process of registration for the advertising.
Currently, Article 6 of the Law on Advertising, which has been changed in line with the Law on Principles of State Language Policy provides for the language of advertising announcements, messages or other forms of audio and visual advertising products to be decided by the advertiser. It can be an official language or any other language. There are no restrictions for advertising in minority languages.
Draft Law #5670 provides for all the advertisement to be written in the Ukrainian language. On April 12, 2017, Draft Law #6348 has been registered proposing for the mandatory subtitling in the Ukrainian language of advertisements in minority languages. [78]
[1] http://zakon3.rada.gov.ua/laws/show/5029-17
[2] http://www.ccu.gov.ua/novyna/17-lystopada-konstytuciynyy-sud-ukrayiny-u-formi-usnogo-sluhannya-rozpochav-rozglyad-spravy
[3] http://zakon3.rada.gov.ua/laws/show/802-15
[4] http://zakon2.rada.gov.ua/laws/show/995_055
[5] Paragraph 1 article 7 http://zakon2.rada.gov.ua/laws/show/3759-12/parao155#o155
[6] http://zakon5.rada.gov.ua/laws/show/495-2014-%D0%BF
[7] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=60953
[8] Paragraph 4 article 7 http://zakon2.rada.gov.ua/laws/show/3759-12/parao155#o155
[9] http://zakon3.rada.gov.ua/laws/show/538/97-%D0%B2%D1%80/parao143#o143
[10] Ibid.
[11] http://zakon4.rada.gov.ua/laws/show/3759-12/
[12] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=60750
[13] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=60952
[14] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=60953
[15] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=61590
[16] http://zakon4.rada.gov.ua/laws/show/3759-12
[17] http://zakon3.rada.gov.ua/laws/show/5029-17
[18] http://zakon3.rada.gov.ua/laws/show/3759-12
[19] http://zakon3.rada.gov.ua/laws/show/5029-17
[20] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=60356
[21] https://www.facebook.com/petroporoshenko/posts/1018235784977480:0
[22] Quotas will be accounted from the general duration of the films, news and other TV-programming, created, dubbed or sounded in Ukrainian (except for the songs, broadcasted separately, and music video-clips). Programme will be considered as being broadcasted in Ukrainian in case all the remarks from the announcers or hosts are made or dubbed in Ukrainian. If the programme is live, then to be considered made in Ukrainian, all the remarks of the announcers or hosts shall be made in Ukrainian. Film will be considered as being broadcasted in Ukrainian in case it is sounded or dubbed in Ukrainian language (10% of overall remarks per film in foreign languages are allowed; however, they must be subtitled in Ukrainian).
The programming will still be counted as falling within the quota if the foreign language is used in:
- the live reports from the scenes (except for the language and remarks of the reporters);
- in speeches, interviews, commentaries, explanations, questions, etc. by the persons involved in the programme (except for hosts (announcers)) or in some of the hosts’ (announcers’) remarks, to the extent caused by the creative idea of the programme;
- in music compositions with text (songs), which are parts of the non-musical programming or films and are only used as a soundtrack;
- in music videos, which contain texts;
- in any content, performed in the language of the indigenous peoples of Ukraine (Crimean Tatar language).
[23] http://zakon2.rada.gov.ua/laws/show/1421-19
[24] http://zakon4.rada.gov.ua/laws/show/3759-12/
[25] https://rm.coe.int/168007b0d8
[26] http://nrada.gov.ua/userfiles/file/2017/Normatyvni%20Dokumenty/%D0%90daptovani%20prohramy%20161_%2001.06.2017.doc
[27] http://nrada.gov.ua/ua/news/radanews/32260.html
[28] http://zakon4.rada.gov.ua/laws/show/3759-12/
[29] http://zakon4.rada.gov.ua/laws/show/3759-12/
[30] http://zakon3.rada.gov.ua/laws/show/3759-12/parao637#o637
[31] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=60356
[32] http://dobrovol.org/article/334/
[33] https://docs.google.com/document/d/1ScYcGPhLeu5Y7P8Cg1wOX1sk7lTqf3D9VhQBZgNRpac/edit
[34] http://zakon2.rada.gov.ua/laws/show/209-2009-%D1%80
[35] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=61060
[36] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=60953
[37] http://zakon4.rada.gov.ua/laws/show/1663-19
[38] http://nrada.gov.ua/ua/33337.html
[39] http://nrada.gov.ua/ua/33337/33386/33387.html
[40] http://zakon5.rada.gov.ua/laws/show/269-2016-%D0%BF
[41] http://osvita.mediasapiens.ua/tv_radio/1411981046/koli_ukraina_vimkne_analogove_telebachennya_i_v_chomu_dilema/
[42] http://zakon4.rada.gov.ua/laws/show/3759-12
[43] http://detector.media/rinok/article/126326/2017-05-25-natsrada-zvernetsya-do-sudu-shchodo-anulyuvannya-litsenzii-telekanalu-jewish-news-one/
[44] http://zakon5.rada.gov.ua/laws/show/856-19
[46] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=60953
[47] http://zakon2.rada.gov.ua/laws/show/485/97-вр
[48] http://zakon4.rada.gov.ua/laws/show/1227-18/
[49] http://zakon3.rada.gov.ua/laws/show/918-2004-п
[50] https://rm.coe.int/1680657b74; pages 91-95
[51] http://zakon4.rada.gov.ua/laws/show/1227-18/
[52] http://1tv.com.ua/uploads/assets/files/nagliadova_rada/dodatok%202%20(23-01-2017).pdf
[53] http://1tv.com.ua/uploads/assets/files/nagliadova_rada/candidate_strategy/Аласанія_стратегія.pdf; page 25
[54] http://nrada.gov.ua/ua/news/radanews/36702.html
[55] http://dobrovol.org/article/334/; pages 29-31
[56] https://docs.google.com/document/d/1ScYcGPhLeu5Y7P8Cg1wOX1sk7lTqf3D9VhQBZgNRpac/edit; pages 29-32
[57] http://www.nrada.gov.ua/ua/news/radanews/36946.html
[58] http://www.nrada.gov.ua/ua/news/radanews/34605.html
[59] http://dobrovol.org/files/2016/Stan-movy-povnyj-08112016.doc
[60] http://dobrovol.org/article/334/
[61] http://dobrovol.org/article/306/
[62] http://www.dobrovol.org/article/271/
[63] http://zakon2.rada.gov.ua/laws/show/20-2006-%D0%BF
[64] http://zakon2.rada.gov.ua/laws/show/v013p710-07
[65] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=60953
[66] http://zakon2.rada.gov.ua/laws/show/5029-17/paran131#n131
[67] http://texty.org.ua/action/file/download?file_guid=72163
[68] http://zakon2.rada.gov.ua/laws/show/9/98-%D0%B2%D1%80
[69] http://zakon2.rada.gov.ua/laws/show/5029-17
[70] http://zakon3.rada.gov.ua/laws/show/1977-19/paran35#n35
[71] http://dergkino.gov.ua/ua/text/info_movies_public_funds.html
[72] http://comin.kmu.gov.ua/control/uk/publish/article?art_id=130170&cat_id=85717
[73] Ibid.
[74] P. 16, https://rm.coe.int/1680657b74
[75] http://zakon3.rada.gov.ua/laws/show/1801-19
[76] http://zakon2.rada.gov.ua/laws/show/270/96-%D0%B2%D1%80/ed19960703
[77] http://dtkt.com.ua/show/2cid0462.html
[78] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=61590