The Rule of Law Online in a Crisis: The Case of Ukraine

by Andrii Paziuk and Kate Ksiondzyk[1]

Since 2014, Freedom House has deemed Ukraine a ‘partially free country’ with regard to the freedom on the Net[2]. The ongoing hybrid war with Russia, widely known as the ‘Ukrainian crisis’,[3] has dramatically influenced local information policy leading to a deteriorating information environment in the country, as a result.

The start of this process is attributed to the propaganda campaign launched by Russia in the wake of the popular Maidan movement in 2013-2014. Following Soviet Cold War traditions, the Russian side used hate speech to escalate political conflict and separatism, while encouraging intolerance and exacerbating violence.

In order to counter Russian efforts at destabilizing the situation in Ukraine, national authorities in Ukraine reverted to another tested, Soviet-era method – censorship of information and communications. While censorship is prohibited by the Constitution of Ukraine (Art. 15)[4], Ukrainian authorities and law enforcement agencies focused their activities on identifying and blocking separatist websites. Since the annexation of the Crimean peninsula and the war in the Donetsk and Luhansk regions, Ukrainian authorities have attempted to introduce selective blocking of websites containing ‘separatist’ or ‘terrorist’ content. On the other hand, the ISPs have repeatedly refused to engage in wholesale blocking citing that in accordance with Ukrainian legislation, a court order must be provided in order for a website to be blocked or taken down.

According to amendments introduced to Articles 159 and 168 of the Criminal Procedure Code of Ukraine (Law of Ukraine No.191-VIII dd. 12.02.2015), ‘the temporary access to electronic information systems or their components, mobile terminals of communication systems shall be made by means of taking copies from information contained in such electronic information systems or their components, mobile terminals of communication systems, without their seizure’[5]. The letter of the law, however, has not been always followed.

On 7 April 2015 the Security Service of Ukraine impounded servers in four data centers operated by Nic.ua, a domain name registrar and hosting provider, because they allegedly supported four separatist websites. No preliminary requests were made to the provider to block these illegal websites. The seizure resulted in some 50,000 hosting clients losing access to online resources. It turned out that all but one of the four websites suspected of separatism used Nic.ua — as a registrar only — while others hosted their content on servers in Russia. Within a few weeks, access to over 90 per cent of the websites had been restored[6].

Since the beginning of the crisis in Ukraine, the Ukrainian authorities have detained and prosecuted a number of online users and journalists on accusations of online extremist activity and related charges. In May 2015, the Ukraine’s Security Service detained two internet users in eastern Ukraine who allegedly created and administered 26 groups on Vkontakte (a Russian social networking site) said to be ‘anti-Ukrainian’. The users were accused of ‘aiding terrorist activity’[7].

In April 2016, the Security Service branch in Lviv accused a female soldier of promoting separatist ideas on social networks. It was claimed that she also called for a violent change of the constitutional system and for draft dodging[8].

In May 2016, the Committee to Protect Journalists condemned[9] the publication of the personal data of 4,508 local and international journalists who have reported from the conflict zone. The database was published by a group of hackers on a website called Myrotvorets[10] (Peacemaker), a website that supports Ukrainian troops fighting in the conflict zone. Following the publication, the Security Service officials declared that authorities were planning “to investigate” some of the journalists accredited by the self-proclaimed and Russian-backed ‘Donetsk People’s Republic’^[11].

Increasing governmental controls over the information sphere, counter-propaganda measures and restrictions on freedom of speech have been gradually introduced since 2014 inspiring an atmosphere of fear and self-censorship both on— and offline. Such developments contradict the commitment to freedom expressed by the Ukrainian people over the years, which was vividly demonstrated by the sacrifice of more than a hundred protesters killed during the “Revolution of Dignity”[12] and thousands of patriots’ lives taken by the war.

The irrevocability of the nation’s political choice for democratic values and freedom of information among others must not end with proclamations by public officials, but be also fully implemented. An unambiguous dedication to Internet freedom by the Ukrainian government would both meet expectations of Internet users in Ukraine[13] and demand taking greater responsibility over safeguarding human rights and fundamental freedoms, equally offline and online. It would also ensure that any national decision or action restricting human rights and the fundamental right of access the internet would be measured against their compliance with international obligations.

As a member of the Council of Europe, Ukraine should comply with the governing body’s human rights standards outlined both in legally binding treaties, such as the European Convention on Human Rights and Fundamental Freedoms, and in soft law instruments, which while not binding provide legally substantive recommendations from the Committee of Ministers. In fact, the Committee of Ministers of the Council of Europe encouraged member states to ‘“create an enabling environment for Internet freedom and to promote increased compliance with their obligation to respect, protect, and promote human rights on the Internet’” in a Recommendation on Internet freedom (2016)[14]. Ukraine’s admission to the Freedom Online Coalition[15] will strengthen its commitments to safeguard human rights and respect rule of law offline and online.

[1] Andrii Paziuk, Dr.Hab.Jur, Associate Professor of International Law, Taras Shevchenko National University of Kyiv and Kate Ksiondzyk, PhD student, Taras Shevchenko National University of Kyiv

[2] ‘Freedom on the Net’ Report [Online Resource]: https://freedomhouse.org/report/freedom-net/2015/ukraine

[3] ‘Ukrainian crisis’ [Online Resource]: https://en.wikipedia.org/wiki/Ukrainian_crisis

[4] The Constitution of Ukraine[Online Resource]: http://zakon2.rada.gov.ua/laws/show/254к/96-вр

[5] http://zakon2.rada.gov.ua/laws/show/191-19/paran67#n67

[6] Anna Poludenko-Young, “Ukraine’s Security Service Takes Down 30,000 Websites to Fight ‘Pro-Russian Propaganda’,” Global Voices, April 28, 2015 [Online Resource]: http://bit.ly/1M47yqs.

[7] Donbass News [Online Resource]: http://novosti.dn.ua/details/251318/

[8] Viyskovosluzhbovets ZSU propaguvav separatystski idei v Interneti [Online Resource]: http://zolochiv.net/viyskovosluzhbovets-zsu-propaguvav-separatistski-ideyi-v-interneti/

[9] https://www.cpj.org/2016/05/hackers-lawmaker-put-reporters-at-risk-in-ukraine.php

[10] https://myrotvorets.center/579804-spisok-zhurnalistov-akkreditovannyx-terroristicheskoj-organizaciej-dnr/

[11] http://www.thedailybeast.com/articles/2016/05/12/ukraine-tries-to-terrify-journalists-who-cover-the-war.html

[12] ‘Ukrainian revolution’ [Online Resource]:  https://en.wikipedia.org/wiki/2014_Ukrainian_revolution

[13] Approx. 20 ml by July 1, 2016 or 0.6 % of World Internet Users [Online Resource]: http://www.internetlivestats.com/internet-users/ukraine/

[14] CM/Rec(2016) / Recommendation of the Committee of Ministers to member States on Internet freedom (Adopted by the Committee of Ministers on 13 April 2016 at the 1253rd meeting of the Ministers’ Deputies)

[15] https://www.freedomonlinecoalition.com/