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The New Ukrainian Statue: A Commentary The Ukrainian statute “On Television and Radio Broadcasting” (the “Broadcasting Law”) became effective on February 22, 1994. As stated in its preamble, the Broadcasting Law is intended to operate in conjunction with the Law on Information, which was enacted in October, 1992, to provide a comprehensive statutory framework for the legal structure governing mass media in Ukraine. The Law on Information sets forth a broad formulation of the rights of Ukrainian citizens to disseminate and receive information. It also provides legal grounds for information activities and for follow-up laws such as the Statute “On Printed Means of Mass Information (the Press) in Ukraine” adopted on November 16, 1992 and the Law “On Television and Radio Broadcasting,” adopted on December 21, 1993. In a sense, the Information Statute (for summary, see Post-Soviet Media Law and Policy Newsletter, Issue 3, pp. 5-7) is to other acts on mass media regulation as a constitution is to the general sphere of law-making. Ukraine’s Constitution was adopted in 1978, but a draft constitution will be considered by the new parliament. Article 1 of the Broadcasting Law contains a number of defined terms. However, lacking definition are some important terms used in the text of the Law, such as “artistic employee” (Articles 38-39), “commercial channel” (Article 44), and “public broadcasting” (Article 45). Ownership. The Broadcasting Law envisions a pluralistic system in Ukraine, providing for operation of both state-owned and independent broadcasters. It governs over-the-air television and radio, as well as cable services. A number of provisions also relate to services providing signal delivery on behalf of broadcasters. Among the sources of permitted sources of revenue for broadcasters are budgetary appropriations, license fees, and within limitations, advertising (Articles 44, 30). There exist limitations as to who may own a broadcasting facility. Those who are prohibited from holding a license are foreign citizens, political parties, trade unions, and religious organizations, as well as their enterprises and entities (Articles 13 and 14). Further limitations are placed on foreign investment in broadcasting in Ukraine. First of all, foreigners may invest in the broadcasting business only if permitted to do so (and only up to a maximum of 30% of the company’s stock capitalization) by the National Council, which also exercises continuing oversight over such investment (Article 13). A licensed broadcaster may lease from the Ministry of Communication the frequency, technical facilities and equipment necessary to produce and transmit its signal to the audience. Some video equipment is usually owned by the new stations. Studio premises may be leased from the state TV companies. A particularly significant provision (Article 45) permits licensees to own transmitting facilities, which differs from the previous practice in Ukraine (and from the current situation in the Russian Federation, where the Ministry of Communications holds a monopoly on signal distribution). National Council. Primary responsibility for regulatory oversight, including licensing (Article 14), is placed in the hands of the National Council, a body created under Article 5. By a separate resolution of the parliament of December 21, 1993, the National Council is to list by August, 1994 all broadcasting organizations operating in Ukraine in the State Register and grant them new licenses for the right to use a broadcasting channel in accordance with the law. The procedures for frequency allocation are not stipulated by the Broadcasting Law—thus, this appears to be an area where the National Council is granted considerable leeway to formulate policy. According to our Kiev sources, the Chairmanship in the National Council will be given to the current president of the state broadcasting company, Mykola Okhmakevich. Rights and Duties. In considerable detail, the Broadcasting Law enumerates a range of rights and duties for broadcasters, their employees, and for the public (both recipients of information and those who may be injured by defamatory material or invasion of privacy). However, particularly in the case of broadcasters, the enumerated duties far outnumber the rights. For example, the Law does not contain express recognition of a broadcaster’s right of free expression (although such a “principle” is stated in Article 2). Perhaps such recognition was considered unnecessary because of the provision in Article 9 of the Law on Information that provides for a right of dissemination of information. Meanwhile, Articles 2 and 37 of the Broadcasting Law list categories of programming content that a broadcaster is prohibited from disseminating. In the case of information that is false, degrades a person’s honor and dignity, or violates a right of privacy, the broadcaster may be liable for money damages (Articles 37(j) and 47). Article 2 prohibits the dissemination of “state secrets.” A bill “On State Secrets,” which has passed its first reading in the Ukrainian parliament, specifies some of the restrictions set forward by the Information Statute. Under this bill, information pertaining to defense, the economy, foreign relations, state security and the safekeeping of law and order shall be deemed to be state secrets, the divulging of which can harm Ukraine’s vital interests. There will be a single list of state secrets to be applied for the next thirty years. Statistics on the nation’s foreign currency reserves or the organization and numerical strength of the armed forces shall not be disclosed. Specific reports from the hydrometeorological center of significance to defense shall be classified as secret. It shall be strongly forbidden to publicize information about people who formerly served or continue to serve on a clandestine basis with organizations engaged in intelligence activity. The divulging of state secrets by the mass media carries with it the term of one to three years for the offending journalist, or three to eight years, if this action has had grave consequences and caused material damage. The Broadcasting Law also speaks to the controversial issue of foreign programming. When the broadcasting bill was under debate, Mykola Spys, chairman of the Committee for the Mass Media of the Supreme Soviet, made the following comments on the issue of quotas related to national origin of programs: “A 75 percent quota for Ukrainian programs is unrealistic since we do not have either finances or technical facilities to make that much material. Ten percent will erode Ukrainian identity of national broadcasting. If we make it 50/50, then “the viewers will be presented with a mass of cheap and dull [Ukrainian] programs.” Despite the remark, the Broadcasting Law prohibits foreign programming exceeding 50 percent of the total broadcasting time of each station (Article 8). Copyright protection is provided in Articles 25 and 36, including a private right of action for monetary damages is provided in the former. As noted in another article in this issue, Ukraine also has a new Copyright Law. Ukraine has not signed any international copyright agreements in the sphere of video or intellectual property. Another duty is assigned to cable television operators. Article 24 has a “must-carry” provision, requiring cable systems to retransmit the programming of state broadcasters. This provision could be of particular impact on cable systems with capacity for only a small number of channels. According to our sources in Kiev, this requirement may have been intended only for state cable networks which are technical services and do not have their own programming. The Broadcasting Law is more expansive on the rights of “artistic employees,” a term that, while undefined, presumably includes journalists. The Broadcasting Law makes it clear that journalists, guided by their TV and radio companies’ “program guidelines” and statutes, should check the information that they obtain, and may not violate restrictions set forward by mass media legislation and labor agreements (Article 39). Journalists are granted a limited right of access to information. They may collect and obtain information if this information is necessary to produce a program; pay visits to the governmental offices, enterprises, and institutions when they have an assignment from their broadcasting company; attend public rallies and demonstrations if they show their credentials (whom they should show the credentials to is not clear from the text, but probably to the police or state security). They have the right to be acknowledged with the final edition of a program made with their participation before it is aired, but may not make content or other changes. They have the right to withdraw their responsibility for the changes made against their will. They can decline assignments from the superiors, if they contradict the law (Article 38). The journalists have no rights of co-determination. Members of the audience and the general public may seek money damages for violation of their rights (Article 47), including a right to privacy (Article 37(j)). They also have rights of reply, refutation, or personal commentary (Articles 40 and 43), including a right to refute information which degrades the honor and dignity of persons even if the information is truthful [note “or” in the text of Article 40]. The audience has a limited opportunity to influence the policy and practice of broadcasting, exercised mainly through the call-in shows, letters to the TV and radio companies and to the National Council. A person interviewed or used as an information source by a journalist may demand (in writing) a review of the material before its broadcast and order its deletion (Article 42). Article 46 of the Broadcasting Law contains a long list of violations. The first speaks generally to Article 47 of the Law on Information—”Responsibility for Violations of the Legislation on Information”—which imposes disciplinary, civil, administrative, or criminal responsibility for such things as “ungrounded refusal to provide relevant information”; “provision of information which does not correspond to reality”; “untimely provision of information”; “intentional concealment of information”; “coercion to disseminate, or obstruction in dissemination, or ungrounded refusal to disseminate truthful information”; “dissemination of information which does not correspond to reality, damage the honor and dignity of a person”; “use and dissemination of information about the private life of a citizen without his permission to do so by the person who is an owner of this information as result of execution of his/her office duties”; “disclosure of the state or other secret protected by law by a person responsible for protection of this secret”; “violation of the procedure on preserving the information”; and “ungrounded classification of certain types of information.” Language of Broadcasting. Another interesting issue is the language of state broadcasting. Article 6 of the Law on National Minorities (1992) guarantees the minorities the right to national-cultural autonomy, which includes the use of their native language and “the satisfaction of [their] needs in literature, art, and the mass media.” Meanwhile, Article 9 of the Broadcasting Law requires broadcasting in the state language (Ukrainian) except to those regions densely populated by minorities. At this time, the basic languages of the mass media are Ukrainian and Russian. By the Law on State Language, commercials are permitted only if they are broadcast in Ukrainian; therefore all the Snickers and Wrigley are brought there with the help of Ukrainian rhymes. Major advertisers are banks, insurance companies, automobile dealers, and joint ventures (“Tetrapak,” “Tampax”). Advertising. Until recently the top limit of advertisement on state television was three minutes per hour, but the Broadcasting Law has raised the ceiling to as much as six minutes per hour for most of the stations. Commercials bring about ten percent of the Company’s budget. By the Broadcasting Law, state television may not earn more than 25 percent of its annual budget from advertising activity. The law also prohibits interruption of official broadcasts, programs for children under 14 years of age, as well as of entertainment and sports programs of less than 30 minutes long. Advertisement of alcohol, tobacco and narcotic drugs is not allowed (Articles 30 and 31). Summary. The mass communication legislation, including the Broadcasting Law, lays the foundation for the development of broadcasting in Ukraine. If its provisions would be observed and enforced the nation would have one of the politically most free electronic media in the former Soviet Union, although the Broadcasting Law poses what could be troublesome content restrictions and potential liabilities on broadcasters. Here, much will depend on the role of the courts, who are given considerable responsibility for resolving disputes under the Broadcasting Law. A well-functioning market economy, non-existent in Ukraine, is another prerequisite for the development of political democracy. Its creation is also crucial for the economic freedom of the independent broadcasters and journalists. Thus, only by a compromise between the legal and practical rules, between the state, public, and private interests, between national and foreign (first of all, Russian) interests in the sphere of broadcasting can Ukraine guarantee the future progress of its electronic mass media. Andrei Richter |
Last Updated: 11/20/99 |
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© 1999 Post-Soviet Media Law &
Policy Newsletter |
