Legal analysis of the draft Law “On Amending Certain Laws of Ukraine on Countering Threats to National Security in Information Sector,” registration #6688
Produced by the FreeNet Ukraine Coalition
The draft Law “On Amending Certain Laws of Ukraine on Countering Threats to National Security in Information Sector,” registration # 6688, was registered by the MPs I.Vinnyk, D.Tymchuk and T.Chornovil on 12 July 2017. On 21 June 2018, it was included in the plenary session agenda. The memo to the draft law specifies that it aims at developing and enforcing legal mechanisms for creating an efficient system of cybersecurity. However, near every provision of the draft law contradicts to Ukraine’s international obligations in the area of human rights and freedoms and poses critical threats to the freedom of expression. Namely,
- The draft law creates grounds for unlimited discretion of the public authorities and officials in making decisions on banning information resources, since the list of reasons for limiting access to the websites is too broad, and adequate mechanisms to oversee the activity of authorized bodies and their officials, guarantees of human rights protection and deadlines for temporarily websites ban are not established.
- It continues the practice of arbitrary and non-transparent banning access to the information resources based on the Law of Ukraine “On Sanctions” which is contradictory to the Constitution of Ukraine, International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms.
- It copies Russia’s policy of keeping the register of banned information resources based on which the telecom operators can limit access to these resources.
- It significantly strengthens liability of the telecom operators and other telecom service providers for failure to perform any requests on telecom service provision or resource banning irrespective of how serious their violations are; and imposes excessive financial obligations to procure and install at their own expense state-specified technical facilities for blocking access to information resources/services.
- It entrusts the Security Service of Ukraine with uncontrolled power to oversee compliance with the requirements on the websites ban which can lead to abuse of power and pressure on the telecom operators and other actors.
Considering systemic inconsistencies between the provisions of the draft law and the national law, international human rights standards, and the threats they create for Ukraine’s existence as a democratic and legal state, we call the MPs not to extend their support to the draft law 6688!
The detailed analysis of the draft law provisions and the respective recommendations of the Coalition “For Free Internet” are provided below.
Amendments to the Law of Ukraine “On Sanctions”
The draft law adds a new type of a sanction to the Law of Ukraine “On Sanctions” — blocking access to an identified information resource/service in information and telecommunications networks/systems. At the same time, enforcement of this provision will be the violation of Ukraine’s international obligations, namely, under Article 19 of the International Covenant on Civil and Political Rights ratified by Ukraine in 1973, Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms ratified by Ukraine in 1997, as well as Article 34 of the Constitution of Ukraine.
These instruments establish that the restriction of the freedom to impart and receive information is only possible if it is prescribed by law, serves legitimate interests and is necessary in a democratic society. At the same time, the Law “On Sanctions” as well as other Ukrainian laws do not entail any clear-cut procedures, reasons and mechanisms to create the list of websites to be banned, and do not provide customized approach and reasoning for limiting access to every individual website. Moreover, enforcement of this sanction imposes limitations not only on the actors who may directly threaten the national security (for examples, owners of websites on which the calls to overthrow the constitutional system are published), but also on telecom operators and users who are not subject to the Law “On Sanctions.”
With this being said, the websites ban based on the Law “On Sanctions” is not in line with the principle of legality which requests that the restriction are formulated “with sufficient precision to enable any individual — if need be with appropriate advice — to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.” A quality law shall provide adequate protection from uncontrolled restrictions of the freedom of expression by those engaged into enforcement of such restrictions. The law shall clearly specify the mandate of the public authorities on imposing restrictions and the means of imposing restrictions with adequate clarity.
According to Article 17 of the Law of Ukraine “On Enforcement of Judgments and Application of Case Law of the European Court of Human Rights,” the ECtHR decisions are the sources of law in Ukraine. With this in mind, it is noted that in a number of its recent decisions on the information resources blocking, the ECtHR consistently states that the “respective legal framework is necessary for such blocking that provides both strict control over the ban and efficient judicial scrutiny to prevent any abuse of authority.”
Therefore, not only a sanction such as blocking information resources cannot be added to the list of sanctions stipulated by the Law of Ukraine “On Sanctions.” This Law should not be used as a ground for such limitations in general. Other mechanisms (judicial in particular) that comply with international human rights standards should be developed to block illegal content on the Internet. According to the Council of Europe Recommendations on Internet Freedom (CM/Rec(2016)5), the limitations should be grounded on a court decision or a decision of another independent administrative body which should be further reinforced by a court. This decision should be specific, aimed at a clear-cut purpose, and based on the assessment of the limitation efficiency and risks of excessive ban.
Blocking information through criminal proceedings
Amendments to the Criminal Code of Ukraine
The suggested amendments to the Criminal Code of Ukraine (CC of Ukraine) entail measures to block information resources as a specific type of sanctions along with a punishment and other criminal sanctions. According to systemic analysis of the CC of Ukraine, these measures in their nature are the form of criminal liability. Therefore, they can only be enforced after a court identifies that a person — who is subjected to these measures — committed a socially dangerous action which contains the elements of a crime.
It is also crucial to note that the suggested amendments establish only general reason for their enforcement — if information which is used to commit heavy or especially heavy crimes was disseminated through a resource/service. They do not stipulate other reasons for enforcement such as the subject, category/type of crime, timeframe, etc.).
The draft law sets forth a reference provision that the court applies the websites ban according to a procedure stipulated by the Code on Criminal Procedure (CCP) of Ukraine. However, the suggested amendments to the CPC of Ukraine only concern a temporary ban as a measure of enforcement in criminal proceedings, while the reasons for applying criminal sanctions should be determined directly by the CC of Ukraine. Otherwise it is the violation of one of key principles of the criminal law enshrined in Article 3 of the CC of Ukraine which established that “the criminality of any act and its punishability and other criminal consequences shall be determined exclusively by this Code.”
Moreover, the very reason for the ban enforcement is formulated extremely broadly and can be used to restrict access to near any information on the Internet. Thus, the draft law elaborates on blocking the resources that disseminate information that is used for committing heavy and especially heavy crimes. Formally, this wording could encompass a situation when a media outlet legally published an announcement of a public event if the terrorists used it to arrange a terrorist act.
That contradicts to the Constitution of Ukraine and the above-mentioned international standards, since the right of person to impart information may only be limited by law if it is reasonably justified that this information poses a direct threat to the interests of the national security, territorial integrity, public order, can lead to disturbances or crimes, endangers the health of people, reputation and rights of other people, discloses information obtained confidentially, or jeopardizes the authority and impartiality of justice.
Amendments to the Code on Criminal Procedure of Ukraine
The draft law suggests adding a new measure of enforcement in criminal proceedings such as temporary blocking access to an identified information resource/service in information and telecommunications networks/systems to the CCP of Ukraine. This measure is planned to be applied during pre-trial investigation by an investigating judge upon a motion of an investigator which is endorsed by a prosecutor, or upon a motion of a prosecutor. It is also meant to be applied during the judicial proceedings by a court upon a motion of a prosecutor. In extreme emergencies associated with saving the lives of people or preventing a heavy or especially heavy crime, temporary blocking can be initiated for no more than 48 hours by a resolution of a prosecutor or a resolution of an investigator endorsed by a prosecutor, before a court or an investigative judge issue a respective resolution.
While the suggested procedure entails a procedure of certain judicial scrutiny over the restriction of the right to impart information, it does not establish all necessary safeguards against the unjustified interference. Namely:
First, the draft law does not set forth a clear-cut reason for applying such measures and guarantees of the rights of persons who may be subjected to it.
For example, the draft law suggests restricting access to an identified information resource/service if it publishes information that can “facilitate commission of a criminal offense.” In general, it is a very broad formulation that can encompass almost any information, including legitimate media publications. At the same time, the requirements on notifying a resource owner of a possible temporary ban have different focus — they concern “stop of dissemination of information which is prohibited for dissemination in Ukraine.”
A notification to a resource owner is sent simultaneously with a motion on temporary ban submitted to court/judge. Given that according to the draft law, the court shall consider a motion on the day it received it irrespective of the parties’ presence, a resource owner is almost deprived of any opportunity to justify the legality of information that was disseminated. That is a direct violation of the adversarial procedure and the freedom of parties to present their evidence to the court and to prove the weight of evidence before the court which is one of key foundations of the justice (Article 129 of the Constitution of Ukraine).
Second, the draft law does not establish any time limits for temporary restrictions.
The timeframe of temporary ban is specified in the decision of a court or an investigating judge which orders to apply this measure. At the same time, the draft law provides no maximum period for such a temporary ban which can be in force throughout the whole period of criminal proceedings. Neither it establishes any reservations on the possibility to extend this measure without any limits.
When it comes to information resources that play the role of media outlets, it may cause them to completely stop their activities, since — as the ECtHR stated in Urper and Others v. Turkey — “the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest.”
Moreover, the suggested amendments to the CCP of Ukraine do not specify a procedure to terminate temporary ban when its period expired. A ban is terminated by a court/investigating judge upon a motion of a prosecutor, a suspect or a defendant, an owner/administrator of an information resource/service if this ban is not necessary any more.
Third, the procedure for enforcement of a decision on access restriction is not compliant with general requirements and principles of justice.
According to the draft law, a decision on a temporary ban of an identified information resource “is enforced by the officials of the National Commission for the State Regulation of Communications and Informatization (NCSRCI) according to a procedure established by the Cabinet of Ministers of Ukraine.” It refers to the establishment of the Unified Register of Enforcement of Judicial Decisions and Sanctions in the Field of Communications that will in fact be the same as the register of prohibited websites which the Russian Federation keeps.
In addition to information resources that are subject to temporary ban according to a procedure established by the CCP of Ukraine, this procedure will also extend to the resources banned based on other court decisions on blocking access to information resources/services or based on the National Security and Defense Council decision on enforcement of sanctions pursuant to the Law of Ukraine “On Sanctions.”
This procedure for enforcement of court decisions contradicts to the requirements of Article 129‑1 of the Constitution of Ukraine that established:
“The state shall guarantee the enforcement of court decisions in a procedure stipulated by law.”
Thus, the procedure for enforcement of decisions on the websites ban may only be determined by law, not by the Resolution of the Cabinet of Ministers of Ukraine.
Expanding the duties and strengthening liability of telecom operators
The draft law 6688 requires the providers to “temporarily block/restrict access or block for a definite time period the access to a resource/service identified by a decision of an investigative judge a court, decision or a prosecutor, decision of an investigator endorsed by a prosecutor, decision of the National Security and Defense Council of Ukraine according to the Law of Ukraine “On Sanctions” through a procedure established by the Cabinet of Ministers of Ukraine.” As noted above, it contradicts to the Constitution of Ukraine that sets forth that the restriction of freedom of expression (imparting or receiving information) as well as the procedure for the ban enforcement can only be established by law.
Moreover, the draft law requests that all economic entities, including operators, telecom providers that use international electrocommunication channels to procure and install at their own expense technical facilities for blocking access to information resources/services and for restricting or terminating the provision of telecom services and use of public telecom networks. These technical means should be compliant with the technical requirements set by the Administration of State Service of Special Communications and Protection of Information of Ukraine (SSSCPI) and approved with the Security Service of Ukraine. That creates major financial obligations for the operators and potential corruption risks if the technical requirements would narrowly limit the list of possible providers of the respective technical means.
At the same time, the draft law authorized the NCSRCI to impose sanctions (fines) for the above — and others — violations in the amount of 1% of an economic entity revenue from providing telecom services in the previous calendar year and 5% of revenue in case of repeated failure to comply with the NCSRCI instruction during a year. The amount of fine is the same for every type of offense irrespective of how critical it was. The fine in the amount of 1% of revenue will be imposed both for the significant violation of license terms and for failure to provide documents or information at a written request of NCSRCI.
Extending the authority of the Security Service of Ukraine
The draft law suggests amendments to the Law of Ukraine “On the Security Service of Ukraine” — namely, it is about to authorize the SSU, its bodies and officials to enforce a court decision on temporary ban/restriction and blocking access to an identified information resource/service with the use of technical means to be installed by operators, telecom providers or other economic entities, or enforce the respective ban in other cases stipulated by law.
This proposal provides the SSU with unprecedented and virtually uncontrolled authority to interfere with the activity of telecom service providers. The draft law does not specify clear reasons and a procedure for that. It creates grounds for arbitrary decisions, especially concerning that the very SSU is engaged into identifying technical requirements to the blocking equipment. At the same time, the draft law does not establish any guarantee that such mandatory equipment would not be used for other purposes not envisaged by law.
With this being said, the FreeNet Ukraine Coalition calls Ukrainian MPs:
1. Do not vote for the draft Law “On Amending Certain Laws of Ukraine on Countering Threats to National Security in Information Sector,” registration # 6688
2. Start dialogue with experts and human rights activists on legal and other initiatives on regulating the Internet by setting up a working group or conducting working meetings to prevent human rights violations in planning and implementation of such initiatives.
3. Be guided by the principles of rule of law and legality, bar from the restrictions of human rights without compliance with the requirements of domestic and international law in implementing cyber protection and information policies.
Participants of the FreeNet Ukraine Coalition:
Human Rights Platform
Digital Security Lab Ukraine
Human Rights Information Centre
Crimean Human Rights Group
Freedom House Ukraine