Could digital freedom in Ukraine become a casualty of Russia’s info wars?

Key Findings

— Russian informational warfare has shaped the debate on digital rights in Ukraine and given greater resonance to calls for more regulation.
— In a concerted effort, Ukrainian civil society managed to stop bill 6688, which would have substantially enlarged the powers of the security services and threatened freedom of speech.
— Open data laws are in place and used by journalists as well as applications for public transport and others.
— Ukrainian citizens have very limited options to protect their personal data.
— In contrast to traditional media houses, online media outlets do not have to register in Ukraine. This however makes it more difficult to prove that the particular rights of journalists extend to them as well.

It was an attempt to use the Russia's informational warfare against Ukraine to curtail digital rights within the country. Draft law number 6688, put forward by the parliamentary committee for national security, would have given Ukrainian security services the power to take websites down temporarily. For the time being, Ukrainian civil society has managed to stop the bill. But the pressure for greater Internet regulation remains.

The law was – in the opinion of many experts – overzealous in regulating the country's Internet. Civil society feared that it would have given state security agencies powers that could easily be abused. "Media organizations acted quite quickly and were unanimously against this law," says Maksym Dvorovyj, a lawyer at the Centre for Democracy and Rule of Law (CEDEM), a "think-and-act tank" in Kyiv.  [Update: Since the interview Dvorovyj has left CEDEM and joint the Digital Security Lab — editor]

In interviews with DW Akademie, most experts stressed that Ukraine has one of the most unregulated Internet environments in the world. The Ukrainian constitution guarantees freedom of speech, as does the legislation regulating the media. "The general framework with regards to freedom of expression is more or less compliant with international standards," says Dvorovyj. Guarantees against censorship are in place, and journalists' rights are secured. Several provisions in the media laws are aimed at protecting journalists from physical attacks and interference in their work.

Difficulties in enforcing media laws

However, the Media Sustainability Index 2019 report documents difficulties in enforcing these rights: "Poor political will and sabotage by law enforcement and judicial bodies undermine the application of sound legislation and augment impunity for crimes against journalists." According to the experts, "only those who are better organized and more resourceful – i.e., business and politicians – are able to protect themselves." In a  survey by netfreedom.org.ua (2018), a web resource supported by Internews Ukraine, 55 percent of the experts said the state of Internet freedom in Ukraine had become "somewhat" or "considerably worse." Just over 40 percent declared that the situation "hadn't changed."

Conflict with Russia dominates debate on digital rights

Sign Russia Rostovkaya Oblast | A barbed wire fence built by the Rostov-on-Don region border service branch of the Russian Federal Security Service on the Russian-Ukrainian border

 The conflict with Russia has revealed the country's vulnerability to cyber attacks and misinformation campaigns, sparking a debate about the expansion of Internet regulations. Draft law 6688 would have allowed prosecutors to ban websites for 48 hours without a court order if lives were endangered. Furthermore, websites could have been taken down when used to coordinate crimes. Pretending to agree to a homicide in the comment section of an online publication could have been enough to silence that media outlet, warns Maksym Dvorovyj. "We need to establish certain notice and takedown procedures to combat the spread of hate speech and incitement of violence," the lawyer admits. Such procedures are, in fact, in place in many countries. Law 6688, in his view, is largely an attempt by the security services to abuse their authority.

This legislative initiative is part of a larger debate within Ukraine on how to fight back against Russian propaganda. Some activists fear that Ukrainian politicians could impose new regulations aimed against Russian propaganda that could establish mechanisms to limit free speech within Ukrainian society as well. "The blocking of Russian websites violates the digital rights of Ukrainians," says Vita Volodovska from Digital Security Lab. (For more information on the blocking of Russian websites see the section on "Society."

Online media left in a legal twilight zone

Unlike print or broadcasting outlets, online media houses do not have to register with the government. "On the one hand, this is good as Internet media cannot be denied a potential registration," says Volodovska. "On the other hand, it makes it more difficult to extend the special rights journalists have to those working for online media outlets." Online journalists could find it more difficult to protect their sources; or they could run the risk of facing full liability if they spread misinformation despite engaging in due diligence over the course of their investigation.

A lack of debate on digital rights

Discussion in the School of Business Journalism in cooperation with Ukrainska Pravda

In Ukraine, very few people talk about digital rights. "We lack a common understanding of how the state is supposed to protect its citizens' rights on the Internet," says Volodovska.  In particular, the protection of personal data is weak. The data protection law was passed at the same time as an anti-corruption law. "The lawmakers' main goal was therefore to protect state employees from having to disclose their assets," says Volodovska. If personal data is leaked, citizens have little opportunity to take action. "This topic has not been given any priority on the agenda," agrees Maksym Dvorovyj. He expects a new initiative in the foreseeable future to bring Ukraine into compliance with EU standards of data protection.

There is an open data law from 2011 in place with relatively good provisions for access to data. Digital media outlets like texty.org use public data to produce visualizations and complete investigations. Furthermore, there are smartphone applications such as Easywayusing open data from the public transportation network in Kyiv and 55 other major cities to show the departure times of busses and trolleybuses in real time.

Ukrainian Internet Governance Forum

TheUkrainian Internet Governance Forum  has existed since 2010. It is organized by the Internet Association of Ukraine, an industry lobby group. In recent years, the Digital Security Lab has also joined as a co-organizer. "The Ukrainian Internet Governance Forum is debating," says Maksym Tulyev from the Internet Association of Ukraine. "But I don't know of a single case where they were able to put anything into action."

"It's a very formal event," agrees Volodovska.  The Digital Security Lab is therefore planning to establish a festival for digital rights as a way to bring the debate into the heart of Ukrainian society. According to her, Ukrainians' grasp of the topic is too weak. "People do not understand why they should stand up for their digital rights." The NGO has therefore started to cooperate with "offline" human rights defenders in order to build broader coalitions within civil society.

Such a coalition will be much needed. "Now there is basically no opportunity to pass any law that would improve the regulatory environment," says Dvorovyj. "This is basically why NGOs try to encourage the non-interference of the state in the online sphere." Since draft law 6688 failed, the Ukrainian Internet remains fairly unregulated. But the bill can be put forward again at any time. Ukrainian civil society must remain vigilant.

What experts say

Maksym Dvorovyj on tackling hate speech and incitement to violence on the Internet: "My personal opinion is that we need to establish certain notice and takedown procedures to properly combat the spread of hate speech and the incitement to violence. However, it should be limited to blocking specific content and not entire websites. So it should be aimed at specific posts, pieces of information or articles. And the procedure should be clear."

Vita Volodovska from the Digital Security Lab fears that the confrontation with Russia justifies the limiting of free speech within Ukraine. "We lack a clear definition of propaganda. Many classify your criticism of the Ukrainian president as propaganda when it happens to coincide with the Kremlin's message. But, Ukrainians do have the right to be dissatisfied with their president."

Recommendations

— Oppose legislative initiatives that restrict Internet freedom
Maksym Dvorovyj wants civil society to continue to oppose legislative initiatives that disproportionately restrict Internet freedom (as did draft law No. 6688), while proposing its own regulatory approaches based on international standards.

— Conduct digital rights awareness raising campaigns
Conduct campaigns to make Ukrainians aware of the value of their digital rights. A digital rights festival as planned by the Digital Security Lab could be an important step forward. The public broadcaster UA:PBC could foster debate as well.

— Improve legislation
Improve legislation protecting personal data and train judges to ensure implementation.

The #speakup barometer is a DW Akademie project that examines the connection between digital participation, freedom of expression and access to information. Learn more at www.dw.com/barometer