Олексій Дзюба Hot News 15 January 2025, 15:30

Defeat or victory? What happened to the new law that obliges media outlets to remove untrue comments (not just about politicians and officials)?

On January 14, the Verkhovna Rada passed the second reading of bill No. 11321 “On Media”. It was initiated by the head of the Verkhovna Rada Committee on Freedom of Speech from the Holos party, Yaroslav Yurchyshyn. According to the law, the media will have to delete readers’ comments accusing officials (and not only them) within three working days from the moment of receiving a complaint or an order from the National Council or a ruling on the opening of relevant proceedings by the court. Social networks write that this is a restriction on freedom of speech, where the media must “sign” for all commentators. We are figuring out whether everything is really that bad.

New law

Online media will be exempted from liability for inaccurate reader comments if they are removed within three days of receiving a court order, complaint, or National Council order .

Thus, the norm of Article 117 of the Law "On Media" was clarified. In legal language, it sounds like this:

"Online media entities are exempt from liability for the dissemination of false information, as well as information prohibited from dissemination under Articles 36, 42 and 119 of this Law, if such information was disseminated by users in sections for commenting or posting user publications on the website or web page of such media, provided that the online media entity has restricted access to such information within 3 business days from the date of receipt of the relevant complaint or order of the National Council or a ruling on the initiation of relevant proceedings by a court."

How can you offend someone?

As follows from court decisions, a significant number of officials call information that is negative about them unreliable.

Negative information spread about a person is considered untrue unless the person who spread it proves otherwise. This is how the presumption of good faith should work.

The Supreme Court says that information that alleges a person's violation of, in particular, the norms of current legislation, or the commission of any other actions should be considered negative. For example, violation of the principles of morality, generally recognized rules of coexistence, unethical behavior in personal, public or political life, etc. Such information, according to the plaintiff, violates his right to respect for dignity, honor or business reputation (Part 3 of Article 277 of the Civil Code).

Media as an accomplice

The rule regarding media liability for comments by third parties on their resources has existed for a long time (in Ukraine, at least since 2009) and has been developed by case law, in particular by the European Court of Human Rights, writes the Institute of Mass Information.

In short, media outlets and owners of public pages are obliged to quickly delete comments from readers that may offend people, be defamatory, or in themselves violate the law, in order to avoid receiving a lawsuit or a summons for questioning by an investigator. At the same time, provided that comments are moderated in a timely manner, media outlets and owners of public pages are exempt from liability for such comments.

In 2023, the Law of Ukraine “On Media” came into force, giving online media three working days to restrict access to such content after receiving a complaint or an order from the National Council for Television and Radio Broadcasting. This concerns general bans for media on unreliable information and dubious information content: calls for terrorism, animal cruelty, discrimination, harassment, drug use, etc.

Regarding false information: it is really important that this information does not offend the honor and dignity of a specific person. This is primarily about the risk of legal action, not sanctions from the National Council.

"A lawsuit can come not only from an official, but from anyone who is mentioned in the comments in a negative context. Officials were "dragged" into this bill more for hype."

Bill No. 11321 actually only supplements the article already existing in the Law "On Media" and adds that the three-day window when the media can delete a comment and not be held liable begins not only from the moment of receiving an order or complaint from the National Council, but also from the moment of receiving a court ruling on the initiation of proceedings.

Thus, the new changes create an additional guarantee of protecting the media from legal proceedings for the actions of third parties. This article and the draft law do not introduce censorship or prohibitions, they detail an exception to the already existing obligation to filter and moderate media content, which, in essence, includes readers' comments, in order to prevent violations of the law or insults to the honor and dignity of individuals.

Jurisprudence

The court takes into account the presence of rules or commenting policies on the resource that prohibit posting comments with illegal content. The presence of a banner, warning, or entire code of conduct for commenters should relieve the social network, media, or public figure of responsibility for violating such rules and, in general, for comments published against the will of the resource owner.

This approach is used by the Court of Justice of the European Union and some EU countries within the framework of national legislation. In this case, intermediaries are freed from the need for constant moderation and control, but must respond promptly to complaints. However, the ECtHR decided to choose a different path, which can be described in words: rules and policies influence liability, but do not necessarily exempt from it.

Of course, the ECHR has created and continues to develop a practice that human rights organizations are extremely dissatisfied with . Therefore, media and media figures who have their own accounts on social networks should pay more attention to moderating comments in order to avoid unpleasant legal proceedings and the associated costs.

What does the initiator of the updated law say?

People's Deputy Yaroslav Yurchyshyn believes that the new law strengthens the protection of honest media, without restricting either the media or users.

"No one will oblige the media to remove comments critical of anyone. As well as any comments without legal grounds for doing so."

Yurchyshyn adds that a number of media outlets have spread information that Bill No. 11321 allegedly restricts freedom of speech and imposes penalties on media outlets if they do not remove "negative comments from readers about officials under news." And he says that this is a lie.

Before the adoption of the bill, media outlets could, under the "Law on Media," appeal to the National Council or sue for spreading false information if an account left a comment of the appropriate content under their material. "The court is a lot of time and expense, as well as a threat to the image of the media," the MP believes.

After the adoption of the bill, Yurchyshyn continues to explain, in the event of the initiation of legal proceedings and the receipt of a reasoned decision from the court regarding the material that violates the "Law on Media", the media can independently decide what to do next with the comment to which this decision applies.

"The media can either delete such a comment within three days of receiving information from the court and not be held responsible for it, or, sharing the commentator's position, leave a comment and defend its position in court."

"Also, with the bill, we exempt the media from liability for reciting the statements of officials, rather than directly quoting them. Now the media can really suffer from lawsuits if they do not quote the person directly, but convey the words. Although the essence does not change," the deputy writes.

Instead, we suggest that the media make it easier to convey information so that the essence of a public figure's statement can be conveyed indirectly. And in this case, be protected from lawsuits, adds Yurchyshyn.

He believes that the lies about Bill No. 11321 are spread by those who consistently file lawsuits to protect their “honor and dignity.” “You know the name of one of these former officials well. It is much easier for him to work with the courts than with the National Council. Therefore, I would not be surprised if Portnov’s name is somehow involved in the channels of spreading this manipulation,” Yaroslav Yurchyshyn concluded.

Victory or defeat

A discussion has erupted on social media regarding the updated law. Some opinions are negative and perceive the new law as a restriction on freedom of speech. Others, on the contrary, write that there is no treason.

"There is no betrayal, except that the media must sign for all commentators. In fact, the media is still obliged to delete the comment. And if they don't delete it, they agree with the author, which means they will "drag the jarl" in court," writes the author of the military Telegram channel "Noem Intelligence."

"There is no betrayal. The media has had obligations regarding audience comments before. Bill 11321, on the contrary, allows the media to have a 3-day break and resolve the issue pre-trial. Tanks and carts that disperse this, you are the first to need this norm so that you are not dragged through the courts," wrote Oksana Romanyuk, director of the Institute of Mass Information.

"The question arises as to what staff the media should have to monitor all comments from all readers on all social networks and check their content for authenticity. For example, if a reader alleges corruption of a certain official, should the media in this case conduct a separate journalistic investigation into this data, or should it simply "automatically" delete all such comments in order to avoid liability," Yaroslav Yurchyshyn is asked under his post.

"We can use a specific example to understand. If someone left a comment about the production of defective shells for the Armed Forces of Ukraine, an official files a complaint, goes to court, the record is deleted and no one will check the shells, or what exactly will happen now?"

“Judging by the massive amount of trash dumped into all the garbage cans, you really stepped on the wrong person’s tail!” — “That’s right,” Yaroslav Yurchyshyn replied under his post.