Case Summary and Outcome

The District Administrative Court of Kyiv lifted an order suspending the transmission of certain Russian channels in Ukraine. The Ukrainian National Council for TV and Radio Broadcasting (NCTRB) requested a judicial ban on the broadcasting of the channels because they allegedly disseminated malicious misinformation, which incited ethnic hatred and infringed the rights and liberties of others. It took four years for psychological and linguistic analyses to be carried out in relation to the channels, and during this time the transmission of the channels was suspended until the Ukrainian courts could consider the merits of the case. After these analyses were produced, the District Administrative Court of Kyiv conceded that some Russian shows on these channels included unlawful information but dismissed the request to block the broadcasting of the channels because Ukrainian law did not support a wholesale ban of a television channel.

The decision analysis was based on original court documents, which are only available in Ukrainian and could be accessed through a Ukrainain IP at http://www.reyestr.court.gov.ua/

Facts

On March 6, 2014, the National Security and Defence Council warned that the presence of Russian TV channels in Ukraine’s “information space” threatened the nation’s security. Subsequently, on March 11, 2014, the Ukrainian National Council for TV and Radio Broadcasting (NCTRB) instructed all cable operators to stop transmitting a number of Russian channels.

On March 20, 2014, the NCTRB filed a lawsuit against Torsat, TOV, the distributor of several Russian channels, including the First Channel, RTR-Planeta, Russia-24 and Russian Channel.  On March 25, the District Administrative Court of Kyiv ordered Torsat to temporarily suspend the transmission of the Russian channels as an interim restrictive measure while the litigation was pending.

The decision of the District Administrative Court of Kyiv was appealed by Torsat and the other affected Russian broadcasters before the Kyiv Appellate Administrative Court. In April, the Kyiv Appellate Administrative Court upheld the interim suspension order from the lower court. It reasoned that the Russian channels disseminated malicious misinformation, which incited ethnic hatred and infringed the rights and liberties of others. The Appellate Administrative Court added that such acts risked bringing about “irrevocable processes” that could violate the territorial integrity of Ukraine. Consequently, the temporary suspension order remained in place and the District Administrative Court moved on to consider the merits of the case.

On May 6, 2014, the District Administrative Court ordered a psychological and linguistic analysis of the channels’ content and suspended all judicial proceedings until the completion of the analysis. This order was then appealed by the First Channel and the Association of Russian Channels, both of which requested that the order be reversed and that the District Administrative Court consider the case on the merits without further delay. The appellate court concluded that an analysis of the Russian channels’ content was necessary and upheld the suspension of the relevant litigation until it was completed.

In a parallel development, in July 2014, the District Administrative Court of Kyiv affirmed the suspension of Vertikal-TV and cable operators that had relevant contracts to transmit it. The District Court used national security arguments that had been used in the Torsat case to justify its order. Vertikal-TV appealed to the High Administrative Court of Ukraine, which upheld the order and Vertikal-TV’s transmission was suspended while the litigation was ongoing.

Additionally, the NCTRB filed a lawsuit against the Russian 24-hour channel of business news, RBK-TV, ZAO, and its Ukrainian distributor, Agenstvo Klas, TOV. In September 2014, the District Administrative Court of Kyiv upheld the order and the transmission was suspended until there was a decision on the merits of the case.

On November 14, 2014, the District Administrative Court of Kyiv received the expert analysis that it earlier requested and resumed the Torsat case on December 9, 2014. In January and February 2015, the District Administrative Court of Kyiv decided to combine all three cases into one.  On March 3, 2015, the court requested that the Ministry of Interior provide additional linguistic and psychological expert reviews of the content of TV-Tsentr, OAO and RBK-TV, ZAO. The now joint case was postponed until the completion of the new linguistic review.

Decision Overview

On September 5, 2016, the District Administrative Court of Kyiv (Court) announced that the Ministry of Interior had completed the psychological and linguistic expert review of the relevant Russian television channels. The trial resumed on September 29, 2016, during which the Court referred to the expert assessments. These assessments had concluded that segments of certain programs on the Russian channels contained calls to violate the territorial integrity of Ukraine, and used language that promoted exclusiveness and superiority or inferiority of persons based on their ideology and nationality.

The Court noted that the lawsuit aimed to address concerns over a purported threat to the national interests of Ukraine in the “information sphere.” The lawsuit was aimed at preventing harm to persons, the public, or the State due to the dissemination of incomplete, untimely, or  untrue information. The Court reasoned that these concerns were under the auspices of the Office of the Prosecutor-General, the Ministry of Interior, and the Security Services. Thus, the Court requested that these institutions evaluate the results of the psychological and linguistic assessments to determine whether the Russian channels broke any laws. Additionally, the Court requested that these institutions share any relevant information that they might have obtained through their own investigations into the issues at the heart of this case. The Court then, once again, suspended the hearings pending input from the Office of the Prosecutor-General, the Ministry of Interior, and the Security Services.

On May 29, 2018, the trial resumed and the Court considered the merits of the case. The Court reviewed the expert analysis and agreed with the conclusion that segments of various programs on the Russian channels:

• called for a violent overthrow of Ukraine’s constitutional system, as well as war in and aggression against Ukraine;
• propagandized exclusivity, as well as superiority or inferiority of persons based on their religious beliefs, ideology, nationality, race or social origin;
• incited acts to violate public order; and
• included Russian propaganda.

The Court then clarified that, although the Constitution of Ukraine prohibited censorship, the right to freedom of expression included permissible limitations in the interests of national security, territorial integrity or public order.  However, the court found that Ukrainian law did not contain any provisions that could permit a ban on the dissemination of particular Russian TV channels in the country. The Court suggested that to achieve the intended effect of taking the Russian channels off the air, the NCTRB could have asked the Court to annul licenses giving permission for the channels to be broadcast.

The Court concluded that although some Russian TV shows violated the Ukrainian laws “On Information” and “On Television and Radio Broadcasting”, as well as Article 7 of the European Convention on Transfrontier Television, the NCTRB’s request to broadly block the broadcasting of the Russian channels was invalid. In light of this conclusion, the Court lifted the suspension.