Media Law Update: Regulation of Online Media Under New Ukrainian Media Law

On 31 March 2023, the Law of Ukraine “On Media” (“Media Law”) entered into force. The key purpose of the Media Law is to align Ukrainian media law with the requirements of the EU media law, particularly the EU’s Audiovisual Media Services Directive. Among all other things, the Media Law introduces an unprecedented new regulation for online media.

What is online media?

Online media

is defined as non-audiovisual media that regularly distributes text, audio, audiovisual, or other information in electronic (digital) form via the Internet using its website.

By definition, audiovisual media covers TV (linear audiovisual media service), audiovisual media service on demand (non-linear media service), radio (linear audio media service), and audio media service on demand (non-linear audio media service).

Notably, one who regularly distributes mass information under editorial control using its accounts at platforms of shared access to information is not recognised as online media per se. However, such a person can apply for voluntary online media registration (para. 3 of Article 16 of the Media Law). In this regard, definitions of ‘editorial control’ and ‘platforms of shared access to information’ introduced by the Media Law should also be considered for proper qualifications.

Notably, Article 2 of the Media Law defines the material and territorial scope of the Media Law, i.e., provides for an extensive list of criteria for a person to identify whether their activity in the media field falls within the Media Law scope.

Adjusted list of criteria for classifying persons as subjects in the field of online media shall be prepared either (i) jointly by the primary regulator (National Council of Television and Radio Broadcasting of Ukraine) (“Regulator”) and the co-regulatory body (after the establishment of the latter), or (ii) solely by the Regulator if the co-regulatory body is not duly established or unable to decide on the list or criteria within one year after the Media Law enters into force (i.e., until 31 March 2024). In the latter case, the criteria from the Regulator will be in effect until the effective date of the jointly developed list of criteria for online media.

In light of the current regulations, various news websites would be the first that would likely fall within the meaning of online media (e.g., kyivindependent.com, epravda.com.ua, thepage.ua, hromadske.ua, unian.ua, today.ua). Social media news channels can also potentially be classified as online media under para. 3 of Article 16 of the Media Law and benefit from that status. We are also aware of online media registrations for YouTube channels.

Registration of online media: apply for registration or not?

Media Law does not oblige online media to register with the Regulator. Registration is voluntary for online media (para. 3 of Article 63 of the Media Law).

However, registration of online media provides several benefits for market players:

• an opportunity to participate in public procurements. State and local authorities are entitled to procure goods and services only with registered online media;
• an opportunity to obtain state grants and other state support (para. 4 of Article 63 of the Media Law). For example, on 11 July 2023, the Ukrainian Government adopted Resolution No. 704, which defines criteria for assessing the admissibility of state aid for business entities to provide services of general economic interest for the creation and/or selection, organisation and distribution of mass information. Online media is among state-aid recipients under the Resolution;
• official journalist status for employed or contracted journalists: (i) online media can issue press cards for its journalists; (ii) guarantees of accreditation of journalists based on the submission of the registered online media; (iii) facilitates defence against the obstruction of journalist’s legitimate professional activities under Article 171 of the Criminal Code of Ukraine;
• an opportunity to delegate representatives to participate in working groups on the formation of co-regulatory bodies;
• lightweight penalties (please see a summary table below);
• operation of registered online media can only be blocked based on court injunction, while the Regulator can also block unregistered online media based on its decision;
• enhance users’ trust as well as increase loyalty to media brands;
• decrease the risks of enforcement actions of Ukrainian law enforcement authorities due to transparency of activity of online media;
• it may also be a precautionary measure for platforms of shared access to information before allowing news channels/accounts to disseminate content through the platform regularly.

Upon registration, online media assumes the obligation to restrain from operating anonymously and must publish reference data on its website (e.g., official (registered) name, postal address, telephone number, e-mail, online media registration number (identifier) assigned in the Media Register). Moreover, online media must provide extended information on its ownership structure upon the request of the Regulator.

Registration of online media: procedure

Online media submits an application of an established form in accordance with the procedures prescribed by Article 63 of the Media Law and approved by the Regulator. 

Applicant should provide the following information in the application: (i) applicant’s credentials; (ii) address of editorial control; (iii) CEO’s full name; (iv) UBO’s full name; (v) online media name and type; (vi) domain name(s) and its registrant(s). Other than the UBO’s full name, there is no need to disclose the ownership structure at the application filing date.

The application should be filed via electronic office (account) within 30 days before commencing the respective media activity (para. 7 of Article 63 of the Media Law).

Registration fee for online media amounts to a minimum living wage for non-disabled persons approved on 01 January of the respective year (for registration in 2023, the registration fee amounts to Ukrainian Hryvnia, equivalent to approximately EUR 65 at the newsletter date).

The Regulator should decide on registration within a month from the filing date. If the provided information is incomplete, the Regulator should notify the applicant about the incompleteness of the information within ten working days from the filing date.

Unlike most other media that acquire their legal status in the media field from the date of recording information with the respective media register, online media acquires their status from the moment of commencing their activity.

Enforcement

Both registered and unregistered online media fall within the monitoring of the Regulator and shall comply with the requirements of the media and advertising laws.

Trivial though it might seem, no specific content requirements are introduced compared to those applied to linear media that use radio spectrum. The current content requirements equally apply and extend to online media, including those adopted before the Media Law’s effective date.

In particular, the Media Law prohibits the propaganda of war and terrorism, hate speech, denial or justification of the criminal nature of the communist or the National Socialist regime, armed aggression of the Russian Federation and its symbols, propaganda of drugs and psychotropic substances, pornography, propaganda of animal cruelty, sexual orientation and other forms of discrimination (please follow the links here and here to get additional SK overviews).

In summary, Article 112 of the Media Law provides for the following penalties for online media in case of violation of Media Law requirements: 

The Media Law establishes a one-year transition period (i.e., by 31 March 2024) for applying penalties under the Media Law by the Regulator. During the transitional period, only a warning letter can be issued by the Regulator for the online media that committed minor, significant, and most of the gross violations (e.g., excluding dissemination of propaganda of the Russian totalitarian regime).

Generally, compared to EU member states, Ukraine is applying a higher standard to protection against online harms (as stated in the legal opinion of the Directorate General of Human Rights and Rule of Law).

Still, it remains to be seen how this is monitored by the Regulator and how the standards are enforced.

Information contained in this overview is for general information purposes only, does not constitute legal or other professional advice, and should not be relied upon as a substitute for specific professional advice tailored to particular circumstances. The overview was prepared with assistance of associate Anastasiia Finko.