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Temporary suspension of media activities until end of election campaign as case law reality

The campaign of early parliamentary elections is on, and the mass media, in particular the printed press, are actively involved in, they publish election propaganda of the candidates or cover the campaign and facts linked to it.

However, the activities of the media during the election campaign mean not only opportunities, but also mean responsibility. Some types of liability are imposed by the law “On Elections of MPs  of Ukraine” have already been withdrawn from some electoral laws because of their incomparable severity, but they remained unchanged in the law “On Elections of MPs of Ukraine” since its adoption in 2011.

In particular, in accordance with Article 74 § 11 of the Law “On Elections of MPs of Ukraine”, the activities of the mass media may be suspended until the end of the election campaign: “11. If the court, when considering the electoral dispute of a repeated or one-time gross violation of the requirements of this Law by the mass media, makes a decision on the temporary (before the end of the election process) suspension of the license or a temporary prohibition (until the end of the election campaign) of the publication of the printed publication. ”

Some journalists and editors believe that this rule is not applied in practice. However, this is not the case. In Ukraine, parliamentary elections under the electoral code of 2011 took place twice, in 2012 and in 2014. And every time, the lawsuits had been filed against the media with requisition  to temporarily suspend their activities, and in some cases, the media activity really had been suspended.

For example, on October 4, 2012, the Zhytomyr regional administrative court issued a ruling in the case No. 0670/6649/12. Among the claims filed by the plaintiff who was candidate for parliamentary election were these ones: the demand to impose a temporarily ban (till the end of the election campaign) of the charity publication of the weekly “Time of choice – District # 66”, a certificate of state registration of the series ZHT №161 / 538Р, of July 10, 2012. The court, decided that the media had not signed any agreement with the parliamentary candidate (co-defendant in this case), and published the campaign materials to his benefit on his own initiative, and by doing this the mass media had violated the Law of Ukraine “On the election of MPs of Ukraine”. The court ruled that the media “Time of Choice – District # 66” had committed a gross violation of the Law “On Elections of MPs of Ukraine”, and upheld the claim to temporarily suspend the publication.

A similar decision had been taken by the Fastov town court of Kyiv region in its ruling of 27 October 2012 in case No. 2a / 1027/4261/2012. Having considered the case on the administrative suit of the candidate for parliamentary election against the newspaper “Position”, the court concluded that a gross violation of the electoral legislation took place, as the newspaper had published the photo of the candidate for election. The claim was partially satisfied: publication of printed edition №10 for October, 2012 by the newspaper “Positions” had been temporarily suspended (until the end of the election campaign).

There were cases when the court did not suspended the activities of the mass media, but restricted it in another way. For example, on October 22, 2012 the Melitopol town court of Zaporizhzhya region issued a ruling in case 815/14847/2012, in which partially satisfied the claims and prohibited the editor-in-chief and publisher of the newspaper “Otechestvo” to publish and distribute the issue No. 2 for October 2012 with the results of public opinion polls related to the election, in particular regarding the party.

Courts have not always met the requirement to suspend the media, even when the violation had been confirmed. For example, in a ruling of Khmelnytskyi city court on September 29, 2014, in case No. 686/20297/14-a, the court noted: “The court takes into account the fact that the answer of the candidate to the MP of Ukraine – OSOBA_3 was still published by the defendant, but with the comments of the author of the article, as well as in the section determined by the author, such actions the court considers as violation of the Law of Ukraine “On elections of MPs of Ukraine”, but not major violation, and thus, this action cannot be grounds for a temporary ban (until the end of the election campaign) of the printed issue. The claims of the plaintiff in this part are not to be upheld”.

Dura lex sed lex – the law is strict, but it’s a law. According to expert estimates, the provision on temporary cessation of the mass media outlet in case of single violation or repeated violations does not meet the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. However, this norm as of June 2019 has not been cancelled and is a source of law. So, one cannot exclude eventuality of lawsuits being lodged with demand to suspend  temporarily activities  of the mass media during the early elections 2019.

By Ali Safarov, for “Media Detector

Photo credits: Prezi

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