Mediacheck: "Alternatyva.org" has violated the law and the Code of Ethics by filming people without consent or warning

After a short break taken due to the war, Detector Media and the Institute of Mass Information have renewed the complaint mechanism for low-quality journalistic content that violates the law and professional standards. A special form for filing a public complaint has been posted on the websites of Detector Media and the Institute of Mass Information. Anyone may file a complaint; anonymous complaints are not taken into consideration. This mechanism serves to provide prompt advice on media violations. If the submitted content indicates a difficult situation, the organizations submit the complaints to the Commission for Journalistic Ethics and the Independent Media Council.

Conclusion №136 on the content from "Alternatyva.org" website, titled "Who in Mykolaivka does not pay for water"

I. Information on the complaint and the contested material

1. On November 1, 2021, the MediaCheck Initiative received a complaint from a citizen alleging that she has been filmed without her permission. The "Contacts" section of the website "Alternativa.org" contains a certificate of registration of the newspaper with this name, but this conclusion contains an analyzis of a specific publication on the website, particularly the video.

2. The contested content was published on October 30 in the sections "Mykolayivka" and "incident," with Roman Varshanidze and Andriy Khlopchyk mentioned as the authors. The content starts with a photo of a note left by the water supply services to a client, and in the middle it contains a 18 minutes long video which shows the clients communicating with local water supply employees who came to demand payment of water supply debts.

3. The content reports that the water supply service had stopped supplying water to Mykolaivka village in Odesa region because of considerable debt, and its employees were visiting the clients with the greatest debt. In one of the yards, the cameraman focuses the camera on the license plate of a car parked in the yard. At about 14 minute mark, the video shows a brawl between a resident of one of the yards and the journalist – the woman threatened to break the camera because she had not consented to be filmed.

ІІ. Standards of journalistic ethics that regulate this area of ​​public relations

1. Code of Ethics for Ukrainian Journalists (as amended in 2013):

• "A journalist should respect a person's private life. This does not preclude his right to a journalistic investigation related to certain events and facts, if the public importance of the information collected and disseminated by the journalist is higher than the private interests of the individual." (item 3);
• "A journalist should not use illegal methods of obtaining information. When gathering information, a journalist acts within the Ukrainian legal field and may resort to any legal, including judicial, proceedings against persons who prevent him from gathering information. The use of covert methods of gathering news is allowed only when necessary to ensure the authenticity or accuracy of the information. Such methods can be justified only if it is impossible to gather information in other ways. " (item 13).

2. The law:

2.1. Law of Ukraine "On Information" (as amended in 2011, 2657-XII):

• "Information about an individual is confidential... Confidential information may be disseminated according to the wishes (consent) of the person in a manner determined by them and in accordance with the conditions provided by them, as well as in other cases specified by law." (Part 2 of Article 21);
• "The collection, storage, use and dissemination of confidential information about a person without their consent is not allowed, except for the cases provided for by law, and only in the interests of national security, economic well-being and protection of human rights..." (paragraph 1, part 2 of Article 11 ).

2.2. Law of Ukraine “On Personal Data Protection” (№ 2297-VI):

• “The processing of personal information without the application of the provisions of this Law is permitted if such processing is carried out: … exclusively for journalistic and creative purposes, provided that a balance is struck between the right to respect for private life and the right to freedom of expression." (paragraph 2, part 2 of Article 25);

Article 1:

• "Personal information is a fact or a set of facts about an individual who is identified or can be specifically identified;

...

• the consent of the subject of the personal information is a voluntary expression of an individual's will (given that they have been informed) to grant permission to process their personal data in accordance with the stated purpose of the processing, expressed in writing or in a form that allows to conclude that consent has been given…;

…

• personal data processing is any action or set of actions, such as collection, registration, accumulation, storage, adaptation, modification, updating, use and dissemination .., depersonalization, destruction of personal data, including the use of information (automatic) systems."
• "It is not permitted to process data on an individual that is confidential information without their consent, except as provided by law, and only in the interests of national security, economic well-being and human rights." (Part 6 of Article 6).

The Civil Code (435-IV):

• “An individual may be photographed, filmed, televised or videotaped only with their consent. A person's consent to be photographed, filmed, televised or videotaped is presumed if the filming is conducted openly on the street, at meetings, conferences, rallies and other public events." (Part 1 of Article 307);
• "Photographs, other works of art depicting an individual may be publicly shown, reproduced, distributed only with the consent of that person ..." (paragraph 1 of part 1 of Article 308).

III. Assessment of the content in question

1. Journalists are usually attacked or obstructed when they are filming or collecting information lawfully. But journalists should not provoke such attacks by illegally violating the boundaries of another person's private territory.

2. The initiative condemns any attacks on journalists, in particular the case recorded in the second half of the video attached to the content in question. However, the mandate of the MediaCheck Initiative is to assess the actions of the journalists, who were not professional in preparing this content.

3. Regarding the filming of people. The Civil Code establishes the presumption of a person's consent to be filmed only when they are on the street and not in their private territory. In addition, the presumption stipulates that on the street, filming is only permissible if the person does not object (except in cases where the public interest prevails – for example, if the person is currently breaking the law).

4. In the video we see that first, a representative of the utility services comes to the gates of the yard, draws attention to himself and begins to communicate with the owners of the house, and the cameraman comes a little later. That is, the debtors are not warned that they will be filmed.

In particular, at 3:30, journalists and representatives of the water supply services approach the gates of the yard, while some women are stacking boxes of agricultural products in the distance. The cameraman shoots them in close-up, although these people are not on the street and, as it turns out, are not the owners of the house at all and can not be related to the water supply debt. This is a clear violation of Part 1 of Article 307 and Paragraph 1 of Part 1 of Article 308 of the Civil Code.

In addition, before the attack on the filming crew, the woman who later threatened to smash the camera with a stone, asks: "Do you guarantee that this will not happen?" (12:15, apparently, she means that the video will not be posted for public viewing). As you can see, this person did not want to be filmed, and despite her wishes, the video was still released. Earlier, the same person, while in the yard, asks about the legality of the filming, to which the journalists falsely claim that the law allows it. We remind you that filming a person on the street and at public events is allowed, if they do not object to it, and in their private territory it is only acceptable upon prior consent of this person.

5. Regarding the filming of property.

5.1. The Civil Code does not contain clear regulations on the filming of other people's property. But in this case, the question of personal data disclosure arises, because the video shows the houses and yards, which are said to belong to the debtors.

In addition, a car parked in the backyard of one of these houses is shown for 4 minutes; in particular, the operator shows its license plate in close-up (it has not been blurred in the video). The cameraman walked up to the fence specifically to film it, because it was impossible to see the yard otherwise. The owners did not know anything about the fiming and only came out to the gate later, and after that they were also filmed.

That is, the report shows in which yards the debtors live, and in one case – which car is probably used by one debtor's family. Fellow villagers will be able to identify who the debtor is. Effectively, the personal data of the people who, according to the water supply service, are the biggest debtors in this village, have been disclosed. The Initiative now needs to assess whether such disclosure of personal data is justified.

5.2. Debt for water supply is not a criminal or administrative offense, but only a consumer's failure to fulfill their contractual obligations. The content says that due to the large debt, the whole village has been disconnected from the water supply (whether the disconnection of the conscientous consumers is legal is not considered in the content). However, it is not clear how fellow villagers could formally influence their debtor neighbors. Instead of cutting off supplies to all consumers in the village without exception, the water supply company or utility services could sue the debtors or cut off the water supply to them individually (this, as we see in the content, is precisely what they did with a number of debtors).

Therefore, we do not see the predominance of public interest in the disclosure of personal data of debtors. The journalists did not comply with the requirements of paragraph 2 of part 2 of Article 25 of the Law "On Personal Data Protection," so the content under review is subject to this law. Therefore, the content violates part 6 of Article 6.

6. Violation of the law on the filming of citizens without their consent, disclosure of their status as debtors (personal data) is also a violation of paragraph 3 of the Code of Ethics.

In addition, filming people in the yard before they noticed it, filming a car in the yard over a fence without the owner's knowledge is an unspoken collection and recording of information that was not justified by the need for accuracy and reliability of the material (the journalist walking up to the gate and seeing everything with his own eyes without recording it on video would have been enough). Thus, paragraph 13 of the Code of Ethics of Ukrainian Journalists was violated.

The MediaCheck initiative condemns the attack on the journalists, but believes that the editors of the website "Alternatyva.org," in the publication titled "Who in Mykolaivka does not pay for water," have violated paragraphs 3 and 13 of the Code of Ethics for Ukrainian Journalists and part 6 of Article 6 of the Law "On the Protection of Personal data," part 1 of Article 307 and paragraph 1 of part 1 of Article 308 of the Civil Code.

June 3, 2022