A new volunteer organization called the Information Arbitration Court was recently registered in Ukraine. This was very timely since its main objective is settling information disputes. And such disputes are certain to take on increasing scope as the elections approach. Slated to start functioning in October-November, IAC was founded by lawyers, authors of Ukraine’s first legislative act in the information sphere, the 1992 law On Information: Viktor Pohorylko, LL.D., deputy director of the National Academy’s Koretsky Institute of State and Law; Tetiana Kostetska, candidate of science in law specializing in information law, and Volodymyr Horobtsov. The latter, a trained lawyer, has adequate professional experience having served in 1996- 2000 as head of the legal department and then executive secretary of the Ukrainian National Council for Television and Radio). Work on the information bill, a markedly progressive document in the early post-Soviet period, and later monitoring its implementation showed that the process is anything but easy. Thus, both Viktor Pohorylko and many other research workers and graduate students had to forward numerous official inquiries to various government agencies for over eight years and experience a host of difficulties obtaining officially open data (e.g., statutes of political parties at the Ministry of Justice or those of ethnic minority associations at the Legal Department of Kyiv). So what can an ordinary citizen expect dealing with bureaucrats and having no legal training?
Viktor POHORYLKO and Volodymyr HOROBTSOV kindly agreed to comment on the current Ukrainian information space.
NO MORE THAN 30% UKRAINIAN CITIZENS KNOW ABOUT THEIR CONSTITUTIONAL RIGHT TO INFORMATION
The Day: A court of arbitration handling information disputes is a new phenomenon in Ukraine, as both a judicial institution and that in the information domain. What caused it to appear?
V. H.: An average of some 40% of world production is material products, the rest is something different. And that something is information. The role of information is increasing and it becoming a valuable national resource. Regrettably, even though one of the first laws enacted in independent Ukraine was on information, polls carried out by the Institute of Politics show that some 30% of the Ukrainian citizenry know about their constitutional right to information — and the same is true of the capital.
V. P.: Lawmaking in the information domain is a new sphere in Ukrainian law. This is where information law is formed. This sphere being new means that not all citizens and not even people working in the information sphere — among them individuals with academic degrees and lawyers — know it well enough. In addition, supplying citizens’ information needs causes many disputes, minor for the most part, resulting not so much from divergence as from lack of knowledge as well as from the new laws being imperfect. Hence the existing traditional structures cannot cope with such disputes, meaning that we need new public structures capable of settling some of the information disputes.
The Day: Where does the law on information prove most ineffective? How can the Information Arbitration Court help better implement it?
V. P.: The 1992 law on information legally seals the principle of the freedom of information. Official data can be received from government bodies and local self- government authorities on the strength of annulling the stamp that it is “restricted.” Limited access is stipulated only with regard to documents legally qualified as state, commercial, or other secrets. All the other information must be provided by state structures without any restriction, yet they continue to deny citizens access, following old tradition, referring, for example, to some interdepartmental instructions. In addition, the law provides for citizens’ statements [and inquiries], yet there is no legal instrument envisaging answerability for belated replies to such statements/inquiries. In such cases citizens can only be protected by a court of law.
Many information disputes take place during elections. Hundreds of candidates running for parliament often suffer because newspapers carry their rivals’ articles and interviews with obvious deviations from truth. An ordinary court is not likely to deal with such matters, besides it makes little sense owing to the procedural red tape. Now a volunteer organization such as the Information Arbitration Court can cope with each such dispute quickly and effectively.
V. H.: Or take the protection of personal information. Previously it was the prerogative of the state to collect any information concerning anyone, accumulate, and distribute it. Today we still have relapses. Say, we watch and hear on television about well-known people, but I’ve never heard that such and such information is provided courtesy of such and such or with the permission of such and such. Now that Ukraine is a member of the Council of Europe, we must bring personal data protection into conformity with European standards. Moreover, we must set up an appropriate structure providing such protection. In Canada, for example, they have a Commissioner for the Freedom of Information. In Ukraine, some of these functions are assigned the Verkhovna Rada’s Ombudsman. Since the institution is only being developed, the Ombudsman is not likely to raise the matter to the needed level. Personal data protection reveals a host of discrepancies and causes much debate. I think that IAC will help settle such disputes.
Incidentally, the information being disclosed does not always damage one’s honor, dignity, or business reputation. Certain political parties and volunteer organizations do not want certain information to be disseminated, for although it can be truthful, it may be interpreted any which way, causing misunderstanding or speculation. In other words, we are talking issues that are still problematic in our current reality.
V. H.: A court of arbitration has a number of advantages compared to a law court, because in arbitration both sides can choose arbiters at their own discretion. There must be an odd number of arbiters on each side plus an arbiter accepted by both sides. A dispute is adjudicated within a month, against two months in a law court. With IAC, certain disputes (for example, ones arising from elections, referendums, or emergencies) will be dealt with not later than two weeks.
V. P.: Those versed in legal proceedings, information experts, particularly those specializing in the media, former government employees in the sphere of information, and scientists will cooperate with IAC. The list must be long enough for the disputing parties to choose arbiters in conformity with their interests.
The Day: Who will be in a position to influence IAC awards?
V. H.: No one. Let me stress that this court won’t be answerable to anyone or to any structure. In Russia, they have the Judicial Chamber for Information Disputes under presidential auspices. We propose the Information Arbitration Court as an independent structure.
V. H.: Simultaneously, the IAC is not an alternative to a law court, nor is it a challenge to the state. We want to help citizens implement their constitutional right to have their rights and interests protected in any [legitimate] manner. One such manner is hearing information disputes by the IAC. Its awards will be carried out the same way as court rulings or [state] arbitration awards. At the same time, if either of the parties objects to an IAC award as biased or unlawful, the award will be appealed to a regular court of law or arbitration.
THE STATE MIGHT BE IRRITATED BY WHAT NEWSPAPERS WRITE, BUT IT WILL DIE IF NEWSPAPERS FALL SILENT
The Day: How do you think the state should support the independent media, legislatively and practically?
V. H.: Yes, the state must be interested in independent media. Without them any social progress or assertion of democratic principles is impossible. Someone said during the French Revolution that the state might be flustered by what newspapers write, but it will die if the newspapers fall silent.
V. P.: Real freedom of the media implies that the state provides the independent media with at least periodic support. There are quite a number of means and methods for such support.
V. H.: When we formulated our basic legislation in 1991-94 it was a time of democratic idealism. The state still had certain resources, meaning it could solve some problems in a centralized manner, like the one with paper. As we switched over to market relationships it became clear that everything had to be paid for, including paper. Yet our legislation has not headed in a direction parallel to the improvement of our economic relations. Thus in 1997, paradoxically, we had the law On State Support of the Media and Social Protection of Journalists. In a way it is a good law, for it solves the problem of journalists’ pensions. Yet the question is why the state should place the media in a situation in which it has to protect them. The law helps rid the media of customs duties and other taxes, but why were the media exposed to customs and tax laws in the first place? In Ukraine, the media are set up as business structures and legal entities, automatically becoming subject to the customs and tax laws. Again, the question is that since the constitution says that the main principles of operation of the media, political parties, and public associations are determined exclusively by the laws of Ukraine, the legislator must have had in mind that the procedures of establishing the media should be more or less similar to those of political parties and other citizens’ associations. In other words, we should exercise a new approach to the legal nature of the media. We should ascertain what the media are actually all about, who can found them and how. By analogy with political parties or volunteer organizations, the media could be identified as groups of people associated in public or private joint stock companies registered either with the State Committee for Information Policy or Ministry of Justice. Thus, the media should not be exposed to the tax laws, except with regard to advertising. This is only one example of how the tax burden can be made easier for the media in a civilized way.
INFORMATION CODE: REQUIRED BY THE TIMES
The Day: What must be changed in our information laws first? Which of the latest proposals look most relevant?
V. P.: The need to make changes in the information laws is obvious. This kind of legislation is just beginning to develop. Take the licensing of television and radio companies. We have uniform licenses, but such licenses are not flexible, so that when a license- holder wants to make minor corrections, like changing the time on the air by an hour, he has to go through the whole rigid and complex licensing procedures again. This, of course, causes various distortions, resulting in transgressions or rendering the whole law ineffective. At the same time, many countries practice licenses allowing flexibility in granting broadcast rights.
We have many other imperfect institutions like that of responsibility. Our law envisages the media’s “moral responsibility” for publications. The whole system being faulty, this clause is often used to liquidate media insisting on their own views. There are lots of other such shortcomings.
V. H.: Indeed, improvements in the information laws are becoming a top priority, primarily because the basic Ukrainian legislation formed before the 1996 Constitution. Second, there are specific Council of Europe requirements saying our laws must be brought into conformity with the constitution and European standards. Third, we have entered the age of information and information society. Under the circumstances, it is only natural that the parliamentary freedom of expression and information committee should direct every effort at improving our information laws. Considering that information permeates our society, embracing the political, economic, social, cultural, and ideological spheres, we must have a single information code summing up the pertinent laws and upholding democratic principles in Ukrainian information relationships.
