Although ARTICLE 19 concedes there are a number of positive provisions in the law, such as a requirement of access to the media by all candidates, other clauses fail to provide effective guarantees for fair and balanced reporting during the election period. They also raised concern over the news that, in early November 2005, the Parliament failed to vote to adopt the Law on Public Service Broadcasting, sending it back to the Parliamentary Committee on Freedom of Expression and Information for consideration. As a result, no public service broadcasting service will be in place for the forthcoming elections. Members of Parliament provided no explanation for this decision.

States have an obligation – at all times, but particularly during elections – to ensure media pluralism and to encourage a diversity of information sources. In particular, any partisanship on the part of the public broadcaster should be avoided, as public broadcasters have a primary obligation to ensure that the public receives adequate information about political parties’ platforms, campaign issues and other matters of relevance to electoral processes.

Licence Revocation
Article 71 of the law states that the licence of both print and broadcast media outlets may be revoked without court order in a number of instances. These include calls for the change of Ukraine’s constitutional regime, incitement to violence, war propaganda, as well as the distribution of knowingly false information on a party or bloc. It also includes vague proscriptions such as ‘encroachment on human rights and freedoms [and] health of the population’.

These provisions are highly problematic. ARTICLE 19 believes that no infringement of the right to free expression, no matter how egregious, should lead to the closure of a print media outlet, and this should be only a measure of last resort for broadcasters. In the latter case, a licence may be revoked only when other measures, such as warnings and fines, have failed, and in case of gross abuses of licence terms and conditions. Furthermore, the proscriptions listed in Article 71 should be included in laws of general application dealing with public order and defamation. There is no need to repeat them in the Election Law with a special reference to the media. These provisions, and particularly those of a vague nature, can seriously interfere with the media’s ability to report freely, effectively and in a timely manner on elections. The Parliamentary Assembly of the Council of Europe reports that the present Election Law “introduces the possibility to suspend the activities of media outlets, including without a prior court decision, which is highly susceptible to abuse. The Assembly, therefore, urges the Ukrainian authorities to amend this provision”

Obligation of Fair and Balanced Reporting, and to Refrain from Analyses
However, the law also provides candidates with equal access to the media –  an attempt to promote more impartial coverage of events and to ensure that incumbent candidates do not abuse their privileged position during the elections. While ARTICLE 19 applauds this attempt, they also voiced concern that these provisions may actually prevent adequate coverage of the elections.

Article 68 fails to distinguish between the print and broadcast media. While the broadcast media, whether private or State-owned, should be required to cover electoral campaigns in a fair, balanced and impartial manner, it is well-established that the country’s private print media have considerable freedom in reporting elections. The Article also fails to specify the exact meaning of ‘comments’ and ‘assessments’, jeopardising proper implementation of the law.

ARTICLE 19, the Global Campaign for Free Expression, also stressed the importance of the media being in a position to fulfil its function in democratic society by reporting information in the public interest without interference by public authority. The statement further appeals to the media to fulfil their responsibility during elections by not abusing their freedom. Media commentary and analysis is an important aspect of the electoral process in a democratic society, and can assist the public in developing their understanding and critical thinking in relation to political parties and their platforms, enabling the people to make a more informed choice on election day.