New Realities of the Ukrainian TV Market after Legislative Restrictions on Russian Content Broadcasting

Since the beginning of this summer the Ukrainian television market has faced unprecedented challenges, namely: the ban on broadcasting a large part of the audiovisual content produced by Russian companies and individuals, introduced at the legislative level. The ban covers quite a considerable amount of content categories and the question of the legitimacy of broadcasting a particular product on the Ukrainian television depends on the year of project production and its genre, characters, images of heroes as well as on particular persons involved in creation of each particular series, movie or other TV project.

It is not just difficult, it is sometimes next to impossible to understand without lawyers’ clear explanations and comments what is allowed to be shown and what falls under the ban. Media Resources Management has prepared analytical materials, which describe in detail, what exactly is subject to restrictions.

The Law of Ukraine ‘On Amendments to Some Laws of Ukraine on Protection of Information TV and Radio Space of Ukraine’ dated 5 February 2015 No. 159-VIII (hereinafter referred to as the Law) introduces a ban on distribution and demonstration of movies, promoting or advocating aggressor state bodies and their individual actions, creating a positive image of the aggressor state employees, Soviet state security bodies, films that justify or consider it legal to occupy the territory of Ukraine. It also contains a ban on broadcasting (demonstration on TV broadcast channels) projects produced by individuals and legal entities of the aggressor state. In accordance with the law, it is the Russian Federation, which is the aggressor state.

The ban on films with propaganda and promotion of the Russian Federation bodies and USSR punitive agencies

From 4 June 2015 it is prohibited in Ukraine to demonstrate and disseminate movies produced after 1 August 1991, irrespective of their country of origin, if they meet the following criteria:

1. Among positive characters of the film there are employees of the Russian Federation bodies, Soviet security bodies, including former and part-time employees (their full list is provided below);
2. The plot of the film is related to the activities of the Russian Federation bodies, Soviet security bodies, and such activities are presented as positive;
3. The plot of the film directly or indirectly denies or questions the territorial integrity of Ukraine, justifies or presents positively the occupation of the territory of Ukraine, acts of aggression by other states, the outbreak of war; promotes exclusivity, superiority or inferiority of persons on grounds of their religious beliefs, assignment to a particular nation or race, sex, financial status, social origin.

The State Film Agency of Ukraine rejects issuing distribution certificates and cancels previously issued distribution certificates for films that meet the above mentioned criteria. The fine for demonstrating or distributing such products imposed for the first time is 10 minimum wages (UAH 12,180, about $560) per each case of demonstration / distribution, for repeated violations the fine is 50 minimum wages (UAH 60 900, about $2,770).

What ways of content delivery are covered by the ban on ‘propaganda’ films?

Distribution and demonstration

According to the Law of Ukraine ‘On Cinematography’ dated 13 January 1998 No. 9/98-VR, the notion of ‘distribution’ stands for ‘production of film copies (replication), their sale and transfer for distribution to legal entities and individuals’, while ‘demonstration’ is ‘a professional cinematographic work, which consists in showing a film to the audience at specially designated places (in cinemas and other cinema-like institutions), on video devices as well as TV channels’.

If to interpret the legislation literally, it can be concluded that the ban has covered cinema and television broadcasting, and sales of films on different media (DVD, Blue Ray). At the same time this ban did not cover other methods of content delivery to the audience, such as via the Internet or by means of Video on Demand (VoD) services.

Issues related to propaganda ban application

As there are evaluation criteria used in the law, many questions arise related to its interpretation and application. For example, one can wonder, what the legislator meant using the notion of a character. It is obvious that minor and episodic personages of a story cannot be considered as characters, we should speak only about the main characters, whom we empathize.

In which cases the film plot shall be considered associated with the activities of the aggressor state? If the character’s ‘life’ passes, directly or indirectly, ‘within the walls’ of prohibited bodies, of the narrative about character’s story is related to these agencies, but there is no propaganda and/or promotion of such bodies, would it  be reason enough to ban the film? It is obvious that potential bans should be approached very carefully and thoroughly. 

What does such subjective notion as positivity mean and how shall we determine if the character or activities of a state body are positive? Should the positivity as a criterion be applied to a film character while evaluating his/her personal qualities or  the one’s professional activity as an employee of ‘prohibited’ bodies? The second approach will be probably fair.

The explanatory note to the draft of this Law states that it ‘sets general criteria for identifying audiovisual products containing propaganda of the invading state’. Thus, all above-mentioned criteria of the ‘prohibited’ product should be considered first of all from the point of view of the presence of propaganda and promotion in the  film.

List of Persons Posing Threat to the National Security 

The State Film Agency (‘Goskino’) denies issuing distribution certificates and cancels previously issued distribution certificates if one of the participants of the project is an individual included in the List of Persons Posing Threat to the National Security of Ukraine. The broadcast of such films is prohibited.

The participant means an individual, who participated in creation of a piece of work under his/her own name (stage-name) or as a performer of a role, performer of a piece of music, used in the audiovisual piece of work, author of a script and/or texts or dialogues,  film director, producer.

This list is being prepared by the Ministry of Culture of Ukraine and at the moment it is not ready yet. The fine for demonstration and/or dissemination of such content is 10 to 50 minimum wages, which is UAH 12,180 (about $560) to UAH 60,900 (about $2770).

List of bodies of the Russian Federation and Soviet security bodies 

For the purposes of this Law, Russian Federation bodies stand for the following: law enforcement agencies (militia, police, etc.), armed forces, judicial authorities, internal troops, any special purpose units, authorities responsible for safety and protection of the state border, authorities in charge of tax and customs policy implementation, authorities responsible for carrying out inquiries or pre-trial (preliminary) investigation, prosecutors, authorities in charge of the national security or safety of the aggressor state authority representatives, units involved in carrying out any peacekeeping missions, army, military, paramilitary or other armed security units of the aggressor state, their components or structural units.

At the same time it remains unclear whether fictional law enforcement, police or judicial bodies fall under this law, as the prohibition also applies to ‘units, the names of which do not correspond to official names adopted in the Russian Federation, but which carry out functions related to any of the mentioned bodies or units’.

The Soviet security bodies mean the following government agencies: the All-Russian Extraordinary Commission for Combating Counterrevolution and Sabotage (Cheka,), All-Ukrainian Extraordinary Commission for Combating Counterrevolution, Speculation, Sabotage and Official Malfeasance (VUCHK), State Political Directorate (GPU), Joint State Political Directorate (OGPU), People's Commissariat for Internal Affairs (NKVD), People's Commissariat for State Security (NKGB), Ministry of State Security (MGB), Committee for State Security (KGB) as well as their local and structural subdivisions.

Ban on Russian films

The analysis of this ban raises a wide range of questions:

• Does the wording of the ban mean that it covers films, the production of which involved only legal entities and only individuals of the Russian Federation and that the presence of at least one foreigner puts the ban under question?
• What  is the meaning of “film production” and / or “producer”? The production process consists of several main periods / stages of production: from development to post-production. And only if all the components and production stages are present, we can talk about the film that is produced. Does it mean that the ban covers projects, the full technological cycle of production of which is carried out in the Russian Federation?
• Is it important, when considering if a film is subject to a potential ban, to take into account the country of company’s/film producer’s registration, as the film producer may be registered in the Russian Federation, while all or even part of the production process can take place in other countries, and vice versa?
• Do co-production projects fall under the ban, if the Russian side is one of the co-producers.

As you can see, there is a wide range of the so-called ‘grey areas’ and controversial issues, when the language of law can be interpreted differently. The issues raised in this article alongside with more other questions will be discussed by top managers of the Ukrainian television and movie industry, businessmen as well as professional media lawyers and government representatives at the special law section within the framework of the business program of the international forum KYIV MEDIA WEEK. The law section will be devoted to a new and promising Ukrainian legislation, influencing the TV and movie industry in the country and its relations with foreign partners. The 5^th anniversary edition of media forum KYIV MEDIA WEEK will be held on 7-11 September in Kyiv in the Hyatt Regency Kyiv hotel.

Please  proceed to the registration for the international forum KYIV MEDIA WEEK 2015 and join the leaders of the media industry.