Ukraine’s president banned two popular social networks, an email service, and search engines in the country this month. A decree issued in mid-May expanded sanctions against Russia for its annexation of the Crimea region of Ukraine, and is intended to respond to Russian propaganda. Russia also allegedly launched cyberattacks against Ukraine that disrupted its electricity infrastructure in mid-winter. The banned services include Russian social media platforms VK, Odnoklassniki, and the email service Mail.ru. The Russian cybersecurity firm Kaspersky Labs — often linked to the Kremlin — was also banned.
These various justifications would seem to indicate that wholesale blocking is reasonable — but that would be mistaken. President Petro Poroshenko’s decree is a form of blanket censorship.
The decree violates international human rights law and norms
While it’s understandable to sympathize with a government under siege from powerful neighbors, we need to be clear: Ukraine’s presidential order violates international human rights law and norms in both substance and process.
To start, blocking access to popular internet sites and services in a country interferes with people’s human right to freedom of expression, which protects access to information, and the right to develop and hold an opinion. The blocking also impedes a host of other rights, including association.
But freedom of expression isn’t an absolute right. So, is the interference justified?
International law provides a test for whether blocking is justified
There’s a test to determine whether internet blocking is justified. The first hurdle is that the restriction on freedom of expression must pursue a legitimate aim, as strictly defined under Article 19 of the International Covenant on Civil and Political Rights (ICCPR), a treaty that Ukraine signed and must adhere to. Defending national security and public order counts as a legitimate aim, but the government cannot “unjustifiably or arbitrarily” invoke national security. The legitimate aim requirement is construed strictly, and is not generally satisfied by blanket bans. The restriction must counteract an intended, imminent, and likely threat to violence, where there is a direct connection between the expression and the violence.
News reports offer two justifications from State officials:
- Per Ukraine’s Security and Defense Council, sanctions were meant in part to protect people from companies “whose activities threaten information and the cyber security of Ukraine.”
- Other officials in the Interior Ministry called for a ban of VKontakte because had been used to promote “Russian propaganda.”
Neither of these reasons meet the test of legitimate aim. The email, social, messaging, and search services that were blocked have not been alleged, much less proven, to have any direct relationship to imminent or likely violence. The blocking comes alongside financial sanctions and other retaliatory measures against individuals, and firms like Kaspersky, with an arbitrary 3-year duration, seriously calling into question the imminence prong of the test and national security justification of the interference.
Additionally, the State must show “the risk that specific expression poses to a definite interest,” per the Special Rapporteur on the freedom of opinion and expression. There is no “specific expression” at issue. Rather, these platforms enable millions of people to speak about, and research, countless facts and questions, most with no relation to state security.
The test has another component, too. Ukraine must show that the blocking “complies with necessity and proportionality and is the least restrictive means to protect the interest.” The blocking measures are clearly disproportionate, adversely affecting millions of Ukrainians’ rights and interests. Are there less restrictive ways to protect user privacy from foreign surveillance, and to counter propaganda or malicious messaging, than shutting down most of the internet? We certainly believe so, and encourage Ukraine to work with other governments, civil society, technologists, and tech companies to jointly address these threats. Shutdowns redouble and hide harms, while further fragmenting and isolating societies. What’s needed most is an open, global conversation on norms of acceptable behavior online, with a foundation in human rights.
Finally, there is a procedural requirement that the restriction must be “subject to independent oversight.” The President’s order did not come from an impartial, empowered, and independent judge or court. It came straight from the President, with no consultation or opportunity for engagement with other stakeholders who it adversely affected. It’s not clear any judicial or other authority can challenge the order.
Based on the international test, Ukraine’s website blocking order violates the human right to freedom of expression, in substance and procedure.
Propaganda cannot be taken in isolation in international law
Some might point out that Article 20 of the ICCPR declares, “Any propaganda for war shall be prohibited by law.” This simple language deserves greater exploration to understand its meaning in the digital age. For now, we argue that Art. 20 does not justify Ukraine’s blanket ban, for at least three reasons. First, no legislative process took place to define, identify, and take reasonable measures to combat any propaganda for war in Ukraine. The phrase “propaganda for war” is difficult to parse in an era of social media and diffuse information, and would require a robust debate to define with clarity. The presidential decree does not provide this clear definition, or satisfy the procedural implications of the phrase “prohibited by law.”
Second, we cannot read Article 20 in isolation. To the extent Article 20 impacts freedom of expression, we must take into account what we know about Article 19, including the requirement of specificity in identifying the expression at issue. Which particular emails on Mail.ru, for example, constitute propaganda for war? A blanket ban does not satisfactorily target “propaganda for war” to pass the free expression test.
Finally, as a matter of public policy, shutting down entire platforms on the premise they may host a few errant comments or fail to repel concerted attacks does not help citizens recognize and rebut blatant propaganda, a more sustainable goal to defend human rights.
There is understandable frustration on the part of Ukrainian officials and civil society groups at Russian intervention and alleged efforts to destabilize the country. But even children in Ukraine object to the president’s decree. Nonetheless, responding with blanket sanctions against valuable information and communications tools is a short-sighted solution that does not comport with international law and norms.