Court Refuses FreeNET Coalition to Disclose Criteria for ‘Illegality’ of Websites Applied by Ministry of Information Policy

Court Refuses FreeNET Coalition to Disclose Criteria for ‘Illegality’ of Websites Applied by Ministry of Information Policy

22 Жовтня 2019

The District Administrative Court of Kyiv denied the FreeNET Coalition’s claim to disclose the criteria and methodology used by the Ministry of Information Policy (MIP) to develop lists of the Internet resources that have signs of violation of Ukrainian law.

According to the Information Security Doctrine of Ukraine, the MIP should be responsible for organizing and monitoring the media and public resources of the domestic segment of the Internet to identify information prohibited for discrimination in Ukraine. In order to implement the Doctrine, a respective working group was set up in the Ministry to prepare proposals for discussion and tabling the respective conclusions with the Expert Council under the Ministry.

In September 2018, Coalition lawyer Vita Volodovska requested the MIP to provide information on the criteria and methodology used by the Ministry to compile a list of online resources that disseminate information in violation of Ukrainian law and which are recommended for banning.

The MIP refused to provide public information on request, alleging that it had a status of “information for internal use.”

The District Administrative Court of Kyiv, in its decision of 30 September 2019, agreed with the Ministry’s position and noted that the information was legitimately classified as “for internal use,” since the analytical note containing the methodology for monitoring the domestic segment of Internet only contains recommendations related to compiling such lists, and thus, is a document related to the Ministry performing its function on the exercise of control and supervisory functions. This analytical note informs the respective decisions by the Ministry on the above-mentioned lists.

Vita Volodovska notes that the court decision does not analyze the compliance of such a restriction with the three-component that is obligatory when restricting access to information or naming it “information for internal use:” “The court did not analyze at all whether the disclosure of information could cause significant damage to national security interests and whether such damage would outweigh the public interest in receiving public information.”

In its lawsuit, the FreeNet Coalition emphasized the public importance of disclosure of information to comply with the principles of legality, transparency and reasonability in the activities of the authorities, as the respective criteria and methodology are used as grounds for initiating criminal proceedings against individual web-resources. Concealing the requested information creates a risk of arbitrary judgments about the possible illegality of information published at certain information resources and does not enable assessing whether the applied criteria are justified, do not violate the requirements of the law and international obligations of Ukraine, in particular in the area of ​​freedom of expression.

As the Ministry of Information Policy will be re-organized, the Coalition is not about to appeal the decision of the Administrative Court of Appeal of Kyiv but will continue to monitor and analyze public policy in the area of ​​Internet freedom, request for more transparency and objectivity of any measures resulting into human rights restrictions online.

The text of the decision can be found at: http://reyestr.court.gov.ua/Review/84629889