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    ( англ.) Opinion on the TV program “I think so” aired by NewsOne on 5 November 2019

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    Рішення

    The Independent Media Council has analyzed the TV program “I think so” aired on 5 November 2019 by NewsOne. Based on the program’s content the Independent Media Council believes that:

    1. The TV program “I think so” aired on 5 November 2019 contains signs of hate speech in R. Kotsaba’s statements regarding the participants of the ATO/JFO and the Revolution of Dignity.

    2. TV channel NewsOne (News 24 Hours, Ltd) failed to comply with the requirements for providing accurate information in the aforementioned telecast, and it systematically does not comply with the requirements for objective (impartial), complete and balanced information, given the format of the program “I think so”.

    Висновок

    І. The circumstances of the case

    1. The Independent Media Council received a letter from the National Council of Ukraine for Television and Radio Broadcasting (letter No.17/2575 dated December 13, 2019) with the request to express its position and give an opinion on whether there were violations of the current legislation of Ukraine during the TV program “I think so” broadcast by NewsOne (News 24 Hours, Ltd.) on 5 November 2019.

    2. On 9 January 2020, the Independent Media Council recognized the request regarding this case as acceptable given the sensitivity of the topics of the Revolution of Dignity and the conflict with the Russian Federation for Ukraine’s society.

    3. The telecast was aired on 5 November 2019 at 11:25 p.m. [1] with only Ruslan Kotsaba in the studio repeatedly stating that he expressed his subjective opinions. At the beginning of the broadcast, it was stated textually as well as announced that the TV channel might not share the “guest’s” opinion. This practice is typical of NewsOne that has repeatedly invited certain individuals in various formats formally referring to them as guests (e.g. see (1) (2) (3). Mr. Kotsaba’s focus is usually on the events during and after the Revolution of Dignity.

    Thus, he calls the Joint Forces Operation in Donbas a “civil conflict” (at 1:20 and 3:40). He claims (from 1:40 to 3:20) the following: “…a group of conspirators, I think, hiding behind the backs of thousands of protesters, by the way, some of them got paid for it illegally.. illegally, I think, seized the power. I’m now telling you what you and I know for sure. The oligarchs whom Yanukovych and his lot kept away from battening at their trough, all of a sudden, cunningly and camouflaging themselves as Euromaidan and using the pathos of the Revolution of Dignity, laid their hands on the financial flows of the state and diverted them, where? To their own pockets. Illegal enrichment was the purpose of these “Euromaidan profiteers” and not some vague European future, NATO, the European Union, etc. Consequently, they tried to subdue the rebelling Donbas with the help of tanks and air bombs. That’s the truth you can’t conceal. It should be made public, right here, at the level of Kyiv authorities who must acknowledge that using armed forces against civilians is a crime not covered by the statute of limitations. I’d like to remind you that it was the Kyiv conspirators or, better yet, traitors who illegally declared some sort of anti-terrorist operation there on 14 April 2014. Well, this resulted in the people from Donetsk and Luhansk responding on May 12, let’s be reminded, almost a month later with the creation of the so-called DPR and LPR.”

    4. As can be seen from this TV channel’s website [2], the “guest” of the program “I think so” is always exclusively Ruslan Kotsaba and its essence is reduced to his airing his thoughts. There is no other host in the studio making Mr. Kotsaba the actual master.

    ІІ. Regulation

    1. Constitution of Ukraine

    Article 34. Everyone is guaranteed the right to freedom of thought and speech, and to free expression of their views and beliefs.

    Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of their choice.

    The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or supporting the authority and impartiality of justice.

    2. International Covenant on Civil and Political Rights

    Article 20

    2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

    3. European Convention on Human Rights

    Article 10. Freedom of expression

    1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

    2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

    4. The Law of Ukraine on Television and Radio Broadcasting

    Article 6. No abuse of freedom of broadcasting organizations is allowed

    2. Anyone shall be prohibited to use broadcasting organizations for the following purposes:

    calls for  aggressive war or its propaganda and/or incitement to hatred on grounds of race, religion or nationality;

    disseminating information that violates the legal rights and interests of individuals and legal entities,..

    Article 59. 1. The broadcasting organization shall:

    c) disseminate objective information.

    Article 60. 1. A creative production employee of a broadcasting organization shall:

    b) check the accuracy of the information they receive;

    e) fulfill other requirements arising from this Law and the charter of the broadcasting organization and from the employment contract concluded with the broadcasting organization.

    6. Code of Ethics of the Ukrainian Journalist

    6. Respect for the public’s right to complete and objective information about facts and events is the journalist’s primary responsibility. Journalists and editors should take steps to verify the authenticity of all messages, videos and audio material received from the public, freelancers, press services and other sources.

    9. Facts, judgments and assumptions should be clearly separated from each other. It is unacceptable to disseminate information containing biased views or unjustified accusations.

    10. The opponents’ views including those who have become the target of journalistic criticism should be presented in a balanced way. The same applies to independent experts’ views.

    6. PACE Resolution 1003 (1993) on Ethics of journalism [3]

    21…journalism should not alter truthful, impartial information or honest opinions, or exploit them for media purposes, in an attempt to create or shape public opinion, since its legitimacy rests on effective respect for the citizen’s fundamental right to information as part of respect for democratic values. To that end, legitimate investigative journalism is limited by the veracity and honesty of information and opinions and is incompatible with journalistic campaigns conducted on the basis of previously adopted positions and special interests.

    7. Editorial Charter of the TV Company “News 24 Hours, Ltd“[3]

    Article 8. Principal requirements for ensuring accuracy, objectivity, impartiality and balance of information

    8.2. Deliberate misrepresentation or twisting of facts is unacceptable as well as manipulation of facts (incomplete statement, silence, false accents, pseudosensation, etc.).

    8.14. The Company promotes information pluralism by covering all socially important events and by providing an opportunity to publicize the full range of political, social, cultural, national and religious views that exist in society; ..

    III. Assessment of the journalists compliance with regulation and professional standards

    1. In its Opinion on possible abuse of freedom of speech on the part of TV channel 112 on 4 September 2018 – 4 July 2019 [4], the Independent Media Council noted that “in the recent period the question of balance between the protection of freedom of speech and its legitimate restrictions has been sharply raised in Ukraine’s information space.”

    2. The broadcast content of NewsOne (News 24 Hours) has repeatedly come under scrutiny by the Independent Media Council. [5] This particular case calls for examination of the TV channel’s adherence to the prohibition of abuse of freedom of expression in the context of using broadcasts to incite hostility and hatred, as well as adherence to the standards of reliability and objectivity of information.

    3. Various international documents provide rather different definitions of the concept of hate speech. Specifically, in the annex to the Recommendation of the Committee of Ministers of the Council of Europe No.R (97) 20 adopted on 30 October 1997 [6] (Paragraph 2), hate speech is understood as covering all forms of expression which spread, incite, promote or justify various forms of hatred based on intolerance, including: intolerance expressed by discrimination and hostility against minorities. And in paragraph 9 of the Explanatory Memorandum to the General Recommendation on combating hate speech No.15 of the European Commission against Racism and Intolerance [7], hate speech features include, in particular, negative stereotyping, stigmatization in respect of a group of persons on the ground of personal characteristics or status, which is not an exhaustive list.

    The Independent Media Council has previously consulted the position of the European Court of Human Rights that laid down some basic approaches to this issue and set them out in its decision of 15 October 2015 in the case of Perinçek v. Switzerland [8]. Specifically, the Council noted that “the court proposes to pay attention to the intensity of social and political background in which statements were made; to which extent statements can be regarded as justification of hatred; and the manner in which the statements were made, as well as their capacity to lead to harmful consequences (paras. 205-207 of the decision).

    4. In its other judgment, namely in Jersild v. Denmark (23.09.94; p.31) [9] the European Court of Human Rights noted that it is commonly acknowledged that the audiovisual media have often a much more immediate and powerful effect than the print media. The court also noted that the methods of objective and balanced reporting may vary considerably.

    5. Statements regarding the Revolution of Dignity. Describing the events in Kyiv during the Revolution of Dignity, Ruslan Kotsaba makes a number of allegations without providing any facts to back them. The statement that some Maidan protesters  “got paid” is not substantiated by any sources, let alone evidence for such information. At the same time, it incites hatred toward the participants of the Revolution of Dignity using the following logic: being paid by the oligarchs robbing the country (at least part of it) brings about participation in the “illegal seizure” of power resulting in “illegal” ATO against the “civilian population”. Moreover, the “guest” contradicts himself because he first says “I think so” in an attempt to present a value judgment and then making a factual statement: “I am saying what you and I know for sure.” As for the illegal assumption of power in Ukraine as a result of the Revolution of Dignity, this television material in particular ignores the well-known facts that after being elected in February 2010, in the course of half a year in September, Viktor Yanukovych gained the powers for which he was not elected by the voters: the Constitutional Court’s approach to forming a parliamentary majority and appointing the Government was changed which enabled the then head of state to concentrate all power in the country in his hand (which in the aggregate was an obvious sign of usurpation). And in the case of the host’s mentioning the usurpation of power, clearly it would be harder to present to the viewers its change or even forced removal from it as “seizing”, i.e. unlawful acts.

    The conveying in the telecast of the events in Donbas will be considered below.

    Taking into account the severe situation in the country and aggressive actions on the part of the Russian Federation, including its controlled media’s propaganda against the Revolution of Dignity and its participants, endless attempts to discredit and delegitimize the Ukrainian people’s protest, such allegations about the participants of the Revolution not only fail to provide the facts they should be based on but also generate or add to the existing hostility toward the participants of the Revolution of Dignity on the part of individuals receptive to the propaganda of the Russian Federation and its satellites in Ukraine.

    6. Statements about the events in Donbas.

    6.1. Commenting on the events in Donbas, R. Kotsaba provides judgments and factual statements, but without specifics. He makes use of the phrase “using the armed forces against civilians” in his reference to the Ukrainian military. Of course, it cannot be argued that civilians were not harmed at all during Ukraine’s Anti-Terrorism and Combined Forces Operations since civilian casualties are the sad reality of any conflict but Ruslan Kotsaba does not cite any specific facts of such cases, nor does he argue whether it was deliberate or systematic acts. Moreover, his phrase “they tried to subdue.. with the help of tanks and aircraft bombs” is not true because no combat aviation was used in Donbas while there were repeated cases of the Armed Forces’ transport helicopters and aircraft being shot down.

    The guest-host was reticent about the well-known facts of the activities in Donbas of the pro-Russian fighters (also armed with tanks and air defense vehicles) and armed formations of the Russian Federation speaking instead of “rebelling Donbas”. He also uses several times the phrase “civil conflict” with regard to the events in Donbas which not only camouflages the Russian Federation’s involvement but also portrays the Ukrainian military as a power “pacifying” their own compatriots who just happen to have different views. As stated earlier by the Independent Media Council, “it should be reminded that the Law on the Peculiarities of State Policy on the Restoration of the State Sovereignty of Ukraine over Temporarily Occupied Territories in Donetsk and Luhansk Oblasts recognized the fact of Russian Federation’s crime of aggression on the territory of Ukraine and the temporary occupation of part of its territory with the help of the armed forces of the Russian Federation. The fact of an international armed conflict in eastern Ukraine (since July 14, 2014) .. was also recognized by the Office of the Prosecutor of the International Criminal Court in its report (paras. 68, 72) on the pre-trial investigation of the situation in Ukraine.”[10]

    In its decision in the case of Roj TV A/S v. Denmark [11] (para. 46), the European Court of Human Rights found that the portrayal of deceased guerrilla members of the PKK as heroes amounted to propaganda of said party, i.e. a terrorist organization.

    The Independent Media Council’s Opinion on possible abuse of freedom of speech on TV Channel 112 from 4 September 2018 to 4 July 2019 read as follows: “Mrs. Herman’s phrases clearly identify all ATO veterans with “moral cripples” and “murderers” of their own and other people’s mothers, which is stigmatization of the respective group.” [12] We have a similar situation in this case.

    6.2. Similarly, interpreting the ATO in this telecast as the measures initiated by “Kyiv conspirators” and “traitors” portrays the army not as those whose duty is to defend the motherland but as executors of someone’s criminal orders. No doubt, the appropriateness of Ukraine’s actions in Donbas in the form of ATO could be debated (the alternatives to ATO would be declaration of martial law, etc.) but during the telecast the “guest” does not provide any facts to confirm the “betrayal” (in whose favor?) on the part of the government in the spring of 2014 or its specific “collusion” with the oligarchs or anyone else, for that matter.

    6.3. In the Independent Media Council’s view, the TV program under consideration contains incitement to hostility towards ATO/JFO participants by stigmatizing them as participants in “illegal” acts of “illegal” authorities against “civilians” and citizens holding a different position. The ATO/JFO participants are a vulnerable social group both subjectively (forced to break away from their ordinary peaceful life and then return to it including psychological adaptation, loss and search for a new job, separation from family and relatives) and objectively as they become targets of information, legal and other attacks on the part of the Russian Federation, with the attitude of the pro-Russian part of the population of Ukraine towards them being also biased.

    7. Considering that several different stigmatizing statements were made about each of these social groups, there are grounds to speak of the “guest-of-the-studio’s” wilful actions.

    Alongside the host’s own position, facts were also discussed in the telecast which is natural since judgments can only be based on factual data. In point of fact, both sets of R. Kotsaba’s allegations (regarding the participants of the ATO and the Revolution of Dignity) were considered dubious in terms of their accuracy due to lack of information on when, where, and with whose participation they took place.

    Speaking of judgments, the belonging of the above statements to value judgments would ensure its legal protection in case of defamation. But with regard to hate speech, the belonging of statements to value judgments does not ensure legal protection. Making dehumanizing statements, generalizations about certain social groups, especially vulnerable ones, may well be a manifestation of hate speech (a typical example is equating people of a particular ethnicity to animals). In the decision of the European Court of Human Rights of 28 June 2013 in the case of Novaya Gazeta and Borodyanskiy v. Russia (para. 41) [13], generally known facts, basic verification or independent research are considered to be the minimum factual basis for statements containing value judgments. None of the above was done in this case by R. Kotsaba.

    8. Attention should also be paid to the fact that spreading hate speech against two very significant social groups may potentially entail other negative consequences, such as provoking aggression on the part of those seeking justice (including in an unlawful way), especially in the country’s armed conflict situation and society’s increased vulnerability associated with it. Therefore, restricting the dissemination of such hate speech will have a legitimate purpose not only in the form of protecting the rights of other individuals (target social groups) but also in maintaining public order.

    9. The Independent Media Council also deems it appropriate to consider the general nature of the TV program “I think so”. In essence, it is subjective and not balanced out by opinions/statements of any other person alongside Ruslan Kotsaba.

    In its Declaration on the protection of journalism and safety of journalists and other media actors (para. 6), the Committee of Ministers of the Council of Europe states that the safeguard is afforded subject to the proviso that the journalists provide accurate and reliable information in accordance with the ethics of journalism.[14] The Guidelines of the Committee of Ministers of the Council of Europe on protecting freedom of expression and information in times of crisis (para. 23) read as follows: “Media professionals need to adhere, especially in times of crisis, to the highest professional and ethical standards, having regard to their special responsibility in crisis situations to make available to the public timely, factual, accurate and comprehensive information while being attentive to the rights of other people, their special sensitivities and their possible feeling of uncertainty and fear.”[15]

    The Camden Principles on Freedom of Expression and Equality of Article XIX states (Principle 6, 6.1., iii) state that “all mass media should.. take steps to… seek a multiplicity of sources and voices within different communities, rather than representing communities as monolithic blocs”[16]. That is, the content must be balanced.

    Article 59, para. 1 C of the Law on Television and Radio Broadcasting contains the obligation for broadcasting organizations to disseminate objective information which is logical due to a more powerful impact on the audience of audiovisual media and the use of a limited radio frequency resource by at least some of them. Continuous promotion of a subjective position is contrary to the legal obligation to convey information objectively to the audience. The Independent Media Council believes that it would be excessive to dictate to the TV channel any specific way of ensuring objective and balanced content (by presenting competing subjective views in the same TV program or in any other regular telecast, by abandoning such a format etc.). However, objectivity and balanced content should have been provided which was not demonstrated by the channel. And this is primarily the TV channel’s responsibility and not R. Kotsaba’s, as is indicated in the Law and the Editorial Charter.

    This television program actually promotes a clearly subjective position of a particular citizen, which is contrary to the mission of journalism – to provide the audience with information primarily in their interest and not someone else’s, since the audience’s interest also includes receiving a spectrum of views on socially important issues.

    In its Opinion on adherence to election coverage standards during the election period and possible abuse of freedom of speech by NewsOne on 1 June – 13 July 2019 [17] (para. 9 ch. III), the Independent Media Council has stated the following: “Analyzing the TV stories mentioned in the letters from the National Council, as well as reviewing previous decisions on NewsOne, one could talk about the channel’s sympathies towards the party “Opposition Platform – For Life” (OPFL) and its representatives. This is to be expected because the ultimate owner of the TV channel  is Taras Kozak, a member of said party. Such commitment on the part of the channel does not meet the standards by which audiovisual media should be impartial and balanced. This commitment is illustrated by the following examples: airing OPFL’s party congress on 6 June 2019, an inter-party meeting between OPFL and the United Russia party on 11 and 13 July 2019, as well as actively using comments from OPFL members or their aficionados.”

    Besides this television program, the Independent Media Council draws the National Council’s attention to the fact that other TV channels also have broadcasts of similar format promoting only one subjective point of view, that is, there may be similar cases of violating the law and journalistic standards.

    IV. Conclusions

    The Independent Media Council believes that:

    1. The TV program “I think so” aired on 5 November 2019 contains signs of hate speech in R. Kotsaba’s statements regarding the participants of the ATO/JFO and the Revolution of Dignity.

    2. TV channel NewsOne (News 24 Hours, Ltd) failed to comply with the requirements for providing accurate information in the aforementioned telecast, and it systematically does not comply with the requirements for objective (impartial), complete and balanced information, given the format of the program “I think so”.

    Votes:                                «In favor» — 9

    «Against» — 0

    «Abstained» — 0

    Head of the Independent Media Council                                           T. Shevchenko

    Secretary of the Independent Media Council                                    O. Holub

    Secretary of the Independent Media Council                                    P. Moiseyev

    [1] https://newsone.ua/uk/programs/ya-tak-dumayu/ja-tak-dumaju-z-ruslanom-kotsaboju-0511.html.

    [2] https://newsone.ua/uk/programs/ya-tak-dumayu.html.

    [3] https://newsone.ua/ru/about-channel/statut/redaktsionnyj-statut.html.

    [4] https://mediarada.org.ua/case/mozhlyvi-zlovzhyvannya-svobodoyu-slova-112-kanal/.

    [5] https://mediarada.org.ua/case/newsone/; https://mediarada.org.ua/case/rozpalyuvannya-vorozhnechi-v-efiri-telekanalu-newsone-protyahom-31-serpnya-17-zhovtnya-2018-roku/; https://mediarada.org.ua/case/translyatsiya-telekanalom-newsone-syuzhetu-pro-rozhlyad-komitetom-z-finansovyh-pytan-konhresu-ssha-nayavnosti-koruptsiji-v-nbu/.

    [6] https://zakon5.rada.gov.ua/laws/show/994_093.

    [7] https://rm.coe.int/ecri-general-policy-recommendation-no-15-on-combating-hate-speech/16808b5b01.

    [8] https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-158235%22]}.

    [9] https://hudoc.echr.coe.int/eng#{“fulltext”:[“jersild”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-57891”]}.

    [10] P. 15 Sec. III Opinion of the NMR on the adherence to election coverage standards and possible abuse of freedom of expression by NewsOne on June 1 – July 13, 2019 (https://mediarada.org.ua/case/newsone/)

    [11] https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-183289%22]}.

    [12] П. 9 розділу ІІІ. https://mediarada.org.ua/case/mozhlyvi-zlovzhyvannya-svobodoyu-slova-112-kanal/.

    [13] https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22%22CASE%20OF%20NOVAYA%20GAZETA%20AND%20BORODYANSKIY%20v.%20RUSSIA%22%22],%22sort%22:[%22respondentOrderEng%20Ascending%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-117683%22]}.

    [14] Approved on 30 April 2014 at 1198th deputy ministers’ meeting:  https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016805c5e9d.

    [15] https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805ae60e.

    [16] https://www.article19.org/data/files/pdfs/standards/the-camden-principles-on-freedom-of-expression-and-equality.pdf.

    Photo credit: NewsOne Youtube-channel

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