Barbul precedent: how to stop the mass blocking of Ukrainian websites

Recently, the Ukrainian media space has been suffering from a new form of pressure – domestic providers are literally forced to disconnect media through court decisions. On February 18, the Pechersk District Court of Kyiv ordered internet providers to block the websites of 12 news outlets following a lawsuit by Pavlo Barbul, a former director of the state-owned company "Spetstechnoexport" who is suspected of corruption. The list included "Apostrophe", "Glavkom", "Holos", "Antikor", From-ua, and other media outlets.

The mentioned editions published articles at different times concerning abuses possibly committed by Barbul during his tenure as head of the state enterprise "Spetstechnoexport" from 2014 to 2018. After a long struggle for freedom of speech, the same Pechersk District Court on April 28 ordered the arrest to be lifted from the domain name of "Apostrophe", and the site’s position was supported in the Verkhovna Rada. Deputies intend to prepare legislative changes that will make such arrests impossible, but the fight against censorship can not yet be considered won. Oleksandr Hlushchenko, a board member of the Internet Association of Ukraine, told "Apostrophe" about the danger of this precedent – mass attacks on the media through courts.

It should be noted that the problem of court blocking of websites is broader than we currently see in Ukraine. The set of tools that the state has found for itself in the legislative field and uses is technically, technologically, and strategically awkward.

What we see now, when certain property rights are arrested: firstly, what kind of property rights arise for the user, let’s say "Ukrtelecom", or "Netflix", or CNN — is unclear.

Secondly, this tool is now very convenient for use in manipulations, for knocking out certain sites and resources through a legal collision in the legal system of Ukraine. We see that judges are not particularly inclined to investigate. There is a precedent and a list of providers, which migrates from decision to decision, and everyone who understands the telecom market realizes how intricately the list of providers is laid out in a court decision, whose subscriber bases differ from each other by tens, if not hundreds of times.

The existing situation provides an opportunity for manipulation, the opportunity to knock out competitors, and there is always a human factor. In the end, you can hack a resource, backdate some news on it, or bribe an editor to publish a piece. If you have 1000 news items a day on your site and 50 people (authors and editors) posting them, you will never track it all, and there is no person who remembers every hundred of posted news. So, you can do whatever you want to file a lawsuit and knock out a Ukrainian resource.

There is a concrete case: 426 websites were attempted to be banned in February this year through the Holosiivskyi District Court, and a little later, 12 information resources were attempted to be blocked through Pechersk (the infamous Barbul lawsuit). This practice will lead to an increase in such cases progressively. Legislators and the telecom industry need to get together to decide the fate of the legislative field and market, moving forward. Because there is very bad practice, and it hasn’t been responded to yet – as mentioned above, deputies are already preparing necessary changes to the laws, and this is very good.

The "under distribution" might also include the website of some government body: judges are just people too, they might miss among 426 websites in the list, for example, the site rada.gov.ua— why not? Nobody checks these sites manually. Or someone may mistype in the domain, and an innocent resource will be blocked — what to do with that? That is, people did not break the law, someone made a mistake, and there is a court decision trying to punish them.

Therefore, the established practice is very wrong, and it needs to be changed, developing, again, a normal legislative field, which is already being addressed in the Rada. Because if you have claims against a resource (for example, there is a site that has a domain where something forbidden happens), first of all, there is a host, and secondly, there is a domain registrar, and what do providers have to do with it? They are generally the fourth party that suffers, which at its own expense must technically ban access to resources on its site.

Moreover, providers should not ban Ukrainian websites if there are other ways to work with them. If there is a news piece on the site that affects someone’s honor and dignity— please, if there is a retraction, the site can remove this news by court order, write a retraction. But that’s not a reason to just ban everything! That is, if a packet of expired milk is found in the supermarket — this is not a reason to close it and leave people without jobs, right? If, for example, it so happens that law enforcement found a dishonest judge in some court, this is not a reason to close the entire court and paralyze its work.

If something violates on a site registered in Ukraine — resolve the issue with the host and the domain registrar. If it’s a site where, say, child pornography is placed, or drugs are advertised — just annul the domain, and there’s no need to force the entire base of telecom operators of the NCCIR to ban access to these resources.

The problem is even deeper than Ukrainian justice sees it: we have a time bomb. Tomorrow the Russians will hack a bunch of our sites, place some news on them, find a "fool" who will file a lawsuit, and we will be left without major news resources by his decision — why not if we have such a system? If we need something loud to draw attention — we already have several loud cases, both with 400 sites, and with 12 — let’s pay attention!

The Internet Association of Ukraine sent many letters regarding the mentioned incidents, including awaiting clarification from the Supreme Court on what the judicial practice should be in the stated cases. Because, if they are not reacted to — tomorrow it will turn out that almost all news resources are blocked. If we are heading to Europe, then we should be guided by existing, applicable to European journalism, clear rules of the game and similar procedures.