Minimum Degree of Protection from Arbitrary Morality

In criticising the activities of the National Expert Commission on the Protection of Public Morality, we pay too little heed to the fact that in many democratic countries the media and public play an active role in imposing necessary limits, with no interference from State bodies at all.

On 11 January Ukraine’s State “moral watchdog”, the National Expert Commission on the Protection of Public Morality [hereafter the Commission] published on their website a new draft law “On amendments to the Law on the Protection of Public Morality”. It is unlikely that there will be many willing to vote for this extraordinary gobbledygook however in Ukraine’s parliament there can be no certainty, and the very fact that it has appeared gives grounds for concern.


The draft law is purportedly written “to refine current legislation on protecting public morality”. There certainly is room for improvement as was indicated back in January 2004 by Professor Dirk Voorhoof who analyzed the first draft law at the request of the Council of Europe. I quote: “Ukraine’s Law on the Protection of Public Morals …  is a disproportionate interference by public authorities in freedom of expression, as guaranteed by Article 10 of the European Convention of Human Rights”.


The recommendations of the Council of Europe’s expert adviser, which are entirely in line with criticism of the law by Ukrainian media and human rights organizations, were not taken into consideration. It is worth quoting one warning which cannot be called prophetic only because the results were so entirely predictable. Leaving the interpretation of the above provisions to the evaluation of the National Committee of Ukraine of the Protection of Public Morals does not offer the minimum degree of protection against arbitrariness required by the rule of law in a democratic society”

Almost all the vague terms then criticized remain unchanged, while the draft law offers quite a number of new provisions which “restrict freedom of expression and the distribution of media products in an imprecise way”, while the plans to extend the Commission’s powers can only be termed daring – and unconstitutional.


The prerequisite for adherence to any law is that it is clear and foreseeable. Most primitively, we need to know what us mere mortals can and cannot do. All Ukrainian documents on public morality hypnotize through frequently repeated strings of words; you can recite chunks off by heart, but explaining them in other, comprehensible, words is quite another matter. Here, then are just some of the questions that urgently demand answers. Let the “open dialogue with society” which the Commission boasts of start by providing a clear definition enabling all of us to understand what is prohibited and why.

The objective is, we are told, an “information realm free from material which poses a threat to the physical, intellectual, moral and psychological condition of the population”.


The right to information is guaranteed by the Constitution, the Law on Information, main international conventions, etc. Clearly in some circumstances it may be necessary to limit this right in any democratic country. We read about specifically those restrictions in Article 34 of the Constitution. It all seems reasonable and causes no mental discomfort which can in no way be said of the wording in the new draft law. Exactly what material poses a threat to the physical condition of the population? There is knowingly false material about the state of the environment which can indeed place the public in jeopardy however there is already protection against such lies in legislation.


The Head of the National Commission, Vasyl Kostytsky has on a number of occasions asserted that pornography jeopardizes a person’s physical health. Where is the evidence for this? Is there any research which refutes such a link? Who should determine the danger?


And which materials pose a threat to the population’s intellectual state? I can name any amount of material aimed – in my view – at spreading pernicious stereotypes and prejudices and at conning people. Should this subjective view serve as grounds for deciding that they constitute such a threat? If I am not entitled to decide, who has such authority and on the basis of what research?  What is the moral and psychological state of the population? Who defines it and, again, on what basis?


These words are repeated no less monotonously than those about the ban on censorship and interference in the activities of the media and supposedly explain when in fact censorship and interference are permissible. Maybe they explain it to some, to Mr Kostytsky, for example. Let him explain it to me.


We read a list of material which the information realm should be cleansed of. Some in themselves do not give rise to any questions, except perhaps bemusement as to why they are in a law on the protection of public morality at all. There is of course an obvious answer since the undoubted need for firm measures in fighting child pornography or terrorism distracts our attention from the considerably more equivocal “threats to the physical, intellectual, moral and psychological condition of the population

The information realm should be protected from “disrespect for national and religious sacred objects”. It is undoubtedly necessary to respect other people’s “cultural and spiritual values”. However if this is to be the basis for banning material, then we need much more precision. In the first place, sorry, whose traditional values?  If they mean some kind of undefined cultural values of ethnic Ukrainians and Christians, then when exactly was Article 24 of the Constitution revoked?  If we are to understand this to mean any values, symbols, etc of any ethnic group in Ukraine, then some guidance would not go astray as to where dialogue and exchange of views ends and disrespect begins, and who determines the dividing line.


The same applies to the removal from the information sphere of “disrespect for parents and to family values”.  Should a seventeen-year-old daughter obey her parents, forget about her dream of becoming a scientist and marry a stranger chosen for her? In a multicultural democracy such situations arise quite frequently. And what does it matter that we know perfectly well what collection of standard prejudices and superstitions are meant? When television programmes have already been banned, this is no joking matter. Let them clearly and exhaustively list all “values” which allow for the effective imposition of censorship, that is, violation of constitutional rights.


The highly original definitions of the phenomena which attract the most attention from the National Commission have been animatedly and quite often wittily discussed for a long time, and here I will confine myself to a list of words and phrases which need much clearer definition or to be removed as far as possible from any legislative document: “pornography is the vulgar-naturalistic, cynical, indecent image or description of the sexual act, a demonstration … of anti-ethical scenes of the sexual act, sexual deviance … which do not meet the moral criteria of society; production of an erotic nature … is the continuation, confirmation of deep emotional experiences of a person and are aimed at uncovering manifestations of the person’s sensuality and the achievement of an aesthetic effect”. 


It is already hard to laugh merrily since material has been banned on the basis of provisions which morality civil servants interpret as they like and extremely selectively.


The new draft law also proposes a staggering scale of “educational activities aimed at developing spirituality and heightening morality in society.” This part will almost certainly be discarded yet how it appeared is also a matter of concern. Have some civil servants become so hypnotized by their own rhetoric that they’ve totally forgotten about the Constitution, or do they hope that with time we’ll all get used to it and will soon stop reacting when the government intrudes still further?


It seems hard to believe that we are dealing with self-hypnosis. The constant repetition of the idea that everything “harming public morality” threatens national security should not cause amusement. This is firstly because both the Constitution and international agreements allow for restrictions of freedom of speech in the name of national security, and secondly because it is not people with a different sexual orientation, different views or values who threaten national security, but traitors. As we know, such twists in meaning were deliberately used back in Soviet times.


In the Commission’s “Review of Work and Strategic Tasks for 2010” they go on about unnamed international links.  “The issue of protection of public morality in Ukraine has been actively discussed with representatives of foreign organizations. For example, in 2009 a memorandum of cooperation was signed between the National Commission and the International Civic Organization “The Association for promoting the development of national leadership”. The relevant work on launching international partnership is at present being done with regard to the Chinese Embassy and Poles”.

It would be good to know what this “International Civic Organization” is and which foreign organizations are prepared to discuss public morality. However the most urgent need, given China’s notoriety and reputation for stifling freedom of speech, is to find out exactly what kind of negotiations the National Commission is holding.


In the world, in a particular country and even in one street you can hear any number of answers to questions about moral behaviour and values. On transparency and openness of State bodies in a democratic country there are far fewer differences. We need therefore to ask and demand an answer, not yet another collection of vague words.


It’s not easy to fight for freedom of speech with an opponent who is apparently just as passionate in its defence. You end up with rather silly protests and radical statements which as Andriy Kokotyukha rightly says, play into the hands of those who dream of freedom spooned out in safe quantities. I will propose another way of fighting moral officialdom, however first some thoughts on what it is we’re upholding.

Kokotyukha writes that the Commission is using our children as a cover. I agree, but would add that the Commission, as well as the authorities generally, are through their irresponsible playing at moralists betraying children and all those who need real protection. In part at least because of the opaque nonsense in the law on morality, there are virtually no effective means for fighting sexual exploitation of children, and that after all is what child pornography is all about. There is also no real possibility of confronting those who spread enmity in the media and Internet.


After they were supposed to ban possession of child pornography whether for sale or personal use, but instead banned the possession of any pornography for the purpose of sale or circulation, it’s hardly surprising that people reacted more than warily to the legislators’ plans to force providers to retain information about their customers’ traffic. The Internet Association of Ukraine [IAU] believes that it succeeded in preventing amendments that could have let the authorities restrict access to the Internet as they pleased. According to the law adopted, providers must, on the basis of a court order, restrict access to resources containing children pornography and / or provide information about their clients’ traffic.


That unwarranted restrictions must be averted is clear, less so, unfortunately, how the new amendments will really help counter the spread of child pornography. It is also questionable whether the memorandum between IAU and the Commission in March 2009 helped strengthen measures against the crime. A special site was indeed created where after an unspecified number of complaints about illegal content (pornography involving minors; demonstrations of ethnic or racial intolerance; terrorism; calls to overturn the constitutional order), they are automatically sent to the provider who should at their discretion take measures. It is not known whether this has led to the blocking of even one site although there are masses. And although sites with child pornography are blocked almost immediately in many democratic countries, for example, in Scandinavian countries and in the UK where there is an independent body, Internet Watch Foundation.


The role which the Commission should play in the fight against child pornography remains somewhat unclear since we are not talking about an infringement of so-called public morality, but about a crime.  The Commission of course prefers to not talk about that, after all everybody likes claiming the role of protector of children. It is however frustrating that at least in this instance, civic organizations and the media could not manage to reach their own agreement with providers and the law enforcement agencies.


In the “Review of Work and Strategic Tasks for 2010” we read that “the National Commission has succeeded in developing a general discussion in society on morality and spiritual values and has thus achieved open dialogue with the public which should result in the creation of a system of self-regulation of the information sphere…


I have endeavoured to explain already why I believe these words and, in fact, all the words and activities of this State body on morality, to be  seeped in hypocrisy which needs to be relentlessly demonstrated. Some responsibility, however, is also borne by media and civic organizations which do very little to develop effective public mechanisms for protecting people We are right to be wary of the authorities and of extending their powers, however in many democratic countries a major part of control over, for example, hate speech, is carried out by editorial boards, media organizations or the public in general. They manage fine without criminal prosecutions, interference of State bodies including those “on protecting public morality”.


There has been no “open dialogue with society” and yet there is a real need for a substantive discussion on acceptable public restrictions and necessary civic mechanisms. There are certainly a lot of supporters of the Commission’s position and its new areas of concern, such as fighting disrespect for national symbols, “ukrainophobia”, etc make it attractive to certain groups of society. One cannot expect that dialogue will bring together diametrically opposite views just as it does not remove discord in other democratic countries where there are always calls to fight “immorality”.  However in many such countries there are well-developed public institutions as well as the awareness that neither we, nor the government, are entitled to impose our views on others. There is also respect for the principles of a law-based democracy which the National Commission shows brazen contempt for. It would seem more effective to fight specifically this disrespect for Ukraine’s Constitution and cynical attempts to manipulate people, while at the same time demonstrating the ability to establish restrictions where their absence places in jeopardy the rights and safety of others.


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