How misinformation can unite media and judiciary

Jul 13, 2020 | Judiciary, Justice

What do the media and the judiciary have in common apart from the fact that the media, like the courts, consider themselves to be a branch of government? It's simple: both seek to build a fair democratic society. What do they have in common in terms of misinformation and how can they counter it together? It is a topic to ponder, to discuss. This is what was happening at the Fourth National Forum "Independent Courts and Free Media: Counteracting Misinformation" which was held on July 1 online at the initiative of the High Council of Justice with the support of the EU Project Pravo-Justice.

It was important to form a powerful platform of like-minded people that brought together professionals from different fields interested, inter alia, in studying and countering misinformation. This enabled to comprehensively consider the phenomenon of propaganda and share various methods of counteracting it.

"There is delicate balance between the concepts of 'misinformation' and 'expression of opinion'. Without the joint work of judges, human rights defenders, journalists, media experts and communication officers finding an effective way to counteract misinformation in the legislation will hardly be possible. That is why we initiated this professional conversation which I hope will end with further joint efforts to improve legislation in this area", said Larysa Shvetsova, member of the High Council of Justice and judge of the Kharkiv Court of Appeal.

Ukrainian law on misinformation

There are many questions as to regulating online media and their entry into Ukraine's legal framework in general. In Ukraine, the state does not monitor the dissemination of false information on the Internet.

"Indeed, formally everyone has the right to sue if false information is spread against him/her online. But if such online media is not registered in Ukraine as a legal entity and the author of false information and the owner of the website are unknown, it is almost impossible to impose any sanctions and recovery by court decision is also impossible", information about Ukrainian law shared by Yurii Zinevych, secretary general of National Council on Television and Radio Broadcasting.

Oleksandr Burmagin, media lawyer, NGO "Human Rights Platform" also speaks about legislation, "Today, in fact, there is already an idea that misinformation and countering this phenomenon is a rather complex process, an intellectually capacious one. It requires a lot of resources. Instead of involving the public, scientists and institutions, the authorities offered an ax. For example, such as the possibility of the SSU or law enforcement agencies to have unlimited powers to control the Internet, the content of communication of its users."

It turns out that the term ‘misinformation’ is missing in our legislation. Instead, there is the concept of ‘unreliable information’. But more importantly, current legislation of Ukraine does not contain clear rules and mechanisms for prosecuting the dissemination of unreliable information. And there is not even an effective way to prevent the spread of such information.

Although Oleksandr Burmagin mentioned at least 8 articles of the Criminal Code which provide for criminal responsibility for dissemination of certain content, which, inter alia, may contain signs of misinformation or be used for this purpose, most often no one mentions these articles.

As for the Law of Ukraine "On Television and Radio Broadcasting", there are two options for protection against the dissemination of unreliable information. The first option is refuting the information disseminated in the television program that is not true and/or degrades the honor and dignity of the person. The second option is the right of a citizen and a legal entity in respect of which inaccurate information was disseminated in the program to use the right to reply, comment or interpret the situation.

That is, as we can see from the legal framework, rendering information unreliable is, in fact, entrusted to courts. However, there are many ways to circumvent the law, and as Yurii Zinevych points out, sometimes TV and radio companies abuse it. Communication and the judiciary

One of the problems related to the judiciary and the attitude towards judges is that an absolute minority of Ukrainian citizens have a direct experience of communicating with judicial institutions. The vast majority of people get information through the media, social networks, Internet resources. And it is these sources that influence shaping public attitudes towards courts, trust or distrust to the judiciary.

"There is a deep crisis of trust to the judiciary. Instances of unreliable information further affect and exacerbate it. However, this gap is at the same time widened by misunderstandings between citizens and the judiciary", says Inna Bilous, judge-speaker of the High Anti-Corruption Court.

In her address, she paid considerable attention to the information vacuum regarding the judiciary. "Sources of information about the court are quite limited. As a rule, an ordinary citizen can obtain such information either directly from the work of the court or from friends, acquaintances and the media. And here the courts, in my opinion, should promptly provide reliable information."

Anna Adamska-Gallant, international key expert on judiciary of EU Project Pravo-Justice also emphasizes the importance of communication, “Our Project supports the development of an independent and accountable judiciary in Ukraine. Achieving this goal requires transparency which is also built through effective communication. In the age of fake news, this task becomes even more difficult."

So, we need to be proactive. First of all, it is necessary to give the qualitative information in plain language and interesting manner rather than refute fakes. The judge-speaker agrees with this approach. "The court is the only source. It must be proactive and not wait for someone to distort the facts. It should be the first to convey information to the client."

"As for proactivity, we already have some progress. Now the coverage of the courts is very different from what it was three years ago. In my opinion, it has improved." Using the example of the High Anti-Corruption Court of Ukraine, Inna Bilous shares ways of communicating with the public. Thus, now the number of publications about the courts has increased. Open broadcasts of HAAC sessions are held. Social networks are being used: there is a Facebook page, a Telegram channel.

Oleksii Malovatskyi, Deputy Chairman of the High Council of Justice further elaborates on this topic and emphasizes that messages from the judiciary should be clear and accessible to every citizen of Ukraine.

"The best way to increase trust to the judiciary is a decision. The courts must explain decisions clearly, succinctly and understandably."

Cooperation or opposition: court and media

"Courts must very carefully filter the information and messages they publish in the public space. Moreover, it is necessary to realize that there is a very thin line between misinformation and criticism. Criticism of court decisions, court activities is one of the ways to exercise the right to freedom of expression", notes Reda Moliene, international expert of EU Project Pravo-Justice as to various challenges court faces.

But what if this criticism is based on flimsy evidence or influences a court decision? If the media with their data containing unchecked facts support information campaigns directed against fair court judgement in a particular case? What shall the judiciary do in this case?

Anastasiia Alieksieieva, coordinator of the monitoring group of the International Society for Human Rights has been researching this issue for a long time. Anastasiia talks about her vision of presenting such information, “you can't limit the media to only good positive news. They can be not only neutral and positive. Content can be offensive, it can be shocking, but journalists must uphold the principles of credibility and respect in their work.

"Of course, if the media has evidence - you can use such content. It is not necessary to turn a blind eye on violations, be it a judge or an ordinary citizen who has nothing to do with the court. However, the data must be extremely reliable. Journalists are obliged to separate fact from personal judgment".

We all understand that the media work in tight timeframe and quite often journalists simply do not have enough time to check the information. Possible misunderstanding of legal procedures and proceedings can also have a standing here. As a result, the facts are misinterpreted and evaluative judgement is presented as a complete fact.

For example, journalists do not always understand the difference between "suspect" or "charged". They sometimes do not understand that the person charged with committing a criminal offense is not a criminal until the court has made such a decision.

But this on no account justifies the media, because, as Oleksii Malovatskyi notes, "In fact, when making decisions, judges are under pressure from a certain information campaign which is being actively disseminated by the media." Accordingly, activists and journalists influence the judgement which is a violation of Article 6 of the European Convention on Human Rights - the right to a fair trial.

It is worth taking a new look at the view that both the judiciary and the media are in fact on the same side in countering misinformation and that it is always necessary to fight together against propaganda, not against each other. After all, countering propaganda is only a part of the activity to protect the national security of the state.

StopFake to stop fakes

One of the brightest cases of countering propaganda about Ukraine is dispelling myths. And Kremlin authorities created and rooted a lot of them about the Ukrainian state. StopFake.org, an organization exposing propaganda and misinformation in the media researched and systematized these messages.

"If we summarize all the fakes," says Olha Yurkova, co-founder of StopFake, "their main idea is that Ukraine is a failed state, a country that went awry, that cannot choose its leadership." All these narratives are aimed at discrediting Ukrainian statehood and are a direct threat to Ukraine's national security."

Olha sees further steps by the state in counteracting disinformation in the following:

1) Continue blocking Russian social networks,

2) Establishing quality communication with citizens,

3) Regulating false content, imposing sanctions on those who distribute it.

Is there media literacy in Ukraine?

One of the main problems in countering misinformation in Ukraine is media literacy of the population, or rather absence thereof. Alona Romaniuk, editor of project “Behind the News” who has been working in communications for 10 years speaks about this.

"7 out of 10 people do not read the text of the information and read only headlines. And anything can be "encrypted" in headlines. When a person looks through news feed, he/she clicks what specifically interests them. The rest is processed on a subconscious level. Then, when a person comes across this information for the second, third, fourth time, he/she perceives the stated facts as reality."

Anton Hrushetskyi, deputy director of Kyiv International Institute of Sociology notes that an ordinary citizen extraordinarily overestimates his/her ability to identify fakes and misinformation. According to a KIIS survey, 52% of Ukrainians believe that they are mostly or always able to find false information or fakes. At the same time, only a quarter of Ukrainians think that they are unable to distinguish misinformation from fakes.

According to the expert, "many people may not actually understand that they are dealing with misinformation or fakes if the propaganda is of sufficient quality and presented through the media."

According to Serhii Tomilenko, head of National Union of Journalists of Ukraine, "Mostly fakes are distributed by social network users. Some of these people are not professional creators of information. They can rely only on emotions without checking information. That's why social networks make it much easier to broadcast information messages regardless of their veracity."

The Union of Journalists of Ukraine, in addition to citizens' media literacy sees the solution to misinformation in joining efforts. It is necessary to strengthen cooperation, involve media outlets across the country. A broad anti-propaganda coalition should be formed which would include the media, NGOs, activists, teachers, judges and politicians.

The decision to increase media literacy is also supported by Nataliia Lyhachova, head of Media Detector NGO. She believes that it is necessary to follow the path of helping the audience understand the level of reliability of information presented in the information field. In addition, there is a successful international practice, for example, in France, where this issue is being addressed.

In addition to media literacy, according to Oleksandr Pavlichenko, director of Ukrainian Helsinki Human Rights Union, “it is also important to establish collective memory in connection with the disinformation component. Accordingly, this aspect will be taken into account in the context of developing the concept of transitional justice. After all, it is worth describing how to overcome the propaganda that was laid down during the conflict and continues to exist in certain aspects. After all, misinformation should be withdrawn or sanctioned through some actions in court or otherwise through lustration processes."