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Recommendations to Improve the Ukrainian Population's Freedom of Expression Online

Introduction

This research paper concisely summarized the main threats faced by Ukrainian cyberspace, as posed by the Russian Federation. The document further outlined contemporary, permissible, and effective governmental approaches that could be employed to respond to cyber-threats and information-security threats.

ABA ROLI’s research is unique in that it analyzes goals for the legislative regulation and practical implementation of Internet Freedom through a contextual lens that takes into account contemporary threats to Ukraine’s national security. This contextual awareness makes the study more than a theoretical, legal exercise - the document is, instead, a useful analytical guide to design a proportionate and balanced cyber-security policy and ensure Internet Freedom in Ukraine.  

The ABA ROLI document consists of three main substantive sections dedicated to the following subjects:

  1. An overview of the regional and national cyber-security landscape in Europe and Eurasia. This section focuses on the information-security threats originating from the Russian Federation and analyzes the motivations behind Russia’s malign operations. Russia’s tactics to expand their sphere of influence consist in a) attempts to achieve specific tactical outcomes, such as the lifting of sanctions or generating tensions between the EU and the US, the EU and Ukraine, etc., and b) the erosion of public confidence in the Ukrainian government, facts, truth, and science. This section also overviews certain approaches to resolve information-security threats in the EU, exploring potential solutions including: the creation of specialized institutions, legislation on the removal of hate messages and fake news on the Internet, and the launch of non-governmental initiatives. Finally, the document presents a case-study on Ukraine’s response to cyber- and information-security threats from Russia. ABA ROLI identified the following shortcomings in the Ukrainian government’s responses - policy inconsistencies, the unpredictability of restrictions, inadequate institutional design, and questionable legal reasoning.
  2. An analysis of domestic/Ukrainian and international legal regulations on the freedom of speech and, accordingly, the freedom of expression on the Internet. The study analyzes both legislation directly upholding these freedoms as well as regulations that serve as a basis for their application. The study focuses, therefore, on international treaties and Ukrainian laws that define the general landscape of human rights enforcement, legislation regulating state responsibility, international humanitarian legal norms that govern cyber-operations in the context of armed conflicts, etc. We also propose a set of countermeasures which states may apply in case of foreign encroachments upon their cyber-security.
  3. A comparative review of state practice responding to cyber-threats and unfriendly cyber-operations (such as the dissemination of disinformation). In addition to European countries, the document compares the practice of countries including: Australia, India, Pakistan, Singapore, and the USA. The analysis is presented in two formats: tabular and descriptive. The document also examines legislative, institutional, and regulatory mechanisms that respond to information-security threats. The Background Document explores the following mechanisms: the use of journalistic standards as grounds for penalties against disinformation; public pressure exerted through naming and shaming; the identification and public listing of disinformation; financial and banking restrictions; fines for sanction violations; government measures to prevent the spread of hatred; the criminalization of the intentional spread of false information or foreign intervention to intentionally influence the political landscape; legal regulations on the prohibition of misinformation and manipulation via the Internet; etc.

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The materials contained herein represent the opinions of the authors and editors and should not be construed to be those of either the American Bar Association or Section unless adopted pursuant to the bylaws of the Association. Nothing contained herein is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. These materials and any forms and agreements herein are intended for educational and informational purposes only