Full-scale military aggression against Ukraine is accompanied by significant and unusual challenges for its legal system. The national information infrastructure is about to undergo radical changes in order to timely identify and effectively respond to challenges and threats in the information space. Under these conditions, the legal component of the information security environment should be deployed and developed taking into account the necessity to constantly strike a balance between the need to use deterrent and repressive instruments against the use of information space for the sake of national security while ensuring the constitutional right to freedom of expression. In light of this, the aim of the study is to suggest and substantiate with regard to international standards and best foreign experience a set of criteria for balancing freedom of expression and restrictive measures designated to ensure public safety and protect national interests.

According to the results of the study, the author states that, when derogating from international legal obligations to ensure rights and fundamental freedoms during martial law and state of emergency, the state in making legislative and law enforcement decisions in specific cases remains bound by the severity of the situation as well as by the obligation to keep in as many guarantees of human rights as possible, which are objectively possible under the relevant circumstances and conditions at a particular time, meanwhile preventing discrimination, disproportion and other violations. In addition, a due weight is to be given to the urgent public need for information and a fair balance must be struck between the freedom of expression and the legitimate right of a democratic society to protect itself from threats. Relevant matters should also be considered, inter alia, the degree of tension in a security environment, the reality and imminence of a threat, the potential of relevant views to aggravate the situation, the role and functions of the person making or disseminating allegations or information. At the same time, a separate reason for unconditional interference with the freedom of expression is the anti-social nature of the views, which include propaganda for war, inciting violence, justification of crimes against humanity etc.

Norms of criminal law on liability for unauthorized dissemination of information on the direction, movement of weapons and ammunition to Ukraine, movement, relocation or deployment of military formations of Ukraine, committed under martial law or state of emergency, even if it involves liability for dissemination of such information, which has previously been illegally disclosed and is in fact open, does not contradict the basic principles of information law and is fully consistent with international standards and foreign experience. Determining the guilt and its degree in a particular case a court should be guided by the afore-mentioned ECHR-developed criteria of lawfulnesss of interference with freedom of expression, including during wartime and state of emergency.

Bibliography

Websites 1. Ovcharov D, ‘Kryminalna vidpovidalnist pid chas voiennoho stanu’ (Ukrainian Bar Association, 25.03.2022) <https://uba.ua/ukr/news/9115> (accessed: 25.04.2022) (in Ukrainian).