Without expanding the issue of free speech and any limitations thereon before it becomes an issue of national security to the European continent (or even beyond), there is perhaps a need to take a look at the issue, and reflect upon it, specifically with regard to Ukraine internally vis a vis the war The Kremlin has decided to subject it to.
The following ECFHR ruling applies to Erbakan v Turkey (albeit the ECFHR is not a court bound by precedent, but a court that is described as “living” - meaning that it is not bound by previous precedents when making future rulings as it recognises changing societal attitudes over time). Despite this case relating to an individual, the principles cited in the court’s ruling theoretically stand unbending before organisations and States in equal measure.
The arguments would remain consistent regardless of complainant and defendant - although the eventual rulings may not.
The ECfHR has stated “… tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance…”
The ECfHR goes on to say, ”the Court is also careful to make a distinction in its findings between, on the one hand, genuine and serious incitement to extremism and, on the other hand, the right of individuals (including journalists and politicians) to express their views freely and to “offend, shock or disturb” others.” - (Chamber judgment Erbakan v. Turkey, no. 59405/00, § 56, 6.07.2006)
Sticking with the principles in the ECfHR ruling, where does Ukraine stand?
It has banned the broadcasting of some Kremlin owned/controlled Russian television stations within its territory - though by no means all. Quite rightly too considering the principles above, for it has attempted to balance that which need be struck between free speech which offers the opportunity for equally public rebuttal, and speech that is pure incitement and designed to inflame hatred, extremism and violence. Those media outlets banned clearly crossed “the line” (and continue to do so for the domestic consumption of Russians).
Thus, in banning the most swivel-eyed, and vile channels spouting noxious and repugnant content, yet allowing far more pleasant, eruditely expressed, yet often just as cancerous content to be broadcast, Ukraine is defaulting to democratic pluralism and the fundamental right to free speech - quite rightly many would claim.
Or is it right?
There difficult and prickly issues of proportionality when there are national laws and ratified regional and international instruments to consider, but should Ukraine continue to allow clever Kremlin wordsmithery, inference and suggestion to be broadcast across its territory via Kremlin owned (or Kremlin sponsored) media which is designed to undermine the State?
Refuting and rebutting wearisome nonsense emanating from the Kremlin machinery is not difficult the vast majority of the time, whether it be disinformation, misinformation, or agitprop. The broader troublesome aspect to Kremlin media strategy is the underlying attempt to undermine faith in all media regardless of source, not just that choreographed by the Kremlin.
For Ukraine however, it is specifically aimed at undermining and destabilising the State in as short a war of attrition as is necessary.
There is therefore (theoretically) a case for blocking, and thus undermining all Kremlin owned/sponsored media noise across Ukraine, no matter how clever the wordsmithery, or how subtle the inference and suggestion it carries that ultimately seeks to do nothing more than create and then exploit any successfully created divisions within the nation. Viewed through this lens it then becomes an issue of national security, particularly after the illegal annexation of Crimea and Kremlin induced war in eastern Ukraine.
The questions to be asked, and indeed reflection and reassessment is required when looking at any policy in such a hostile environment, is did Ukraine get it right - or on balance get it (reasonably) right? Is Ukraine continuing to get it right - or on balance get it (reasonably) right?
Is there a need to change the existing policy?
More broadly (and regionally) should the Ukrainian policy be stand-alone, work in cooperation with, or part of the new EU East Stratcom counter-propaganda group?
Is there a mechanism to facilitate/include Ukraine within EU East Stratcom?
Does (or could) EU East Stratcom fall within the EU CSDP? If not, should it?
If it does, should any Ukrainian policy relating to Kremlin propaganda dovetail, or be part of any EU Common Security and Defence Policy (CSDP) via East Stratcom? After all in ratifying the AA/DCFTA with the EU, both parties have made commitments in the text regarding the CSDP.
Perhaps Ukrainian policy is fit for purpose, perhaps not, but with the creation of EU East Stratcom, maybe now is the time to have a strategic reevaluation anyway.