Court protection of the freedom of speech (Lugansk)
In 2003 the juridical service of the Lugansk oblast branch of the Voters Committee of Ukraine took part in eight legal actions (5 – in Severodonetsk and 3 – in Rubezhnoe local courts). We represented the interests of mass media and citizens, against whom the claims had been handed for the protection of honor, dignity and business reputation after publication of their materials in newspapers. Four cases were completed (all of them – in favor of mass media) and court decisions came into force; the consideration of two more cases is still lasting; the appeal was handed against one decision of the Rubezhnoe local court; one decision of the same court was reversed and the case was returned to court.
Some results and conclusions:
The great part of the legal proceedings, in which we took part (7 out of 8), was caused by critical publications in mass media directed against the power or political opposition. At that both the power and opposition used the same tricks in their claims: strained complaints and demands on recompensing the moral damage exceeding the limits of common sense. So, the total sum of the demanded moral compensation in these 8 cases was 1121400 hryvnas. However, the motivation of the demands is different: representatives of the power try, in that way, to bankrupt the disloyal mass media, and representatives of the opposition – to inform the public about their “abused rights”. The most interesting from this viewpoint is the claim of K. Koziuberda, the leader of the Rubezhnoe organization of the PSPU, against the editorial board of the communal newspaper “Rubezhanski novyny” and the editorial board of the newspaper “Visnyk barvnyka”. The demanded sum of moral compensation was 1 million hryvnas. The claim was handed in the connection with publication (verbal) in these newspapers of the open letter of the MP with his signature.
As a rule, the sums of moral compensation in the claims in mass media are substantiated by the arguments that the publication allegedly inflicted damage to health; sometimes these arguments are confirmed with medical certificates presented by the plaintiffs to court. We believe that it is impossible to prove the cause-effect relation between the fact of publication and the exacerbation of a chronic disease. Yet, it is also impossible to prove the opposite. So, even if such certificates were issued as a result of the disease (but not got for money or by knowing the right people), the arguments about the illness must be regarded as the manipulations, a priori evidencing about the dishonest intentions of the claimants. And if the court takes the decision about the levy of moral compensation grounding on the exacerbation of a disease of the plaintiff as a result of the considered publication, the appeal should be handed against such decision.
In any of the cases the plaintiffs did not use properly the opportunity to regulate the conflict extrajudicially in accordance with Article 37 of the Law of Ukraine “On printed mass media”. We reckon that this fact evidences that the protection of honor was not the main goal of these claims. Two claims handed by the authorities against the editorial board of the newspaper “Tretiy sector” are very demonstrative from this point of view. After the publication in the December issue of this newspaper of the critical material, these persons sent a letter to the editorial board with the demand to publish the refutation, but they did not wrote what information had to be refuted. The editorial board immediately directed the response, in which they asked to specify what information they had to refute or to give them the text of refutation. The editorial board guaranteed that this text would be published. Instead of that the authorities turned to court with the demand to recompense them the moral damage equal to 5 thousand hryvnas for every article. We want to point out that, according to part 1 Article 17 of Law of Ukraine “On state support of mass media and social protection of journalists”, the court has the right to reject the demand about the moral compensation, if the authorities did not use the opportunity of extrajudicial regulation of the conflict.
In our opinion, extrajudicial regulation in accordance with Article 37 of the Law of Ukraine “On printed mass media” and Article 43 of the Law “On TV and radio broadcasting” is the most civilized way of settling conflicts connected with the balance of the rights to the freedom of speech and to the protection of honor, dignity and business reputation. Such form of regulation is, by its form, compensative, but not repressive, it gives the opportunity of rehabilitation to the victim not only in the case of distribution of information, but also in cases of distribution of ungrounded evaluations. Besides, such practice gives the opportunity to mass media to avoid the excessive risk connected with mistakes. Unfortunately, this form of regulation almost is not applied in our country now.
The latter fact does not seem very strange, since the majority of the claims against mass media, in which our organization took part, had the repressive character and were directed not at the protection of honor or business reputation violated by spreading of some concrete information, but at persecution of mass media. One of such claims was the claim of Ms. Protopopova, the head of the Severodonetsk executive committee department of the reception of citizens, against the newspaper “Tretiy sektor”. The plaintiff demanded to refute the information, made public by the newspaper, that she had refused to accept the notification about a public meeting. According to Protopopovas claim, on 19 November some people really brought a notification about public meeting to her, but she did not know how to accept it. While she tried to learn how to do that, the woman, who brought the notification, allegedly went away. So, Protopopova asked the court to recognize the information that she did not accept the notification as untrue. Naturally, she wanted to get the compensation of moral damage equal to 3000 hryvnas.
In our opinion, it was clear from the writ that the information published by the newspaper was true. In the course of court session it was established that Protopopova refused to accept the notification for three times. Of course, the court did not satisfy the claim.
Another problem is the ascertainment of distinction between the evaluative judgments and spread information. According to part 2 Article 47-1 of the Law of Ukraine “On information”, an evaluative judgment (except insult or libel) is a statement that does not contain the factual data, in particular criticism or estimates of actions, as well as the statement, which may not be regarded as containing the factual data because of using the hyperboles, allegories or satire. Evaluative judgments must not be refuted and their authenticity must not be proved. Besides, judges not always take into account the fact that, according to Article 7 of the Civil Code, not all information concerning the claimant must be refuted, but only the information discrediting his honor and dignity. So, the appeal was handed against the decision of the Rubezhnoe court on the claim of the leaders of one of town party organizations against the newspaper “Rubezhanski novyny”. The matter is that, in our opinion, 3 out of 7 statements, which had to be refuted according to this decision, were evaluative judgments and 3 more did not discredit honor and dignity.
We also more than once observed the cases, where the plaintiffs took personally the information, which was not connected with them directly. Twice the department heads of the organs of local self-government handed the claims in the connection with publication of critical materials about their departments (the names or posts of these persons were not mentioned in the materials). We believe that a physical person may not be the claimant in such cases, but in the both cases the court did not agree with this.
The methods of the protection of mass media has essentially improved after 13 May 2003, when the Law of Ukraine “On introduction of changes into some legal acts of Ukraine in the sphere of guaranteeing and unimpeded realization of citizens right to the freedom of speech” came into effect. Another important change is the introduction of the progressive scale of due for bringing in the claims on recompensing the moral damage; introduction of the restrictions of the opportunity of collecting the compensations on the claims handed by power organs and state officials; definition of the concept “evaluative judgment” and some other terms. This law should protect mass media from the arbitrary actions directed, in fact, not at the protection of honor or business reputation, but at persecution of mass media
The work of our organization in courts evidence that the opportunities for the protection of mass media from unjust claims have improved during last year, but mass media still need the assistance of competent lawyers. Another serious problem is not solved yet: there is no mechanism of protection of mass media from the expenses connected with their participation in trials. Therefore such claims can be used as a tool for creating obstacles in the work of mass media, even if journalists would win these cases.
(“Politichna Ukraina”, 13 December 2003, www.polit.com.ua )