Tetiana Montian: New Civil Code is a noose for journalists


It is known that for 12 years our long-suffering country manages to live according to the Civil Code of the UkrSSR, which “regulates property and … private non-property relations for creating the material and technical base of communism, and more and more complete satisfaction of material and spiritual needs of citizens” (Article 1 of the operating Code!). Yet, soon we will get the new Civil Code, which must come into force since 1 January 2004. Yet, if it comes into force, it would be awful! Why? I shall explain.

The drawbacks of the new Code are innumerable. I shall only consider several articles, which concern journalists.

The leader of this rating is, undoubtedly, Article 277: “Any negative information spread about a person is regarded as inauthentic”. So, be ready: since 1 January 2004 any critical word about anybody will result in punishment for insult of  “… honor, dignity and buisness reputation of physical or juridical person”, that is for inflicting moral damage that “must be recompensed by money, other property or in other way” (Article 23).

At that “the inauthentic information must be refuted independently of the guilt of the person that spread this information (the same Article 277). Besides, along with the compensation, court may, according to Article 278, prohibit the publication of newspaper, book, movie or TV feature, which are prepared, or to prohibit (terminate) its distribution, or even to seize the run and to destroy it! It is obvious that some mass media will be the first ones that would undergo these measures, like it happened with the newspaper “Svoboda”, the run of which was drowned in a river. Yet, since 1 January 2004 such actions would not be a brutal arbitrariness, but legals action based on laws and court decision.

It is obvious that our legislators mean that negative information is regarded as inauthentic until it would be proved by facts. Yet, they could not state this simple idea in the proper form.

So, let us continue. If the information exists that is apriori negative, then there must exist the apriori positive information. Yes, it is so. Article 302 reads: “The information presented by an official in the framework of his service duties, as well as the information contained in the official sources (reports, shorthand records, messages of mass media fouded by state organs or organs of local self-rule) is regarded as authentic”. This Article also states that “a physical person that spreads such information is not obliged to verify its authenticity and is not responsible in the case of its confutation”.

Try to imagine what orgy of the “freedom of speech” will begin after the New Year! Everything that will be said by state officials and deputies of all levels or printed in the corresponding press will be considered as truth, absolute and indisputable! For instance, Piskun would say at a press conference that Yulia Timoshenko smuggled the Turkmen gas in China gas lighters, and this would be interpreted as real facts! Yu. Timoshenko, in her turn, would have the right to say that Piskun is a thief and imbecile – and this would be truth too! And so on and so forth. The real schizophrenia will begin, which is, as it is known, the pluralism of opinions in one head!

However, here one can also understand what the authors of the article wanted to say: they meant that a person spreading the words of state officials and organs must not be responsible for the contents of the information. Yet, we have what we have. Other articles of the new Code also suit the analyzed definitions of authentic/inauthentic information. For example, Article 296 states: “… the name of the person, which was detained, or which is suspected or accused of some crime, … may not be used (published) until the court verdict about his/her guilt comes into force”.

I even cannot imagine what our law-enforcers will tell at press conferences, and how the journalists will elucidate the open court sessions, where the accused communicate their names, which are written down to protocols that fully meet the requirements of Article 302! Many other examples may be given.

There is such juridical concept as the hierarchy of normative acts, which stipulate what to do, if normative acts contradict to each other. According to this hierarchy, the Ukrainian Constitution is more “powerful” than any laws and laws – than decrees or resolutions. When several laws contradict to each other, then the preference is given to that one, which has the latest date of the adoption, and which is accompanied with the comment that all laws, which were adopted before, are operable only in the part that does not contradict it. Yet, lawyers never thought what to do, if the articles of the same law would be contradictory. There was no need to consider this problem earlier, before the Ukrainian MPs presented the result of their joint legislative activities…

Tetiana Movtian, a lawyer,
specially for “Telekritika”, 25 April 2003, 12:15 p.m.

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