CLAIMS TO PROTECT HONOR AND DIGNITY IN THE spirit OF THE EuropeAN COURT OF human rights.
1. The role of mass media
in providing basic human rights
Mass media have a significant role in providing and guaranteeing of citizens right for information in citizens relations with the state. Because of this role mass media are called „the watchdog of the society“ and „the fourth power“. Other human rights and freedoms are indirectly realized through the right for information. For example, the right for free development of ones personality (Article 23 of the Constitution of Ukraine), right for dignity (Article 28), right for the freedom of speech and expression (Article 34), right for the freedom of outlook and religion (Article 35), right for the freedom of forming unions (Article36), right to take part in ruling state affairs, election rights (Article 38), right for meetings, rallies and demonstrations (Article 39), right to turn to the organs of state power and local self-rule (Article 40), right for health protection and medical aid (Article 49), right for the environment safe for life and health (Article 50), freedom of literary, artistic and scientific creation (Article 54), right to know ones rights and duties (Article 57), etc.
It is obvious that mass that to guarantee these all rights mass media must be sufficiently independent. And the inner sense of independent may be formed in journalists only under the condition of just law application in informational relations. Here one must bear in mind that in a democratic society the laws, which protect from encroachment on honor, dignity and reputation of individual, from meddling into privacy, always make a potential menace for realizing the freedom of speech and the right for information. So, the protection of the professional activities of mass media in the framework of court protection of the right for information becomes especially important in Ukraine, which is just passing the intermediate state to democracy. Unfortunately, the comprehension of this problem is not common in Ukrainian courts when they consider the cases connected with informational activities of mass media. Yet, it should be noted that the further development of the right for the freedom of speech and information must be counterbalanced with the rights for privacy and for refuting the unreliable information.
Here we must use the practices of the European Court on human rights (the European Court, in what follows) in the questions of interpreting and applying Article 10 of the European Convention for the protection of human rights and fundamental freedoms of 1950 (the European Convention, in what follows). These practices are unique as to their versatility, the consequential attitude of the Court and its law-applying approach.
2. Legal principles of the applicationby Ukrainian courts of the European Convention,in particular, of its Article 10
According to part 1 Article 9 of the Ukrainian Constitution, the operative international agreements, which the Supreme Rada promised to obey, are a part of national legislation. Article 17 of the Ukrainian Law „On international agreements“ also contains a similar statement. Article 4 of the Ukrainian Law „On information“ stipulates that the Ukrainian legislation on information includes not only the Constitution and other national laws, but also international agreements and treaties ratified by Ukraine, principles and norms of the international right. The European Convention was ratified by Ukraine and became operative for Ukraine in 11 September 1997. At the same time Ukraine acknowledged the jurisdiction of the European Court that is functioning on the basis of Part II of the European Convention. The Court is the main organ of the control over the execution of the Convention norms by the countries-members and serves to interpret the Convention norms. Part 3 of Article 55 of the Ukrainian Constitution guarantees to everyone the right, after the exhaustion of all national means of right protection, to turn for the protection of ones rights and freedoms to the corresponding international organizations of to the corresponding organs of international organizations, which include Ukraine as a member or a participant. It means that:
The norms of the European Convention must be directly applied as national legislative norms by Ukrainian courts; this was confirmed by the Supreme Court of Ukraine in item 1 of Plenum Resolution No. 4 of 31 March 1995 (in the Version of 25 May 2001);
Taking part in considering the affairs, which emerge from the legal relations concerning the observance of human rights envisaged by the European Convention (in particular, Article 10) and the Constitution of Ukraine (Articles 32, 34), one must bear in mind the individuals right for turning to the European Court with the claim against Ukraine in the cases, where the individual reckons that the national laws did not protect or did not restore the violated rights; here the European Court may consider Ukraine responsible for violating the European Convention norms (in particular, Article 10) by its court power;
According to the above-said, the decisions of the European Court concerning the application and interpretation of the European Convention norms (in particular, Article 10) must have the force of indicative precedents for Ukrainian courts.
The above-mentioned statement does not necessarily mean the introduction of the precedent right, after which the European Court acts, into the Ukrainian law-applying practices. The Ukrainian courts have no obligation to unconditionally refer to the decisions of the European Court as to legal norms. The approach to the application of laws described in the motivating part of a decision and the conclusions on the application or interpretation of the Convention norms described in the resolution part must serve as an indicator concerning general principles of solving conflicts in similar legal relations for the Ukrainian courts. The motivations from the European Court decisions can be used as a ground for motivations of Ukrainian courts considering similar legal relations. References to the decisions of the European Court may be used just in the framework of motivation (if it was prepared by court according to part 2 Article 203 of the Civil-Procedural Code). In the case, where a decision of the European Court was reflected in the corresponding resolution of the Plenum of the Supreme Court of Ukraine, the decision, in the court law-applying practices, may get the status of the resolution.
3. Review of the laws regulating the activities
of mass media and journalists
Article 34 of the Ukrainian Constitution is almost exactly repeats Article 10 of the European Convention (with the only exception that Article 34 does not contain the demand that the restrictions of the freedom of expression were „necessary for the democratic society“. – Editors note). In its turn, Article 34 is closely linked with Articles 32, 50 and 54 of the Constitution. The Constitutional norms are made concrete in the Ukrainian Laws „On information“, „On printed mass media (the press) in Ukraine“, „On TV and radio broadcasting“, „On information agencies“, „On the procedure of elucidating the activities of the organs of state power and local self-rule by mass media in Ukraine“, „On the state support of mass media and social protection of journalists“, „On state secrets“, „On authors and similar rights“, „On advertising“, etc. There exist corresponding articles in the Civil and Criminal Codes, as well as a number of normative legal acts of the lower level.
Thus, various aspects of the right for information in the work of mass media in Ukraine are, basically, developed and regulated by laws.
At the same time the analysis of court practices concerning the claims against mass media caused by their professional activities demonstrated ambiguous interpretation of the above-mentioned laws by courts, it especially concerns the European Court practices of applying Article 10 of the Convention.
That is why it seems necessary to attract the attention to some aspects of application of laws, rather complicated for Ukraine, but somewhat overcome in Europe.
II. GENERAL PROVISIONS
1. Veracity, plausibility and objectivity of information
An important problem in the practices of Ukrainian courts is the determination of veracity and plausibility of information as categories that affect the establishment of the fact, whether the violation occurred or not.
The concept „untrue information“ is used in part 3 Article 32 of the Ukrainian Constitution: „Everyone has the right to refute the not true information in court…“ At the same time this concept is absent in legal acts. The Ukrainian laws, which regulate the informational relations and the right for information, use the concepts „information that does not meet the reality“ and „information that is presented in the deceiving way“. These concepts are close in the philological sense. Yet, the concept „untrue information“ is semantically broader than „information that does not meet the reality“, since the formers lacks the tint of rigidity and includes the concealed reference to its subjective assessment. It is also known from the legal theory that it is impossible to establish the absolute truth in a trial, so it is also impossible to evaluate exactly the correspondence of the published information with the reality. It is acknowledged by laws that the specific features and conditions of journalists activities are: intensive mental work, its non-limited workday, strict regulation of editorial and technological cycles of preparing and issuing features and printed materials, permanent significant moral and psychological strain, professional activities and creative work in stress and extremal situations, presence of subjective and objective obstacles in obtaining information, etc. (part 1 Article 12 of the Ukrainian Law „On state support of mass media and social protection of journalists“). The above-listed work conditions may provoke the errors in formulation and presentation in mass media of information about the organs of state power, local self-rule, about public figures and state officials. So, it happens that considering the claims against mass media courts must use the Constitutional terms, since it expresses better the peculiarities of the professional activities of mass media and journalists.
The term „plausibility“ is used in part 1 Article 5 of the Ukrainian Law „On information“: „The main principles of informational relations are objectivity and plausibility of information“.
The concepts „veracity“ and „plausibility“ are rather close semantically and may be interpreted as „worthy of belief“. However, in the opinion of professionals, the term „plausible“ has the concealed meaning „may be truthful“, while the term „true“ is devoid of this tint of meaning, that it is more categorical.
In it semantics the terms „veracity“ and „plausibility“ express the assessment of the fact from the viewpoint of a subject, a journalist or a mass medium in this case. The assessment of a fact as true or not depends on many factors, in particular on professional level, experience and competence of the editor or journalist, on the availability of time for processing the information and looking for additional sources of information, etc. That is why the information, which the journalist or editor assessed as true at the time of publishing, may, in the course of time, appear partly or completely false. And that, certainly, decisively influences the reaction of the court in determining the degree of guilt and, correspondingly, the responsibility of the journalist and mass medium. Part 3 Article 17 of the Ukrainian Law „On state support of mass media and social protection of journalists“ directly points out that in cases of inflicting moral damage court must determine whether the journalist or mass medium distributed the false information with a malicious intent.
The concept „objectivity“ applied to information is characterized with presenting by mass media the maximum set of opinions about some event or fact. At the same time it is obvious that the possibility of such presentation is essentially limited by the conditions of journalists work.
A typical example of the assessment of veracity, plausibility and objectivity of journalists information about the activities of state organs is the resolution of the European court in the case „Thorgeirson vs. Iceland“. In particular, the Court pointed out in the resolution: „Hearsay may be used, or even rumors. Under the condition that the rumors must be numerous and similar, which permits one to assess them as trustworthy.“
The practical meaning of the above-said is that lawyers, while considering the claims against the professional activities of mass media, must take into account the following:
1) the specifics and conditions of journalists activities mentioned in Article 12 of the Ukrainian Law „On state support of mass media and social protection of journalists“, which permit the preparation of materials about activities of the organs of state power and local self-rule as „plausible“ and not as „true“
2) the mentioned factors also determine the measure of objectivity of information, which is much broader in such cases than it seems at the first glance;
the norms of Article 29 (part 1 item 10) of the Ukrainian Law „On printed mass media (the press) in Ukraine“ and Article 38 (part 1 item „?“) of the Ukrainian Law „On TV and radio broadcasting“ imply that mass media may publish an authors material assessing it in the terms of „plausibility“.
2. Information of public interest
The European Convention of human rights (part 2 Article 10) and the Ukrainian Constitution (part 2 Article 32, part3 Article 34) stipulate, as an exception, the right of state to restrict in certain cases the right of citizens for information. These ideas are work out in detail in Ukrainian legislation acts, in particular in Ukrainian Laws „On information“, „On state secrets“, in Resolution of the Constitutional Court of Ukraine No. 18/203-97 of 30 October 1997 (the case of K. G. Ustimenko). These legislation acts determine the list of informational items, whose collection, storage and distribution are permitted under special conditions. This is, first of all, the private information (except the basic data), secret and confidential information. Strict sanctions are envisaged for violating these restrictions: from prohibiting to publish the mass media (Articles 3, 18 of the Law „On printed mass media (the press) in Ukraine“, Articles 19, 46 of the Law „On TV and radio broadcasting“, etc.) to bringing the journalists to criminal responsibility according to Articles 231, 328, 330 of the Criminal Code of Ukraine.
At the same, taking into account the right for information, from which life and health depends, the Ukrainian Constitution (part 2 Article 50), the Ukrainian Laws „On information“ (part 2 Article 30) and „on state secrets“ (part 2, 3 Article 6) stipulate that the access to some kinds of information may not be restricted under any circumstances. The norms prohibiting to bring mass media to responsibility in some cases are introduced in the Ukrainian Laws „On printed mass media (the press) in Ukraine“ (Article 42), „On TV and radio broadcasting“ (Article 48), „On information agencies“ (Article 35) in order to guarantee the freedom of expression (speech) and unhindered passing information to public through mass media. That confirms that legislators understand that, under certain conditions, even the information prohibited for collection, storage and distribution may be of especial public significance and, correspondingly, of especial public interest.
In item „c“ of part 1 Article 37 of the Ukrainian Law „On TV and radio broadcasting“ there exists a reference to the right of electronic mass media to divulge the information on private life of an individual, if this information is publicly needed. Yet, the very concept of „information of public interest“ is absent in Ukrainian laws. The above-mentioned norm entrust court to decide the extent how the public needs the information. At the same time, courts not always assess the public need of the information adequately. According to part 2 Article 3 of the Ukrainian Constitution on the responsibility of the state for its activities before people and society, one may reckon that the concept of public interest just lies in the plain of accountability and transparency of the power. So, similarly to Article 50 of the Constitution and part 2 a4 6 of the Ukrainian Law „On state secrets“, the term „information of public interest“ may be interpreted as „information that is essentially important for the majority of the population of some territory“.
Having considered the case „Sunday Times vs. Great Britain“(1979) the European Court remarked that for taking the decision if a mass medium has the tight to publish a dubious material one must, first of all, answer the question: if the topic has public interest. The Court ruled that the topic of that publication in „The Sunday Times“ actually interested the public. And when the topic is interesting for the public, then the restriction of the freedom of expression on the side of the state is regarded as ungrounded. In its resolution in the case „Fresso and Ruar against France“(1999) the European Court ruled that the publication, for which the two journalists were brought to criminal responsibility, was connected with a serious social conflict that attracted the public attention. The protection of journalists rights does not free them from being the criminal laws. At the same time court must establish, whether the facts were printed in public interests. The Court came to the conclusion that the criminal punishment of the journalists, although it corresponded to the letter of law, was too stern, if to take into account the public interests. The decision of the Court in the case „Lingens Vs. Austria“(1986) reads: „Although the press may not overstep the borders established inter alia for „the protection of reputation of individuals“, it must give the information and ideas concerning politics as in any other sphere of public interest. Not only mass media must provide such information and ideas, but the public has the right to obtain it“. The latter Court decision implies that the principle of the presence or absence of public interest to the problem elucidated in the publication must be used not only for the assessment of the activities of the mass media, which published the information with the restricted access, but in the cases of informational meddling of mass media into the private life of public and quasi-public figures.
Thus, considering the claims against mass media in the connection with their professional activities, one must take account of the following circumstances:
the specifics of the mass media activities, which is the „watchdog“ of the society in its relations with the state, permits mass media to somewhat neglect informational restraints established by the state according to part 2 Article 10 of the European Convention; such neglect may be justified only by the public significance of the given information and the presence of public interest to the information;
by the information having public interest in the context of part 1 Article 3 of the Ukrainian Constitution we mean the information, which is essentially important for the majority of the population of some territory;
the information about the private life of public and quasi-public figures may also be of public interest because of their special role in state life; so the right for privacy for these persons may be somewhat limited compared to this right common citizens.
3. Assessment and criticism, artistic forms
Unfortunately, either in the laws or in the court practices of Ukraine the concept of assessment and the difference of a fact from the fact assessment is not defined. In the case „Lingens vs. Austria“the European Court defined these concepts and interpreted them in the spirit of the European Convention: „In the opinion of the Court, one should distinguish between a fact the fact assessment. The existence of a fact can be proved, and the veracity of the assessment is unprovable. In this connection the Court remarks that the facts, on which Mr. Lingens grounded his assessment were indisputable, as well as his honesty. According to item 3 Article 111 of the Criminal Code combined with item 2, a journalist in such a case may not avoid the punishment for the actions mentioned in item 1, if he does not prove the veracity of his statements. What concerns assessments, this condition cannot be satisfied, and this condition is a violation of the freedom of opinions, which is the basic component of the right guaranteed by Article 10 of the Convention“. The latter conclusion fully concerns the first part of Article 34 of the Ukrainian Constitution that reads: „everyone has a right for the freedom of thought…, for free expression of opinions and convictions“.
The concept of criticism exists in the Ukrainian laws and usually is defined as the set of assessments, expressed privately or publicly, of negative activity (passivity) of state officials, establishments, organizations and other juridical persons. The state declares the right for criticism and promises the protection of this right even by legal means. Resolution of the Plenum of the Supreme Court of Ukraine of 31 March 1995 No. 4 (item 11) directly states that a critical assessment of some facts or drawbacks, critical thoughts and comments… may not serve as a pretext for recompensing the moral (not material) damage. That is why one can affirm that both the laws and the court practices indirectly acknowledged the impunity of assessments, which may be expressed publicly as well.
Thus, an assessment is a conclusion obtained as a result of intellectual (logical) processing and generalizing facts, assessments of other people, additional information and cause-effect relations between the information sources. So, there are no methods to determine the veracity of assessments.
Assessments are expressed in various fashions. The most exotic forms of assessments are artistic ones: parody plays, verses, fables, pictures, caricatures, photomontages, etc. In order to increase the artistic effect authors frequently use terse and unpleasant epithets, which, in a way, are also artistic assessments. Yet, the form of an assessment, if it is decent and does not contradict the public morals, is not and may not be the reason for civil-legal responsibility, since, otherwise, it would abuse the freedom of creative work stipulated by Article 54 of the Ukrainian Constitution. As to the form of journalists assessments, the European Court, without endorsing the most acute forms of expression, reminded: „Article 10 of the Convention protects not only verbalized news and opinions, but also their form. At the same time the freedom of journalists includes the right for a certain degree of exaggeration, or even provocation“ (case „De Hes and Gijsels vs. Belgium“, 1997).
Practically this means that taking part in the affairs concerning claims against mass media connected with their professional activities, we must:
distinguish facts from assessments, and in the case, where the claimant demands to refute some assessment, refuse to satisfy the claim because an assessment is not news, so its veracity cannot be estimated;
take into account that the subject of such a claim may not be assessments or epithets, expressed in the artistic form (verse, photomontage, fable, caricature, epigram, picture, story, etc.), since artistic work legally is not information, so its veracity cannot be estimated;
take into account that the epithets used by the author, being a peculiar form of the assessment, if they are decent and do not contradict the public morals, also must not be refuted, so the author may not be brought to civil-legal responsibility.
III. HONOR, DIGNITY, BUSINESSREPUTATION. CLAIMS ABOUT ABUSING BUSINESS REPUTATION
1. Principles of considering claimsof juridical persons
The claims against mass media connected with their professional activities are usually caused by real or imaginary encroachment on the side of mass media or journalists at honor, dignity and business reputation.
According to the commonly accepted philosophic definitions:
honor is the public assessment of moral and spiritual qualities of a person;
dignity is the self-assessment of ones moral and social qualities; honor is a measure of dignity of a person, so these categories are mutually connected;
reputation is public positive assessment of social qualities of a person;
business reputation is public positive assessment of professional qualities of a person, fulfillment of the assumed duties, responsibility for the fulfilled work;
business reputation is a narrower concept than reputation and honor, since it covers the persons assessment only in the sphere of public business relations.
A juridical person is an artificial creation, organized directly or indirectly by physical persons for fulfilling certain social functions and satisfying certain needs. Having no psyche and being not an alive creature, it cannot have such moral features natural for humans as honor and dignity. Juridical persons are not capable to estimate themselves. Only people can estimate them and their activities, and not as members of mankind, but from a consumers point of view, as a tool satisfying certain needs. That is why, in the claims against mass media handed by juridical persons according to Article 7 of the Civil Code, plaintiffs may not demand to protect their honor and dignity, and courts may not consider these demands.
Neither part 4 Article 32 nor part 3 of the Ukrainian Constitution envisage at all the right of juridical persons to protect in court their right for refutation of dubious information and compensation of moral and material damage caused by a publication. However, one may not negate that illegal actions of a mass medium in the form of an unfair publication can inflict damage on a juridical person, essentially worsening its public positive assessment. So it would be erroneous not to acknowledge the right of juridical persons for the protection of their reputation. Thus, in the above-mentioned circumstances the claim of a juridical person against a mass medium may be handed in the framework of part 1 Article 7 of the Civil Code of Ukraine. The only subject of the claim for juridical persons is their right to protect their reputation.
From a juridical viewpoint, the business reputation must be interpreted as public positive assessment of professional qualities of a juridical person, in particular, qualities that not only single it out among other juridical persons, but also express the level of trust to it in its public positive activities (professionalism, trustworthiness, business-like manner, reliability in business relations, etc.). The concepts of „business reputation“ and „public positive assessment“ are directly connected in this definition. It is doubtless that it is through the existence and level of public positive assessment juridical that persons procure high business reputation.
The economical definition of business reputation is contained in the Ukrainian legislation only in one normative legal act. This is the joint order of the Fund of State Property of Ukraine (FSPU) and the State committee of Ukraine in charge of science and technology of 27 July 1995. This order concerns only juridical persons, who are economic subjects. In particular, the order of the FDMU reads that business reputation (goodwill) belongs to immaterial actives of the legal objects of the right to make use of economic, organizational and other facilities. In the economic production sense goodwill is defined as a complex of measures for increasing the income of enterprises without the corresponding increase of active operations, including using better administrative capabilities, dominating positions on the production market (works, services), new technologies. The concept „goodwill“ is also mentioned in Resolution of the Supreme Rada of Ukraine No. 247/95-A? and in the Ukrainian Law „On taxing the income of enterprises“, where its definition is similar to the above-quoted.
From all this one can conclude that the infringement on business reputation in the sense of Article 7 of the Civil Code may result in diminishing the corresponding immaterial assets of a juridical person and, hence, to decreasing its income. This damage has certainly a non-property character, since it is inflicted on the immaterial assets. The practical sense of this definition is that such immaterial damage must have a direct and inalienable causal relationship with property damage. This is confirmed by the analysis of the above-mentioned economic definition of business reputation. The presence of such damage, in its turn, means the presence of the damage to business reputation, while absence of material damage means the absence of the damage to business reputation. Thus, considering cases on the claims of juridical persons against mass media connected with their professional activities one must take into account that:
1) the subject of a claim of a juridical person against mass media, according to part 1 Article 7 of the Civil Code of Ukraine, may be only the defense of business reputation;
2) the presence of the damage to business reputation is determined only by the presence of material damage (lost profit, direct losses); such damage consists of direct material losses and the size of future expenditures for restoring business reputation proven in court;
3) the task of proving the cause-effect relation between diminishing the level of positive public assessment of the juridical person and material damage must be fulfilled by the claimant.
This approach will not only somewhat eliminate the contradictions generated by laws, but will also decrease the opportunity to misuse the right for protecting business reputation and to enrich at the account of mass media or to destroy them with the help of judicial power.
2. Conceptual basis of considering the claims after the complaints of the organs of state power, local self-rule and their administrative organs
The norm of Article 7 of the Civil Code of Ukraine envisages the opportunity to defend business reputation of organizations. The subjects mentioned above may undoubtedly be related to organizations. But, the account being taken of the arguments, presented in section 2 of this part, it is difficult to affirm the presence of business reputation of a central organ of the executive power (for example, the Ministry of Interior) or of an organ of local self-rule (for example, a district council). So the question of the opportunity to inflict damage on such establishments and organs by way encroachment on their business reputation.
In general, the positive business reputation of a juridical person often has a decisive role for survival in a competitive environment, since the loss of positive public assessment may lead to significant material damage and even to the destruction of the juridical person.
The above-mentioned subjects are not commercial and are not covered by the Ukrainian Laws „On enterprises“ and „On business“. No one, even very, unjust publication, cannot affect the business reputation of a state organ or agency in such a way that it will suffer from material losses through suspending the financing of its activities from the state budget or even its liquidation. The reason of this phenomenon is not only the fact that such juridical persons do not function in the competitive environment. Another reason is that the conditions of their appearance, development, activities and liquidation are determined by public needs, are regulated by special laws and, in a democratic society, are established, directly or indirectly by citizens.
Thus, the organs of state power and local self-rule, as well as the administrative organs created by them, act in a peculiar regime of legal regulation. The level of the real positive public assessment of their activities does not depend on external factors and, in fact, does not influence their status or existence.
„The state is responsible before its citizens for its activities“, reads part 2 Article 3 of the Ukrainian Constitution. The reverse responsibility in the sense of realizing the right for information is not established by the Constitution (the only exception being the norm of part 2 Article 105 of the Constitution). The realization of part 2 Article 3 of the Constitution is possible only under the condition of the collection, storage and distribution of information about the state activities, independent of meddling on the side of the state. Initiating the case on the protection of its „honor, dignity or business reputation“, even under the condition of the future negative result of the trial, the state organ substantially delimit its responsibility before the population, since:
in fact, it deprives the public of the right to obtain information about the state activities from the mass medium brought to responsibility;
creates the impression about the impossibility to control its activities;
breeds in people the erroneous opinion that the judicial power must protect, first of all, the state and not citizens.
In the decision on the case „De Hes and Gijsels vs. Belgium“(1997) the European Court stated: „Courts are guarantors of justice, they fulfil the fundamental function in a law-abiding state and must be trusted by public. They must be protected from ungrounded attacks. At the same time, judges, being professionally reticent, must not react at publications and protect themselves publicly“. In its resolution „Castels vs. Spain“(1992) the Court pointed out that „the freedom of political discussions is not absolute, yet, the boundaries of the criticism of the state are much wider, that those of the criticism of a common citizen or, even, of a political figure“.
So, lawyers must take into account that state organs, organs of local self-rule and their administrative bodies may not be subjects of the legal relations stipulated by Articles 32 and 34 of the Ukrainian Constitution, Articles 7 and 440-1 of the Civil Code of Ukraine and the corresponding norms of other legal acts. If such a claim is handed to court, the latter, I believe, must regard it objectless.
3. Conceptual basis of considering the claims after the complaints of public and quasi-public figures
Here the speech must be mainly about the publications elucidating the fulfillment of duties before the state and society by the mentioned subjects. Yet, the topic also concerns the publications about the private life of these persons, if a certain part of their private life becomes of public interest because of the positions they occupy.
It should be remarked at once that the Ukrainian laws do not contain the exact definition of the term „public figure“. Taking into consideration the definitions given in the Ukrainian Laws „On state service“, „On struggle with corruption“ and the draft of the Law „On the Cabinet of Ministers“, it seems that a public figure is a person, who is, directly or indirectly, elected by population, has the right to execute state functions and may take the decisions, which must be obligatorily fulfilled everywhere in the country, and whose fulfillment is supported by state coercion.
Giving the consent to be elected or appointed on a state post, the person must understand that, because of the need to observe the principles of publicity, openness and accountability to power envisaged by Articles 3, 6, 19 and 57 of the Ukrainian Constitution, his/her professional activities will be under a close observation of the public, in particular, Minister. If to acknowledge the unconditional right of such figures for privacy (which directly affects their professional activities), then it would be the guarantee of flourishing the corruption and misuses of power. So, the permissive boundaries of estimating and criticizing the actions, sayings or passivity of a public figure are much wider than for common citizens. The civil responsibility for expressing critical and even offending assessments of public figures in question, which are of public interest, must be reckoned as non-Constitutional restriction of the rights for information and for the freedom of expression (freedom of speech).
The persons, who have the right to fulfil state functions and take decisions obligatory for the population (as a rule, they are state officials, servicemen, officers of the USS, militia, tax administration and customs, etc.), i.e. quasi-public figures, must be more protected against meddling into their private life than public figures. Nonetheless, the boundary of protecting the publicly significant information about them and their activities must be more transparent than for a common citizen.
In accordance with the decision of the European Court in the case „Lingens vs. Austria(1986), „… the freedom of expression guaranteed by item 1 Article 10 is one of the main strongholds of a democratic society and one of a principal conditions of its development and the self-realization of each person. Item 2 reads that the freedom of expression concerns not only that information or ideas, which are obtained by a proper way or are reckoned as inoffensive or negligible, but also that, which provoke offence, indignation or unrest… These principles are especially important when they concern the press… Besides, the freedom of the press gives the public one of the most convenient opportunities to learn about the ideas and views of political leaders and to from the opinion about it… Correspondingly, the permitted boundaries of criticism are wider, when it concerns a political figure, but not a private person. Unlike the latter, the former is necessarily open for the scrupulous analysis of every word and action on the side of journalists and public and, as a result, must be more tolerant to this“.
In its decision in the case „Oberschlick vs. Austria“(1997) the European Court stated that „a political figure, certainly, has the right for protecting his business reputation, even in the questions not concerning his private life, but his protection should be in the range of a free discussion of the questions of public interest“. Thus, the private life of a public figure, if it is of public interest, must not have the legal defense similar to private life of a common citizen.
To some degree this approach is introduced only in one Ukrainian legal act. The Ukrainian Law „On state support of mass media and social protection of journalists“ (part 3 Article 17) directly reads that in the case of a conflict between an official of an organ of state power or local self-rule and a journalist of mass medium concerning the inflicted moral damage, the court must prove the evil intent of the journalist or mass medium while distributing the dubious information and take into account the possible consequences of the usage of the plaintiffs right to refute the distributed information before the trial. So, the legislators actually delimited the responsibility of journalists and mass media for distributing dubious information about public and quasi-public figures by the demand to prove the evil intention.
It follows from the above-said that:
1) it is necessary to apply the restriction principle while considering the claims handed by public or quasi-public figures to mass media taking into account the public interest and public significance of publishing the facts from the private or public life;
2) one must distinguish a claim handed against a mass medium by a public (quasi-public) figure about protecting honor, dignity and business reputation as a physical person from another sort claim handed for the protection of the plaintiff as a state official or even the protection of his/her position; in the latter case one should follow the recommendations given in section 2 of the present part;
3) taking into account that a person, having agreed to fulfil power duties, this accepts the obligations to carry the burden linked with these duties, it should be noted that this burden includes certain moral losses, discomfort caused by the critical attitude of the population to the power; it is why court must solve the question about recompensing the moral damage inflicted by critical publications in mass media on the activities of public and quasi-public persons;
taking into account that criticism of the persons, who are in power, is not only admissibly, but useful in a democratic society, the civil-legal responsibility must be demanded from mass media and journalists only in cases of deliberate distributing the untrue information; in such cases lawyers should take into consideration the opportunity of pre-court or out-of-court regulation of the conflict (refutation), which must be initiated by the plaintiff.
IV. TERMINOLOGICAL AND JURIDICAL ANALYSIS OF THE DISPOSITION OF ARTICLE 7 OF THE CIVIL CODE OF UKRAINE
The first part of Article 7 of the Civil Code of Ukraine stipulates the general right of a person for the defense in court of honor, dignity and business reputation:
„A citizen or an organization has the right to demand in court to refute the information, which is untrue or presented in the untrue form, which damage their honor, dignity and business reputation or harm their interests, provided that the source of the information can prove the veracity of the information“.
The second part of this article determines the way of refutation of the information described in the first part.
The third part of the article establishes the persons right, along with the refutation of the untrue information, to demand to recompense the material and moral (immaterial) losses inflicted by the publication.
1. Subjects to be defended
1) Norms of part 1 of article 7 stipulates that the subjects to be defended are „citizens“. Taking into consideration the difference in a legal status of a Ukrainian citizen and a foreigner (or apatride) and the norm of the first part of Article 26 of the Ukrainian Constitution („Foreigners and apatrides… have the same rights and freedoms…, as Ukrainian citizens, except in cases described by the Constitution, laws and international instruments“), it should be noted that, from the legal point of view, this norm sets an „exception“ and deprives the mentioned persons of this right. This contradicts to the third part of Article 32 („Everyone has the right to refute untrue information“) and part 1 of Article 55 of the Ukrainian Constitution („Human rights and freedoms are protected by court“). Thus, in the given case, according to part 3 Article 8 of the Constitution, the right to turn for defense against distributing untrue information may be realized on the bases of part 3 Article 32 of the Constitution.
By definition, any juridical person may be an organization. As it was said above, neither part 2 Article 32 not part 3 Article 34 of the Constitution do not envisage at all the right of juridical persons for court defense of the right for refuting untrue information and demanding a compensation for moral and material damage. In its decision of 9 February 1999 concerning case No. 1-7/99 the Constitutional Court of Ukraine, proving the impossibility of the direct extension of the norms of section II of the Constitution (including Articles 32 and 34) for the protection of the right of juridical persons stated, in particular: „The statements of some article of the Constitution, which, first of all, determine the status of church and religious organizations in Ukraine (Article 35), political parties and public organizations (Articles 36, 37) guarantee their activities by realizing human and citizens rights and freedoms, viz. the rights for the freedom of religious outlook, for the freedom to unite into political parties and public organizations“. Thus, taking into account the principle of the state duty to report before people, envisaged by part 2 Article 3 of the Convention, and the principles of local self-rule, established by Article 140 of the Constitution, the state presented by the organs of power, administration and local self-rule may not have the legal protection guaranteed by Article 32 of the Ukrainian Constitution. What concerns other juridical persons, they may get this right indirectly, through the right of the proper physical persons (founders, members, etc.) basing on the concrete legal norm.
2. Objects to be defended
1) Part 1 Article 7 of the Civil Code of Ukraine determines honor, dignity, business reputation of persons (juridical or physical) and their interests as objects to be defended. The terminological definition of honor, dignity and business reputation in their philosophic sense has been given above.
2) Regarding the construction of the norm of part 4 Article 32 of the Constitution one may assert that part 1 Article 7 of the Civil Code does not agree with the Constitution. The Constitution does not list the limitations on the number and kind of the objects to be protected that may suffer some losses as a result of distributing dubious information. The disposition of Article 7, for example, implies that a person cannot set in court the question of defending his/her reputation or of defending from meddling into his/her private life. Moreover, part 4 Article 32 has a direct logical link with parts 1 and 2 of this article and influences them. Along with the right for refuting untrue information it grants to a person the right to demand the exclusion of any information. Since these norms are mutually related, practically one should say not about the protection of separate objects, as it is established by Article 7 of the Civil Code, but rather about the protection of the fundamental human rights for private and family life and for true information. Thus, the disposition of Article 7, in the part of determining the objects of encroachment, limits the norms of the Ukrainian Constitution, and so it may not be applied fully in court practices.
What concerns the interests of a person as an object to be defended in the framework of the disposition of Article 7, this concept generally looks as unnatural both in this norm and in the entire system of the civil right. The interest, from the viewpoint of its court protection, may be based only on law. In other words, only legal interest must be protected. From the concept of the legality of interest it follows that the interest of a person lies in obeying his/her property or personal rights. So, in fact, defending legal interest of a person, as it is written in Article 7, the defense of the persons right is realized. That is why using the term „interest“ in the disposition of Article 7, in my opinion, has neither practical nor legal sense.
3. Forms of violating rights and methodsof their protection
1) According to the sense of part 1 Article 7, the encroachment upon honor, dignity and business reputation of a person is done by scattering the information, which is untrue or is presented in the untrue form. Concrete methods of the information distribution and its refutation are listed in the second part of this article. The term „untrue information“ has been already analyzed in this work from the standpoint of how it agrees with the Constitution. It should be added that the veracity of facts (events) may be conditionally established only by the court decision. This means that, theoretically, any fact may not be made public without the risk of persecution before the court confirms or denies this information. If mass media based their professional activities on this principle, their activities would become impossible.
2) As to the term „information presented in the untrue form“, it, in the main features, agrees with the Constitutional terminology. By sense, here the information is meant, which is given in a false context, that is the information, which does not correspond with the general context. For example, the illustration to an article placed inside mocks or contradicts the text. This is only one of many examples of violating the human right for true information. Such cases are rather infrequent. That is why they, perhaps, are not worth to be singled out as a separate legal norm.
3) The main methods of protection stipulated by Article 7 are refuting untrue information and „withdrawal“ of the document containing such information. In cases of publishing untrue information in mass media, this information must be refuted in the same mass medium in an adequate way. In all other cases the way of refutation is determined by court. The mentioned methods of protecting rights meet the terms of part 4 Article 32 of the Constitution. However, Article 7 of the Civil Code does not contain one more constitutional method of protection: withdrawal of dubious information, thus violating the Constitutional norm.
Part 3 of Article 7 also envisages the right of a person to demand, along with the refutation, recompensing of material and moral (immaterial) damage, inflicted by distributing the information. Article 440-1 of the Civil Code also correlates with this norm. The collection of the compensation from the guilty of the losses (material damage) and recompensing the moral damage are mentioned by part 4 Article 32 of the Constitution as a common method of protecting civil rights. To sum up, taking into account the above-mentioned exceptions of subject character, these methods of protection of the right for private life and true information agree with the Ukrainian Constitution.
4. Substantiation of the presumption of a law violation
1) Article 7 of the Civil Code of Ukraine, for the first time in the civil right of Ukraine, established the principle of the presumption of a law violation by the defendant: „if the distributor of the information do not prove its veracity“. It is obvious that, adding this formula to the article, the legislators were stimulated by the good intention to increase the defense of honor, dignity and business reputation. Yet, combined with terminological and constructive defects of Article 7 (mentioned above), these good intentions led to directly opposite results. This generated a great number of ill-grounded claims against mass media on the side of state officials and agencies, whose purpose was to punish mass media for criticism, and on the side of juridical persons with the purpose of enrichment for the account of mass media or ousting them from the market as competitors. As a result the freedom of speech was somewhat restricted and thus the right of the society for obtaining true information, in particular, about the state activities, was abused.
2) It should be noted that, in general, this formula is rather procedural than material by its sense. It establishes the order of getting proofs in affairs of a certain kind (in fact, it frees the claimant from handing the proofs). That is why this article to some extent contradicts Articles 15, 15-1 and 30 of the Civil-Procedural Code of Ukraine. Introducing this formula into the legislation, legislators had to change the corresponding operating norms. Yet, they did not do it, which resulted in a collision of the norms.
Part 3 Article 129 of the Ukrainian Constitution establishes main principles of legal proceedings. In particular, the constitutional principles of legal proceedings are: ԫ) guaranteeing the proof of the guilt“ and Ԭ) contestability of the sides and the freedom in handing proofs to the court and in proving their convincingness to the court“. The term „guilt“ used in item 3 undoubtedly means both criminal-legal and civil-legal guilt of a person. Guilt is established through the presence of a law violation, which, according to the sense of Article 7, is presumed. „Contestability“ of the sides, envisaged by item 4 is understood as the equality of the sides in their duty to demonstrate proofs to court. So, if one side is freed from its duty to demonstrate proofs that confirm facts and circumstances, to which it refers, as it is stated in Article 7, this does correspond to the basic principles of legal proceedings listed in part 3 Article 129 of the Constitution.
1) Terminological and juridical analysis of Article 7 of the Civil Code of Ukraine certainly proves that norms of the article do not agree with the Ukrainian Constitution and the European Convention.
Item 1 of Part XV of the Constitution („Transitive provisions“) sets the rule, according to which the laws contradicting the Constitution must not be fulfilled. That is why, considering the claims against mass media connected with their professional activities, according to part 3 Article 8 of the Constitution, one should insist on applying the norms of Article 32 of the Convention as norms of the direct action.
V. PRACTICES OF PROTECTING THE RIGHT FOR RECOMPENSING THE MORAL DAMAGE INFLICTED BY THE ACTIVITIES OF JOURNALISTS AND MASS MEDIA
1. Peculiarities of the consideration of caseson recompensing moral (immaterial) damageinflicted by the professional activitiesof journalists and mass media
By the present time certain practices of applying this comparatively new for Ukraine legal institute already exists.
The changes introduced by the Plenum of the Supreme Court of Ukraine to its Resolution No. 4 of 31 March 1995 have become a certain milestone in the legal practices. The new version of the resolution is not perfect too, but its adoption has made an important step towards the unification of the law-applying practices in this question. The propositions of the advocates, who specialize in the sphere of defending journalists and mass media, were reflected in the new resolution. The position of the Plenum expressed in paragraph 2 of item 1 of the resolution became an undoubted achievement: „According to Article 9 of the Constitution, the operating international agreements, whose applicability was approved by the Supreme Rada, are the part of the national legislation of Ukraine. In particular, it is true about the Convention for the protection of human rights and fundamental freedoms ratified by the Supreme Rada, the Convention, which, as well as other international agreements, must be applied in court practices“.
At last, the superior court instance of Ukraine explained the concept of non-property damage that may be inflicted on a juridical person. This explanation will substantially influence on the practices of solving the conflicts, which are generated by mass media activities, since the demands of juridical persons for refuting some information is, in the overwhelming majority of cases, is united with the demand to recompense the moral damage.
Article 7 of the Civil Code indirectly and Article 440-1 of the Civil Code directly admit the recompensing the moral damage to an organization. At the same time, various scientific and juridical sources define the moral damage as losses caused by moral or physical sufferings. This means that, since a juridical person, being not an alive creature, cannot suffer and, therefore, cannot suffer any losses and any moral damage. Various juridical schools and directions share this idea both in the West and in the East. Taking into consideration the principle of disposition in the defense by a person of his/her civil rights, the moral damage inflicted on the members or founders of a juridical person by the publication in mass media, may not be regarded as a damage inflicted on this person.
In Ukraine there exists a great number of legal acts that directly or indirectly declare the right of a juridical person for recompensing the moral damage. Articles 7 and 440-1 of the Civil Code, Article 49 of the Ukrainian Law „On information“, Article 33 of the Law „On information agencies“, Article 47 of the Law „On TV and radio broadcasting, Article 17 of the Law „On state support of mass media and social protection of journalists“ are certainly applicable to the affairs related with the informational activities of mass media. However, no one of these norms contains a definition of the moral damage inflicted on a juridical person. The Presidium of the Superior Arbitration Tribunal of Ukraine, in its explanation No. 02-5/95 of 29 February 96 remarked that „the moral damage is the damage inflicted in an organization by violating its legal non-property rights“.
The Plenum of the Supreme Court solved this problem by way of giving the following interpretation: „The immaterial damage inflicted on a juridical person must be understood as losses of non-property character, which resulted from the impingement on its business reputation, on its trademark, divulging commercial secrets or actions directed at diminishing the juridical persons prestige or trust to its activities“.
At the same time, as is seen from this interpretation, the Plenum introduced a new formula to the law-applying practices: „… actions directed at diminishing the juridical persons prestige or trust to its activities“. If the matter concerns the entrepreneurial subjects, then the categories „prestige“ and „trust to the activities“ undoubtedly enter the concept „business reputation“. Yet, in cases concerning the claims of the organs of state power and administration, these concepts need, in their turn, some additional interpretation, since the fact of diminishing these immaterial actives will require proof in court, and so, the corresponding methods of its calculation. Moreover, the very construction of the formula („…actions directed at…“) indicates the need to prove the evil intention of the defendant.
So, by adding this explanatory novella, the Plenum removed, on one the hand, some problems, and, on the other hand, generated new ones.
The Plenum, finally, explained the term „evil intention“ used in part 4 Article 17 of the Ukrainian Law „On state support of mass media and social protection of journalists“, gave an example of „a official person“ (a registered candidate to deputies), sketched the conditions of differentiating of levels of damage, broadened the boundaries of the opportunities of turning to court with the claims about recompensing moral damage regardless of the fact whether the law, regulating such conflicts, envisages such an opportunity. The resolution also determines the rule, beyond which an assessment may not be a basis for recompensing moral damage, which was mentioned above.
2. Conditions of recompensing moral (non-property) damage and the compensation size
The conditions of recompensing moral (non-property) damage, according their legal grounds and procedural legal rules, practically do not differ from the general conditions of recompensing damage.
At the same time the Plenum directly linked the opportunity of such recompensing with illegal behavior of the defendant established by court (in our case – distributing untrue information, illegal meddling into private life by mass media or journalists). And, taking into account the form of the guilt and the duty of the out-of-court regulation of the conflict in the cases directly described in part 4 Article17 of the Law „ On state support of mass media and social protection of journalists“, the Plenum, in fact, deprived the subjects listed in this norm of the opportunity to realize their demands in court.
Thus, the demand for recompensing the moral damage handed to court without the demand to protect the violated right, or if the actions of mass media or a journalist were regarded as legal, the former demand must be rejected by court in any case. Only one exception exists: the cases, where mass media confessed the illegal actions on their side by voluntarily refutation of the information involved.
The Plenum exactly described the procedural conditions of turning to court with such demands and the duty of the claimant, according to Articles 15-1 and 30 of the Civil-Procedural Code to prove the fact of the existence and level of sufferings and other non-property losses, the size of the compensation, etc. In particular, it is written that the claim about the recompensing must contain the information what was the nature of the moral (non-property) damage, by which illegal activity (or passivity) it was inflicted, what were the grounds of the claimant in determining the sum of the compensation, and which arguments confirm this. The non-fulfillment of these conditions results in the rejection of the claim according to the procedure of Article 139 of the Civil-Procedural Code, and, if the conditions were not met at the trial – to the refusal to satisfy the claim: „… in solving a conflict on recompensing the moral (non-property) damage the following circumstances must be obligatorily explained and proved: presence of the damage, illegal actions of a person, who provoked the damage, presence of the causal relation between the action and the damage and the guilt of the defendant in the damage. In particular, the court must find the proofs of the fact of inflicting on the plaintiff moral and physical sufferings or non-property losses, under which circumstances or by which activity (passivity) they were caused, in which money sum or other material from the claimant evaluates the damage and what are his arguments, as well as other circumstances of the conflict.“
The limit size of the recompensing sum for the moral damage, caused by professional activities of mass media and journalist, is not established by law. In this connection the Plenum remarked that „the size of recompensing the moral (non-property) damage is established by court depending of the character and intensity of sufferings (physical, spiritual, psychical, etc.) of the plaintiff, character of the non-property losses (their lasting, possibility of resuming, etc.) and considering other circumstances. In particular the court must take account of the plaintiffs health, level of coercive changes in his life and work relations, level of decreasing his prestige and business reputation, time and efforts needed for the restoration of the previous status, voluntariness of the mass media in refuting the information. The court here must observe the principles of adequacy, reason and justice“.
The formula contained in the last sentence is an outstanding new interpretation in court practices, since it orients courts to apply the main principles in using state coercion to a person: justice and adequacy of public-legal interference into private-legal relations.