Strasbourg finds against Ukraine in Pravoye Delo case
In a recent case the European Court of Human Rights found that Ukraine violated Article 10 of the European Convention on Human Rights with respect to the editorial board of the Odessa newspaper Pravoe Delo (“the first applicant”) and a Ukrainian national Mr Leonid Isaakovich Shtekel. It awarded Mr Shekel 6 thousand euro in compensation. The issue arose over a successful defamation case against the applicants in respect to material reprinted from the Internet.
The report of the case stresses that Pravoe Delo was a small newspaper without means to engage in major investigative journalism and it often reprinted material from other sites.
In September 2003 Pravoe Delo published an anonymous letter allegedly written by an employee of the Security Service of Ukraine, which the second applicant’s colleague, Ms I., had downloaded from a news website. The letter contained allegations that senior officials of the Odessa Regional Department of the Security Service had been engaging in unlawful and corrupt activities, and in particular that they had connections with members of organised criminal groups.
The letter was followed by these comments on behalf of the editorial board:
“When publishing this letter without the knowledge and consent of the editor-in‑chief, I understand that I may not only face trouble ... but I may also create problems for the newspaper. Because, if this letter is [misinformation], then [the media], in which it appears may be endangered. On the other hand, if this letter is genuine, then its author faces a higher risk. Besides, given that this anonimka [anonymous letter] has already been published on the Odessa website Vlasti.net (to which we refer, in accordance with their requirement), we have the blessing of God [to publish it]. We are proceeding on the understanding that, in accordance with the Act on democratic civil control over the military organisation and law-enforcement organs of the State, we are carrying out civil control and, pursuant to section 29 of the Act, we would like to receive open information concerning the facts described in this letter from the relevant authorities. Moreover, [it is to be noted] that the Department of [the Security Service] in the Odessa Region did not react to an analogous publication in the Top Secret [newspaper] ... I remind [you] that the [Pravoe Delo] newspaper ... is widely open for letters in reply and comments from all interested agencies.”
In October 2003 G. T., who at the time lived in Odessa and was the President of the Ukraine National Thai Boxing Federation, lodged a defamation claim with the Prymorskyy District Court of Odessa against the applicants. G. T. alleged that the information in the Pravoe Delo issue of 19 September 2003 concerned him, that it was untrue and had damaged his dignity and reputation. He asked the court to order the applicants to publish a retraction and an apology and to pay him compensation.
On 7 May 2004 the court ruled against the applicants. It found that the information at issue did concern the claimant, who was a public figure involved in public activities in the Odessa Region and had represented Ukraine at sports events abroad in his capacity as the President of the Ukraine National Thai Boxing Federation. In that context, the court noted that this had not been contested by the applicants in their initial submissions and that the publication was about the activities of the Security Service in the Odessa Region. The court further held that the content was defamatory and that the applicants had failed to prove that it was truthful.
The court ordered the first applicant to publish a retraction, the second to publish an official apology and also awarded compensation.
The applicants appealed, but both the Odessa Regional Court of Appeal and the Supreme Court upheld the judgment of the first-instance court.
In 2008 the applicants discontinued publishing Pravoe Delo.
The Court’s assessment
(a) Whether there was an interference with the right to freedom of expression
47. The Court observes that the publication at issue involved defamatory statements of fact. According to the findings of the civil courts, it was stated that a public figure, the President of the Ukraine National Thai Boxing Federation, was a member of an organised criminal group and “a coordinator and sponsor of murders”. The applicants had failed to show that those statements were true and the courts ordered them to publish a retraction and apology and to compensate the person concerned for the non‑pecuniary damage caused by the publication.
48. The Court considers that the courts’ decisions constituted an interference with the applicants’ right to freedom of expression.
49. The Court reiterates that its task in exercising its supervisory function under Article 10 of the Convention is to look at the interference complained of in the light of the case as a whole and, in particular, to determine whether the reasons adduced by the national authorities to justify it are relevant and sufficient (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). This inevitably entails a review of the decisions taken by the courts at the domestic level, irrespective of whether any complaints have been raised concerning the courts’ compliance with the procedural guarantees under Article 6 of the Convention. Therefore, the Court dismisses the Government’s objection as to the applicants’ victim status.
(i) Measures envisaged by Ukrainian law in cases of defamation
54. As regards the latter issue, the Court observes that Ukrainian law provides that, in cases of defamation, injured parties are entitled to demand a retraction of untrue and defamatory statements and compensation for damage. Both measures were applied in the applicants’ case. However, in addition to those measures, the courts ordered the second applicant to publish an official apology in the newspaper. The Court observes that such a measure was not specifically provided for in the domestic law.
55. The Court has already dealt with a similar situation in a case against Russia. In that case it was prepared to accept that the interpretation by the domestic courts of the notions of retraction or rectification under the relevant legislation as possibly including an apology was not such as to render the impugned interference unlawful within the meaning of the Convention (see Kazakov v. Russia, no. 1758/02, § 24, 18 December 2008).
56. However, in contrast to the latter case, the present case contains no evidence or, at the least, a persuasive argument that Ukrainian courts were inclined to give such a broad interpretation to the legal provisions concerning the measures applicable in cases of defamation or that that was their general approach in such cases.
57. The Court further observes that, despite the second applicant’s specific and pertinent complaints in that connection, the domestic courts failed to give any explanation for the obvious departure from the relevant domestic rules (see paragraph 17 above). The Government’s submissions in that regard did not clarify the issue either.
58. As it appears from the relevant domestic judicial practice, though subsequent to the events at issue, imposition of an obligation to apologize in defamation cases may run counter the Constitutional guarantee of freedom of expression (see paragraphs 27-28 above).
59. In these circumstances, the Court finds that the court’s order to the second applicant to apologise was not prescribed by law and that accordingly there has been a violation of Article 10 of the Convention in that respect.
(ii) Journalists’ specific safeguards in Ukrainian law
60. The Court observes that the publication at issue was a verbatim reproduction of material downloaded from a publicly accessible internet newspaper. It contained a reference to the source of the material and comments by the editorial board, in which they formally distanced themselves from the content of the material.
61. Ukrainian law, specifically the Press Act, grants journalists immunity from civil liability for verbatim reproduction of material published in the press (see paragraph 25 above). The Court notes that this provision generally conforms to its approach to journalists’ freedom to disseminate statements made by others (see, for instance, Jersild v. Denmark, 23 September 1994, § 35, Series A no. 298; and Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001‑III).
62. However, according to the domestic courts, no such immunity existed for journalists reproducing material from internet sources not registered pursuant to the Press Act. In this connection, the Court observes that there existed no domestic regulations on State registration of internet media and that, according to the Government, the Press Act and other normative acts regulating media relations in Ukraine did not contain any provisions on the status of internet-based media or the use of information obtained from the Internet.
63. It is true that the Internet is an information and communication tool particularly distinct from the printed media, in particular as regards the capacity to store and transmit information. The electronic network serving billions of users worldwide is not and potentially cannot be subject to the same regulations and control. The risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press. Therefore, the policies governing reproduction of material from the printed media and the Internet may differ. The latter undeniably have to be adjusted according to the technology’s specific features in order to secure the protection and promotion of the rights and freedoms concerned.
64. Nevertheless, having regard to the role the Internet plays in the context of professional media activities (see paragraphs 29-32 above) and its importance for the exercise of the right to freedom of expression generally (see Times Newspapers Ltd v. United Kingdom (nos. 1 and 2), no. 3002/03 and 23676/03, § 27, 10 March 2009), the Court considers that the absence of a sufficient legal framework at the domestic level allowing journalists to use information obtained from the Internet without fear of incurring sanctions seriously hinders the exercise of the vital function of the press as a “public watchdog” (see, mutatis mutandis, Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216). In the Court’s view, the complete exclusion of such information from the field of application of the legislative guarantees for journalists’ freedom may itself give rise to an unjustified interference with press freedom under Article 10 of the Convention.
65. The Court further observes that under Ukrainian law journalists may not be required to pay compensation in defamation cases if they did not disseminate the untrue information intentionally, acted in good faith and made checks on such information, or if the injured party failed to use the available possibilities to settle the dispute before going to court (see paragraph 26 above). In the domestic proceedings, the applicants explicitly raised the defence of qualified privilege under the latter provision. In particular, they argued that they had no malicious intent to defame the claimant by the publication of the material in question and that the public had an interest in receiving the information. Furthermore, they argued, that by reproducing the material previously published on the Internet, their intention was to promote debate and discussion on political matters of important public interest. They also argued that the claimant had not taken any steps to settle the dispute with the applicants despite the fact that in the same publication they had invited any person concerned to comment on it. However, their plea was entirely ignored by the courts.
66. Therefore, the Court finds that, given the lack of adequate safeguards in the domestic law for journalists using information obtained from the Internet, the applicants could not foresee to the appropriate degree the consequences which the impugned publication might entail. This enables the Court to conclude that the requirement of lawfulness contained in the second paragraph of Article 10 of the Convention was not met.
67. In these circumstances, the Court does not consider it necessary to deal with the parties’ remaining submissions concerning this provision or to examine the proportionality of the interference at issue.
68. Accordingly, there has been a violation of Article 10 of the Convention as regards this aspect of the case.
The Court unanimously found that there had been a violation of Article 10 of the Convention on account of the domestic courts’ order to the second applicant to publish an official apology and on account of the applicants’ punishment for the impugned publication;
The full case which has yet to come into force can be found at: http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en