The Media and the Presidential Elections
The election campaigns of 2004, 2006 and 2007 clearly demonstrated that electoral legislation and its implementation seriously violated the right to freedom of expression. Freedom of political discussion is the key prerequisite for considered and well-founded decisions regarding any public issues. During election campaigns freedom of political discussion must be especially protected. On the other hand the right to free and fair elections must be safeguarded. These two rights are very often in conflict and legislation needs to find a balance between them in order to ensure that interference in freedom of expression is proportional to the aim of ensuring free elections and non-discrimination of candidates.
In Ukraine the clash between these fundamental rights has been resolved totally in favour of the right to free and fair elections. Freedom of expression has been so significantly restricted that in my opinion the last two election campaigns were sterile, vapid and simply boring. The same awaits us at the Presidential elections from November 2009 to January 2010.
The media at these elections have been assigned the role of film extras who simply pass on political advertising to their audience or work for their funding from presidential candidates whose election headquarters commission material advertising those who do the commissioning, or against their opponents. Free and independent analysis of the views and programmes of the candidates for President, their positive and negative points, has become quite simply impossible.
Legislative regulation of media activities during the election campaign
According to Article 13 § 4 of the Law on the Presidential Elections, “the media must objectively cover the preparation and holding of the elections.” In my view this statement is hypocritical since behind the demand for “objectivity” one always finds lurking the division of information into “useful” and “harmful”. This reflects the paternalism of the authorities who take upon themselves the task of determining what “objective” is.
The Law on the Presidential Elections also contains other norms which significantly restrict coverage of the election process. The ban on pre-election campaigning outside the period set down in Article 57 of the Law – from the day after registration of the presidential candidate to 24.00 on the last Friday before Election Day – is an unwarranted restriction of freedom of expression and in my opinion violates Article 34 of the Constitution and Article 10 of the European Convention on the Protection of Human Rights and Fundamental Freedoms. This restriction is not specific since the term “campaigning” is not clearly defined, cannot be interpreted narrowly and is not necessary in a democratic society. Admittedly, the unfortunate norm, as is often the case in Ukraine, is compensated for by its not being enforce. If in practice during the 2006 election campaign the use of this norm led to the consent of many media outlets to not name the surnames of politicians before the official start of campaigning, in 2009 nobody has paid heed to this ban. One candidate, Arseny Yatsenyuk effectively began actively campaigning long before registration, and the same can be said about Viktor Yanukovych and Yulia Tymoshenko.
Other unwarranted restrictions of freedom of expression are the ban on campaigning by people who are not Ukrainian nationals (Article 64.1); the ban on pre-election campaigning in foreign media outlets with activity on Ukrainian territory (Article 64.12) and the ban on revealing the results of public opinion surveys regarding parties and presidential candidates over the last 15 days prior to the Elections (Article 64.13). These restrictions on freedom of expression cannot be proportional to any legitimate aim. One should note that there are not as a rule bans on campaigning by non-nationals and foreign media in other countries of the Council of Europe. The last restriction mentioned does not as a rule exist in Western European countries, however in Eastern Europe there is a certain moratorium on the publishing of the results of opinion polls before the elections. The length of this varies – from two to three days to a week, and Eastern European countries, for example, Bulgaria, are gradually removing the moratorium or reducing it. I think that a moratorium for two – three days can be considered justified.
A serious restriction of media freedom is seen in Article 64.5 which obliges the media to refute information circulated which a presidential candidate considers clearly inaccurate if the latter demands it. The retraction must be no later than three days after the publication of such material, but at least two days before the elections. In itself the demand for a retraction is correct, exercising the right of response. It is also correct to demand that the answer can be provided before the date of the elections. This is confirmed by Recommendations No. R(99) 15 of the Committee of Ministers of the Council of Europe “On coverage in the press of election campaigns”, and in Article 19’s Rules on coverage of election campaigns by the electronic media in transitional democracies (1994). However in my opinion, freedom of expression and safeguarding free expression of the will of voters are not balanced in this norm since the media are deprived of the opportunity of providing evidence for the accuracy of the information in court and are totally defenceless before presidential candidates.
Of importance for media activities is Article 60 § 1 of the Law on the Presidential Elections which stipulates that election campaigning with the help of the media regardless of their form of property is carried out observing equal conditions. This for example means that, according to Article 60 § 8 of the same Law, that if the media give broadcasting time or space in print to one presidential candidate, they cannot refuse to do the same for another candidate on the same conditions. They can only refuse to provide broadcasting time or space in print if the material to be circulated does not comply with the requirements of paragraphs 3 or 5 of Article 64 of the Law. These refer to material calling for the liquidation of Ukraine’s independence, changes in the constitutional structure by violent means, violation of sovereignty and territorial integrity of the State, etc, or in paragraph 5 - to the circulation of knowingly inaccurate information about a presidential candidate. Whereas in the Law on Elections of National Deputies the possibility of refusing to publish material in such cases was indicated clearly, in the Law on the Presidential Elections there is no such norm. Now the media will find it much harder to refuse to publish sensitive material.
The Law on the Presidential Elections contains a detailed description of the forms and means of election campaigning, preparation of information posters and other campaigning material, presentation by presidential candidates of their programmes in audiovisual and printed media outlets, the organization of television debates with the legislators indeed achieving equality of conditions. However the media in this are assigned only the role of transmitted of the candidates’ information, they effectively cannot express their own view about candidates’ professional and personal qualities. This has come about for the following reasons.
The following norm were included in the Law: election campaigning material is published on the basis of an agreement between the manager of the current account of the electoral headquarters of the presidential candidate and the editorial office (publishers) of the printed media outlet (Article 63.6). Broadcasting time is provided on the same basis (Article 61.9). Paragraph 4 of Article 64 generally bans campaigning for or against presidential candidates in material and programmes not covered by such agreements in State-owned and municipal media outlets. In the case of infringements of this ban, the media outlets can be temporarily suspended by a court at the application of the Central Election Committee. Privately-owned media outlets can thus discuss the election campaign without agreements with presidential candidates however they can be accused of campaigning for or against a particular candidate.
There were good intentions behind these norms, however in wishing to protect journalists and media outlets from pressure exerted by participants in the election process which we saw with a vengeance in 2004, the legislators went too far the other way. Now journalists who wish to comment on the election campaign, the personal or professional qualities of presidential candidates, must ask themselves every minute whether their material will not be viewing as political campaigning which is only possible on the conclusion of a relevant agreement. As a result, any text or video clip involving presidential candidates or their authorized representatives will be subjected to strict censorship. Certainly when the media circulate critical information about a presidential candidate, they risk being ordered to retract it. In 2006-2007 they risked getting law suits demanding their closure until the end of the elections. Therefore articles in newspapers and television programmes teemed with disclaimers that this was not political campaigning, and the same can be expected at these elections. Journalists will most likely simply not comment on the election campaign or will work according to agreements, preparing commissioned material, the latter (known as “jeansa”) being stimulated by this situation.
An occasion like this has already occurred. The Chief Editor of TV Channel STB, Oleksiy Mustafin, personally took the decision to ban the broadcasting of professionally prepared information features, without any explanation to journalists and other members of staff. The features in question concerned possible plagiarism by the Party of the Regions, and a feature about a statement by Viktor Yushchenko about Tymoshenko not having any real estate. Mustafin could have been accused of political campaigning during prohibited periods, and this was quite enough cause to ban the showing of the features.
Thus some provisions of Ukrainian electoral laws concerning mass media regulation during the election process, have effectively restricted the constitutional right to information and freedom of speech, and have therefore run counter to Article 22 § 3 of the Constitution: “The content and scope of existing rights and freedoms shall not be diminished in the adoption of new laws or in the amendment of laws that are in force.” This restriction could have been avoided by applying the above-mentioned norms of the Law on the elections taking into account the need to observe freedom of expression. This did not however take place as can be seen by examples from the election campaign in 2006 and relevant court practice. In almost all court disputes critical statements about candidates for the position of deputy have been treated like campaigning with the according conclusions addressed at the media.
The Law on the Elections of National Deputies and its application presented a situation whereby candidates for the post of deputy had the opportunity to freely debate electoral themes however journalists and media outlets could only cover those debates only on the basis of agreements with political parties (blocs), that is representing their interests. They were not able to freely express their opinions since any critical comments were treated as election campaigning. They were thus forced to refuse to cover the election campaign or resort to strict self-censorship, and the same awaits us during the presidential campaign.
An important issue for the media is the question of liability for violations of electoral legislation. In the Law on the Election of National Deputies there is a norm (Article 71 § 27) which states that the media do not bear responsibility for the content of election campaigning which was placed in accordance with agreements between them and those commissioning the campaigning except in cases set out in paragraphs 5 and 9 of Article 71 (analogous to the above-mentioned paragraphs 3 and 5 of the Law on the Presidential Elections). There is no such norm in the Law on the Presidential Elections, only mention of retractions of inaccurate information if this is demanded by a presidential candidate. Thus the law on the elections imposes very strict conditions on the media’s coverage of the election campaign, however there are no special norms about their liability. Liability for inaccurate information about presidential candidates will therefore be imposed in accordance with general norms on liability in media legislation.
Obviously the Central Election Committee did not consider regulation through the Law on the Elections of election campaigning in the context of human rights and fundamental freedoms. We shall endeavour to consider the issue from this angle. Article 34 of the Constitution states that freedom of expression “may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or supporting the authority and impartiality of justice”. We would note that there is no such aim as “prohibition of election campaigning without an agreement with participants in the election process” and this cannot, in our opinion, be covered by any of the constitutional objectives for restricting freedom of expression. Yet Article 64 of the Constitution stipulates that “Constitutional human and citizens' rights and freedoms shall not be restricted, except in cases envisaged by the Constitution of Ukraine. Section 8 of the Law on the Presidential Elections thus runs counter to the Constitution. This conclusion should have been reached by the Constitutional Court, however the relevant submission was not forthcoming. It would appear that it suits all political forces to have an election campaign where the media cannot say what they think about presidential candidates.
Article 10 of the European Convention on Human Rights and Fundamental Freedoms which defends freedom of expression contains the same list of restrictions as in Article 34 of the Constitution, but stipulates that they must be necessary in a democratic society. In order to consider the question of whether the regulation of election campaigning is in keeping with international standards defending freedom of expression, one must consider the principles which have been formulated by the European Court of Human Rights when reviewing claims involving violation of Article 10 of the European Convention on Human Rights and Fundamental Freedoms.
1. Freedom of expression constitutes one of the essential bases of a democratic society and one of the main conditions for both its progress and the self-fulfilment of each individual. Taking into consideration Paragraph 2 of Article 10, acceptable must be deemed not only “information” or “ideas” which are favourably received or considered inoffensive or received with indifference, but also those which offend, shock or irritate. These are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”.
2. The sphere of restrictions, in accordance with Paragraph 2 of Article 10 of the Convention, with regard to political speeches and debates on issues of public concern is not wide. Moreover, the limits of acceptable criticism are broader in relation to the government than they are towards individuals who do not hold public office or, even towards a politician. In a democratic system the behaviour or mistakes of the government should be subjected to detailed scrutiny not only by legislative and judicial bodies, but also from public opinion.
3. Politicians, of course, have the right to defend their reputation even when they are not acting in a private capacity, however the demands for such defence should be measured against the interests of open debate on political issues since exclusions to freedom of expression must be interpreted narrowly. The boundaries of acceptable criticism are therefore wider with regard to politicians who are appearing in their public capacity than where they concern a private individual. The former inevitably and consciously make themselves available for thorough scrutiny of each word or act, both by journalists and from the entire public, and they should demonstrate the highest level of tolerance, especially when they themselves make public statements which readily lend themselves open to criticism.
4. The principle according to which freedom of expression also embraces information or ideas which can offend, shock or irritate is of course of particular importance in relation to the press. While the press should not overstep the limits established among others “for the protection of the reputation of others”, its task is, nonetheless to pass on information and ideas on political issues and with regard to other issues which are of general concern. The press performs a vital role in democratic society, and this is a factor of particular importance for rulings of the Court. The Court has due regard for the fact that journalists’ freedom can include the possibility of resorting to exaggeration or even provocation. It is for this reason that the national yardstick for understanding this is determined by the interests of democratic society in providing the opportunity for the press to carry out their proper role as of right of “watchdogs of society” in circulating information which reflects serious public concerns. It may be unacceptable in the case of journalists to deprive them via court rulings of the possibility of expressing critical assessments, regardless of whether they can prove that they are correct.
5. In accordance with Article 10 of the Convention the restriction of freedom of expression should be that necessary in a democratic society. Moreover the adjective “necessary” in the sense used in Article 10 has in mind the existence of “urgent public need”.
In the light of the above principles, it becomes clear, in my view that regulation of election campaigning in Ukraine’s Law on the Elections is a disproportionate intrusion into freedom of expression and violates international standards.
Let us assume that the requirement to come to an agreement with the participants of the election process will be removed, and that it will then be possible to hold political discussion without fearing that your media outlet will be closed. However the discussion will have real substance only if the participants are informed, that is, receive access to information about presidential candidates, their political and personal qualities, convictions, state of health, etc, this being the theme of the next section.
2. Can journalists divulge personal information about presidential candidates?
At first glance the question seems rhetorical: they not only can, but must, since their main duty is to inform voters about the election campaign, political programmes and the personal qualities of candidates. Voters are entitled to know everything about those they are voting for in order to make an informed choice. This is, however, only at first glance.
According to Article 34 of the Constitution, the right to information can be restricted by law, including to protect the reputation or rights of other persons and preventing the publication of information received confidentially. Article 32 states that “no one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine”, and prohibits the collection, storage, use and dissemination of confidential information about a person without his or her consent, except in cases determined by law. We thus have conflict between two fundamental values, two natural rights – the right to information and the right to privacy. How is this conflict resolved?
Let us begin with a little about two fundamental principles regarding freedom of information. The first is the principle of maximum disclosure: all information is subject to disclosure, with exceptions being only for a very limiting number of instances. The second principle concerns requirements concerning limitations: information which is not openly available must be clear, defined narrowly and must allow for checks in accordance with the three-tier test. The latter stipulates: information must concern a legitimate objective; its disclosure would cause significant harm to this objective; the harm from divulging this information must outweigh the public interest in having the information. In the given case, the legitimate objective is to protect personal information about candidates for the office of deputy. What is more important here: public interest in receiving the information about the private life of candidates to the post of deputy, or the interest of these deputies in keeping their private life secret? What harm is more significant – that caused the public by the lack of information about candidates, or that which candidates whose personal data is divulged suffer?
We would reiterate that the adjective “necessary” in the sense of Article 10 of the Convention means the existence of “an urgent public need”. What would be the urgent public need in keeping secret personal information about candidates for deputy? In my opinion, in the given instance, there is no such need, and one must unconditionally give greater weight to the public interest in knowing as much as possible about candidates for the office of deputy. All limitations on access to information about an individual should be waived when this individual is standing for elected office. Only then will voters be able to receive full information about candidates and make a well-thought out choice. Strictly speaking this means that a public individual who wants to be elected, loses his or her privacy, and must be ready for any facts of his or her biography and private life to be disclosed. The Law “On information” therefore could do with an article containing, say, the following :
1. Information about publicly elected officials
Information about a person who is standing for electoral office, presently holds it or held it previously does not constitute a State secret or any other secret envisaged by law, is not confidential information and may be published in any case.
2. The publication of information of a critical nature
The publication of accurate information of a critical nature, compromising Ukraine’s State policy, the activities of its bodies and public officials in the eyes of the public cannot be grounds for holding a person liable.
The publication of accurate information of a critical nature, compromising the activities of the President of Ukraine does not constitute the encroachment on the honour and dignity of his or her person envisaged by paragraph two of Article 105 of the Constitution.
Public criticism of the actions (inaction), as well as of decisions made by the President, the Prime Minister, ministers of the Cabinet of Ministers and other officials in Ukraine cannot be grounds for holding a person liable.
Yet there is nothing like this in Ukrainian legislation and in order to continue this review one needs to answer the question: how is information about an individual (personal data) defined? Usually in laws on personal data protection, such information is divided into data of a general nature (first and last name, date and place of birth, citizenship, place of residence) and sensitive personal data (medical information; ethnic origin; attitude to religion; identification code or numbers; personal symbols; signature; fingerprints; voice recording; bank accounts; property; tax status; credit record; criminal record, and other measures of criminal, administrative or disciplinary liability; results of exams, professional tests, etc). It is prohibited by law to gather, use or circulate without a person’s consent specifically sensitive personal data.
There is no law in Ukraine on personal data protection. Personal data is partially defined in Article 23 of the Law on Information which states that “Basic information about the person (personal data) shall include: nationality; education; marital status; religion; state of health; address; date and place of birth.” This list is clearly not exhaustive yet there is no further specification of the concept of personal data. Article 23 prohibits the collection of information about an individual without the latter’s prior consent, with the exception of cases allowed fro by law. The Ruling of the Constitutional Court of Ukraine from 30.10.1997 No. 5-zp (on the case of Kostyantyn Ustymenko) specified this norm: “Part four of Article 23 of the Law of Ukraine “On information” should be understand as prohibiting not only the collection, but also the storage, use and dissemination of information about an individual without his or her prior consent, aside from cases allowed fro by law, and solely in the interests of national security, economic well-being and human rights and freedoms. Confidential information, in particular, includes information about an individual (education, marital status, religion, state of health, date and place of birth, property owned and other personal data)”
Thus Ukrainian legislation lacks any clear and unambiguous definition of personal information. We can observe the ensuing clash between the right to information and the right to privacy. Article 47 of the Law “On information” envisages liability for the use and dissemination of information about the personal life of an individual without the latter’s consent by a person who holds the relevant information in his or her official capacity. Article 3 of the Law on the Press directly prohibits the use of printed mass media sources for “intruding in citizens’ personal lives”. The law does not admittedly give a definition of this concept. The Law “On television and radio broadcasting” makes it illegal for television and radio broadcasting organizations to publish information about the private lives of individuals without their consent if the said information is not publicly necessary (paragraph and Article 59). The concept “publicly necessary information” is also not defined by the law, and disputes as to whether the circulated information is in fact publicly necessary are adjudicated by the courts.
In accordance with Article 182 of the Criminal Code, punishment in the form of up to three years limitation of liberty is envisaged for the illegal collection, storage, use or dissemination of confidential information about an individual without the latter’s consent or the disclosure of this information in a public speech, a work which is publicly demonstrated, or in the mass media.
Whether the right of the public to have information about a public individual outweighs the right of the given individual to keep information about his or her private life secret, is decided by the court. The three-tier test is partially reflected in Part 11 of Article 30 of the law “On information”: “Information on restricted access may be disseminated with the consent of its owner if the information is of public significance, that is, if it is the subject of public concern and if the right of the public to know this information overrides the right of the owner to its protection”. However we are not aware of any occasions where the courts have made use of this norm.
One should note some changes in the position on candidates’ openness. Previously the Central Election Commission [CEC] considered candidates’ declarations regarding their property and income and that of members of their family, and the autobiography submitted together with other documents for registration, to be confidential information although this is clearly necessary information for the public. In 2006 and 2007 the CEC restricted access to this information. Article 50 of the Law on the Presidential Elections obliges the CEC to publish property and income declarations from presidential candidates and members of their family in the official newspapers “Holos Ukrainy” and “Uryadovy Kuryer” and post them on the CEC official website. However personal data from the question forms and autobiography which the candidates fill out themselves and which contain information about education, work, public work, party affiliation, still current criminal record, etc, remain confidential.
In the West this clash is most often resolved in favour of access to information about the personal data of public politicians. There is free access to information about the state of health of the President of the USA (this issue for us is of relevance given the state of health of Viktor Yushchenko following his poisoning.)
One can thus conclude that Ukrainian legislation and practice do not correspond well with European norms.
We must know everything about people who are standing for election as President, to parliament or other elective bodies, and our political establishment needs to pass through such a purification process as checking on personal involvement in communist crimes. We are not even talking of lustration proper, but rather of a checking of information, that Mr X did not personally take part in the persecution of dissidents, overt or secret. Such a process of scrutiny was carried out in the majority of post-communist countries of Central and Eastern Europe, and it helped raise confidence in politicians and a mood of conciliation within society. It is therefore necessary to create the mechanisms for access to the archives of the KGB and to receive information about the participation of this or that individual in political repression.
Similarly information regarding any criminal record of candidates or any criminal investigations is not made public. And when media outlets provide information about such matters, they risk being taken to court and demands being lodged that they be closed until the elections are over. This has been seen in the conflict over the publication by the Police of information about those people on the candidate lists who figure in criminal cases. .We need therefore to consider another question.
3. Can public officials divulge personal data of candidates for the office of deputy?
Article 3 of the Constitution declares the main duty of the State to be “to affirm and ensure human rights and freedoms”. Therefore such a duty is also to ensure the right to information guaranteed by Article 34, and in this way public officials are bound to make available information which is in their possession. Yet Article 64 § 1 of the Law on the Presidential Elections unambiguously prohibits public officials and civil servants from State executive bodies and bodies of local self-government from taking part in election campaigning. The appearance of such a norm was the outcome of the unfortunate practice of using administrative resources which we all witnessed during the 2004 elections. Yet is the publishing of information about candidates for the office of deputy always election campaigning?
Current practice indicates that the courts consider the publication of any negative information about candidates for the post of deputy to be election campaigning and the ban on public officials carrying out election campaigning overrides any considerations in favour of protecting freedom of expression. It would appear that the Central Election Commission is also inclined to take the same point of view (cf. the Resolution of the CEC from 23 February 2006 No. 722 regarding the complaint lodged by the electoral bloc “NE TAK!”) In my opinion this is an outcome of the consistent actions of the Minister of Internal Affairs, Yury Lutsenko and his staff, who throughout the entire 2006 election campaign constantly and insistently made public information about the criminal records of any candidates for the office of deputy, as well as any criminal investigations regarding these people or cases where they were wanted by the Police for questioning, despite judgements issued to restrain them by the CEC and the courts.
Who then is right? The staff of the Ministry of Internal Affairs (MIA) or the candidates for the office of deputy from the candidate lists of a number of parties and blocs, or the courts who are allowing such claims brought against the actions of the police?
In my opinion, Yury Lutsenko, as a public official was simply obliged to inform the voters about the involvement of candidates for the post of deputy in criminal cases which were being investigated, so that the voters could make an informed choice. Without going into the issue of moral principles, he was forced to such a step by Article 3 of the Constitution, the demand to conscientiously fulfil his state duties (Article 5 of the law “On the Civil Service”), the obligation to avert crimes, to ascertain the reasons and conditions which encourage the committing of offences, to use, within the boundaries of his authority, measures to eliminate such causes (Article 10 of the Law “On the Police”). It is clear that people who figure in criminal cases under investigation may create a potential hazard if they are elected to the Verkhovna Rada of Ukraine and are protected by immunity status. The Minister of Internal Affairs therefore simply had no choice but to warn voters about such candidates, and the assertion of the court that such actions are a violation of Article 10 of the Convention are, I believe, mistaken. To classify Lutsenko’s actions as election campaigning, the court would need to prove that he had tried to sway voters towards voting for or against a specific political party or bloc.
A similar clash could arise also during the presidential election campaign in 2009-2010. Imagine that representatives of the law enforcement agencies have information about a crime committed by one of the candidates for President or with his or her participation. In my opinion it is necessary to inform the public and to demonstrate the truth of ones words in court.
4. Amended norm on moral damages – a new noose for journalists?
On 17 November the Verkhovna Rada passed a draft law “On amendments to Ukraine’s Civil Code on compensating moral damages” (reg. No. 4332 from 08.04.09) which makes amendments to Article 23, Item 4.2. This has now added as one of the grounds for moral compensation “for denigrating the honour, dignity, as well as the business reputation of an individual or legal entity” “including by circulating inaccurate information”. Article 23 § 3 now reads:
“3. Moral compensation is paid in money, other property in another way. The amount of monetary compensation for moral damages is determined by the court dependent on the nature of the offence, the status of the person who suffered the damages, the nature and means by which the inaccurate information was circulated, as well as taking into account other circumstances which have considerable significance. In determining the amount of monetary compensation for moral damages the need to be reasonable and fair is borne in mind, as well as the material position of the person or entity inflicting such damages”.
As a result of these amendments, opinions were expressed in the media to the effect that the changes were aimed against journalists and that a Presidential veto needed to be sought. These views were expressed by both journalists and media lawyers. Thus for example, the Editor in Chief of the “Observer”, Albert Feldman, wrote”: “On 17 November yet another law was passed where the level of punishment depends on the status of the victim (if a deputy suffered, then the punishment is greater)”. “Analysis of the amendments to the Civil ode shows that deputies have decided to mount a reliable material obstruction against criticism aimed at them and their leaders – presidential candidates”., According to Taras Shevchenko, Director of the Media Law Institute: “Deputies are attempting to make money out of journalists. According to this law, officials will be able to ask for a greater amount of compensation for moral damages in suits against journalists, citing their special status.” One can cite many such examples.
They have perceived the requirement to determine the amount of moral damages dependent on the status of the person who suffered the damages in the same way as the deputies who voted for the draft law. As the Head of the parliamentary Committee on Freedom of Speech and Information, Anna German told the “OstroV” website: “I think it is fair that if, say, this is the President or the Prime Minister, their rates are very high and they have expended a lot of effort to reach their position. And a person who unfairly tries to knock them from the heights, should compensate such a person accordingly”.. The view that the new law will be used in this way is shared by her First Deputy, Andriy Shevchenko, who did not vote for the amendments. “This draft law flagrantly violates the principle of equality of citizens before the law. It turns out that it costs more to offend a deputy, than a teacher, but cheaper than to offend the President. We again have the situation where all are equal, but some are more equal. … These changes will undoubtedly be used against the media. Now Ukrainian journalists will be forced to write only horoscopes and weather forecasts – for any statements aimed at the authorities they can simply be dragged through the courts. And through the Ukrainian courts at that”. .
Obviously if judges also interpret the amendments in this way then the entire practice of determining moral damages could change significantly. However in my view this will not happen and the amendments do not in fact pose a danger to journalists. Let’s look at the law passed more carefully.
The addition of Article 23 Item 4.2 changes nothing: courts were already awarding moral damages for denigration of honour, dignity and business reputation through circulation of inaccurate information. The court must establish whether the information was accurate or inaccurate, and if the latter, whether the journalist acted with ill intent.
As for the new wording in Article 23 § 3, determining the size of damages depending on the person’s status can be interpreted in an entirely different manner to that seen among deputies and journalists, but rather in the principles of the European Court of Human Rights, reiterated in many judgments regarding Article 10 of the European Convention. Worth repeating this once again!
Politicians clearly have the right to defend their reputation, even if they are acting in a private capacity, however the requirements for such defence should be weighed against the interests of open discussion on political issues since exceptions from freedom of expression should be interpreted narrowly. Therefore the boundaries of acceptable criticism are broader with regard to politicians who are speaking in a public capacity than with regard to a private individual.
According to Article 17 of the Law “On enforcement of judgments and application of European Court of Human Rights case law”, European Court practice is a source of law in the national legal system. This encourages Ukrainian courts to determine level of moral compensation bearing in mind the status of the victim specifically from the point of view of the European Court of Human Rights: if it is a private person, then the compensation should be greater, if a public individual – then less.
An undoubtedly positive feature of the new version of the law is the requirement to bear in mind the material position of the person who caused the damage. This norm makes it possible for the counsel for the journalist or media outlet to demand a reduction in compensations dependent on the journalists’ or media outlet’s income.
A flaw of the legislators was to exclude the requirement to bear in mind the “degree of guilt of the person who inflicted the moral damages if the blame is the grounds for compensation”. However this mistake does not annul the principles of civil law! The courts will regardless work on the basis of Article 1167 of the Civil Code in accordance to which moral damages caused a person through incorrect decisions, acts or inaction shall be compensated by the individual who inflicted them if they were inflicted through his or her fault, except in cases established by law.
There remains one other question: from Article 23 § 3 they took out consideration of the “depth of physical and psychological suffering, deterioration of the capacity of the victim or deprivation of the possibility of exercising them”. It effectively comes about that in determining the size of moral compensation they have removed causing a person to be cripple. However this is not in fact the case since the authors of the law did not touch Article 23 Item 1.2 which states that moral damages consist of “physical pain and suffering which an individual suffered due to being crippled or other damage to health.” While in Article 1167 again, it is stated that in the case of a person being crippled due to a source of heightened danger, moral damages are compensated regardless of guilt.
Thus the new version of Article 23 should not impinge on court practice if judges are guided by the law and could even improve it, although it does not appear as though the authors of the draft law considered that. However it seems a pointless task to try to fathom the motives of National Deputies.
Vsevolod Rechytsky: Freedom and State – Kharkiv Human Rights Protection Group, 1998