An event awaited 18 years has finally taken place: the Plenum of the Supreme Court has issued Resolution No. 1 “On court practice in cases defending the honour and dignity of individuals, as well as the business reputation of individuals and legal entities”.
The previous Resolution – No. 7 from 1990 – with a similar name, despite constant cosmetic changes over the years, was hopelessly out of sync with current legislation and the development of social relations. It preceded, after all, not just a huge number of vital laws and codes, but the adoption of Ukraine’s Constitution and ratification of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

A new Resolution was therefore undoubtedly needed, especially given that with the workload on ordinary courts, judges quite often confine themselves to reading only the Supreme Court Resolution.

Positive notes

In our view the main thing in Resolution No. 1 is that the Plenum directly indicates to judges that they should apply the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) as a source of law (Item 2). While this obviously follows from Article 17 of the Law “On enforcing judgments and applying the case law of the European Court of Human Rights”, judges, especially on the outskirts, have difficulty coping with such radical shifts, since we were all once taught that in our legal system a precedent is not a source of law.

It is also important that a reminder is given in Item 21 that public figures are less protected from criticism than ordinary individuals. Admittedly the Plenum for some reason does not demand that judges apply European Court precedents (Lingens v. Austria, Oberschlik v. Austria, Prager and Oberschlik v. Austria, Castells v. Spain, etc), which are a source of law for us, but recommendations – the Declaration on freedom of political debate in the media of the Council of Europe’s Committee of Ministers from 12.02.2004 and PACE Resolution No. 1165 (1998) on the Right to Privacy (although the right to privacy and to honour and dignity are far from the same thing).

The Plenum has finally also directly stated that an apology cannot be a way of reinstating violated rights (Item 26). This is, after all, a category of morality, not of law. The court cannot order somebody to apologize, just as it cannot force a person to respect or love another. Unfortunately the courts (especially first instance courts) fail to understand this and allow court suits demanding an apology.

It is useful to have a clear focus on the fact that cases defending honour, dignity and business reputation cannot be examined according to the rules of the Code of Administrative Justice since such disputes do not have a public legal nature even where someone in a position of power is one of the parties. There have, unfortunately, been cases where such suits have been accepted for consideration by some district administrative courts. For example, the District Administrative Court in Kyiv in September 2007 allowed a suit lodged by Yulia Tymoshenko, then simply leader of BYUT, as well as three members of this bloc against member of the Party of the Regions Inna Bohoslovska. The information circulated by the latter was found by the court to have been inaccurate.

It is very good that judges have finally had it directly pointed out that it is far from always the case that publications’ editorial offices are legal entities (Item 9). I have known only two cases where a judge though to check the legal status of the editorial office of the respondents, and another twenty or so where they paid no attention to this point. Often judges (even of appellate courts) simply don’t understand that a certificate of registration of a printed media outlet is not a substitute for a certificate of registration of a business person or entity. Frankly, in some hopeless cases it has been necessary to consciously use this, albeit losing, but gaining a judgment which can’t be enforced with the respondent legally not existing. One could, however, argue about why the Plenum has stipulated that the founder is responsible for the actions of an editorial office which is not a legal entity, or a structural part of such an entity. The beginning of the thought process was correct, with an institution which prepares and produces a printed work having to answer for it, however who says that such preparation is carried out by the founder, and not, for example, the publisher? Legislation does not clearly address this issue. Article 41 of the Law “On Printed Mass Communication Media (the Press) in Ukraine”, names as potential respondents the founder, publisher and even the distributor. The Plenum however at its own discretion has “assigned!” as respondent only the founder.

An extremely positive element is that the Resolution indicates the need to distinguish between assertions about facts and value judgments. This norm has been in the Law on Information since 2003. Although this is some move towards European standards of freedom of expression, the legislators immediately took a retrograde step saying that offence can not be used as protection guaranteed for the rest of value judgments. The European Court of Human Rights was forced specifically for Ukraine to reiterate in the judgment “Ukrainian Press Group v. Ukraine”, from 29.03.2005, that value judgments could easily be both insulting and shocking, if they have sufficient factual basis. For example, the Court found in the 1997 case Oberschlik v. Austria (2) that the word “idiot” in a specific article “An Idiot, not a Nazi” could not be considered libellous or insulting, but an element of political polemics. Our Plenum has, unfortunately, yet again stated that if a subjective view is expressed in a brutal or denigrating form, then the respondent may be ordered to pay moral compensation (Item 19). Thus Resolution No. 1 although it calls for European Court of Human Rights case law to be used as a source of law, itself in this case does not do so.

It is also to be welcomed that the Plenum has finally touched on procedural issues regarding the retraction of information contained on the Internet (Item 12). For technical reasons the Internet enjoys a much greater level of freedom of expression than printed or audiovisual media outlets. It is no secret that some Internet resources are created for the specific purpose of discrediting a particular individual or legal entity. A number of procedural issues arise in court cases of this nature, first and foremost, determining the proper respondent. The Plenum obliges the claimant to themselves establish the author or owner of the website which should be held to answer. There are two difficulties here. Firstly, from a legal point of view, the website may not have an owner and may therefore simply be part of the virtual realm. Clearly the Plenum has in mind the owner of the domain name. Secondly, in order to establish such an owner, sometimes several court proceedings are required. The author of this article, for example, has had on occasion to lodge appeals against the provider, and the registrar of the domain name www.temnik.com.ua in order to force them to name the owner of the domain (the proper respondent). And it is not guaranteed that such suits will be successful. In principle, one can found out about owners of a domain on the Ukrainian segment of the Internet at https://hostmaster.net.ua/?domadv however nobody is liable for the accuracy of the information there.

The Plenum has partially addressed this problem by establishing that information about the owner of a website (domain name) may be required through the Civil Procedure Code of the administrator of the system for registering and recording domain names and addresses of the Ukrainian segment of the Internet.

The Plenum has left out the issue of liability for circulating inaccurate information on Internet forums and guest books. Here the owner merely places a blank notice board where authors can freely express their views. Should the owner of such a “notice board” be answerable for the content of the notices since after all there is no procedure for providing consent for its publication? One would think that it would be virtually impossible to provide the owner’s guilt. However in such situations where there is no clarity, there have already been unfortunate examples in our closest neighbours. In the Russian Federation a law suit brought by “Troika Steel” was allowed against the limited liability company Megasoft. An unidentified individual had placed “Troika Steel” on a “blacklist of metallurgic companies” on the Megasoft resource, and moral compensation from the latter was ordered at appeal and cassation levels. In the West in such cases they endeavour to hold the actual authors of the information in dispute liable. In the USA in the year 2000 the brothers Raymond and Richard Constancio, as well as Yefraim Morris, were charged with having 15 months earlier placed on the Yahoo Financial Bulletin 16 thousand compromising messages under various nicknames about the company Biomatrix, this reducing the value of its shares from 35 to 21 dollars. It was Yahoo which helped find the offenders through their IP, although only when this was ordered by the court. In Ukraine no precedent has yet been created.

Another positive aspect is the reminder to courts of the need to bear in mind Constitutional Court Judgment from 10 April 2003 No. 8/2003. According to this statements to the law enforcement agencies reporting violations of citizens’ rights cannot be considered as circulation of information smearing honour, dignity or business reputation, or harming a person’s interests. Admittedly the Plenum slightly edited the Constitutional Court Judgment: if the author of the report to the law enforcement agencies was not guided by motives of public duty or protection of his/her rights, then s/he should answer in accordance with the law for giving the law enforcement agencies incorrect information (Item 16).

It is also good that the Plenum has clearly set out the final deadline for enforcement of a court order for retraction in the media, this being no more than a month after the ruling came into force. It is not so good that this timeframe is not passed on any legislative act. If the Plenum had paid attention to the content of Article 1 of the Law “On Printed Mass Communication Media (the Press) in Ukraine”, they would have understood that some publications in fact only come out once a quarter or once a year, so how can they publish a retraction within a month?

One can also welcome the instruction of the Plenum on establishing moral damages: “the amount of pecuniary compensation awarded should be commensurate with the damage caused and should not lead to the media outlet being forced to cease its activities”.. (Item 27) It does, admittedly, remain a mystery which specific law the Plenum was providing explanation for in this way. A draft law by Y. Pavlenko and S. Pravdenko with this wording was indeed tabled in the Verkhovna Rada six years ago, however it was not passed.

The bad points

One cannot ignore some failings of Resolution № 1. Sometimes it is in breach of current legislation, while sometimes it contradicts itself.

It is unclear why the Plenum ignored Article 302 of the Civil Code in favour of Article 42 on the Press, stating that only the latter contains an exhaustive list of grounds for waiving liability for publication of inaccurate information (Item 22). After all, Article 302 of the Civil Code also releases from liability for publishing information from any official sources (information from public bodies or bodies of local self-government, reports, shorthand records, etc).

In our view, the explanation of the right of reply can also be debated. The Plenum concluded that only in retraction is the circulated information recognized as inaccurate, while in exercising the right of reply a person has the right to express their point of view without saying that the information is inaccurate (Item 5). Certainly in the Committee of Ministers of the Council of Europe Resolution from 1974 “On the right of reply – the position of the individual in relation to the press”, this was how it was envisaged: any individual or legal entity spoken about in the press had the right of reply regarding information they considered inaccurate. However the Ukrainian legislators have taken another path, envisaging the right of reply in Article 277 of the Civil Code – “retraction of accurate information”) Article 37 of the Law “On Printed Mass Communication Media (the Press) in Ukraine” directly states that retraction can be in the form of a reply.

The interpretation by the Plenum of paragraph 3, Item 4, Article 277 of the Civil Code is also controversial, this stating that if the circulator of inaccurate information is unknown, the onus of proving that the information is wrong falls upon the claimant. What in that case has happened to the “presumption of good faith” enshrined in Item 3 of the same Article: negative information about a person or entity is considered untrue until its circulator proves the opposite? According to the Plenum’s logic, if the circulator has concealed himself well, then the negative information is already not considered a priori incorrect? This conclusion of the Plenum would seem rather debatable.

Unfortunately Resolution No. 1 does not mention the provision of Article 17 of the Law “On state support of media outlets and the social protection of journalists”: “The journalist and / or media outlet shall be waived of liability for circulating information which does not comply with the truth if the court establishes that the journalist acted in good faith and did carry out a check.” After all such a norm is in keeping with a whole number of precedents from the European Court of Human Rights.

There are also some faults with terminology. The Resolution for some unknown reason three times replaces the constitutional term “inaccurate” with the word “untruthful”. They are not entirely synonymous.

[Viacheslav Yakubenko’s point here is better explained: the term “dostovirna” is literally translated as “authentic”, “reliable”, with the opposite being, therefore, “inauthentic”, “unreliable”. The terms sound strange in English so I have used “inaccurate”, as opposed to the term he mentions being used three times “nepravdyva” – untruthful. The author says that the latter is absolute and objective, while the term “nedostovirna” is a subjective characterization of the information at a given moment. Perhaps the point is that the first may be wrong, but given in good faith. He cites the example of reports in 2002 of a terrible crime apparently involving the rape and murder by a 14-year-old of his sister, and similar cases reported in the media later. All cases were reported in good faith although it was in fact established in 2007 that the crimes had been committed by the “Ukrainian Chikatilo” – Serhiy Tkach. Thus the information provided by the media had seemed reliable and only later proved false (translator).

It might be more conscientious to establish the circle of individuals who can lodge an appeal in the event of inaccurate (nedostovirna) information being circulated about a person. Besides the person him- or herself, Article 32 of the Constitution and Article 277 § 1 of the Civil Code give this right only to members of the family, and not to relatives and other interested parties, as is stated in the Resolution (Item 6 § 1). Clearly another norm is mixed in here, on the right to have information about a person deceased refuted (Article 277 § 2 of the Civil Code). However the Resolution speaks of this more correctly in the next paragraph. We would remind the reader that the Supreme Court Plenum is not authorized to create new norms of law.

The fact that the Resolution was prepared in haste can also be seen from a rather comical detail: the word “inviolability” is used with an error three times. (The difference would roughly be between the legal term “inviolability”, and a term with a very different scope of meaning, more or less “untouched” or virginal (translator).

General Conclusion: Supreme Court Plenum Resolution No. 1 is a right step towards balancing the constitutional right to freedom of thought and speech, the right to freely express ones views and convictions on the one hand, and the right to respect for human dignity and judicial protection of the right to have inaccurate information refuted, on the other. At the same time, it requires improvement and harmonization with current legislation.