Barricade Amendments May Build New Barricades

A young journalist was so frightened he spent a sleepless week; after his feature about corruption in the fuel energy sector the court levied a fine of UAH 500,000 on his newspaper, allegedly for “moral damage” sustained by the claimant, manager of one of the enterprises in that sector, along with UAH 50,000 to be paid by that journalist. His being so scared would seem natural, as did his next move when he turned to IREX ProMedia’s Legal Protection and Education Program (LPEP) for help. To collect the fine the court could sequester his property.

I thought about him recently as I joined Lviv journalists in the shadow of their postmodern barricade on European Square. He is a typical example of a problem journalists have been fighting to solve in Ukraine: the unpardonable burden of damages being heaped on the freedom of expression and the press.

And so I was especially pleased to read that the Wave of Freedom journalists “seek to have changes introduced in the law which will prevent further persecution.” Indeed, the legal framework of journalism in Ukraine cries out for change (improvement), so the media can have their freedom of expression and the right to keep the public informed effectively protected.

However, an analysis of changes proposed by the barricade group raises serious doubts about whether they will actually serve to improve the situation. The reverse could unfortunately be the case. To understand why, one has to look up recent trial files involving individual journalists and media.

“Slandering honor and dignity” in Ukrainian law corresponds to the British and American notion of defamation, it being a misdemeanor. A person, on discovering that someone is spreading untruthful information him or her, smearing his or her public image, is entitled to demand retraction, explanations or claim damages. Whoever spreads such damaging information must prove its authenticity or be made answerable under the law — even in case the error was made in good faith.

These norms impose an enormous burden on the press for the simple reason that the court examines evidence and invokes the law to settle a given dispute, not the most effective way to establish what has exactly happened. In fact, the commonly applied formula “conflicts with the facts/evidence” is legal fiction framed by any such evidence as may be provided in a lawsuit. If the defendant cannot prove the authenticity of derogatory information he is certain to lose the case, yet this certainly does not mean that such information is false. It is just that the defendant was unable to produce sufficient evidence. As a result, the print media do not publish even truthful information because they will not have sufficient proof in court. In April, SOCIS polled the editors of some 300 periodicals with the largest print run, as requested by LPEP. 59% of the respondents were involved in libel lawsuits, so that now 21% will not touch a single political subject or figure no matter how well substantiated, 18% will not publish anything on crime, and 16% will keep silent about corruption.

Proceeding from such traditional self-censorship, advanced democracies (interestingly, except Great Britain), made changes in the defamation clauses, introducing the issue of guilt. Thus, in the United States a public figure can win a libel case only if that person can prove that a given journalist or editor knew he was spreading untruthful information “with knowledge that it was false or with reckless disregard of whether it was false or not.” As a result, US politicians seldom sue newspapers. In fact, even a private individual must prove that a given journalist was at least careless in writing an injurious article. In Germany also the press cannot be held liable for alleging facts that prove wrong, unless proven to have done so with malicious intent, especially when such information concerns issues of utmost public importance. A similar standard is practiced by the European Court of Human Rights.

The Ukraine media would have a right to disregard all this as irrelevant but for one thing. Such standards do exist in Ukraine, they are laid down in the Constitution and other laws. For example, Article 17 of the law of Ukraine On State Support of the Media and Social Protection of Journalists reads that an official [executive/public figure/civil servant, etc.] suing a journalist or a printed media, claiming “moral damage” [e.g., suing for libel], can win the case only in the presence of malicious intent on the part of the author.

If so, why do such “officials” continue to harass the press with libel suits? Because the press — and even worse, those representing it in court — have poor knowledge of the law. Quite often such people are not even trained lawyers (as a US lawyer, I consider this absolutely unpardonable), and even if they are they seldom have sufficient command of the information law which is very sophisticated and new for Ukraine.

Since the constitutional principle of controversy means that every party to a lawsuit must present evidence in order to win the case, Ukrainian courts pass judgment without using this norm but relying on evidence supplied by the plaintiff and defendant, and such evidence often turns out to be insufficient.

Of course, the court can be pressured, especially in a case where the plaintiff pulls rank. Yet, when a media organ is misrepresented in court, whatever unlawful factors activated to tamper with adjudication meet no resistance whatsoever. In such cases it is virtually impossible to distinguish between political pressure and failure deservedly sustained by the press.

Over the past 18 months, LPEP has assisted the press in over 170 libel lawsuits. No other law firm in Ukraine is likely to boast such experience. I can say the Constitution and other laws of Ukraine provide powerful means of defending the media, especially when handled by a trained and aggressive lawyer. If you lose a case at a district court you can win in the end in cassation or on appeal. Incidentally, I am surprised to note that the press ignores the fact that the Supreme Court, in the exercise of its review powers, regularly enters protests (and thus overrides) court rulings involving large sums as moral damage.

There are obvious prerequisites of the effectiveness of the law: (a) the legal norms are known, and (b) they are applied in certain lawsuits and those demanding changes often disregard the fact. And if such changes are made they will simply add to the norms being ignored because the press (and lawyers) never refer to them in court.

Naturally, the press will not remain silent about the libel compensation ceiling proposed by their barricade colleagues. Outwardly, this limitation seems a simple way to reduce judiciary pressure on the freedom of expression. But — there are a lot of buts. The proposed amendment relates only to newspapers. As for the electronic media and their authors — like that young journalist who was so frightened he could not sleep, the amount that can be fined remains unlimited.

The proposed changes would give rise to an even larger number of problems. Under the law, the press must publish retractions or allow the injured party to respond only when disseminating untruthful information. The barricade amendments would provide for another right, namely to respond to truthful information. Say, a People’s Deputy, believing that a newspaper article about Verkhovna Rada is defamatory to him will have a right to demand free room on its pages to voice his own opinion. If refused he could sue the newspaper, claiming moral damage. If this happens newspapers will not have room even for news and ads. They will be jammed with responses.

On the other hand, would establishing an upper libel compensation margin be so horrible? A newspaper can be bankrupted, jamming it with responses to truthful information, and there is another potential danger. Politically motivated libel trials are not aimed at discussion. Their sole purpose is to close a given newspaper or silence it about certain things. And they do it if not by claiming a million hryvnias worth of damages then by suing it a million times, claiming one hryvnia in damages every time. And the barricade amendments would give them more legal grounds to do just that.

This danger is supposed to be warded off by a clause in the barricade amendments, reading that “the total amount of all compensations during the year shall not surpass that of a given printed media revenues throughout the previous year.” Granted, but only with regard to the right to respond to truthful information. Yet for a person suing a newspaper that, due to previous libel suits, has reached above set margin, this norm would mean a violation of that person’s constitutional right to claim moral damage caused by untruthful information. This cannot be regarded as fair play. Also, any party, the press included, which demands justice for itself must, treat all others with as much justice. Finally, the proposed compensation ceiling ignores the issue of guilt, but I will never accept a situation in which a newspaper erring in good faith finds itself on the same legal level with one spreading maliciously injurious information. This would only foster incompetence and abuse.

Problems will also be caused by the mechanism of establishing the libel compensation ceiling. I believe that 200 untaxed minimum citizen’s incomes is too little in a proven libel case and too much in the case of a bona fide mistake. Now if you relate the compensation ceiling to the newspaper’s income, a private plaintiff will be in a position to meddle with the paper’s finances and do so with even greater diligence than the tax inspector. It is easy to imagine what a vast range of opportunities this will offer such a newspaper’s rivals. An interrelationship between the compensation ceiling and press run would seem less risky, yet the draft amendment should be more specific.

There are other aspects about the proposed amendments, but covering them would take far more room than a newspaper article can allow. I will broach just one, criminal prosecution for interference with journalistic work. A good idea, but such interference is done mostly by people vested with authority, who rub shoulders with the prosecutors that will handle such cases. It seems best to let the journalists have a clearly formulated right under civil law to bring legal action against such people and claim moral damage.

Lawmaking is a special legal art, demanding very cautious foresight combined with an understanding of public, often conflicting interests. Although they are right in focusing on the usage of the laws by the courts, the barricade amendments are bound to create more problems rather than solve the existing ones.

I do not object to circumspect amendments, but I would like to stress that changing laws is not the main problem in the legal framework of Ukrainian journalism. It is the way the courts interpret and apply the laws. This problem can be resolved by the Supreme Court when deliberating a resolution on court hearings involving the media shortly.

As for the laws, the young journalist I have mentioned at the beginning can now rest his mind and sleep peacefully. Thanks to a good lawyer, the court decision was overridden precisely by applying some of the existing legal norms.

EDITOR’S NOTE:

The author is a trained lawyer; currently in Kyiv as Los Angeles Times correspondent and manager of IREX ProMedia’s Legal Protection and Education Program for journalists.