Case Summary and Outcome

The Fifth Section of the European Court of Human Rights recognized an amicable settlement between France (the respondent State) and Ms Anna Chesanovska (the applicant) in a case concerning Chesanovka’s claim that the French domestic courts violated her right to freedom of expression by sentencing her to pay approximately 4,000 euros for defaming the director of a documentary film about the 2014 Ukrainian revolution. Ms Anna Chesanovska was a Ukrainian-language translator hired by director P.M. to translate several materials for a documentary film about the 2014 Ukrainian revolution. In a post on the “Comité Ukraine” blog and an article published on the Huffington Post website, Ms Chesanovska characterized the director as “biased,” the documentary as “propaganda” and said it plagiarized footage from another Ukrainian documentary, while claiming that the editing misrepresented the actual content of the testimonies of some of the people interviewed. Mr P.M. sued Ms Chesanovska in the French courts for defamation. The French courts ordered Ms Chesanovska to pay Mr P.M. 2000 euros in damages and 2000 euros to publish the judgment in a French newspaper or on a French website and to cover legal costs and expenses. Ms Chesanovska brought an application against France before the European Court of Human Rights arguing that the right to freedom of expression protected her criticism of the documentary because it raised issues regarding Ukrainian geopolitics in the context of a debate of great public interest. Chesanovska also argued that other experts in the field supported her criticism of the documentary and that the fines ordered by the French courts were disproportionate. For its part, France proposed an amicable solution whereby it offered to pay Chesanovska 15,000 euros, which she accepted. The ECtHR found that the agreement reached by the parties was in conformity with Article 39 of the European Convention on Human Rights and respected human rights. Thus, it decided to recognize the friendly settlement without ruling on the merits of the application.

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Facts

On October 2015, Ms Anna Chesanovska (hereinafter “the applicant” or “Ms Chesanovska”) was employed as a Ukrainian translator by the French television agency PLTV (“Premières Lignes Télévision”) to translate several Ukrainian-language materials for the journalist and director P.M., which were going to be used for his documentary entitled “Ukraine: the masks of the revolution” (“Ukraine: les masques de la révolution“). The documentary aimed to show the allegedly decisive role of extreme right-wing paramilitary units in the 2014 Ukrainian revolution. On 1 February 2016, the documentary was broadcast on “Canal +”. 

On 3 February 2016, Ms Chesanovska published a post entitled “Ukraine: the masks of revolution or manipulation in the editing process” (“Ukraine: les masques de la révolution ou la manipulation dans le processus de montage“) on the blog “Ukraine Committee” (“Comité Ukraine”), hosted on the website of the newspaper Libération. In this post, the petitioner stated that P.M.’s documentary was propagandistic and not objective. Similarly, the petitioner stated that the documentary deliberately intended to manipulate public opinion by misrepresenting the statements of the interviewees. 

On 9 February 2016, Ms Chesanovska published a second article entitled “French author of polemical documentary on Ukraine accused of plagiarism” (“Le Français auteur du documentaire polémique sur l’Ukraine accusé de plagiat“) on the “Huffington Post” website.* In this article, Chesanovska noted that even before the release of the documentary, a major controversy had arisen over the lack of objectivity and journalistic ethics of its director, P.M. She also pointed out that the documentary contained serious factual errors and its editing was manipulative, which was criticized by various experts on Ukrainian affairs. She also stated that P.M. had been accused of pro-Russian propaganda. Chesanovska also stated that P.M.’s documentary had used several sequences from the film “Tout s’embrase“, about the revolutionary events of 2013 and 2014 in Ukraine, without the permission of its producer, Ukrainian citizen Yulia Serdyukova.

On 29 March 2016, P.M. filed a lawsuit for public defamation against Ms. Chesanovska arguing that the post of 3 February 2016 and the article of 9 February 2016 had damaged his honour and reputation. P.M. argued that the petitioner’s criticism violated Articles 23(1), 29(1), and 32(1) of the French law of 29 July 1881 on the freedom of the press. Indeed, P.M. explained that the French law on freedom of the press prohibits defamation that offends a person’s honour. 

On 29 June 2017, the 17th Chamber of the Court of Paris ruled that Ms Chesanovska violated Articles 29(1) of the aforementioned law by defaming Mr P.M. in her first post of 3 February 2016 on the blog “Committee Ukraine”. The Court acknowledged that P.M.’s documentary had been widely praised and criticized too, even prompting a statement from the Ukrainian embassy in France recommending that the French television channel “PLTV” not broadcast it on “Canal +” since the film was biased journalism. However, the Court found that Ms Chesanovska had failed to provide sufficient factual basis to prove that the documentary was propagandistic and that the opinions of those interviewed had been misrepresented. Accordingly, the court ordered Ms Chesanovska to pay a fine of 500 euros, awarded damages in favor of Mr P.M. for 5,000 euros, and ordered the defendant to pay 3,000 euros to cover the costs and expenses of the proceedings. The Court also ordered Ms Chesanovska to pay the costs of publishing a press release announcing the contents of the judgment in a newspaper or on a website for 30 days, up to a maximum of 5,000 euros.

On the other hand, the Court acquitted Ms Chesanovska regarding the article published in the “Huffington Post”. The Court found that Ms Chesanovska had acted in good faith concerning the information disseminated in her second article. Furthermore, the Court stated that the comments in the article of 9 February 2016 essentially repeated those made by the Ukrainian producer Yulia Serdyukova in an earlier interview.

Ms Chesanovska appealed to the Paris Court of Appeal. She argued that her criticism, published on the “Committee Ukraine” blog on 3 February 2016, had been made in good faith and was protected by the right to freedom of the press.

On 4 April 2018, the Paris Court of Appeal upheld the analysis of the 17th Chamber of the Paris Court but reduced the damages compensation to 2,000 euros and the amount for legal fees to 2,000 euros. At the heart of its decision, the Paris Court of Appeal found that Ms Chesanovska’s views reflected her opinions of the 2014 Ukrainian revolution and that she had failed to prove an alleged journalistic misconduct on behalf of the documentary’s director, Mr P.M.

Subsequently, Ms Chesanovska appealed to the French Court of Cassation arguing that the Paris Court of Appeal’s decision violated her right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR) and the 1881 law on freedom of the press. She explained that freedom of expression is protected by Article 10 of the European Convention on Human Rights and can only be restricted to the extent necessary in a democratic society and in a proportionate manner. Ms Chesanovska further argued that the appeal court failed to consider the context in which she made her criticism and the strong public interest in the debate about P.M.’s misrepresentations of the 2014 Ukrainian revolution. She also argued that she was unable to provide sufficient factual basis for her criticisms because Mr P.M. had not provided the raw material of the full interviews as evidence in the legal proceedings—a circumstance which prevented her from crediting or verifying her statements. Finally, she stressed that the sanctions issued were disproportionate.

 On 18 June 2019, the French Court of Cassation rejected Ms Chesanovska’s appeal and upheld the judgment of the Paris Court of Appeal. The Court found that Ms Chesanovska’s initial post on the blog “Ukraine Committee”, regarding the documentary’s lack of objectivity, did not have sufficient factual basis. The Court also found that the compensation awarded to P.M. did not have a significant impact on Ms Chesanovska’s right to freedom of expression and was not disproportionate.

On 6 September 2019, Chesanovska brought an application against France before the European Court of Human Rights. In it, she held that the domestic courts’ convictions violated her right to freedom of expression under Article 10 of the ECHR. First, she argued that freedom of expression protected her right to criticize the editing and misrepresentations made by P.M. in his documentary. She also claimed that she was unable to verify the factual basis for her criticism, as the complete raw material of the interviews was in P.M.’s possession and had not been produced during the legal proceedings.

The petitioner further argued that her post of 3 February 2016 reflected her opinions and criticisms regarding a documentary film on the geopolitical situation of Ukraine, which was of great public interest and protected by freedom of speech. She also noted that criticism of the objectivity and impartiality of P.M.’s documentary had been voiced by many professional journalists in the field. 

Moreover, the petitioner argued that the sums of money that the French courts ordered her to pay were disproportionate and had a chilling effect on freedom of expression, referring to the European Court of Human Rights case of Kasabova v. Bulgaria (2011). To highlight the disproportionality of the decisions, the petitioner said that the compensation set by the French courts amounted to 7,000 euros, whereas her income as a translator amounted to 136 euros per day. 

The petitioner added that the European Court of Human Rights ruled in the cases of Jerusalem v. Austria (2001) and Bodrozic v. Serbia (2009), that individuals are subject to public scrutiny when they enter the arena of public debate, as P.M. did by broadcasting his documentary on “Canal +”. She also noted that opinions on debates or matters of general public interest cannot give rise to compensation. In turn, she reiterated that her critical comments against Mr P.M. should be assessed in the general context of the public interest debate on the geopolitics of Ukraine.

On 4 July 2023, the French government sent a letter to the European Court of Human Rights offering a friendly solution to the petitioner. In this letter, France offered the petitioner 15,000 euros to cover material and moral damages and the costs and expenses of the proceedings. 

On 13 July 2023, the petitioner accepted France’s amicable settlement.

 

*https://www.huffingtonpost.fr/actualites/article/le-francais-auteur-du-documentaire-polemique-sur-l-ukraine-accuse-de-plagiat_71740.html

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Decision Overview

The Fifth Chamber of the European Court of Human Rights had to decide whether the amicable settlement offered by France to the applicant—who was convicted by national courts for voicing opinions and criticisms against the director of a documentary about the Ukranian Revolution of 2014—was valid under Article 39 of the European Convention on Human Rights.

The Court recalled that the case arose because the applicant considered that her right to freedom of expression, as enshrined in Article 10 of the ECHR, had been violated in light of the convictions against her, for defamation, issued by domestic courts. 

The Court then stated that it had received letters signed by the parties “formalizing their acceptance of an amicable settlement.” [p. 1] The Court noted that, in a letter of 4 July 2023, the French Government offered to pay the applicant 15,000 euros to cover the material and moral damages and the costs and expenses of the proceedings. Furthermore, the Court mentioned that, in a letter of 13 July 2023, the petitioner accepted the French Government’s friendly settlement.

The Court added that the parties agreed that France would pay the money within 3 months after the ECtHR’s decision to approve the settlement, on the condition that the French Government would pay a simple interest at a rate equal to the marginal lending facility of the European Central Bank.

The Court held that Article 39 of the European Convention on Human Rights allows the parties to reach an amicable settlement, provided that the human rights recognized in the Convention and its Protocols are respected. It also provides that the procedure for reaching a friendly settlement is confidential. Furthermore, Article 39 says that if the parties reach an amicable settlement, the European Court of Human Rights shall close the case through a decision limited to a brief statement of the facts and the solution adopted.    

In turn, the Court found that the agreement reached between the parties “is based on respect for the human rights guaranteed by the Convention and its Protocols and that there is no reason to proceed with the claim in question.” [p. 2]

For the above reasons, the Fifth Chamber of the European Court of Human Rights validated the agreement reached between France and the applicant and considered the case settled.

 

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