Defamation / Reputation
Commonwealth v. Pon
Closed Expands Expression
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The Kiev Appellate Court upheld a lower court’s decision that a television channel, “Channel One Russia”, did not harm the honor and dignity of an individual whose photograph was featured in a news segment. The suit was brought by Mr. Gleb Golovchenko, whose image was shown for three seconds during an eight-minute segment about foreign funding of the Maidan protests in Ukraine. The lower court dismissed Mr. Golovchenko’s claim since he was not named in the segment, and did not attempt to prove that the information in the segment was false. Furthermore, the district court acknowledged the important role played by the media in highlighting information of public interest and cited the European Court of Human Rights’ decision in Lopes Gomes da Silva v. Portugal to conclude that the media are entitled to a degree of exaggeration or even provocation. The appellate court agreed with the first instance court finding that Mr. Golovchenko failed to prove that the information in the segment was about him, harmed his moral rights, or gave the impression that he was involved in the anti-government protests held in Maidan Square.
On March 30, 2014, the Russian-based “Channel One Russia” aired an eight-minute segment about alleged U.S. financing of the anti-government protests held in Maidan Square, in Kiev, Ukraine, between 2013 and 2014. For three seconds of the segment, an image was shown of a panel discussion featuring the founder of the College of Press and Television, Mr. Gleb Golovchenko. He was not expressly named or referred to in the segment.
Mr. Golovchenko brought a claim against “Channel One Russia” alleging that they had violated his right to dignity and honor by disseminating false information (Article 297 of the Civil Code of Ukraine). He sought a public retraction from the TV channel, as well as compensation for the moral damage caused.
On May 27, 2016, the Pechersk District Court of Kiev dismissed the claim. Mr. Golovchenko subsequently appealed this decision.
The Kiev Appellate Court agreed with the reasoning of the Pechersk District Court, concluding that it had complied with both substantive and procedural law. The Pechersk District Court noted that the Constitution of Ukraine provides that everyone has the right to respect for their dignity (Articles 3 and 28 of the Constitution) and guarantees the right to freedom of thought, speech and expression (Article 34 of the Constitution). The Pechersk District Court reasoned that in cases concerning the dignity and honor of an individual, the courts need to take into account all the circumstances of the case and the following criteria need to be met:
(a) the information has to be disseminated, in other words it has to be brought to the attention of at least one other person;
(b) the information must “relate” to the particular claimant;
(c) the information must be false; and
(d) the information must be shown to have damaged the claimant’s moral rights or caused moral harm.
The Pechersk District Court agreed that the image of Mr. Glovchenko had appeared in the eight-minute segment, but observed that his image was only shown for 3 seconds and he was not named or explicitly referred to in the segment. The Pechersk District Court concluded that the image was simply used to illustrate a general point, without implicating the individuals in the photo. Furthermore, the Pechersk District Court noted that the individuals were not prominent in the photograph and the short duration of the frames that included the photograph made identification significantly difficult.
Additionally, as of March 25, 2014, the broadcasting of “Channel One Russia” had been suspended in the Ukraine. Therefore, it was difficult to ascertain the number of individuals in the Ukraine who viewed the segment. Nonetheless, the parties agreed that the segment was distributed to people within the Ukraine via its website.
The Pechersk District Court then found that the information in the segment was of public interest and the news correspondent provided an evaluation of the factual information presented to him by people he interviewed. The Pechersk District Court acknowledged the important role played by the media in highlighting information of public interest and cited the European Court of Human Rights’ decision in Lopes Gomes da Silva v. Portugal to conclude that the media are entitled to a degree of exaggeration or even provocation.
In light of the above, both courts found that Mr. Golovchenko failed to prove that the information in the segment was about him, harmed his moral rights, or gave the impression that he was involved in the anti-government protests held in Maidan Square.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands freedom of expression by emphasizing the important role the media play in disseminating news of public interest, and by highlighting that journalists are entitled to exercise a degree of exaggeration or even provocation in their reporting. In this context, the decision recognises that the media’s right to freedom of expression also includes the editorial freedom to present the news as they choose.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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