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Instytut Ekonomichnykh Reform, TOV v. Ukraine

Closed Expands Expression

Key Details

  • Mode of Expression
    Press / Newspapers
  • Date of Decision
    June 2, 2016
  • Outcome
    ECtHR, Article 10 Violation
  • Case Number
    App. no. 61561/08
  • Region & Country
    Ukraine, Europe and Central Asia
  • Judicial Body
    European Court of Human Rights (ECtHR)
  • Type of Law
    Civil Law
  • Themes
    Defamation / Reputation, Political Expression
  • Tags
    Public Interest, Public Officials, Journalism

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Case Analysis

Case Summary and Outcome

The European Court of Human Rights held that a satirical article on a political issue with public interest importance outweighed the rights of a politician it allegedly defamed. In May 2007, a Ukrainian newspaper published an article alleging that a member of parliament took bribes and received housing from the government. The member of the parliament brought a claim of defamation against the newspaper. The European Court ruled that although domestic courts have an interest in protecting the safety and reputation of their citizens, the rights of the press are given greater weight in these types of defamation cases.


Facts

The applicant is Instytut Ekonomichnykh Reform TOV (the editor of the Evening News newspaper) who launched this complaint against the government of Ukraine under Article 34.

In May of 2007, the Evening News published an article entitled, “How I became a Victim of Demagogues.” The article was hot on the tail of the Ukraine President’s decree dissolving parliament in April of that same year. The article included statements concerning Ms. Ganna German (a member of parliament). Particularly, that she took bribes and received a flat from the government.

In July of 2007, Ms. German filed suit against Instytut and the author of the article for defamation, alleging false statements in the article. The Kyiv Pecherskyy District Court found the statement that Ms. German had received a flat was untrue and was therefore defamatory. The court ordered Instytut to publish a retraction and the company was fined 300 Euros for non-pecuniary damages. The applicant appealed to the Kyiv City Court of Appeal, arguing that the statement had merely been an expression of opinion and not of fact. The Court of Appeals affirmed the District Court. This was appealed to the Supreme Court who refused the appeal.

The Instytut Ekonomichnykh Reform TOV appealed to the European Court of Human Rights alleging a violation of its right to freedom of expression, protected under Article 10 of the European Convention on Human Rights.


Decision Overview

The Court held there was a violation of Article 10.

The applicant alleged there was a violation of Article 10 of the Convention because this was a journalistic forum dedicated to reporting on news and politics, the newspaper published opinion and fact articles, and the statements complained of were opinions and not fact. The Government countered that even though there had been an interference in this case, this interference was prescribed by law and pursued a legitimate aim.

The Court employed the test under Article 10 which looks at 1) whether there was an interference; 2) whether the interference was prescribed by law; 3) whether the interference pursued a legitimate aim; and 4) whether the interference was necessary in a democratic society.

There was no dispute that there was an interference, so the Court turned to whether this interference was prescribed by law. The Court noted that in applying domestic law, the Court gives a large deference to the domestic courts. Here, the domestic courts properly found that this interference was prescribed by law through the Civil Code and Information Act. The Court did not discuss the third prong, whether the interference pursued a legitimate aim, as the applicant did not contest the government’s submission that this “interference pursued the legitimate aim of protecting the reputation and rights of others, namely Ms. German.” [para. 41].

Finally, the Court turned to the main issue in this case; whether the interference was necessary in a democratic society. The Court noted the standard for this element has been clearly established in recent case law, notably in the case of Delfi v. Estonia. Noting this standard, the Court discussed the vital role the press plays in a democratic society. Specifically, “the press must not overstep certain bounds regarding in particular the protection of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest.” [para. 43].

The Court reiterated that under Article 10, the restriction of the press on political speech on matters of public interest is rarely allowed. Here, the article was about a matter of public interest, and it discussed a recent political issue. The Court also discussed the important distinction between a fact versus a value judgment (a statement of opinion or satire). Due to the surrounding circumstances and the satirical tone of the article, the Court found the domestic courts had erred in finding that this article was a statement of fact instead of a value judgment. In the Court’s perspective, the article merely declared that Ms. German may have received financial benefits through her position and did not make any factual allegations.

Although the Court noted the fines imposed were relatively small, the Court still found that these fines were more symbolic and therefore had the potential to create a chilling effect in the future. Therefore, the Court held there was a violation of Article 10 of the convention. The Court awarded damages in the amount of 4,500 Euro for non-pecuniary damage.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

This case expands expression because it emphasizes the vital role the press plays in reporting on matters of public interest. Here, the Court held that due to the satirical tone of the article, the publisher and the author of the article could not be held liable for defamation. The tone of the article, combined with the fact that this was an article on a matter in the public interest and involved political expression, lead the Court to hold there was a violation of Article 10.

It is important in a democratic society to allow for the free flow of ideas, and the press is the largest vessel through which these ideas and opinions are communicated.  The domestic courts, by fining the publisher of the article for defamation, even though the fine was minimal, potentially created a chilling effect on the publication of future articles in a similar vein.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Related International and/or regional laws

National standards, law or jurisprudence

  • Ukr., Constitution Art. 32
  • Ukr., Constitution Art. 34
  • Ukr., Civil Code Art. 277
  • Ukr., Civil Code Art. 1167
  • Ukr., Information Act of 2 October 1992
  • Ukr., Press Act of 16 November 1992
  • Ukr., State Support of Mass Media and Social Protection of Journalists Act of 23 September 1997
  • Ukr., Member of Parliment's Status Act of 17 November 1992
  • Ukr., Resolution no. 7 of the Plenary Supreme Court of 28 September 1990 on judicial practice in defamation cases
  • Ukr., Resolution no. 1 of the Plenary Supreme Court of 28 September 1990 on judicial practice in defamation cases

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Judgments of the European Court of Human Rights are binding upon parties to the case and constitute an authoritative interpretation of the meaning of Convention rights for all other States that are party to the Convention.

The decision was cited in:

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