Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Expands Expression
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The European Court of Human Rights held that Viktorovich Lykin’s right to freedom of expression was violated when he was held liable for defamation of a political figure. Lykin read-out a letter in public, written and signed by several voters, which accused a political figure of criminal and corrupt conduct. The European Court reasoned that although the statements contained in the letter implied very serious misconduct and were couched in strong terms, they were made on issues of public interest and in good faith.
On January 28, 2007, Vladimir Viktorovich Lykin, a member of the Shakhtarsk District Council and president of the local branch of the Party of Regions of Ukraine, attended a gathering of around forty party members. During this public meeting, Lykin read out a letter, signed by at least 10 voters, criticizing the performance of the district’s deputy president at the time. It called the official a “grabber and a petty tyrant” for mismanaging and misusing the resources of the district. At the end of the letter, the authors demanded the official step down.
While the letter did not identify the authors’ names, one voter publicly stated that she was one of the authors and that she agreed with all the allegations contained in it.
A month later, the official brought a defamation action against Lykin, arguing that the defendant had no right to read the letter, which had contained unverified defamatory information accusing him of criminal and corrupt conduct. The Shakhtarsk Court found Lykin liable for defamation on the grounds that he should have verified the allegations before disclosing them in public. The court cited the Citizens’ Applications Act, which in part prohibits anonymous applications or petitions addressed to government bodies. Its section 8 states that “[a] written application which does not indicate the place of residence [of the applicant], [or] is not signed by the author (or authors) [of the application], or one whose authorship may not be discerned, shall be considered anonymous and shall not be examined . . .”
In December, 2007, the Donetsk Regional Court of Appeal upheld the judgment, agreeing with the findings of the lower court that the letter was anonymous and that Lykin had failed to verify the accuracy of the accusations contained in it in accordance with Article 302 of the Civil Code of Ukraine.
Following the Supreme Court of Ukraine’s refusal to review the appeal, Lykin lodged an application in the European Court of Human Rights in April 2008, alleging violation of Article 10 of the Convention guaranteeing the right to freedom of expression.
Lykin submitted that the domestic courts had unlawfully penalized him for publicly reading a letter that contained voters’ critical comments about their representative. He further argued that the letter could not be considered anonymous because at least one individual openly claimed to be one of the authors. Lykin also argued that making the letter public at a meeting with party members and voters could not qualify as an official “follow-up” on “a citizen’s application” within the meaning of the Citizens’ Applications Act.
The government accepted that there had been an interference with Lykin’s freedom of expression but that it was justified under paragraph 2 of Article 10 because it was made pursuant to the legitimate aim of protecting the official’s reputation. It further submitted that the letter contained numerous factual allegations by individuals who did not identify themselves and that Lykin had failed to establish the veracity of the allegations.
The ECtHR accepted the government’s contentions that the judgment against Lykin interfered his freedom of expression pursuant to domestic laws to protect the official’s reputation and said that the only issue for it to address was whether the interference was “necessary in a democratic society” under paragraph 2 of Article 10. The Court reiterated that the test of necessity requires determining whether “the interference corresponded to a ‘pressing social need,’ whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were relevant and sufficient.” [para. 25]
The Court then reviewed its jurisprudence on political speech with particular emphasis on the principle that “while freedom of expression is important for everybody, it is especially so for elected representatives of the people, who represent the electorate, draw attention to their preoccupations and defend their interests.” [para. 26] And that “there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or debate on matters of public interest.” [para. 26] It also stated that even though a politician is entitled to protect his reputation when not acting in his private capacity, “the requirements of that protection have to be weighed against the interests of the open discussion of political issues.” [para. 26]
Applying the above standards, the Court considered the impugned statements to be fair comment on a matter of public interest given the content, manner and scope of their dissemination. It said that evidence and other submissions made during trial proceedings indicated that the statements were based on certain true facts concerning the performance of the local official and that while the statements were expressed in very strong critical terms, there was no reason to doubt that the authors acted in good faith. The Court also took into consideration the fact that the official was present at the meeting during which the letter was publicly read and was given the opportunity to respond to the allegations.
The ECtHR held that by only focusing on whether the letter was anonymous and whether Lykin had failed to verify the accusations, the domestic courts had failed to recognize that the case involved a conflict between the competing rights to protection of reputation and freedom of expression and failed to carry out the relevant balancing exercise.
Accordingly, the Court unanimously concluded that the defamation judgement violated Lykin’s right to freedom of expression under Article 10 of the Convention.
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Articles 277, 297, 299, 302
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