Defamation / Reputation
Hlynsdottir v. Iceland (no. 2)
Closed Mixed Outcome
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The Arbitration Court of Saint Petersburg, Russia, dismissed a defamation claim that had been brought by the owner of a chain of sex shops against a media company and the head of a civil society children’s rights organization on the basis that they had published an article harming his business. The article alleged, among other things, that the shop sold items to prostitutes and perverts, advertised vice, and unlawfully promoted toys for children. The Court found that the article simply contained subjective opinions that contributed to a debate on Russian family and spiritual values. It also reasoned that Mr. Lapin’s reputation could not benefit from protection under Russian law because it was based on the rejection of societal norms. Additionally, citing Article 10 of the European Convention on Human Rights, the Arbitration Court reiterated that freedom of expression protects speech that offends, shocks and disturbs. The Court also reasoned that Mr. Lapin had not sufficiently proven that the media company and the head of the children’s rights organization published the relevant article. On the basis of the above, the Court rejected Mr. Lapin’s defamation claim.
Mr. Maximilian Alexandrovich Lapin was the owner of a chain of sex shops called “Pink Rabbit” («Розовый кролик»). The chain ran a series of advertisements in Saint Petersburgwhich attracted heavy criticism from those who held traditional and religious family values.
Some of this criticism came from the media organization Katyusha, which was purportedly owned by Realist LLC. In May 2017, Katyusha published an article on its website and on social media entitled “Diapers for Perverts.” The article included the following statements that Mr. Lapin would later argue were defamatory:
The article also included a complaint from Ms. Olga Nikolaevna Baranets, the head of a civil society organization, the Public Representative for the Protection of Children’s Rights. It was a complaint that she had submitted to the Prosecutor General. The complaint repeated the allegation that Mr. Lapin’s advertisement campaign violated the Federal Law on Protection of Children from Harmful Information. Following publication of the article, Ms. Baranets republished the article on her organization’s website and social media page.
Mr. Lapin brought a claim against Realist LLC and Ms. Baranets to the Arbitration Court of Saint Petersburg on the basis that it had violated his honor, dignity and business reputation. To support his legal claims, Mr. Lapin submitted a linguistic analysis of the article, which concluded that it defamed Mr. Lapin and harmed his reputation. Mr. Lapin requested the Arbitration Court of Saint Petersburg to order:
Realist LLC contended that the article simply reflected the subjective opinions of the author and did not aim to be insulting. The “Realist” LLC also submitted its own linguistic analysis, which challenged the findings of Mr. Lapin’s expert linguistic study. Specifically, the Realist LLC’s analysis argued that Mr. Lapin’s expert failed to show how the article was defamatory in light of the fact that the official website of the ‘Pink Rabbit’ sold various sex toys, including BDSM items. Ms. Baranets did not submit any arguments countering Mr. Lapin’s claims.
The Arbitration Court of Saint Petersburg held a preliminary hearing on December 4, 2017 and scheduled a trial for January 22, 2018. At the trial, Mr. Lapin repeated his initial arguments and added that he sought protection of his reputation and dignity as an individual working in the sex toy industry. Mr. Lapin also submitted additional documents establishing that the article in question was published on the websites and social media pages of Katyusha and Ms. Baranets.
Mr. Lapin submitted two preliminary motions. The first motion sought permission for a sexologist and a psychologist to testify in support of the argument that sex toys sold by ‘Pink Rabbit’ did not subvert morals or weaken family values but, instead, strengthened bonds between spouses. The Arbitration Court of Saint Petersburg denied the motion on the ground that the testimony was not needed to analyze the facts of the case.
In his second motion, Mr. Lapin requested the Arbitration Court of Saint-Petersburg to appoint an independent linguistic expert to review the article for defamatory statements. He argued that an independent review was needed since his and Realist LLC’s experts came to conflicting conclusions. Realist LLC opposed the motion, claiming that it was unwarranted. The Arbitration Court of Saint Petersburg postponed ruling on the motion and set a new trial date of March 5, 2018. On March 5, 2018, the Arbitration Court of Saint Petersburg held the final trial and issued its decision on March 7, 2018.
In its judgment of March 7, 2018, the Arbitration Court of Saint Petersburg (Court) first ruled on Mr. Lapin’s motion for the appointment of an independent linguistic expert to review the article “Diapers for Perverts.” The Court reasoned that, although the conclusions of the linguistic studies differed, there was adequate additional information to decide whether the article defamed Mr. Lapin. Thus, the motion was denied.
The Court then proceeded to review the substantive facts of the case. It found that the article was published on the website and social media page of Katyusha. It also highlighted that the article was republished under a different title “A Chain of Sex Shops Began Selling Toys for Babies” on the website and the social media page of Ms. Baranets’ civil society organization, the Public Representative for the Protection of Children’s Rights.
After recounting the arguments presented by both sides, the Court analyzed the applicable law. It noted that Article 152 of the Civil Code of the Russian Federation (Civil Code) stated that all citizens were entitled to demand a refutation of information that defames their honor, dignity and business reputation. If the defamatory information was disseminated via mass media, then it must also be refuted through the mass media. According to Decree No.3 on Judicial Practice in Cases Concerning Honor, Dignity, and Business Reputation of Citizens and Legal Entities (Decree No. 3), in order to obtain a refutation under Article 152 of the Civil Code a plaintiff must first establish that (i) information about him/her was disseminated by the defendant and (ii) second that the information was false and defamatory. Failure to establish even one of those factors would result in a judgment in favor of the defendant. According to the Court, to successfully defend a claim under Article 152 of the Civil Code, a defendant had to prove that the information disseminated by him or her was true.
The Court defined “dissemination” as the publication of information in print media, the broadcasting of information via television or radio, the inclusion of information in films, sharing information online, adding information to employment descriptions, incorporating information in public statements to employees, and orally communicating information to one or more persons. While “false statements” were defined as statements that allege a fact or an event that did not take place at all or during the time period within which they were associated in the statement. According to the Court, “defamatory statements” were statements that (i) asserted that a citizen or a legal entity broke the law, acted dishonorably, wrongly, or unethically in private, public or political life, (ii) acted dishonestly in business, or (iii) violated business ethics and customs in a manner that disparaged their honor, dignity or business reputation.
The Court highlighted that everyone benefitted from the rights to freedom of expression and press freedom according to Point 9(3) of Decree No. 3, Article 10 of the European Convention on Human Rights and Article 29 of the Russian Constitution. Additionally, the European Court of Human Rights established that national courts were required to differentiate between subjective opinions, which could not be verified, and statements of fact when adjudicating on defamation cases.
The Court then added additional definitions. It explained that “negative information” was information that a reasonable person without legal knowledge would interpret as containing negative characteristics from a common sense, moral, or legal perspective. If such “negative information” does not reflect the reality, then it is defamatory. Furthermore, honor, dignity and reputation were held to be related moral categories. Reputation represented how a person was valued by society on the basis of important qualities, while business reputation was a judgment of the professional qualities of a specific person.
The Court concluded its review of the relevant laws by noting that even if a publication did not specifically mention the plaintiff, that by itself did not mean that the publication did not concern him or her.
The Court then applied the above legal tests and terminology to the allegedly defamatory article. It found that the article concerned goods sold by “Pink Rabbit,” and that the online advertisement and sale of these goods caused a justified worry among the public. It reasoned that “Pink Rabbit” managed an online store that did not have an age filter and, therefore, provided access to goods in a way that could have harmed the health and development of children. Furthermore, the Court held that the reputation of “Pink Rabbit” was created within a culture that rejected the cultural and spiritual values of Russia, which had deep historical roots and were passed from one generation to the next. According to the Court, these values were the foundation of the civilized identity of the Russian State and the Russian government prioritized spiritual and family values over material ones. The Russian State noted that the protection of these traditional spiritual values was strategically important for its national security as they safeguarded against the weakening of family bonds. The Court reasoned that the threat to family bonds came from foreign culture, including the popularization of low quality mass culture that had penetrated Russia through modern technologies such as the Internet. The Court highlighted that the Presidential Order on the Strategy for National Security of the Russian Federation, signed on December 31, 2015, as well as the Presidential Order on the Foundations of State Cultural Policies, signed on December 24, 2014, reflected this analysis.
The Court then commented on the nature of Ms. Baranets’ organization, the Public Representative for the Protection of Children’s Rights, which was aimed at supporting families, protecting traditional morals and family values, and combatting anything that may harm these values (including technology). The Representative’s role and responsibilities had been established during a conference organized by civic societies that represented parents, patriots, the Russian Orthodox Church, veterans, and other groups. Its founding principles and views included those outlined in several documents produced by religious groups, some including:
According to the Court, Mr. Lapin and the defendants shared contrary values. The Court held that it was obvious that the statements made by the defendants were not aimed at harming Mr. Lapin’s reputation as they were made exclusively with the goal of protecting and strengthening societal morals and values. The Court also noted that the statements were made at a time when young families were losing traditional family values due to the dissemination of information aimed at provoking physical pleasures and vices among teenagers and young parents.
The Court added that Russian law solely protects the right to a “positive reputation,” which was created by society and reflected norms of morality, tradition and spiritual values. Thus, a reputation that rejects these norms cannot be positive and enjoy the protection of the Court. The Court then reasoned that statements made in the article “Diapers for Perverts” were not aimed at insulting Mr. Lapin’s business reputation but simply reflected the opinions of society, including those of Ms. Baranets in her affiliation with the Public Representative for the Protection of Children’s Rights. In fact, many in Saint Petersburg and across Russia shared similar opinions and emphasized the protection of traditional family values.
The Court recalled that Article 17(3) of the Russian Constitution says that the State cannot violate the rights of other citizens when it protects an individual’s civil and human rights. To the Court, the case at hand represented a conflict between the right to express an opinion about an issue in the public interest and business reputation. It added that treaties and conventions signed by the Russian Federation became the law of the land, and this included the European Convention on Human Rights. According to Article 10 of the Convention “[e]veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” The Court added that freedom of expression constituted one of the essential foundations of a democratic society and protects not only “information” or “ideas” that are favorably received but also to those that offend, shock or disturb. Thus, the unfavorable information about items that “Pink Rabbit” sold, particularly its potential to harm the development of children and undermine the institution of family, could not justify limitations on freedom of expression.
On the basis of the above factual and legal analysis, the Court held that the article aimed to highlight a public issue that arose out of the distribution and sale of items by “Pink Rabbit” and that created an unfavorable informational environment for the development of children. Therefore, the context of the article could not harm the business reputation of Mr. Lapin since it did not concern his “positive business characteristics” but reflected a subjective opinion about his failure to protect family and traditional values in Russia. The Court concluded that such expression enjoyed protection under the Russian Constitution and the European Convention on Human Rights.
Additionally, the Court was not convinced that Mr. Lapin had demonstrated that the defendants were responsible for publishing the article. It highlighted that Mr. Lapin failed to establish that either Realist LLC or Ms. Baranets owned Katyusha media. Similarly, Mr. Lapin did not provide evidence that Ms. Baranets was the person responsible for re-publishing the article “Diapers for Perverts” on social media or on the website of the Representative.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
On the one hand, the judgment seeks to uphold the protections afforded to the right to freedom of expression under the European Convention on Human Rights, particularly the notion that insulting and offensive speech also enjoys protection (see Handyside v. UK). It also recognizes that value judgments are not susceptible to proof in the same way as statements of fact.
On the other hand, the Court seems to provide limited protections to those who seek to express themselves in a way that does not comply with traditional societal norms. In this case, the Court appeared to give no protection to the reputation of individuals who seek to express their sexuality in a certain way, thus legitimising insults or targeted harassment against such individuals. This could then deter these individuals from expressing themselves in this way, and therefore negatively impact their right to freedom of expression. This is not aligned with the jurisprudence of the European Court of Human Rights, which has stated that “it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority.” (Sekmadienis v. Lithuania, para. 82)
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