Defamation / Reputation
Afanasyev v. Zlotnikov
On Appeal Contracts Expression
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The Oktyabrsky District Court of Bishkek in Kyrgyzstan found that the author of an article and the owner of the online news platform that published the article were responsible for insulting the President of Kyrgyzstan. It ordered them both to individually pay over $40,000 to the President as compensation for moral damage. The case originated from an article written by Mr. Idinov N.A. that was published on the independent online news platform Zanoza.kg. In the article, Mr. Idinov referred to statements made in 2005 by Mr. Akayev, the former President of Kyrgyzstan, who alleged that the incumbent President illegally appropriated a large sum of money meant for the Union of Writers. The Court determined that government receipts demonstrated that the claims made by Mr. Akayev were false. The Court also went on to find that Mr. Idinov chose to publish the allegations knowing them to be false.
This is the first of a set of four rulings against Zanoza.kg on charges of insult of the President of Kyrgyzstan. Courts issued the rulings within a span of a week and ordered the independent publication and its founders to pay a total of over $200,000 in compensatory damages for causing moral harm to the President of Kyrgyzstan. The damages are exorbitant, considering that a monthly average salary in Kyrgyzstan is just over $200.
On October 22, 2015, an independent online news platform, Zanoza.kg, published an article entitled “Millions from the President: who paid for the banquet?”
The article was written by Mr. Idinov N.A., who was also one of Zanoza’s co-founders. In the article, Mr. Idinov repeated statements about the incumbent President of Kyrgystan, Mr. Almazbek Atambaev, that were made in 2005 by the deposed President of Kyrgyzstan, Mr. Askar Akayev. Mr. Akayev alleged that President Atambaev illegally appropriated 50 million Russian Rubles intended to be used to support the Union of Writers in the setting up of a publishing house.
The Prosecutor General of Kyrgyzstan filed a complaint against Idinov N.A. and ProMedia, which owned Zanoza, to the Oktyabrsky District Court of Bishkek arguing that the article was false and violated the honor and dignity of the President of Kyrgyzstan.
The Oktyabrsky District Court of Bishkek (Court) began by reviewing the facts of the case. In doing so, the Court established that the allegations of Mr. Akayev were false, and that Mr. Idinov disseminated the allegations with knowledge of their falsity and with the intent to insult the President of Kyrgyzstan.
To establish falsity, the Court looked at the evidence provided by the Prosecutor General. First, the Prosecutor General’s office had investigated Mr Akayev’s allegations and found them to be false. Second, documents provided by the Ministry of Finance showed that the Union of Writers fully utilized the sum of money in 1995 to establish a publishing house. Third, a government audit of the Union of Writers found that the funds were spent as intended and were not used by Mr. Atambaev. These findings were confirmed in at least one newspaper in 2014.
To establish the author’s intent, the Court concluded that Mr. Idinov had knowledge that Mr. Akayev’s allegations were false. To reach this conclusion, the Court noted that Mr. Idinov was the producer of a TV program that aired a segment in 2014 in which a journalist rebuked Mr. Akayev’s claims. As the program’s producer, Mr. Idinov was responsible for ensuring the veracity of all statements made in the program. Under these circumstances, the Court found that Mr. Idinov knew that Mr. Akayev gave false information about the President in 2005. Therefore, according to the Court, by including this information in his article in 2015, he was intentionally disseminating false information to portray the President as someone who enriched himself by stealing from “one of the most intelligent sectors of society” – writers.
A large sum in compensation for moral harm was justified on the basis that the article harmed the honor and dignity of a popularly elected head of state, and was widely disseminated within and outside Kyrgyzstan.
The Court then proceeded to discuss the relevant law. It highlighted Article 29 of the Kyrgyz Constitution, which guarantees protection from unlawful collection, storage and dissemination of confidential and private information. The judge then explained that under Article 1 of the Law “On the Guarantees of Activities of the President of Kyrgyzstan”, the President is the highest official in the country, a symbol of the people and government, and the guarantor of the Constitution and human rights. Furthermore, Article 4 of the same law reiterates that the President of Kyrgyzstan, as well as his honor and dignity, were protected by law. Furthermore, the Prosecutor General of Kyrgyzstan had the legal obligation to protect the honor and dignity of the President, and under the law had jurisdiction to act as his representative in cases concerning harm to the President’s honor and dignity.
The Court conceded that the President of Kyrgyzstan could legitimately be subject to political discussion and criticism by the media. That said, the Court concluded that criticism should be constructive, and should not be denigrating in nature and aimed at harming the President’s reputation.
Then, the Court explained that under the Decree of the Plenary of the Supreme Court of Kyrgyzstan No. 4 “On the adjudication of defamation of honor, dignity and business reputation” (Decree), the definition of “dissemination” includes publication through the internet to at least one other person. Additionally, the Decree designates the following persons as respondents to judicial claims of defamation and insult: persons or legal entities that disseminated the information, authors of the information, and/or administrators of websites on which the information was published. Therefore, Mr. Idinov, as the author of the article, was to be the primary respondent in the case.
The Court then stressed that Article 18 of the Kyrgyz Constitution allowed all activities but those that violated the Constitution and the law. Article 9 of the Civil Code of Kyrgyzstan permitted limitations on civil rights to prevent the exercise of such rights being to the cost of the rights of others, and to prevent them from being abused in any form. Article 18 of the Civil Code listed a three-part test for insult cases: 1) there must be dissemination of the relevant information, 2) the dissemination must harm reputation, and 3) the information must not be true. All three elements need to be satisfied, and the Court held that they were satisfied in this case.
The Court thus concluded that false information in the article harmed the President’s reputation and caused him mental suffering. The Court ordered for Mr. Idinov and ProMedia to each pay 3,000,000 Kyrgyz SOM ($43,000) in compensation for the moral harm caused.
Furthermore, the Court ordered that, within five days of the decision, the operative part of the written judgment and a refutation be published on Zanoza.kg and remain on the website for at least three months.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This ruling contracts freedom of expression. The Court’s decision severely limits the media’s ability to criticize the President of Kyrgyzstan. Although the Court recognised that the media should be free to report on political issues, it effectively prohibited any criticism of the President that was negative in nature and aimed at harming his reputation. The Court did not recognize that, as the Head of State, the President should have a limited right to reputation when it comes into conflict with the right to freedom of expression. Instead, the Court took into account the President’s position in order to increase the damages to be awarded against the media outlet, thus giving special status to the reputation of the President.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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