Defamation / Reputation
Afanasyev v. Zlotnikov
On Appeal Contracts Expression
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The Oktyabrsk Court in Bishkek in Kyrgyzstan imposed harsh penalties against a civil rights activist who had made a speech, an independent news website that publicized the speech, and the founders of the news website for insulting the President of Kyrgyzstan. The case concerned Ms. Cholpon Dzhakupova, a civil rights activist who criticized the President for his attacks on the media. Her statements were published on Zanoza.kg, an independent digital news platform. The Court found that the statements were false and insulting to the President of Kyrgyzstan and ordered Ms. Dzhakupova to pay over $40,000 in damages to the President. The online news publication, as well as its three founders, were also found liable for not checking the validity of Ms. Dzhakupova’s statements, and were ordered to pay the President $40,000 each.
This is the second 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.
Cholpon Dzhakupova is the director of a CSO, “Adilet”, and is a well-known human rights activist in Kyrgyzstan. On March 30, 2017, she participated in a public roundtable discussion on the right to peaceful assembly and freedom of expression. At the event, Ms. Cholpon Dzhukupova accused the President of Kyrgyzstan of abusing the law to disproportionately penalize the media. She also said that the President’s actions undermined the political stability of the country and could lead to a civil war.
For example, she said “I am not worried, but am outraged that, because I began to believe that the whole country and the media have become hostages to private vengeance of one person who is trying to avenge the death of his mother, and the like. We became hostages when the President said ‘I will never forgive the media, because they are responsible for my mother’s death and hurt my family. I will not drop my lawsuits. I will donate the money that I will get from these lawsuits to children’s hospitals.’ He, instead of the courts, has already decided that he will get money from the lawsuits. We need to tell the President. To wag our finger at him and tell him to read the Constitution, and that he has no right to dictate the courts what they should do…”
Addressing the Human Rights Ombudsman, Ms. Dzhukukpova said “You are one of the individuals who is close to him, please have the courage, don’t you see that we are being dragged in to a civil war. It is not my role to recall what happened after two revolutions, he [the President] knows it all – he is the author of two revolutions, two coups.” The Prosecution noted that Dzhakupova, being a lawyer, should have been familiar with the law protecting the reputation of the President of Kyrgyzstan.
On the same day, an article entitled “Dzhakupova: It’s time to reign in a person with manic tendencies” was published on Zanoza.kg, an independent internet news platform owned by ProMedia. According to the Prosecution, Zanoza shared Dzhakupova’s statements without checking their validity and with the clear aim of discrediting the honor and dignity of the acting President of Kyrgyzstan. Additionally, the Prosecution claimed that the article edited Dhakupova’s statements, which exacerbated the statements’ harm. For instance, the article associated the sentence “[a] person with manic tendencies cannot be allowed to terrorize 6 million persons. He is leading us to civil war. The maniac must be warned – he is one, but we are many” as Ms. Dzhakupova’s literal words, when she did not say them. The prosecution gave examples of several other similar sentences and terms used in Zanoza’s article.
Ms. Dzhakupova’s defense was that much of what she said was true. She cited Presidential decrees, prosecutorial statements, and other government information to argue that her statements concerning human rights violations and corruption were based on fact.
The Oktyabrsk Court in Bishkek (Court) first listed the findings of an examination of Ms. Dhzakupova’s speech by an expert who concluded that she presented her opinions as declarations of fact, and that the information contained in them was insulting to the honor and dignity of the President of Kyrgyzstan. This expert conclusion was corroborated by an expert witness during the trial. Having found no reason to discredit the expert conclusions, the Court fully agreed with them.
Then the Court turned to the law. According to Article 4 of the Law “On the Guarantees of Activities of the President of Kyrgyzstan” No 152, the President of Kyrgyzstan was protected by the government and his honor and reputation were protected by the law. The Court also noted that the Prosecutor General had the legal obligation to bring cases concerning the protection of rights and freedoms of ordinary citizens and public officials under the law.
According to Article 20 of the law “On Mass Media”, a journalist must investigate the validity of his/her statements. The Court interpreted this to mean that the journalist must review the information from all angles and be ultimately responsible for the disseminated information. According to Article 25 of the law “On Mass Media”, liability could be imposed on a media organization’s founders, directors, editors, and those who published the impugned information. According to the law “On Protection of the Professional Activities of Journalists”, journalists must abide by national laws and international treaties signed by Kyrgyzstan when conducting professional activities. The Court went on to explain that they must investigate the veracity of the information they report, present objective information, uphold the presumption of innocence, and respect the rights, freedoms, honor, and dignity of others.
According to the Plenary of the Supreme Court of Kyrgyzstan “On Some Questions of Judicial Practice Concerning the Protection of Honor, Dignity and Business Reputation”, the term “honor” was defined as a socially important and objective assessment of the moral, business, and other qualities of an individual. The term “dignity” was defined as an individual’s self-reflection on the qualities associated with honor. Defamatory statements are those that are untrue, and include false allegations that an individual has violated the law or moral principles. The Court defined “moral principles” as written or unwritten standards of morality and values.
After reviewing the applicable law and the evidence, the Court held that Ms. Dzhakupova’s statements at the roundtable insulted and defamed the honor and dignity of the President of Kyrgyzstan. In addition, it held that ProMedia, as the owner of Zanoza.kg, was guilty of disseminating false information that defamed the honor and dignity of the President. Both Ms. Dzhakupova and ProMedia were ordered to pay 3,000,000 Kyrgyz SOM ($43,743) to the President of Kyrgyzstan. The Court also ordered the three founders of ProMedia to pay 3,000,000 Kyrgyz SOM ($43,743) each. The Court also ordered Zanoza to take-down the article in question.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision severely contracts freedom of expression by awarding disproportionate damage awards against individuals and media outlets for allegedly defaming a head of state. The case concerned allegations of human rights abuses, which are of considerable public importance and interest. There is little scope for restrictions on the discussion of such issues under international law. Furthermore, this case represents another recent example of laws being used in Kyrgyzstan to effectively give special status and protection to the reputation of the head of state.
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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