Defamation / Reputation
Afanasyev v. Zlotnikov
On Appeal Contracts Expression
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The Oktyabrsk Regional Court ordered that a journalist and the owner of a website pay a substantial award of damages for two articles that allegedly insulted the President of Kyrgyzstan. The claim was instituted by the Prosecutor General and was based on two articles that were published on an independent online news platform. The Court found that the articles contained false information alleging that the President was corrupt and amoral, and were therefore insulting to his dignity and reputation. The Court ordered that the journalist and website owner each pay the President of Kyrgyzstan over $40,000 in compensation for moral harm. They were also ordered to ensure that a retraction be disseminated publicly.
This is the third 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.
ProMedia was a public company that owned Zanoza.kg, an independent news website in Kyrgyzstan. Mr. Idinov N.A. was one of the founders of Zanoza.kg, who also wrote articles for the website. In 2017, the Prosecutor General brought a claim against Mr. Idinov N.A. and ProMedia, arguing that they had insulted the honor and dignity of the President of Kyrgyzstan.
The claim stemmed from two articles. The first was published in March 2017 on Zanoza.kg, and carried the headline: “A lie allegedly for salvation: a puppet show of independence”. The article discussed how various countries influenced each other, and compared these countries to Kyrgyzstan. The author concluded that Kyrgyzstan’s leaders were disinterested in economic or political sovereignty, that they stole from their people, and that they were subservient to powerful nations. The article also listed various allegations of the President’s corrupt behavior, such as the acceptance of bribes in exchange for political promotion and the ownership of offshore accounts. The Prosecutor General claimed that these allegations meant that the Kyrgyz government and the President of Kyrgyzstan were corrupt.
The article also included an image of the President of the Central African Republic, Jean-Bedel Bokassa. The Prosecutor General argued that Jean-Bedel Bokassa was notorious for having been accused of cannibalism and was found guilty of various other crimes. According to the prosecution, inclusion of this image forced the reader to draw parallels between the President of Kyrgyzstan and the President of the Central African Republic, thus harming his honor and dignity.
The article was analyzed by a linguist expert from the Ministry of Justice, who concluded that the author used three rhetoric devices to cast a shadow on the President’s reputation, honor, and dignity:
The prosecution also argued that the article included false information. For example, the article claimed that an individual illegally bought a plot of land the size of 27.5 hectares to build a villa for the President in exchange for the offer of the mayoral position in Kyrgyzstan’s capital, Bishkek. The prosecution noted that the parliament investigated this claim in 2016 and found that the plot of land in question was only 2.7 hectares and was purchased by the President of Kyrgyzstan legally. Furthermore, although the individual in question did indeed became the mayor of Bishkek, he was elected to the position by a landslide. The prosecution also argued that the claim that the President had offshore accounts was also investigated and debunked. Moreover, the prosecution alleged that the article’s author wrote another piece in February 2017 where they cited results of the review of the President’s assets, and thus must have been familiar with the falsity of some of the claims that were made in the article.
The second article was written by Mr. Idinov N.A. and published in March 2017 with the headline “[t]he arrest of Omurbek Tekebaev: intrigue grows”. The article suggested that a Turkish Airline’s plane was carrying contraband at the behest of the President’s family. The prosecutor pointed out that the alleged contraband claims were investigated by the prosecutor’s office, and it was established that the plane did not carry any contraband.
Ididnov N.A. and ProMedia denied the claim. ProMedia argued that the first impugned article was written in an artistic-journalistic style, with the author reviewing Kyrgyz political developments against global developments and sharing her opinion about them. Additionally, Mr. Idinov argued that the second impugned article did not refer to the President explicitly and did not use his name or initials anywhere. Lastly, Mr. Idinov rejected the expert review provided by the Ministry of Justice, arguing that it focused on separate terms and words in the article without considering their context.
After reviewing the articles, testimonies, evidence, and arguments from both sides, the Oktyabrsk Regional Court (Court) set out the applicable law. First, the Court highlighted that article 18.1 of the Kyrgyz Civil Code allowed citizens to demand the rebuttal of statements that defamed their honor, dignity or business reputation. Article 26.1 of the Kyrgyz Constitution established that a person enjoyed the presumption of innocence until his/her guilt was proven in court. Article 4 of the law “On the Guarantee of Activities of the President of the Kyrgyz Republic” established that the President enjoyed protection of his reputation and dignity. Defending the President’s honor and dignity was the responsibility of the Prosecutor General of Kyrgyzstan.
According to the Decree of the Plenary of the Supreme Court of Kyrgyzstan No. 4 “On the adjudication of defamation of honor, dignity and business reputation” (Plenary Decree) issued on February 13, 2015, the term “dissemination” is defined as including the publication, broadcasting, and public announcement of a statement to at least one other person. According to Article 1 of “Law on Mass Media” the internet is not characterized as mass media, hence the Court must establish the source of defamatory information. According to the Plenary Decree, those liable for publishing defamatory information online can include physical or legal entities that disseminated the information in question. Here, it was established that the website Zanoza.kg disseminated the relevant articles.
The Court then highlighted parts of the expert linguistic review, which concluded that the articles in question harmed the President’s honor and dignity. The Court did not opine on whether it agreed with the conclusions, but stressed that the linguistic review of the articles was not aimed at establishing whether or not the information in the articles was true.
According to Article 9 of the Kyrgyz Civil Code, the rights of persons or legal entities are limited in that they cannot be exercised exclusively for the purpose of causing harm to another. Article 18 of the Civil Code outlined the test for establishing harm to dignity, honor, or business reputation, according to which: 1) there has to be dissemination of the relevant information, 2) the dissemination has to have harmed reputation, and 3) the information has to be untrue.
The Court then declared that the evidence at hand established that the articles defamed the honor and dignity of the acting President of Kyrgyzstan since it portrayed him as an amoral and unethical person.
According to Article 60.1 of the Civil Procedural Code, the responsibility to establish the truth of the information in question lies with the defendant. The Court concluded that Idinov N.A. had not established the truth of the allegations made in the articles.
According to Article 18.2. of the Civil Code and paragraph 22 of the Plenary Declaration, a person can seek to refute information that harms or defames him by requiring the liable party to publicize a retraction of the impugned information. The retraction must be disseminated in the most public manner. Therefore, the Court determined that Mr. Idinov and ProMedia were to be responsible for disseminating information countering that which defamed the honor and dignity of the President of Kyrgyzstan.
The Court noted that an individual whose dignity or honor has been defamed can seek compensation for the moral harm caused by the defamatory statements. The Court indicated that the amount of compensation awarded depends on the seriousness of the harm suffered. The Court held that the President of Kyrgyzstan suffered moral harm because of the articles, and the harm caused by these articles was exacerbated due to the articles having been published online. On this basis, the Court ruled that both Mr. Idinov and ProMedia must each pay 3 million Kyrgyz SOM (roughly $43,000) to the President of Kyrgyzstan.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision contracts freedom of expression by requiring the payment of large sums in damages for statements that allegedly questioned the integrity of the President of Kyrgyzstan, a public figure. The Court accepted broad prosecutorial arguments that the articles “implied” corrupt and amoral behavior by the President of Kyrgyzstan. This ruling is against the internationally accepted principle outlined in General Comment 34 that “the mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties.”
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