Defamation / Reputation
Afanasyev v. Zlotnikov
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The Oktyabrsk Regional Court found two lawyers, and the owner of a publication that shared their statements, liable for insulting the honor and dignity of the President of Kyrgyzstan. The claim was based on statements made by the lawyers for an opposition political party during a conference. The statements indicated that the President was possibly involved in a smuggling operation and its cover-up. The statements were republished by Zanoza.kg, an independent online news platform, as well as on the website of a radio station and a press agency. However, only the lawyers and Zanoza.kg were held liable, and the Oktyabrsk Regional Court ordered them to pay $146,000 and $43,000 respectively to the President of Kyrgyzstan in compensation for moral harm.
This is the fourth 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 March 1, 2017, the press bureau AkiPress and two lawyers (Toktakunov and Kanatbek) of the opposition political party, Ata-Meken, held a press-conference on “[t]he known real reason for the arrest of O.C. Tekebaev.” A video recording of the conference was shared on AkiPress’ websites. The conference sought to explain that charges levied against the opposition leader Tekebaev O.C. were fabricated to silence him, as he had access to documents that proved the acting Kyrgyz President’s (Atambaev) involvement in illegal smuggling operations. Toktakunov T., a lawyer for Ata-Meken, claimed that this document was allegedly issued by the Turkish National Security Service and detailed that cargo from a Turkish Airlines’ plane that crashed in Kyrgyzstan’s capital, Bishkek, belonged to President Atambaev and was loaded on the plane by members of a criminal organization.
The Prosecutor General subsequently brought a claim arguing that Mr. Toktakunov made intentionally false statements at the conference. He reiterated that the cargo incident was investigated by the office of the Prosecutor General, which found no evidence of smuggling or contraband on the plane. Additionally, the Prosecutor General pointed to a March 1, 2017, meeting between the Ministers of Foreign Affairs of Kyrgyzstan and Turkey where both parties concluded that allegations of the cargo belonging to the President were false.
On March 1, 2017, Zanonza.kg, an independent online news platform, published an article entitled titled “Tekebaev’s lawyers: Cargo from a crashed plane belonged to [President] Atambaev”. The article included images and videos from the conference, as well as copies of the documents that Mr. Tekebaev presented at the conference. On the same day, Radio Azatyk (Radio Freedom) published an article entitled “Atameken’s Lawyer: Tekebaev’s detention is related to his visit to Cyprus” that included reference to “important documents” alleging Atambaev’s involvement in the smuggled cargo incident.
The Prosecutor General requested the Court to order:
Representatives for the Zanoza website denied the charges, arguing that the speakers should be held responsible, rather than the media organization that shared the story.
Mr. Toktakunov and Mr. Kanatbek did not appear in court, and did not notify the Court about their absence. The Oktyabrsk Regional Court found the lack of notice to be disrespectful and concluded that their attendance was not necessary to proceed with the hearing. Similarly, representatives of AkiPress did not appear in court, and did not notify the Court about their absence. The Oktyabrsk Regional Court similarly concluded that their attendance was not necessary to proceed with the hearings.
After listing the facts of the case and the arguments of the parties, the Oktyabrsk Regional Court (Court) turned to discussing the applicable law. First, the Court stated that Article 4 of the law “On the Guarantees of Presidential Activities” offered the President of Kyrgyzstan governmental protection of his honor and dignity. The Court also highlighted that the Constitution of Kyrgyzstan guaranteed citizens the protection of their honor, dignity and business reputation, while Article 18.1 of the Kyrgyz Civil Code guaranteed judicial protection to citizens against defamation of honor, dignity or business reputation.
The Court went on to observe that Article 20 of the law “On Mass Media” required journalists to verify the truth of information he or she publishes. This obligation made the journalist liable for every word in an article that he or she writes and publishes, including those disseminated via television or radio. Additionally, the law “On the Protection of Professional Activities of Journalists” required that journalists (i) follow the laws of Kyrgyzstan and international treaties, (ii) verify the truth of the reported information, (iii) present objective information, (iv) respect the presumption of innocence and the rights of others (including dignity, honor, and reputation). Article 25 of the law “On Mass Media” stated that a media organization’s directors and editors could be held liable for the media organization’s breaches of the law. Where an article was published without identifying its author, the media organization that disseminated the article will be liable for its contents. The Court defined “dissemination” as including the publication, broadcasting, or public presentation of information.
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” issued on February 13, 2015, “defamatory information” was defined as false information containing allegations that a person had violated the law or principles of morality.
Article 60 of the Civil Procedural Code obligated a plaintiff to prove that defamatory information was disseminated, while a defendant was required to prove that the information was true. The plaintiff also had the right to demand a retraction of the information that harmed his or her honor, dignity, or business reputation.
The Court went on to review the allegedly defamatory articles and the conference of AtaMeken’s lawyers. The Court held that Mr. Toktakunov’s use of terms such as “an important document” and “a document of prime importance” showcased his intent to associate the President of Kyrgyzstan with the document in question. The Court identified two more sentences from Mr. Toktakunov’s speech that did not directly mention the Kyrgyz President, but were said to have associated President Atambaev with the allegations made during the press conference.
The Court noted that Mr. Toktakunov promised to present the document in question and other evidence in December 2017. Nonetheless, the Court relied on Article 7 of the Civil Procedural Code to reason that a court cannot consider evidence that might be provided in the future when adjudicating cases.
In light of this, the Court ruled that the article entitled “Tekebaev’s lawyers: Cargo from a crashed plane belonged to Atambaev” that was published on Zanoza.kg defamed the President of Kyrgyzstan. The Court ordered Zanoza.kg to take down the article within five days of the Court decision, and ordered ProMedia to pay 3 million SOM (approx. $43,000) in compensation for moral harm to the President of Kyrgyzstan.
Additionally, the Court ordered the AtaMeken lawyers to hold a press conference within five days of the decision to publicly retract their statements of March 1 regarding President Atambaev. The Court also ordered them to have their press conference removed from AkiPress’ website. Lastly, the Court ordered the two lawyers to pay 10 million SOM (approx. $146,000) to the President of Kyrgyzstan.
The Court did not issue orders against RadioAzatyk or AkiPress.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision contracts freedom of expression in Kyrgyzstan for several reasons. First, the Court punished the lawyers of an opposition political party for criticizing the government. Second, the Court penalized a publication for simply reporting on the statements made by these speakers without editorial comments. Third, the Court selectively targeted the independent publication Zanoza.kg while not holding other publications accountable for doing the same.
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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