Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Contracts Expression
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In this case, a U.K. High Court awarded a wealthy businessman £110,000 in libel damages. The case, which had been rejected by the prosecutor-general of Russia, involved two Russian nationals, Vladimir Sloutsker, a former Russian senator now resident in Israel, and journalist Olga Romanova. Romanova’s husband, Alexei Kozlov, was a former business associate of Sloutsker who was arrested in 2008, charged with fraud, and sentenced to eight years in prison that was later reduced and he was released in 2013. Soultsker sued Romanova in 2012 over blog posts and articles she had written claiming that he had hired a hitman to kill Kozlov, fabricated evidence in his criminal prosecution, and bribed a court to overturn an appeal against Kozlov’s conviction. This judgment dealt with remedies in a libel action following the entry of judgment in default of Defense. The Court found it appropriate to award £110,000 in damages and grant an injunction restraining the defendant from republishing the allegations complained of in the U.K.
Olga Romanova was a Russian journalist for a publication called Novaya Gazeta. Vladimir Sloutsker was a once prominent political figure in Moscow. In London, Sloutsker sued Romanova on grounds of libel for (1) claiming that Sloutsker had hired a Federal Security Service (FSB) hitman to kill her husband, Alexi Kozlov, while he was being transferred to court; (2) that he bribed the local district court in Russia to overturn an appeal against Kozlov’s conviction; and (3) ordered the fabrication of evidence in the criminal prosecution of Alexei Kozlov. These assertions were made in a blog post published on the website of a Moscow-based radio station called Echo of Moscow, in two articles on the website Gazeta.ru, and in a program broadcast on Radio Liberty.
In this case, which was a hearing on the damages, Romanova did not appear in her own defense but wrote a letter in which she protested the fairness of the proceedings against her on six grounds: (1) language difficulties – she is Russian; (2) financial problems which precluded her from paying for translation and representation; (3) her inability to obtain pro bono representation; (4) her inability to appear in person; (5) the gravity of the consequences of an adverse judgment; and (6) the merits of her case.
Justice Warby of the Queens Bench delivered the Judgment of the Court. In a previous ruling on the merits of the case, Justice Warby had decided that considering all the evidence before him, including exhibits suggesting that there may be large disparities in resources that would pose challenges for the defendant, he did not consider the difficulties insurmountable. Justice Warby felt that on the evidence before him the defendant can and would have a fair opportunity to defend herself in the U.K. courts and would not be prevented from putting forward any case open to her.
With regard to damages the Court held that in order to arrive at an appropriate figure for injury to reputation, the gravity of the defamation must be taken into account and the extent of its publication. The Court held that in this modern era, the tendency of damaging statements to spread via the Internet is reasonable and therefore republication by third parties, where it is likely to result from the original publication, is also included in the calculation of the extent of publication. Furthermore, a court must take into account what the claimant thinks other people are thinking of him. It was held that damages may be mitigated by a retraction or apology, or potentially aggravated by the way the defense of the action is conducted.
It was held that in cases of international libel, the Court must always ensure that it compensates only for the damage caused by the publications mentioned in the action. Justice Warby held that in this case, the publications mentioned in the action were those within the relevant jurisdiction and therefore he ruled out any compensation for damage as a result of publication in Russia, or anywhere outside the U.K. Finally, it was held that a court’s overall damage award must be no more than is required to achieve the legitimate aims of compensating the claimant.
In his assessment of damages Justice Warby noted first, that not only had the defendant offered no defense to the claims, but she also had never specified the ways in which she disagrees with the claimant’s case. Second, he noted that the general approach to assessing damages could be modified in appropriate cases if the Court concluded that the claimant’s interpretation of the statements complained of was impossible, extravagant, or clearly not defamatory. Thirdly, he held that he was satisfied that the claimant’s interpretation of the defamatory statements in this case was reasonable. Finally, Justice Warby disagreed with the argument that the approach he was taking unreasonably curtailed the vindication obtained by the claimant. Rather, he held that Sloutsker obtained judgment because the defendant failed to put in a defense, thus, Sloutsker was awarded damages on the grounds that his case was correct and that the justice required no more than that in the current circumstances. Taken from the earlier decision in this case, it was repeated that the sting of the allegations from the Blogpost and the two articles could easily have reached as many as 60,000 readers in the U.K. jurisdiction, and the radio program was likely to have been heard or read by several thousand. It was held that the statements were seriously libelous, that the allegation of conspiracy to murder is the most serious and the addition of imputations of corruption made matters worse.
On the grounds that the allegations were published to a relatively substantial audience in the U.K. where Sloutsker had a substantial and valuable reputation, the Court held that Sloutsker was entitled to a sum that would vindicate him in the eyes of interested third parties unlikely to read this judgment. It was held that the appropriate global award of damages to compensate for the injury to reputation, to feelings, and to ensure adequate vindication in respect of such serious allegations was £110,000. In addition, an injunction restraining the defendant from republishing the allegations in the U.K. jurisdiction was granted. Justice Warby also added that with regard to the defendant, Olga Romanova, the only step she had taken in this matter was to write a letter to the Court. He stated that she knew of her right to appear, had been repeatedly informed by the Judge himself in writing of her rights to apply to set aside orders and directions made by the court in her absence, and had the opportunity to seek permission to appeal but did none of these things. He emphasized that she still had a right to set aside the earlier default judgment entered against her or in the alternative seek permission to appeal. She could also apply to set aside this decision, stay the enforcement of the award of damages, or seek permission to appeal against it or the grant of the injunction.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case contracts expression since it encourages forum shopping. Russia, the jurisdiction in which the complaint originated, declined to try the case. Thus, even though on its face the Court appears to have made a just decision by ruling in favor of the individual who was defamed, the defendant was unable to to defend herself because the proceedings took place in a jurisdiction she was unable to access. The Court essentially only heard one side of the case. In addition, the libel originated in Russia where press freedom is already severely threatened by the state and this decision is liked to support that trend.
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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