Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Expands Expression
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The Fifth Section of the European Court of Human Rights (ECtHR) unanimously found a violation of Article 10 in a case involving a woman who provided an eyewitness account of a road accident to journalists. The woman’s statement, given in response to a journalist’s request, implicated individuals in the accident. Subsequently, she faced civil claims alleging that her statement damaged the claimants’ reputation. Despite the domestic courts’ rulings against her, the ECtHR held that the penalties imposed on her were disproportionate. The ECtHR emphasized that her statement related to a matter of public interest, and she had acted in good faith, making her comment a statement of fact on a public concern rather than an attack on reputations. This case underscores the importance of balancing freedom of expression with the protection of reputation and the context in which statements are made. The ECtHR awarded the applicant compensation for pecuniary and non-pecuniary damage.
On December 2, 2008, the applicant was present at a road accident in Rivne city center. The accident involved an Audi Q7 car with Kyiv-registered plates and a young woman pedestrian who was severely injured. Four days later, on December 4, 2008, the applicant visited the injured victim in the hospital. During this visit, journalists covering the event were also present. At the request of one of the journalists, the applicant made a comment about the accident. In her comment, she stated that initially, nobody got out of the car, then three people exited the vehicle, and specifically mentioned “B.’s son” coming out of the driver’s door. [paras. 5-6]
Several media outlets published content related to the accident, including a video recording of the applicant’s comment and a transcript of the comment. These media reports also featured statements from other eyewitnesses who claimed, among other things, that the driver of the car was intoxicated and that the victim was hit while on a pedestrian crossing. The journalists’ reports implied that M.B., a local council member and the son of a former parliament member named B., might have been involved in the accident. [para. 7]
M.B., in response to these reports, acknowledged that he was present at the accident scene but stated that he had arrived after the incident to support a friend who was the actual driver. He challenged the accuracy of the applicant’s identification. [para. 8] During the investigation into the accident, the police identified a local businessman named M. as the driver of the car involved. Criminal proceedings were initiated against M. However, in June 2009, the investigation was terminated due to the finding that the victim was not using a pedestrian crossing at the time of the accident, making it impossible for M. to avoid the collision. The evidence suggested that the applicant had been questioned as a witness during the investigation. [para. 9]
In November 2009, both B. and M.B. filed a civil claim against the applicant. They alleged that her statement implied M.B.’s guilt in the accident and that her comment damaged their honor, dignity, and professional reputation. They demanded a retraction of the applicant’s statement and sought compensation for both pecuniary and non-pecuniary damages. Initially, the media outlets that published the applicant’s comment faced similar claims. However, these claims were dropped after the media outlets agreed to remove the materials from public access in a friendly settlement. [para. 10-12]
On April 11, 2011, the Rivne City Court ruled in favor of B. and M.B. The court ordered the applicant to issue a retraction statement with specific wording that admitted her previous statement was untrue. Additionally, she was required to pay 50,000 Ukrainian hryvnias (4692 USD) to each claimant as compensation for non-pecuniary damage and a smaller sum for pecuniary damage, along with court fees. The court’s decision was based on a linguistic expert report provided by the claimants. The court treated the applicant’s statement as a statement of fact, applying the “presumption of falsity” according to Article 277 of the Civil Code. The court found the applicant’s statement harmful to the claimant’s reputation and ordered her to retract it. [paras. 13-15]
On appeal, on November 23, 2011, the Court of Appeal upheld the lower court’s decision, although it varied the compensation amounts and the retraction order. The Court of Appeal agreed that the applicant’s statement implied the factual involvement of M.B. and that it had not been proven true. The Court of Appeal also found that whether the applicant acted in good or bad faith was irrelevant for the purposes of Article 277. [para. 16- 18] Following an unfavorable decision by the Court of Appeal, the applicant pursued her case by appealing on points of law. In this subsequent appeal, she reiterated the arguments previously presented during the lower court proceedings.
On December 18, 2013, the Higher Specialised Court for Civil and Criminal Matters (HSCCCM) conducted a comprehensive review of the case. During this review, the HSCCCM took several important actions. Firstly, the HSCCCM quashed the judgment delivered by the Court of Appeal, citing procedural irregularities and violations of substantive law in that decision. This marked a critical turning point in the case. Secondly, the HSCCCM upheld the judgment initially issued by the first-instance court. The HSCCCM found that the lower court had conducted a thorough examination of the case’s circumstances and had reasonably determined both the number of damages to be awarded and the precise wording of the retraction statement to be issued by the applicant. Consequently, the HSCCCM concluded that the arguments raised in her appeal on points of law failed to demonstrate any glaring errors or misjudgments on the part of the first-instance court. [paras. 22-23]
During this enforcement period, the applicant experienced the seizure of her property and the garnishment of her bank accounts as a means of satisfying the debt arising from the court’s judgment. Furthermore, a considerable portion of her monthly salary (20%) was withheld to contribute to the debt recovery process. In addition to these financial consequences, the applicant also faced a travel ban, which prevented her from leaving Ukraine until the entire compensation amount was paid in full. Despite her efforts to seek relief from this travel restriction, including a request in 2017 for the ban to be lifted, her attempts proved unsuccessful. [para. 24]
The Fifth Section of the European Court of Human Rights (ECtHR) issued a unanimous judgment. The central matter under consideration was the assessment of the principle of proportionality. The Court aimed to determine if there had been an interference with the applicant’s rights, and if so, whether this interference was in accordance with the law and served a valid purpose. Furthermore, the Court sought to establish whether the interference, which took the form of the applicant incurring civil liability, was deemed “indispensable in a democratic society.”
The Applicant contended that her statement, given in response to a journalist’s request, was a factual account of her eyewitness observation and not intended to harm the claimant’s reputation. She contended that the domestic courts, by applying Article 277 § 3 of the Civil Code without exceptions, denied her a defense against allegations of spreading false information. She emphasized that verifying eyewitness statements and initiating criminal proceedings in cases of knowingly false reports were the responsibility of law enforcement, which had not taken action against her. The applicant also deemed the imposed penalty, given her low income and familial responsibilities, excessively harsh and found the ordered retraction statement inappropriate and demeaning. [paras. 30-31]
The State contended that while the civil proceedings did indeed impose a limitation on the applicant’s rights protected under Article 10 of the Convention, this interference was undertaken with the legitimate objective of safeguarding the reputation of others. Regarding the imposed penalty, the Government asserted that it was commensurate with the harm inflicted on the claimants’ reputation. [para. 32]
On the issue of the existence of interference, the Court held that it is uncontested between the parties that the civil proceedings and the resulting penalties imposed on the applicant constituted an interference with her right to freedom of expression. The Court found no basis to diverge from this consensus. On the issue of whether the interference was lawful or not, the Court observed that it had a valid legal foundation under domestic law, specifically under Articles 277 and 280 of the Civil Code.
On the issue of whether interference was necessary in a democratic society, the Court referred to Bédat v. Switzerland, (2015) and emphasized the fundamental importance of freedom of expression in a democratic society. [para. 37)] It reiterated that the Court’s role is to review decisions made by national authorities and ensure they meet the standards of proportionality and relevance under Article 10 of the Convention. [para. 38] When examining restrictions in the interests of protecting reputation or private life, a fair balance must be struck between freedom of expression and the right to respect for private life [para. 39], as established in cases such as A. v. Norway, (2009) and Axel Springer AG v. Germany (2012).
The Court provided a set of criteria to balance these rights, including whether the statement contributed to a public debate, the good faith of the speaker, the subject’s fame, the context, and the severity of the penalty. [para. 40] To establish an interference with the right to freedom of expression, there must be an objective link between the statement and the person suing for defamation [para. 41], as seen in Kunitsyna v. Russia, (2016).
Applying these principles to the case, first and foremost, the Court acknowledged that the applicant’s comment was related to a road accident that had generated significant public interest, as evidenced by the presence of reporters at the hospital where the accident victim was treated. [para. 42] This factor was crucial in establishing that the comment pertained to a matter of public interest, aligning with the Court’s precedent in cases like Bédat v. Switzerland. [para. 37] Furthermore, Court noted that the applicant’s statement, indicating that B.’s son was associated with the accident, inherently created a connection between the comment and the claimant in this case, M.B. [para. 43] Although the applicant did not explicitly mention the first names of the individuals involved, the circumstances surrounding the incident made it apparent that the claimants could be readily identified by journalists and the public, reinforcing the objective link between the statement and the claimant. This interpretation aligns with the Court’s previous jurisprudence, exemplified by Kunitsyna v. Russia.
Secondly, as regards the characterization of the applicant’s comment, the Court by referring to its jurisprudence Kasabova v. Bulgaria, (2011); Staniszewski v. Poland, (2021); and Azadliq and Zayidov v. Azerbaijan, (2022), noted the presumption of falsity of statements of fact is not in contravention with the Convention if the defendant has a realistic opportunity to prove that the veracity of the statement. In accordance with the principle of proportionality, the ECtHR noted that it placed the burden on the applicant to demonstrate the truth of her assertions, invoking the so-called “presumption of falsity” as per Article 277 of the Civil Code. The ECtHR recognized that such a presumption of falsity provided that the defendant is given a realistic opportunity to prove the statement’s truth, can be compatible with the Convention. The ECtHR also highlighted that in such cases the applicant should not be required to fulfill a more demanding standard than that of due diligence, as in such circumstances, an obligation to prove factual statements may deprive the applicant of the protection afforded by Article 10 (Makraduli v. the former Yugoslav Republic of Macedonia,(2018) and Wojczuk v. Poland (2021). [para. 44]
Nevertheless, the ECtHR noted that the case is distinct from others because of the nature of the factual statement itself. The applicant’s comment was made as an eyewitness account, representing a direct recollection of the factual circumstances surrounding the road accident she had personally witnessed. [para. 45] This distinguishing characteristic set this case apart from those in which factual statements extended beyond personal witnessing. Given these unique circumstances, the ECtHR asserted that the applicant should not have been required to prove the accuracy of what she had directly observed, a task that could have been exceptionally challenging, if not impossible.
Thirdly, the ECtHR delved into whether the applicant acted in good faith when making her comment. It noted that the domestic courts had not explored the motive behind the applicant’s comment, deeming it irrelevant. They also did not consider the context in which the statement was made. The ECtHR observed that the comment was a response to a journalist’s request, made shortly after the road accident. Importantly, the applicant’s comment did not contain insulting or offensive language directed at the claimants, nor did it take a stance on their involvement in the accident. Instead, it provided a straightforward account of the events she had witnessed on the road. Additionally, there was no initiation of criminal proceedings against the applicant for allegedly providing false evidence, and she did not disclose any confidential information related to ongoing criminal proceedings. Considering these factors, the ECtHR concluded that the applicant had acted in good faith and genuinely believed that disclosing the circumstances of the road accident she had witnessed was in the public interest. Therefore, the comment should be regarded as a statement of fact pertaining to a matter of public concern, rather than an unwarranted attack on the claimants’ reputation. The dismissal of the official investigation concerning M.B. did not alter the conclusion that the applicant had acted in good faith.
Furthermore, the Court highlighted that the applicant’s statement mirrored her earlier testimony to the police, where she had been cautioned about the criminal consequences of providing false evidence. [para. 48] Notably, the domestic authorities did not initiate any criminal investigation or proceedings against the applicant for providing false evidence, indicating that they did not perceive her comment as intentionally misleading. This was consistent with domestic law, which penalizes false testimony.
In conclusion, the Court’s application of the mentioned principles led it to the determination that the national authorities’ reaction to the applicant’s statement was disproportionate. [para. 53] The circumstances surrounding the case, including the absence of any allegation of bad faith, the early timing of the comment, and its consistency with her police testimony, all underscored that the applicant acted in good faith and in the public interest when conveying her eyewitness account. Therefore, the requirement for her to substantiate the truthfulness of her statement was deemed inconsistent with the principles established in the Court’s jurisprudence, as seen in Kasabova v. Bulgaria, leading to a violation of Article 10 of the Convention.
The Court awarded the applicant EUR 14,300 (USD 15,500) in respect of pecuniary damage and EUR 3,450 (USD 3,740) in respect of non-pecuniary damage, plus any tax that may be chargeable. [paras. 59-61]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This ruling significantly expands the scope of freedom of expression by emphasizing the importance of protecting individuals who provide eyewitness accounts or factual information to the media on matters of public interest. The European Court of Human Rights (ECtHR) underlined that imposing disproportionate penalties for statements made in good faith can undermine freedom of expression rights. By recognizing that the applicant acted in good faith when conveying her eyewitness account of a road accident, the ECtHR has set a precedent that encourages open and candid reporting of events without fear of excessive legal consequences, ultimately strengthening the protection of freedom of expression in situations where individuals provide factual accounts related to public concerns. This decision underscores the Court’s commitment to balancing freedom of expression with reputation protection and context-specific assessments, contributing to the broader safeguarding of free speech in democratic societies.
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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