Courts Must Strike a Fair Balance between the Rights to Protection of Dignity, Honour, Business Reputation and Freedom of Expression

This was stated by the Secretary of the Plenum of the Supreme Court, the Secretary of the First Judicial Chamber of the Civil Cassation Court within the Supreme Court Dmytro Luspenyk at a round table.

The event took place on July 20, 2021, offline with an online broadcast. It was organized by the Ministry of Culture and Information Policy of Ukraine, the Verkhovna Rada of Ukraine Committee on Humanitarian and Information Policy, the joint project "The European Union and the Council of Europe Working Together to Support Media Freedom in Ukraine", the American Bar Association Rule of Law Initiative, the Centre for Democracy and the Rule of Law NGO and the Human Rights Platform NGO. The event took place in the Public Media Academy Kyiv Hub.

It was said at the round table that misinformation undermined democracy, threatened human rights, generated tension and disorder in society, and spread distrust of the state. Therefore, the topics of misinformation and defamation (discreditation of honour, dignity and business reputation), countering fakes, creating effective countermeasures, the issue of possible legislative changes are crucial.

Dmytro Luspenyk spoke at the session "Case Law in Reputation Protection and Countering Misinformation".

In particular, he noted that Art. 32 of the Constitution of Ukraine guaranteed judicial protection of the right to rectify unauthentic information about himself/herself and members of his family, etc., and Art. 34 of the Basic Law - the right to freedom of thought and speech, to free expression of views and beliefs. The speaker remarked that judges should strike a balance between those constitutional rights of citizens when resolving relevant disputes.

At the same time, the Secretary of the Plenum of the Supreme Court said that the judges had to deal with the questions of how to find the balance, what priorities to apply, what was the composition of the defamation offence. The speaker pointed out that there were many judgments of the European Court of Human Rights in which an appropriate balance test was applied, one of them was the case of Ukrainian Media Group v. Ukraine of 29 March 2005. In its case law, the Supreme Court has consistently explained to the judges the need to balance the assessment of competing interests on certain criteria, citing these criteria, in particular the contribution of a publication to a debate of public interest, the popularity of the person to whom the publication relates, the subject matter of the publication, one must also take into account the behaviour of the person concerned prior to the publication, the way in which the information is received by the defendant, the reliability, form, content of the publication, etc.

The speaker explained what the presumption of integrity was, how a defamatory dispute should be resolved, and what defamation law and a defamation offence were.

The Secretary of the Plenum of the Supreme Council spoke in more detail on the issues of privacy of public figures, noting that the private life of any person, even closely related to the public, did not dissolve in it and had its limits. Civil society has the right to control the activities of officials in the performance of their functions for the sake of public interest, but officials also have the right to privacy, so these interests should be balanced in the light of the Declaration on Freedom of Political Debate in the Media.

In addition, Dmytro Luspenyk drew attention to the need to correctly distinguish between value judgements and allegations of facts, and not to treat them formally.

He also noted that there were currently no global problems in case law regarding the law enforcement in the relevant category of cases. This is evidenced by the fact that in almost four years of its work the Grand Chamber of the Supreme Court has considered only a few cases of this category, and they mainly concerned the jurisdiction of disputes. Instead, there are problems in the institution of proving and applying other provisions of procedural law, which are addressed by the Civil Cassation Court within the Supreme Court in its judgements.

Dmytro Luspenyk also answered questions from the participants. Among other things, they asked about the effectiveness of such a method of protection as deleting information. The speaker said that there was a judgement of the Civil Cassation Court within the Supreme Court, which concluded that the requirement to remove information from the Internet resource of a legal entity was essentially censorship. This decision will soon be announced in more detail on the website of the Supreme Court.

It should also be noted that the participants of the round table, including legal practitioners, gave a positive assessment of the work of the Civil Cassation Court within the Supreme Court in this category of cases.