Title: European Court of Human Rights (Ukrainian Media Group vs Ukraine)
Human rights often clash where the enjoyment of one’s rights infringes on another’s rights. This has often been the case in media-related issues regarding the freedom of speech and expression and the right to privacy, right to protection of honour, dignity and reputation (Milo, 2008). In 2003 for example, approximately 6200 of the cases heard by the Supreme Court of Ukraine concerned violation of the freedom of speech versus injury to honour, reputation and dignity. Courts have sought to balance between the enjoyment of rights and breach of another’s right by approaching some rights as derogable and non-absolute to the extent that they infringe on another’s right (Human Rights Review, 2012).
The freedom of expression is particularly of paramount importance to the media and without it, they cannot legally operate. This freedom however imputes some duties and obligations on the part of the media and quite often, their freedom of speech and expression may be restricted to protect the rights or reputation of others, to prevent crime and disclosure of confidential information and trade secrets, for public safety, protection of national integrity or to maintain Judiciary’s impartiality and authority (Human Rights Review, 2012). A case example is Otto Preminger Institut v Austria (1994) where the European Court of Human Rights (ECtHR) did not find the forfeiture and seizure of a film by Austrian authorities as a violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Release of the film would cause offence to the religious feelings of a majority of the Tyroleans (Voorhoof, 2013).
The freedom of speech, opinion and expression has been considered the cornerstone of other rights and freedoms (Human Rights Review, 2012). Through this right, the public can freely participate in decision making processes by allowing access to ideas and information. This in turn promotes good governance as the media reviews the government’s performance and exposes abuse of office and integrity flaws (Price, 2013). Thus the ECtHR in Goodwin v United Kingdomfound it a violation to order a British journalist to reveal the source of his information and imposing a fine on him for failure to do so.
On the other hand, the ECHR qualifies this right for the protection of the rights and reputation of others as well as other issues discussed above. This is where defamation under tort law arises and one has a claim to damages for injury to reputation as a result of one’s statements. The case of Ukrainian Media Group v Ukraine that shall be discussed hereafter is a recent case presided over by the ECtHR and relates to the issues discussed. The paper looks into the approach adopted by the ECtHR in a comparative style with the legal framework and approach by the courts in UK cases.
Summary of the facts
The applicant was a private company in Ukraine which published a daily newspaper popularly known as ‘The Day’. The Day had published two articles in a column which were later impugned. In August 1999, the leader of the PSPU party Ms Natalia Vitrenko lodged a complaint against the Day for damages claiming that statements contained in the article were untruthful and led to injury to her reputation and dignity as a Member of Parliament. The District Court found that the Day could not prove the truthfulness of the information published and therefore ruled in favour of Ms Natalia ordering the Day to compensate her in a monetary sum of EUR 369.68 (Ghazaryan, 2005).
In September of the same year, the Day published another article with the title: On the Sacred Cow and the Little Sparrow. The article mentioned that the leader of the communist party, Mr. Petro Symonenko was threatened not to withdraw from the presidential election race. Another complaint was lodge in the same District Court against the Day and the writer of the article. Again, the Day could not prove the truthfulness of the information in the article and the court ruled in favour of Mr Symonenko ordering the Day to rectify the untruthful information and also compensate him EUR 184.84 for damage to his dignity, honour and reputation.
The Ukrainian Media Group lodged a case against Ukraine with the ECtHR for violation of article 10 of the ECHR.
Issues for determination
The ECtHR had essentially two major issues for determination. First, it had to determine whether there was interference with the media group’s rights in article 10 of the ECHR and secondly, whether the interference was justified. To justify an interference with the Convention rights, it has to be prescribed by the law, it must be pursuing a legitimate claim and lastly, it must be of necessity to a democratic society and proportional to the claim pursued.
The ECtHR had to determine whether the judgements by the domestic court were contrary to article 10 of the ECHR. The District Court had obliged the Day to acknowledge that the statements were untruthful, ordered it to rectify the statements and to pay damages to the complainants (Oxford Index, 2016). Another issue for determination was whether domestic practice and law of Ukraine had the effect of preventing the domestic courts from distinguishing between fair comments, value judgments and statements not amenable to proof. Thus almost any statement would be impugned and this was incompatible with the ECHR in article 10.
The relevant legal framework
The international law applicable in cases similar to that of Ukrainian Media Group is the ECHR, particularly in article 10. The freedom of expression in article 10 includes the right to impart and receive information and also the right to hold an opinion without State interference. However, this freedom is limited under article 10(2). The Parliamentary Assembly of the Council of Europe has also established recommendations applicable to like cases. Recommendation no.1589 of 2003 for example provides for the freedom of expression for the media in Europe. This was established after several incidences of persecution of journalists were reported. The most precise resolution on Ukraine is the European Parliament Resolution on Ukraine (2004)
The ECtHR also employed the relevant domestic practice and law of Ukraine. The Ukraine Constitution 1996 provides for the freedom of expression in article 34. It also provides that every person has a right to rectify untruthful statements about themselves and also the right to compensation for material damage caused by the dissemination of such statements. The Constitution also recognizes that these rights can be restricted to preserve other interests. Other legislation considered were the Civil 1963 that reiterates the right to protection of dignity, honour and reputation in article 7, the Civil Code, 2003, the Data Act and the Printed Media (Press) Act. Section 37 of the latter gives a right to all persons and entities to rectification of untruthful statements that defame them.
Section 42 of the Printed Media (Press) Act provides journalists and editorial boards indemnity from all liability where the information published was obtained lawfully, where the information is reproduced verbatim from other printed media material or official address by organizations, State officials and citizen unions.
In Lingens v Austria, the ECtHR defined the boundaries of allowable criticism beyond which a claim for defamation would lie. The ECtHR also found that those boundaries were broader for persons in the public limelight, particularly politicians, than for private persons. This is because politicians display themselves in the public, open to criticism by the public arena including journalists and they must therefore tolerate a greater degree of criticism than the private individual (Ghazaryan, 2005).
The ECtHR also applied other case law to the case of Ukrainian Media Group. Handyside v United Kingdom was relevant in providing that there was a violation of the provisions of article 10 where the State interference was not in accordance with the provisions of article 10(2).
The ECtHR found from the Government’s concession that there was in deed interference with the rights enshrined in article 10. With regard to whether the interference was justified, the ECtHR found that the Ukrainian courts had erred in classifying the statements in the impugned articles as statement of fact whereas under European Law they were essentially value judgments. The Ukrainian law did not provide a distinction between the two which was crucial to cases of defamation because value judgments do not attract penalties like those levied on the Ukrainian Media Group by the domestic courts. However, the ECtHR found that domestic law afforded the concerned parties the ability to foresee the consequences of their actions and was therefore prescribed by the law. This was also the requirement in Feldek v Slovakia. With regard to its precedence, the ECtHR noted from Mueller v Switzerland that such interference was foreseeable from article 10(2) of the ECHR. In addition, the ECtHR also found that the interference pursued a legitimate claim and that was to protect the reputation, honour and dignity of Ms Vitrenko and Mr Symonenko.
In considering whether the interference was required by a democratic society, the ECtHR sought to find out whether the domestic law was contradictory to the convention and whether the domestic courts failed to guarantee the Ukrainian Media Group their freedom of expression as a result. The ECtHR noted that the generality of Ukrainian law on this subject (and failure to distinguish between value judgments and statements amenable to proof, but rather generally refer to them as statements) implied that the freedom of opinion and speech in respect to open criticism was outweighed by the requirement to protect one’s dignity, honour and reputation. Furthermore, the Civil Code in article 7 requires proof to the truthfulness of the statements from their disseminator and section 37 of the Printed Media Act creates an obligation on the media to rectify statements that could not be proved true. Thus in conclusion, the court found that the domestic law of Ukraine had elements that could engender the provisions of article 10 of the Convention.
The ECtHR also found that although the statements in the impugned articles were defamatory to the complainants, the statements were value judgments in respect of their professional activities as politicians and did not touch on their private lives. The ECtHR in reiterating the judgment in Lingens v Austria noted that in choosing their professions, the offended persons (Ms Vitrenko and Mr Symonenko) had laid themselves to open scrutiny and in a democratic society, that was the burden to be borne by politicians. The ECtHR found that the interference did not outweigh public interest and was therefore not necessary. It was thus a violation of article 10 of the ECHR.
Significance of the case to the media in Britain and in other State parties to the ECHR
Before the enactment of the Human Rights Act 1998, there was generally no statutory provision protecting the freedom of expression in the UK and article 10 of the ECHR played a pivotal role in allowing media coverage of the court proceedings which were initially conducted in camera. However, Britain has now a wide legal framework for protection of this right including in education for students, staff and visiting speakers. Furthermore, they employed political rhetoric and elements which were not amenable of proof.
In distinguishing between statements of fact and value judgments, the ECtHR has guaranteed a wider applicability of the freedom of expression for the media. Most statements though defamatory could be value judgments and as noted by the Human Rights Review, the media’s role in promoting good governance and revealing corruption and abuse of office is very significant. Similarly, in the Dalban Case 1999, the court found that conviction of a journalist was a disproportionate interference to his freedom of expression. The impugned article contained accusations of fraudulent acts by public personalities.
Ukrainian Media Group v Ukraine (2005) ECtHR 72713/01
Dalban v Romania (1999) ECtHR
Milo, D. (2008) Defamation and Freedom of Speech. London: Oxford University Press
The European Convention on Human Rights (2007) Collected Essays, Loukis Loucaides. Strasbourg: BRILL Publishers
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Price, M.E, Verhulst, S. and Morgan, L. (2013) Routledge Handbook of Media Law. London: Routledge Publishers
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 Application No. 13470/87 (European Court of Human Rights)
 See Article 10 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)
 (1996) 22 EHRR 123
 Application no 72713/01, IHRL 3238 (ECHR 2005)
 See also Parliamentary Assembly Resolution 1346 (2003) and the European Parliament Resolution on Ukraine (2004)
 See article 32
 (1986) 8 EHRR 407
 (5493/72)  ECHR 5
 (1988) 13 EHRR 212
 (1986) 8 EHRR 407
 Section 43 Education Act No.2 (1986)