In a judgment of 2 June 2016 the European Court of Human Rights found that Ukraine had violated the right to freedom of expression by convicting a media company of defamation of a political public figure. Although the impugned article had a highly sarcastic and offensive tone, the Court confirms that journalistic freedom covers possible recourse to a degree of exaggeration, or even provocation, especially in the context of a public debate and discussions in the media on important features of political life

Voorhoof, Dirk

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Ghent University Academic Bibliography

IRIS 2016-7/1European Court of Human Rights: Instytut Ekonomichnykh Reform, TOV v. UkraineIn a judgment of 2 June 2016 the European Court of Human Rights (ECtHR) found that Ukraine had violated theright to freedom of expression by convicting a media company of the defamation of a political public figure.Although the impugned article had a highly sarcastic and offensive tone, the Court confirmed that journalisticfreedom covers possible recourse to a degree of exaggeration, or even provocation, especially in the context of apublic debate and discussions in the media on important features of political life.The case concerns defamation proceedings brought in 2007 against the editorial company (Instytut Ekonomich-nykh Reform - IER) of one of the nationwide newspapers in Ukraine, the Evening News. At the time, the newspaperwas closely associated with Yuliya Tymoshenko, a political leader in Ukraine and the then major rival of Prime Min-ister Mr Victor Yanukovych’s. In May 2007, the newspaper published an article critical of Ms Ganna German, oneof the main spokespeople for Mr Yanukovych. Ms German was also elected as a Member of Parliament on the listof the Party of Regions, led by Mr Yanukovych. At the material time she frequently presented the views of bothher party and Mr Yanukovych on various television and radio programmes and debates. The article in the EveningNews especially criticised the way Ms German, in an interview on the BBC, had commented on the institutional andpolitical crisis in Ukraine, defending Mr Yanukovych’s and the Party of Regions’ policy. The article also suggestedthat Ms German had become a Member of Parliament for the sole purpose of obtaining a flat in Kyiv.In July 2007, Ms German brought a defamation claim against IER and the author of the article. The Kyiv PecherskyyDistrict Court found that some of the statements in the article constituted statements of fact that had not beenverified or proved by either of the defendants, and were negative about and insulting to Ms German. Therefore,IER was ordered to retract the information about the acquisition by Ms German of the flat in Kyiv, by publishingthe operative part of its judgment. IER was also ordered to pay the plaintiff UAH 1,700, approximately EUR 300,in compensation for non-pecuniary damage. After exhaustion of all remedies at the domestic level, IER lodged anapplication with the ECtHR, complaining of a violation of its right to freedom of expression under Article 10 of theEuropean Convention of Human Rights (ECHR).The Ukraine Government agreed that the judgments of the domestic courts had constituted an interference withthe applicant company’s freedom of expression. However, it considered that the interference had been prescribedby law, being based on the relevant provisions of the Civil Code and the Information Act, and it had pursued thelegitimate aim of protecting the reputation or rights of others. The Government also referred to the ECtHR’s deci-sion in Vitrenko and Others v. Ukraine (no. 23510/02, 16 December 2008), which, according to the government,supported the principle that even during an election campaign an individual could not be subjected to unfair ac-cusations by his opponent. Therefore, the interference was to be considered necessary in a democratic society.The government also submitted that the interference had been proportionate and had not put an undue burdenon the applicant company’s right to freedom of political comment.In a unanimous decision the ECtHR disagreed with both the findings by the Ukrainian courts and the government’sarguments as to the necessity of the disputed interference with IER’s right to freedom of expression.The ECtHR reiterated that Article 10 (2) of the ECHR allows little scope for restrictions on political speech or debateon matters of public interest. The Court stated that whilst a politician is certainly entitled to have his reputationprotected, even when he is not acting in his private capacity, in such cases the requirements of that protectionhave to be balanced with the interests of the open discussion of political issues. The Court also recalled that satireis a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortionof reality, naturally aims to provoke and agitate. The Court observed that at the relevant time the struggle betweenYulia Tymoshenko and Victor Yanukovych and their allies was an important feature of Ukrainian political life. Theimpugned article constituted the sarcastic reaction of the Evening News’ journalist to Ms German’s participationin a BBC radio programme, during which she had commented on the popularity of her party. The Court consideredthat the subject matter of the impugned article, namely the author’s speculation as to Ms German’s motives formaking her statements and supporting the Party of Regions, was of significant public interest.In contrast with the findings by the domestic courts, the ECtHR was of the opinion that the statements concerningthe acquisition of the flat were value judgments, having a sufficient factual basis. In this perspective the Courtobserved that the impugned statements were not particularly serious in tone. They were also not particularlydamaging in substance, given that the author did not accuse Ms German of specific illegal or immoral conduct,even though he ascribed to her less than admirable motives. Read in the context of a highly-charged politicaldebate, and in the context of the article as a whole, the expressions found untrue by the domestic courts weresupposed to illustrate the author’s opinion that Ms German’s expression of her political opinions was insincere andIRIS 1guided by considerations of material gain. The Court furthermore referred to the “highly sarcastic language” of thearticle, reaffirming that Article 10 also protects information and ideas that offend, shock, or disturb. In addition, theCourt statetd that the extension of journalistic freedom to protect recourse to a degree of exaggeration, or evenprovocation, is an important principle, established in the Court’s case law. According to the ECtHR, the domesticcourts failed to explain why they considered that the impugned statements, satirical in tone as they were, wentbeyond the permissible level of exaggeration or provocation, given the impugned article’s contribution to a debateof public interest and its subject’s role as a prominent politician and the essential role played by the press in ademocratic society. The domestic courts focussed on the a person’s right to protection of their reputation, withoutsufficiently considering the right to freedom of expression of the applicant media company. Furthermore, whilethe sanction imposed on the applicant company was relatively modest, it nevertheless had symbolic value andcould still have a chilling effect on the applicant company and other participants in the public debate. For all thesereasons, the Court was not convinced that the balancing exercise had been undertaken by the national authoritiesin conformity with the criteria laid down in its case law. It thus concluded that the necessity of the interferencewith the media company’s exercise of freedom of expression had not been demonstrated, and that, accordingly,there had been a violation of Article 10 of the ECHR.• Judgment by the European Court of Human Rights, Fifth Section, case of Instytut Ekonomichnykh Reform, TOV v. Ukraine, Application no.61561/08 of 2 June 2016http://merlin.obs.coe.int/redirect.php?id=18043EN• Decision by the European Court of Human Rights, Fifth Section, case of Vitrenko and Others v. Ukraine, Application no. 23510/02 of 16 December2008http://merlin.obs.coe.int/redirect.php?id=18044ENDirk VoorhoofGhent University (Belgium), Copenhagen University (Denmark), Legal Human Academy and member of theExecutive Board of the European Centre for Press and Media Freedom (ECPMF, Germany)The objective of IRIS is to publish information on legal and law-related policy developments that are relevant to theEuropean audiovisual sector. Despite our efforts to ensure the accuracy of the content, the ultimate responsibilityfor the truthfulness of the facts on which we report is with the authors of the articles. Any opinions expressedin the articles are personal and should in no way be interpreted as representing the views of any organisationsrepresented in its editorial board.© European Audiovisual Observatory, Strasbourg (France)IRIS 2

European Court of Human Rights: Instytut Ekonomichnykh Reform, TOV v. Ukraine,

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European Court of Human Rights: Instytut Ekonomichnykh Reform, TOV v. Ukraine,

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