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Prison for slander: the way deputies propose to protect their “fair names”. Aleksandr Gorobets

B98R2141

And the risks of false information disseminators

In recent years we have seen a whole palette of freedom of expression shades. In social networks and media we may read about investigations of senior officials and security forces’ “great deeds”, dirty games of politicians, “success” stories of large and small companies, etc. As a rule, “the defendants” claim that they were slandered. Sources of information insist on its reliability. 

A court can close the door on their dispute: Ukrainian legislation stipulates administrative sanctions for slander. Recently, the deputies of the Verkhovna Rada Nikolai Palamarchuk, Artur Palatnyi and Oleg Velikin have proposed to introduce criminal liability for slander.

Is current legislation really efficient? How can this be implemented, and what new mechanisms are “invented” by Ukrainian legislators? What impact will proposed changes have in case they are adopted? Mind asked a lawyer, Project Manager of the Security Business Practices of Juscutum law firm Aleksandr Gorobets to answer these questions.

In the digital world, the flow of information is practically unlimited. The more interesting thing is to find information about yourself in this flow: to see the reflection of activity, compare yourself with competitors, as well as with yourself as of yesterday or a year ago. But the richer your data profile is, the more frequently it can be denigrated by various negative aspects.

It is practically impossible to prevent the release of criticism into the information space, therefore, in addition to technical tools of counteraction, there is a legal procedure of satisfaction for a person who considers himself or herself to be a victim of slander.

The fight against slander — what has changed in this field? Recently, the Parliament registered a draft law No. 9306 “On amendments to the Criminal and Criminal Procedure Codes of Ukraine regarding the establishment of responsibility for slander”.

The authors of the document propose to introduce criminal liability for deliberate dissemination of knowingly false information discrediting the honor and dignity of another person or undermining his or her business reputation. As well as to introduce into the Criminal Procedure Code the article under which criminal proceedings shall be conducted as the initiation of criminal proceedings by a private person, that is on the basis of victim’s statement.

It should be noted that in early 2014 similar article was already introduced into the Criminal Code and was in force for a little more than a month. Between the articles providing responsibility for illegal placement in a psychiatric institution (Art. 151), as well as rape (Art. 152), the law of 16.01.2014 introduced the Art. 151-1 “Slander”. It is significant that the dispositions of articles earlier and today are almost the same: fines, corrective labour, and restriction of liberty.

But the sanction in the proposed amendments to part 3 today is much more serious than it was before.

“For the deliberate dissemination of knowingly false information that disgraces the honour and dignity of another person or undermines his or her business reputation, coupled with the accusation of a serious or particularly serious crime, a restriction of liberty for up to five years or deprivation of liberty for up to three years, with deprivation of the right to hold certain positions or engage in certain activities for up to three years is provided.”

Current practice. The question arises: how did a person, who had been considered a victim of the dissemination of false information, defend himself or herself before? People just suffered and waited for the time when there would be a criminal liability introduced for it?

There is enough practice in courts of general jurisdiction, as well as in commercial courts on the issue of protection against false information dissemination via the media and the Internet. Thus, Article 277 of the Civil Code of Ukraine provides for two most common ways to protect violated non-property rights: the right to refute false information and the right to respond.

For example, a few days ago the Notary Association of Ukraine appealed to the Ministry of Justice of Ukraine with a non-property claim for protection of business reputation with the requirement to refute false information provided by the defendant in the discussion of draft law No. 9311.

As for this example, the Notary Association of Ukraine has chosen a method of defense as follows: recognition of information distributed by the Ministry of Justice of Ukraine as false. While a plaintiff has the right to respond he or she is entitled to use at any time.

Here are some important features that courts take into account when considering disputes in this category:

  • the law provides for the presumption of a person’s integrity. Any negative information that is distributed about the person should be considered untrue if a person who has distributed it does not prove the opposite;
  • negative information must clearly identify a person. And it is not necessary to specify the passport details of a person because sometimes it is enough to specify his or her place of residence, type of activity or specific circumstances;
  • dissemination of information – bringing it to the knowledge of a third party in any way: verbal, written, by gestures and facial expressions, certain actions, works of art, etc. Therefore it is not dissemination if it is reported to a person, whom it concerns;
  • disseminated information has to be negative: to harm, hinder or threaten the enjoyment of rights of the relevant personal non-property benefits. It does not apply to criticism, but criticism differs;
  • the guilt of a person who has disseminated false information is not taken into account;
  • the limitation period during which you are entitled to file a claim for refutation is 1 year.

What sanctions may be applied? If false information was distributed by officials or officers during performance of their official duties, the obligation to refute disseminated information rests with a legal entity where this person works.

When considering disputes about false publications in the print media, the courts find out who is the author of the material, and who coordinated the submission of the material for publishing, which magazine (newspaper) published the information.

There is no specific legislation regarding publications on the Internet. Courts in this category of disputes are guided by the practical recommendations of the Supreme Court of Ukraine No.1 of 27.02.2009, which stipulate that the defendants, in this case, are the author of the information material and the website’s owner.

Are proposed amendments efficient? Lawyers assume that the introduction of a new Article in the Criminal Code of Ukraine setting forth responsibility for slander will for sure have a certain deterrent effect. We are also convinced that the investigation of this crime will proceed the same way as a plaintiff in a civil or economic process, namely: authors of materials and owners of websites will be identified, information about a victim and a suspect will be collected, but the decision will still be adopted by the court.

Foreign courts have been practicing criminal liability for slander for a long time. And its adoption in Ukraine was considered as one of the signs of freedom of speech introduction in the country. However, unlike the “civil” method of defense, as a result of criminal proceedings, it is impossible to oblige a guilty person or the media to publish a refutation using particular text, font, and form.

Aleksandr Gorobets, a lawyer, Project Manager of Business Security Practice of Juscutum JSC.

Mind