Information Note on the Court’s case-law No. 141

May 2011

Editorial Board of Pravoye Delo and Shtekel v. Ukraine - 33014/05

Judgment 5.5.2011 [Section V]

Article 10

Article 10-1

Freedom of expression

Absence of safeguards in domestic law for journalists using publishing materials obtained from the Internet: violation

Facts – The first applicant was the editorial board and the second applicant the editor-in-chief of a newspaper. In 2003 the newspaper published an anonymous letter it had downloaded from a news website and which had allegedly been written by a member of the secret services. The letter contained allegations that senior officials of the Ukrainian security service had engaged in unlawful and corrupt activities and had links to organised crime. The newspaper provided reference to the source of the information and published a comment by the editorial board indicating that the information in the letter might be false and inviting the public to comment. A claim was then lodged against the applicants by a person who claimed that he had been defamed by the information contained in the letter. The applicants were held jointly liable and ordered to pay damages. The first applicant was also ordered to publish a retraction and the second applicant an apology.

Law – Article 10

(a) Order requiring an apology : While the domestic law provided that injured parties in defamation cases were entitled to demand the retraction of untrue and defamatory statements and compensation for damage, the order requiring the second applicant to publish an official apology was not specifically provided for. Nor was there any evidence that the Ukrainian courts had been inclined to give such a broad interpretation to the applicable legislation. Neither the domestic courts nor the Government had provided any explanation for such an obvious departure from the relevant domestic rules. Moreover, domestic judicial practice subsequent to the events at issue had noted that the imposition of an obligation to apologise in defamation cases might run counter to the Constitutional guarantee of freedom of expression. Accordingly, the order requiring the second applicant to issue and apology had not been prescribed by law.

Conclusion : violation (unanimously).

(b) Absence of safeguards in Ukrainian law for journalists publishing materials obtained from the Internet : Ukrainian law granted journalists immunity from civil liability for the verbatim reproduction of material published in the press. This was generally in conformity with the Court’s approach to journalists’ freedom to disseminate statements made by others. However, no such immunity existed for journalists reproducing material from Internet sources not registered pursuant to the domestic legislation. Further, no regulations had been put in place governing the State registration of Internet media, the status of Internet-based media in general or the use of information obtained from the Internet. The Court accepted that the Internet was a distinct information tool from the printed media and that the risk of harm posed by the content and by communications on the Internet was much higher than that posed by the press. Consequently, the policies governing the reproduction of material from the printed media and the Internet might be different. Nevertheless, given the role played by the Internet in the context of professional media activities and its importance for the exercise of freedom of expression, the absence of a sufficient legal framework at the domestic level allowing journalists to use information obtained from the Internet without fear of incurring sanctions might seriously hinder the exercise of the vital function of the press as a “public watchdog” and might itself give rise to an unjustified interference with freedom of the press. Given the lack of adequate safeguards in the domestic law for journalists using information obtained from the Internet, the applicants had been unable to foresee to the appropriate degree the consequences which the impugned publication might entail.

Conclusion : violation (unanimously).

Article 41: EUR 6,000 to the second applicant in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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