On October 20 the Council on Information Disputes released its fourth judgment on a defamation court case. The missions of the Council, established on May 1, 2011, list preparation and release of advisory expert conclusions on court litigations regarding libel and insult, protection of private life and freedom of information, as well as providing consultations to the Armenian legislative and executive authorities, local self-government bodies and citizens (see YPC Weekly Newsletter, April 29 – May 5, 2011).
The Council’s fourth expert judgment deals with the suit of RA National Assembly MPs Samvel Aleksanian (unaffiliated), Levon Sargsian and Ruben Hayrapetian (members of Republican Party of Armenia faction) versus the founder of “Haykakan Zhamanak” daily, “Dareskizb” LLC.
As it has been reported, the reason for the suit became the piece “Seven of the Eight Are in the List”, published in “Haykakan Zhamanak” on October 14, 2010. The article told that some of the Armenian officials and businessmen, including the abovementioned RA NA deputies (who are at the same time major entrepreneurs), appear in a number of criminal cases, instituted by the Russian law enforcement bodies. On February 7, 2011 court of general jurisdiction of Kentron and Nork-Marash administrative districts of Yerevan secured the MPs’ demands on publishing a refutation on the information that discredited their honor, dignity and business reputation, as well as bound the founder of “Haykakan Zhamanak” to pay off a moral compensation and the court expenses in a total amount of 6 million 132 thousand AMD (over $ 16,800). The respondent had appealed the judgment at second and third court jurisdictions, nevertheless both, the Court of Appeal (on June 9) and Court of Cassation (on August 3), revoked the complaint (see YPC Weekly Newsletter, September 8-15, 2011).
As the Council’s expert judgment mentions, the legal analysis of the suit is based on principles of national and international law, in particular, the RA Constitution, Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Council finds that based on the case law of the European Court, while considering defamation cases the courts have to discuss issues regarding the check of the facts and information sources, the balanced coverage, etc.
After publishing the contested article “Haykakan Zhamanak”, already in the pre-court stage, issued on November 2, 2010 an interview with the source of information. In the piece the source of information did accept the fact of provision of information and also announced other details. According to the Council, the fact that the media disclosed its source proves an act of fair journalism, presence of trust by the media towards its source, absence of actual malice, and that the individuals offended by the media were given a reasonable opportunity to protect themselves. The balanced coverage is manifested by the fact that the author of the article has avoided using the expression “participation” by the abovementioned MPs in crimes, on which criminal proceedings were instituted.
The Council believes that the courts did not use the aforesaid criteria in passing their verdicts. Moreover, the court procedure was carried out so that the representative of the media was not given the chance to present its arguments.
Besides, the Council does not share the conclusion of the Court of Appeal, according to which “the respondent could have been released from responsibility only if the article clearly referred to another person’s public speech, which had taken place before the publication, and if this reference was verbatim or an accurate reproduction of the another person’s public speech”. According to the Council, such conclusion has a limiting nature.
At the same time, the Council stresses the requirement for the journalist to sufficiently distinguish himself/herself from the defamatory announcements in the publication: in all cases the reader has to get an impression that the announcement does not come from the media, but is a citation of the journalist’s source.
As for the compensation of 6 million AMD, established by the court, the Council finds it disproportionate.
Thus, Information Disputes Council concluded that within the given case the courts have made an inproportional intervention in the media’s right to freedom of expression.