YPC Weekly Newsletter

2012


COURT OF CASSATION PROVIDED COMMENTARIES ON LEGAL PROVISIONS ON LIBEL AND INSULT

RA Court of Cassation rendered two precedent judgments on two defamation suits that involve media. The rulings provide commentaries on Article 1087.1 of RA Civil Code (“Order and Conditions of Compensation of Damage to the Honor, Dignity or Business Reputation”) and definitions of the notions of the Article. Pursuant to the Court of Cassation’s mission, these commentaries will contribute to the uniform court interpretation of the Civil Code provisions prescribing liability for libel and insult. This issue gained currency, since the court practice on defamation cases manifests the absence of such uniformity.

Particularly, the Court of Cassation defined the notions of “libel” and “insult”. “Libel” is a statement of fact that are false, publicly spoken and harm the honor, dignity and business reputation of a person. “Insult” is a public statement (wording, image, sound, etc.) that is made with fault and is harmful to someone’s honor, dignity and business reputation.

According to the Court of Cassation, in case of absence of one of the abovementioned criteria, there can be no libel and insult and subsequently no damage compensation.

At the same time, the Court of Cassation mentioned that even in presence of all the abovementioned criteria, the statement cannot be assessed as “insult” if it is based on facts or there is a pressing public interest.

Facts are considered to be those which are proved either immediately in the communication, or are common truths and are not subject to proof. Referring to the practice of the European Court of Human Rights, the Court of Cassation stressed the need of making clear distinction between statement of fact and value judgments: proving the latter is “an impossible task and such a requirement is a restriction of freedom of expression” (July 8, 1986 ECHR ruling on the case Lingens vs. Austria). At the same time, if the statement is qualified as a value judgment it needs a certain factual basis (December 17, 2004 ECHR ruling on the case Pedersen and Baadsgaard vs. Denmark), otherwise it will be assessed as excessive (July 1, 1997 ECHR ruling on the case Oberschlick vs. Austria) or not permissible (May 27, 2004 ECHR ruling on the case Rizos and Daskas vs. Greece).

Under each court litigation and preceding from the specific circumstances and the content of information the courts should define to what extent the information is conditioned by the pressing public interest, taking into account the mission of media – to inform about issues of pubic importance and disseminate opinions and ideas.

In presence of all the abovementioned criteria, a statement of fact is not qualified as “libel”, if: it regards the circumstances of a case that is pending at court or is at a pre-court stage; it is conditioned by the pressing public interest; it derives from the public speech of a person who is subject to critics. At the same time, the Court of Cassation stressed that, unlike in case of insult, there should be a factual basis for holding a pressing public interest in case of libel. Particularly, the person who has released the information should prove that before this he/she had took measures for defining the public significance of information and its possible truth. Besides, this information should be presented with bona fide and in a balanced way. The Court of Cassation also defined these two notions, as well as the notion of “publicity” of statement of fact.

The Court of Cassation also provided commentaries on the issue of exemption from liability for libel and insult. The matter of the dispute is settled, if the party subjected to libel/insult has requested and received a refutation/a right to reply in line with the RA Law “On Mass Communication”. The person is exempted from liability if simultaneously two conditions are observed: the statement fact is a verbatim or bona fide quotation of public speeches, official documents, works of authors, media publications; the disseminated information contains a reference to a source. At the same time, the Court of Cassation stressed that even in presence of these circumstances the person is not exempted from liability if his/her malicious intention is proved during the litigation. The Court of Cassation interpreted the notions of “source of information” and “media outlet” (for the latter it referred to Article 10 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, as well as to the ECHR rulings on the cases of Muller and Others vs. Switzerland, May 24, 1988, and Autronic AG vs. Switzerland, May 22, 1990).

As for the critics of public figures, the acceptable limits of criticism as regards the government are wider than towards private individuals, or even politicians, stated the Court of Cassation referring to the ECHR case law. In a democratic society, the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of press and public opinion (June 9, 1999 ECHR ruling on the case Incal vs. Turkey).

While determining the size of pecuniary compensation of the damage caused by libel and insult, the courts should take into account the financial situation of the respondent (demanding respective documents), as well as the means, tools and scope of the dissemination of information, say the print run of a newspaper.

According to the Law “On Mass Communication”, the demand for refutation/right to reply can be made not later than a month after the dissemination of information. Article 1087.1 of Civil Code prescribes a term for filing a suit on libel or/and insult, which should be not later than 6 months. According to the Court of Cassation, the 6-months term is reasonable and after it is expired, it should be regarded as defaulted.

As noted above, the precedent rulings of the Court of Cassation were made on April 27, 2012 upon two defamation cases: Dr. Tatul Manaserian, former Advisor to RA National Assembly Chairman, versus the founder of “Zhamanak” daily, “Skizb Media Kentron” LLC, and Vano Eghiazarian, Elder of Lernapat village, versus co-villager Boris Ashrafian, in which the “Zhamanak” daily founder appeared as a third party.

As it has been reported, on October 29, 2010 Tatul Manaserian contested at the court of general jurisdiction of Kentron and Nork-Marash administrative districts of Yerevan the piece “Criminal Proceedings versus the Advisor to NA Chairman?” published in “Zhamanak” on September 29, 2010. The plaintiff demanded to publish a refutation and pay off 2,5 million AMD (about $ 6,800), from which 2 million – as a compensation for the damage caused by libel, while the 500,000 – court expenses. On September 20, 2011 the court partially secured the suit, binding the founder of “Zhamanak” to publish a refutation and pay off the plaintiff 510,000 AMD (300,000 -compensation for moral loss, 200,000 – court expenses, and 10,000 – state duty for filing the court). The founder of “Zhamanak” appealed this decision at RA Civil Court of Appeal, which upheld it on December 15, 2011 (see details in YPC Weekly Newsletter, December 16-22, 2011). On January 18, 2012 “Zhamanak” founder addressed the RA Court of Cassation, which on April 27 upheld the rulings of the lower court instances.

The hearings on the suit of Lernapat Elder Vano Eghiazarian versus his co-villager Boris Ashrafian started at court of general jurisdiction of Lori region on February 9, 2011. The matter of the suit was the interview of Boris Ashrafian published in “Zhamanak” daily on September 1, 2010. The piece contained critics about the village Elder. The plaintiff demanded to apologize in “Zhamanak” and compensate the moral damage of 3 mln AMD (about $ 8,100). On July 22, 2011 the court partially secured the suit binding Boris Ashrafian to publish apologies in “Zhamanak” and compensate the damage of 300,000 AMD. Both of the parties had contested the ruling at the RA Civil Court of Appeal. On October 5, 2011 the complaints were revoked, and Boris Ashrafian addressed the RA Court of Cassation. On April 27, 2012 the Court of Cassation cancelled the rulings of the courts of first and second instances, holding to finally revoke the suit of Lernapat Elder Vano Eghiazarian.