Editor's Note: The following is an op-ed by the director of Freedom House Ukraine Matthew Schaaf. It was first published in Ukrainian on Ukrainska Pravda news site.
On August 9, the Commercial Court of Kyiv dealt a blow to media freedom and independent journalism in Ukraine when it took the side of the radical right-wing group C14 in a dispute with Hromadske. The group sued Hromadske to protect its honor, dignity, and business reputation after the TV channel shared a tweet in 2018 reporting on the group’s questionable activity and called it a “neo-Nazi group.” While the court’s penalty for Hromadske – a small fine and a retraction of the claim – seems small, the court’s decision could seriously stifle media coverage of important developments in Ukraine, an environment where many media outlets and journalists already practice self-censorship. The Kyiv Court of Appeals is slated to hear Hromadske’s appeal of the Commercial Court’s ruling on November 7.
Most people would probably agree that “neo-Nazi” is a label to avoid. The commercial court essentially agreed with this conclusion, and relied on a linguistic analysis to conclude that Hromadske’s tweet was false and defamatory. But the court refused to hear any evidence that would support Hromadske’s claim, and made no effort to weigh the public’s strong interest in Hromadske’s coverage of the topic. In fact, the commercial court’s decision adds to the already significant pressure on Ukrainian media to avoid reporting on controversial topics despite the public’s interest in the coverage. A recent survey of journalists conducted for ZMINA Human Rights Center found that 96% of journalists spot censorship of one form or another in Ukrainian media, especially when it comes to topics thought to be unpopular among the public or against the interest of the state.
The commercial court’s decision also runs contrary to European media and freedom of expression standards. In general, under standards refined by the European Court of Human Rights, media outlets have broad leeway to publish and receive opinions and information, including those which shock or offend people. Any limitations on the media’s freedom of expression – or on anyone’s freedom of expression for that matter – must be shown to be “necessary in a democratic society.”
The European Court has also repeatedly found that the freedom of expression and media freedom are especially strong when it comes to issues in which there is a major public interest. The public’s strong interest in information about the detention and delivery of a person by a non-governmental group to a law-enforcement agency, as C14 did in the case Hromadske was tweeting about, is clear. Indeed, C14 has a history of scandalous and legally questionable actions, including using neo-Nazi phrases and symbolism as well as racist attacks, which only increase the importance of reporting on its activity and lend credence to Hromadske’s characterizations. In fact, C14’s PR stunts aimed at bolstering the group’s visibility have worked, turning the group into a “public figure” that the media should and must thoroughly scrutinize. Under the European standards, being a “public figure” automatically weakens any claims by a person or group – the public figure – that they should be protected from controversial criticism.
Yet the court refused to consider evidence which supports Hromadske’s reporting on C14, and did not consider how important such reporting of contested and controversial issues, especially about public figures, is to Ukraine’s growing democracy. What is more, according to an analysis of the court’s decision by the Human Rights Platform, a Ukrainian group that specializes in media law, the court refused to actually come up with its own legal conclusions, choosing instead to let linguistic experts do the court’s work. This is also runs contrary to basic standards established by the European Court of Human Rights according to the Human Rights Platform analysis.
Given the Commercial Court’s refusal to consider the public’s strong interest in the reporting on C14 and Hromadske’s right to share its reporting on the topic, the Kyiv Court of Appeals should overturn the lower court’s ruling. In a democratic society like Ukraine, reporting about public groups, no less ones that try to take on law enforcement functions and have a history of using violence, is essential. Yet, if the ruling stands, self-censorship among the media on important topics would likely increase. A media sector that is heavily influenced by self-censorship cannot possibly fulfill its critical functions of enabling public debate, holding officials accountable, and reporting on matters of public interest.