Date of publication: 2 September 2019
Galyna Lefor, Attorney at Law
The right to and freedom of expression are not absolute, and they exist only until they violate the rights of others. The right to freedom of thought and expression, to free expression of your views and beliefs correlate with a duty not to disseminate false information about a person and information defaming his or her dignity, honor or business reputation. In the case of violation of the non-property right to respect for honor and dignity, the only body which the offended person may rely on is the court. It is the court that can declare the disseminated information to be false and oblige the defendant to refute it.
The legislation aimed at protecting a person or entity from dissemination of false information is now outdated and ineffective. It does not cover most areas of public life and does not address the problems of protecting information and personal non-property rights of a person or entity.
The Civil Code of Ukraine, which came into force on 1 January 2004, provided for the presumption of inaccuracy of adverse information: the adverse information disseminated about a person is considered to be false until proven otherwise. This presumption of honesty exonerated the plaintiff from the burden of proof, but the person who disseminated the adverse information (the defendant) was obliged to prove that the information was true.
However, paragraph 3 of Article 277 of the Civil Code of Ukraine, i.e. the said presumption, was deleted by the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine in Connection with Adoption of the Law of Ukraine ‘On Information’ and the Law of Ukraine ‘On Access to Public Information”” dated 27 March 2014, as a result of which the burden of proving the false nature of information was placed with the claimant.
So where is this thin dividing line between the reliable information and value judgment?
The term value judgment is defined in Article 30 of the Law of Ukraine “On Information”, according to which the value judgments are – with the exception of slander – the statements containing no factual data, and also criticism, evaluation of actions, and statements that cannot be interpreted as containing factual data, in particular, given the nature of the use of linguistic means (eg, the use of hyperbole, allegory, satire). The value judgments cannot be challenged and proven true. Proceeding from the content of paragraph 19 of the Resolution of the Plenum of the Supreme Court of Ukraine “On the Court Practice on Protection of Dignity and Honor of an Individual, as well as the Business Reputation of an Individual and Legal Entity” No. 1 dated 27 February 2009, the value judgments include opinions, beliefs, critical assessment of certain facts and defects, which are an expression of the subjective opinion and views of the defendant, and which cannot be verified as true (as opposed to test of truth) and refuted.
The contents of terms “statement of fact” and “value judgments” were also disclosed in the Resolution of the Supreme Court of Ukraine dated 1 February 2018 in the case No. 757/33799/15-ц, according to which:
statement of fact is a logical construction and presentation of a particular fact or group of facts. Fact is the phenomenon of objective reality, the specific circumstances of life that have taken place in a particular place and time under certain conditions. Given that the fact itself is of objective nature, regardless of the opinions and views of third parties, its veracity and credibility can be verified and established by the court;
value judgment is the same as thought, opinion. It is a mental act that is evaluative by nature and expresses the speaker’s attitude to the content of the thought and to the direction associated with such psychological states as belief, confidence or doubt. It is impossible to assess the veracity or credibility of a value judgment in any way and, therefore, it is not included into the scope of subjects to be proven.
Yet, however, the use of a number of speech patterns can turn the statement of fact into a value judgment. For instance, a common technique to turn the statement of fact into a value judgment is a form of assumption and personal opinion (evaluation). The controversial (value) judgments do not contain any actual information, since they are often expressed using linguistic means not in the affirmative form, but as the assumptions with phrases “possibly”, “I have an impression”, “in my opinion”, “it seems”, “It believe”. Another way is to rephrase the statement into a question and, given the lack of statement as such, the veracity and credibility will be impossible to establish.
When considering the cases on compliance with the provisions of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“Freedom of Expression”), the ECHR states: “While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. However, even where a statement amounts to a value judgment, the proportionality of the interference may depend on whether there exists a sufficient factual basis for the impugned statement. Looked at against the background of a particular case, the statement that amounts to a value judgment may be excessive, in the absence of any factual basis”. The Court emphasizes that the requirement to prove the credibility of the value judgment cannot be met and, therefore, it violates the freedom of expression as such, which is a fundamental part of the right guaranteed by Article 10 of the Convention (see, inter alia, Judgment dated 29 May 2005 in the case Ukrainian Media Group v. Ukraine, Application No. 72713/01, para. 41).
The existence of facts can be demonstrated, but the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
It should be mentioned that an abusive value judgment does not imply the liability as for expressing the value judgment when it has a sufficient factual basis and is not excessive given the situation and circumstances under which such statement was made. However, as the ECHR notes, even where a statement amounts to a value judgment, the proportionality of the interference may depend on whether there exists a sufficient factual basis for the impugned statement. Looked at against the background of a particular case, the statement that amounts to a value judgment may be excessive, in the absence of any factual basis (see Judgment in the case De Haes and Gijsels v. Belgium dated 24 February 1997, Reports of Judgments and Decisions 1997 – I, p. 236, para. 47; see Judgment in the case Oberschlick v. Austria (No. 2) dated 1 July 1997, Reports of Judgments and Decisions 1997 – IV, p. 1276, para. 33).
Therefore, intending to apply to the court for the protection of non-property right to respect for honor and dignity, and recognition of information as false, among other things, one should determine whether it is possible to verify the statements for their credibility and possibility of their refutation, as well as whether or not the value judgment is excessive.