SBU Against Hnap: How the Supreme Court Refused to Debunk the SBU Officer Called a 'Vampire'

In March on 2018, the Supreme Court definitively denied SBU employee Ivan Porada's cassation appeal regarding the humiliation of his honor and dignity in a post by journalist Dmytro Hnap. The court held that the words “vampires” and “werewolves” were evaluative judgments, not facts, and therefore could not be subject to refutation. Lawyer Tetyana Dmytriykova of the project “Tisny” (Bihus.info) analyzed the court’s conclusions in this case.

What happened?

28 March 2018 year, the Cassation Civil Court in the structure of the Supreme Court issued a decision, which left without satisfaction the cassation appeal of SBU employee Porada Ivan, and the decision of the appeals court regarding the denial of protection of honor, dignity and business reputation, refuting false information, as well as the compensation of moral damages in the amount of 47 720 UAH, unchanged.

Background

16 October 2015 year journalist Dmytro Hnap wrote on Facebook: “Take a look at the vampire. Here is Ivan Porada’s Jeep—the SBU employee who tormented our colleague Mykhailo Tkach from the program ‘Schemes.’ While Porada is under investigation, the guy calmly goes to work. In the car is a full set of a repainted corrupt official: patriotic flag and seeds. Lots of seeds. A Jeep, seeds—very useful for this job. Otherwise, you won’t fit into a criminal environment. And once you’ve broken in, you won’t want to get out. Werewolves, damn.” Below, under the post text, three photographs of a Toyota car are posted, license plate AA1009KT, the car’s number, the car’s interior front part, and the car’s salon with an open bag of seeds. This post was liked by 2 812 Facebook users, and shared by 392 a user on their pages.

In March 2016 year Ivan Porada filed a lawsuit against Dmytro Hnap for the protection of honor, dignity and business reputation, refuting false information, and compensation of moral damages in the amount of 47 720 UAH.

First instance. Refute

By a decision of the Sviatoshyn District Court of Kyiv dated 27 January 2017 year, the claim of Ivan Porada was partially satisfied. It recognized the non-pecuniary benefit of Porada I. I. violated, which offends his honor, dignity and business reputation in the journalist’s post. It ordered journalist Dmytro Hnap to publish on his personal Facebook page no later than 10 days from the date the decision becomes final the operative part of this decision. In other parts of the claim (moral damages) it denied relief.

Appeal. Deny the plaintiff

26 April 2017 year, the Kyiv Court of Appeal overturned the Sviatoshyn District Court’s decision in the part of the satisfied claims and issued a new decision in that part, denying the plaintiff’s claims of satisfaction to Ivan Porada.

The appellate court’s decision reasoned that “the part of the information published by the defendant on his personal Facebook page about the plaintiff is not either false information or evaluative judgment, and in part is the defendant’s evaluative judgment, but in accordance with the provisions of Article 277 of the Civil Code of Ukraine evaluative judgments, opinions, beliefs, critical assessments of certain facts and shortcomings are not subject to judicial protection.” In addition, the appellate court pointed to the fact that the bounds of permissible criticism of a public figure are much wider than those for an ordinary person.

Supreme Court. Conclusions

The Supreme Court confirmed the correctness of the appellate court’s conclusion, since a public figure is open to strict criticism and vigilant public oversight, and the bounds of permissible criticism of such a figure are significantly wider. The Supreme Court also formulated the following key conclusions in this case:

1) The Supreme Court cited points 40-42 of the European Court of Human Rights (ECHR) in the case “Ukrainian News-Group” v. Ukraine, dated 29 March 2005 year, in which the ECHR noted that journalistic freedom includes the use of expressions that are somewhat exaggerated or even provocative. Provided that the conditions of paragraph 2 of Article 10 of the Convention are met, the right to freely convey information extends not only to information and ideas that are received favorably or considered harmless or neutral, but also to those that insult, shock or arouse concern. These are requirements of pluralism, tolerance and liberalism, without which there is no “democratic society.” The requirement to prove the truth of evaluative judgments is unattainable and violates freedom of expression as such, a fundamental part of the right protected by Article 10 of the Convention (Lingens v. Austria, para. 28, para. 46). However, even if a statement is an evaluative judgment, the proportionality of interference must depend on whether there is a sufficient factual basis for the contested statement. Depending on the circumstances of the particular case, a statement that is an evaluative judgment may be exaggerated in the absence of any factual basis.

2) Given that the plaintiff serves in the SBU, information about his property status and conscientious performance of duties constitutes a public interest. The public has a right to receive such information.

3) Using an expensive car, leaving or placing personal belongings in visible places in the car’s cabin, the plaintiff must be prepared for some sharp criticism from the press or ordinary citizens.

In summary, the Supreme Court agreed with the appellate court’s conclusions that there are no legal grounds to intervene in the journalist Hnap D. V.’s right to disseminate information, which, although containing incorrect statements, is not subject to refutation, since current law does not provide for the possibility of holding someone liable for expressions of evaluative judgments. Such judgments, like opinions, beliefs, judgments, and critical assessments of certain facts and shortcomings, cannot be the subject of judicial protection, as being an expression of subjective opinion and views they cannot be verified for truthfulness (unlike the verification of facts), and public officials must be tolerant of sharp, even incorrect, criticism.