“How to Shut a Journalist Up.” Will Parliament Break the Portnov, Dubinsky and Svynarchuks’ Tactic?

A draft bill No.16117 has been registered in parliament that is supposed to protect journalists and activists from judicial pressure by politicians and unscrupulous businesses. For years media outlets and civil society organizations have been fending off lawsuits in which plaintiffs allegedly defend their honor and dignity. In reality the goal is different — to force defendants to spend time and money not on their work (anti-corruption investigations) but on legal defense. These lawsuits are called SLAPPs and have a chilling effect on freedom of speech (from English Strategic Lawsuit Against Public Participation).

Pressure on freedom of speech existed both during Viktor Yanukovych’s presidency and during Petro Poroshenko’s. The best-known politician who used the court system this way was Andriy Portnov — the presidential administration’s “overseer” of the courts. He sued Skhemy, hromadske and the Anti-Corruption Action Center. And the Svynarchuks (Hladkovskyi family) demanded that Bihus.Info delete an investigation into corruption in the defense sector and sought a million hryvnias in compensation.

Ukraine is obliged to adopt the relevant law to minimize such attacks by the end of this year (EU Directive 2024/1069). The work on the bill was overseen by the head of the Committee on Freedom of Speech, Yaroslav Yurchyshyn (Holos). He, together with Ruslan Stefanchuk, are the first co-authors of the bill. However finding the necessary votes may be difficult because the lawsuits are filed by members of parliament themselves — Oleksandr Dubinskyi, Ihor Fris and others.

Lawsuits, criminal cases and “black PR.” How do subjects of anti-corruption investigations act?

When it comes to SLAPP lawsuits, politicians and officials can file them by the dozens even against a single editorial office, and this is one of the tactics used to block media work. For example, Bihus.info had about 30 cases over protection of honor and dignity in 2021. The outlet’s lawyer Maria Muzychka says that most of the suits bore the hallmarks of a SLAPP attack: “One of the processes lasted more than six years. That is significant court expense, large sums demanded as compensation by those who considered themselves injured parties. There were also arrests of accounts and property belonging to people connected to the outlet and forced enforcement of decisions. Six years is a substantial portion of a journalist’s professional life. Even if the outlet ultimately proves its case, no one will automatically return the time spent, the resources and the reputational losses.”

Another example is the case against Dzerkalo Tyzhnia and editor Inna Vedernikova. The outlet investigated how a group of lawyers, according to NABU, obtained illegal access to materials in more than a hundred criminal cases. One of the suspects, former Deputy Chief Military Prosecutor Dmytro Borzykh, responded by going to court. He wants the publications declared unreliable and for the media to stop calling him a suspect. In addition, Borzykh demands 500 thousand hryvnias in compensation to cover court costs, including 300 thousand for legal assistance, even though he himself works as a lawyer. The editorial office also noted signs of a so-called “judicial carousel,” where the plaintiff withdraws a suit and files it again until the case lands with the desired judge.

Sometimes plaintiffs do not wait for publication to later demand a retraction but try to prohibit it in advance. For example, in the summer Judge Serhii Vovk of the Pechersk District Court banned Slidstvo.Info from publishing an investigation into the property of the brother of the director of the State Bureau of Investigations. But the media found a way to respond: several outlets simultaneously published the colleagues’ text. The ban, which was meant to hide the information, only drew more attention to it.

“Even if the outlet ultimately proves its case, no one will automatically return the time spent, the resources and the reputational losses.”

Not only editorial offices but also activists come under pressure. Sometimes politicians at national and local levels unite against a single person. That happened in Pryirpinnia in the Kyiv region, where since 2009 there have been attempts to build on the Bilychanskyi Forest. In the spring of 2022 this forest along the Irpin River became a line of defense for Kyiv.

The head of the public initiative Holka, Iryna Fedoriv, has defended the forest against development for many years. MP Oleksandr Horobets filed a lawsuit against her. Former Irpin mayor Volodymyr Karpliuk also went to court: he demanded protection of his honor and dignity and sued not only Fedoriv but also the outlet Hlavkom, which published the activist’s opinion column.

As a rule, in such cases politicians may win at first instance but lose at the Supreme Court. That is what happened: in the Irpin City Court Iryna Fedoriv lost to the claims of Horobets and Karpliuk, but she won on appeal. And the Supreme Court refused to consider the politicians’ appeals.

But there are cases when the appellate instance requires a retraction, the decision comes into force, and the defendant, journalist or editorial office must comply — issue a retraction. The Supreme Court needs time to start reviewing the case and restore justice by protecting freedom of speech. Therefore, if media lost funds after such a decision and paid compensation, the money can still be returned, but when the retraction has already been published following the appellate decision — the plaintiff has effectively already achieved their goal and obtained a retraction. A Supreme Court decision can restore justice but will not restore the status quo in the information field.

A similar situation occurred in the case of journalist Olena Mudra. She defends the Carpathians, specifically the Runa meadow, from development by a company linked to former regional politician Maksym Yefimov. In the first instance the journalist lost and is now forced to continue litigating. “It’s important to understand that such lawsuits, when you spend time and money, are only one technique used by politicians and unscrupulous developers. They will go to court despite the fact that I presented evidence showing why construction at high elevations in the Carpathians is carried out in violation — performed without an environmental impact assessment. And there is another tactic — opening criminal cases against a journalist or activist. A non-existent person filed a complaint against me, and that did not stop law enforcement. It’s so you don’t do investigations but just go to courts and to investigators. Another form of pressure is disinformation. Anonymous sites spread fakes about me and environmentalist Oksana Stankevych-Volosyanyuk and attributed absurd things to us, up to treason. The discrediting took place on Facebook and on YouTube,” Mudra says.

The situation that arose in Zakarpattia is not unique. An open criminal case and persecution are reality for activist Svitlana Kuraksina. Currently a resident of Kharkiv, she founded her organization Khranyteli and fights to preserve the forest near Osnovianske Lake.

The new bill submitted to parliament will not solve issues with criminal cases or disinformation against journalists, but it should address SLAPP lawsuits. That is emphasized by member of the National Council on Television and Radio Broadcasting Oleksandr Burmahin: “There are other challenges, when security agencies secretly monitor and try to mobilize journalists, when a contrived criminal case is opened and the trend of recent years — coordinated information attacks on journalists through anonymous dump channels. The submitted bill provides tools to protect only against SLAPP attacks, but the humiliation of journalists’ honor and dignity and attempts to destroy their reputation in this way is a challenge that will still need to be worked on.”

Who will the new law protect and how should a judge recognize a SLAPP lawsuit?

The new bill is intended to protect not only media or journalists but any citizen who writes or speaks about matters of public importance: corruption, environmental protection, human rights, democracy or fights disinformation. That can include whistleblowers, human rights defenders, academics, researchers, writers, or legal entities such as civil society organizations.

At the same time the law will not give the right to spread lies. A person whose rights are truly violated will retain the ability to go to court. The task of the new bill is to give judges tools to determine whether the plaintiff’s rights are genuinely violated or whether the court is being used as an instrument of pressure.

Among the signs that allow judges to spot such suits is comparing the influence of the plaintiff and the defendant. This concerns an imbalance when, for example, an influential politician, government body or large company sues an individual journalist or a local editorial office.

The court should also pay attention to an inflated amount of compensation, disproportionate demands, artificial delays of the process, manipulations with jurisdiction, filing several similar suits and attempts to increase the defendant’s costs.

Abuse can also be indicated by the broader context: threats, persecution, a campaign of discrediting or harassment that accompanies the court case. This is often how pressure works. First an information attack is launched against a journalist, then a suit is filed, and the mere fact of opening proceedings is used for a new wave of publications.

Importantly, the list of such markers is not closed. This will allow the court to assess the real behavior of the parties rather than look for a single formal sign.

How to hold accountable those who, instead of the right to protection, introduce the right to censorship?

One of the main ideas of the project is that in cases related to public participation, the plaintiff must prove the justification of their claims.

Currently a journalist or activist often finds themselves in a situation where they spend years proving the right to speak about a matter of public importance. The plaintiff only needs to start the process and sustain it with new petitions, expert opinions and complaints.

The new approach is meant to change that system. If an official or subject of an investigation claims he is protecting his right, he must show the court a real violation, not use his own financial resources to exhaust the weaker party.

The draft separately proposes limiting the size of moral damage awards in disputes where the plaintiff has a power, political or financial advantage. If a journalist acted in good faith to verify information and did not know of its possible unreliability — the court should take that into account in the journalist’s favor. And the compensation amount should not create a deterrent effect to further public participation.

This is a principled change. Million-hryvnia claims almost always indicate that this is pressure, not an attempt to compensate the plaintiff’s suffering. That creates a chilling effect on freedom of speech.

What will the liability for SLAPP lawsuits be?

Currently the law provides no liability for such attacks against editorial offices, journalists or activists. Therefore a SLAPP attack is now a cheap way of exerting pressure that allows exhausting time and financial resources.

Protecting civic activists and journalists from pressure using judicial mechanisms is something we need not for the EU or other partners, but for ourselves

The new bill gives the defendant the right to demand compensation for material and moral damage. The court will also be able to oblige the SLAPP attack initiator to publish a decision that recognizes the abuse. Information about such cases should be entered into a separate register.

The draft also provides access to legal assistance. Civil society organizations will be able to participate in cases and it will be possible to provide protection not only to the defendant but also to their close ones. This is important because pressure in such cases is often directed at family, property or people who support the journalist or activist.

Lawmakers placed special emphasis on out-of-court resolution. If a person truly wants an error corrected, they can contact the editorial office asking for the right of reply, to publish a retraction, or resort to negotiations or mediation.

Committee on Freedom of Speech chair Yaroslav Yurchyshyn notes: “According to the eurointegration plan, we must adopt legislation on protecting public participation from abuse of court proceedings by the end of the current year. And we have a chance to make it in time. There is plenty of time. Protecting civic activists and journalists from pressure using judicial mechanisms is something we need not for the EU or other partners, but for ourselves. It is about access to information, it is about democracy, and therefore it is definitely about us.”

Yurii Melnyk, lawyer, participant in the Holka public initiative and media lawyer at the Platform for Human Rights