A Time for Candor

On March 29 the European Court of Human Rights ruled against Ukraine in the case of Ukraine vs. the Ukrainian Press Group, The Day’s publisher, and found Ukraine guilty of suppressing freedom of the press. This ruling was examined in detail in the April 12 issue of The Day . The ruling established a precedent, with our newspaper becoming the first Ukrainian periodical to have won a case at one of Europe’s highest judicial authorities. Its outcome is fundamentally important.

The ruling by the European Court of Human Rights has ushered in a new relationship between journalists and politicians. Unfortunately, neither party seems to have taken much notice of this fact. The Western media, including Radio Liberty and Deutsche Welle, were the first to report this momentous event, which passed almost unnoticed by their Ukrainian counterparts. It was ignored by almost every television broadcaster, and this indifference has compelled us to investigate its underlying causes.

The implications of this precedent in the Ukrainian media space raise many questions that need answers.

The Day approached experts, in particular journalists who can be rightfully called representatives of new Ukrainian journalism (but not in terms of age, since most of them have long professional careers). Their common distinguishing feature is their ability to work with facts, analyze them, and express confident, bold opinions — a hallmark of independent journalism.

1. Why do you think the news of this ruling did not make headlines in Ukraine, despite its important implications for the Ukrainian media space, politicians, and perhaps the justice system?

2. How much significance does this ruling have for the Ukrainian media? What are its pros and cons, given the specifics of the Ukrainian media industry?

Volodymyr BOIKO, journalist, Radio Liberty:

“This obviously happened because neither the current political leadership nor journalists really consider the European Court’s ruling on the lawsuit filed by The Day (which should be incorporated into Ukraine’s domestic legislation in line with Ukraine’s international commitments and the status of European Court’s rulings against Ukraine) a precedent, and because Ukraine was and remains a totalitarian state in which the judicial branch of government is virtually nonexistent. Weren’t the Ukrainian trial and appeal courts that ruled against The Day familiar with the Convention on Human Rights and Fundamental Freedoms? Didn’t they know that writers who express value judgments may not be held liable in defamation lawsuits brought by individuals described in their publications? Didn’t Ukrainian judges know before the European Court’s ruling that in choosing a career in politics, public servants, particularly Natalia Vitrenko and Petro Symonenko, who were offended by The Day, must realize that from now on their every move will be scrutinized and often ridiculed on the pages of newspapers? They certainly did. But this didn’t stop them from handing down an unjust verdict against this particular newspaper.

“Ukrainian politicians took no notice of the verdict by the European Court of Human Rights because the new leadership, much like the old one, views court proceedings as a kind of ritual meant only to give legitimacy to decisions previously made in offices of power. In reality, this ruling will have no impact on the legal relationship between the print media and the targets of their criticism, and Ukrainian judges will continue to hand down verdicts purely out of political expediency and personal enrichment. Ukraine has no independent judicial system, which is a mere appendage of the executive branch.

“For this very reason this ruling passed unnoticed by journalists, since it will not change the way things happen in real life. If the authorities decide to penalize a certain publication or journalist, the judges will carry out their order without much thought for the European Court, the Convention on Human Rights, or even Ukraine’s mass media legislation. Under the new government they continue to hand down illegal verdicts in criminal cases, fix civil cases, and sentence innocent people. Meanwhile, for a kickback amounting to 10% of the punitive damages award, they will fabricate any kind of verdict in business disputes. Ukrainian justice is a form of business, and no conventions can change this because the country’s leadership wants things to continue the way they are. For this reason, none of the judges who handed down the illegal ruling against The Day will be punished, while taxpayers will shoulder the burden of pecuniary liability for this arbitrariness.

“The Ukrainian media industry is exceptional in that it does not differentiate between the journalistic profession and that of an advertising agent or propagandist. It’s worth noting that lately so-called ‘international standards of journalism’ have been imposed on media people in Ukraine. These standards require the print media to completely refrain from value judgments and make their materials accessible to the most uneducated information consumers. Allegedly, this will help achieve impartial reporting, leaving it to readers, listeners, or viewers to form their own conclusions and opinions. In reality, such ‘standards’ are a sign of professional incompetence on the part of those who advocate them because genuine journalism is impossible without a variety of genres. Whereas value judgments are absolutely inadmissible in news reports, they are the core of investigative writing, newspaper satire, or lampoons. Journalism is not limited to news making. The aim of such value judgments is a different matter. If they serve to satisfy consumers’ information needs (for example, a journalist explores a criminal case, interviews experts, studies the legislation, and comes up with his own conclusion that he shares with readers), such value judgments are very welcome, even if the author proves to be somewhat mistaken in his conclusions. After all, mistakes can always be corrected. It’s a different matter when journalism is used by someone from a different profession — a propagandist whose materials may be published only in the classified advertisements section. This profession is no worse than that of a journalist and has the right to exist. However, its representatives have no right to mislead readers and pass off an ordinary PR leaflet that has been ordered and paid for by an interested party as genuine investigative reporting.

“To prevent value judgments from turning into defamation, the journalistic environment should embrace the practice that has become established in other countries, whereby a person caught collaborating with an advertising agency or publishing made-to-order articles is barred from the profession for life. Such a person may be a noted socialite with a high-paying job, who is respected by politicians and business people. However, never and under no circumstances can such a person be called a journalist. All of us Ukrainian journalists know which colleagues of ours are bona fide professionals, who sometimes even risk their lives, and which ones are only serving moneyed clients under the guise of ‘independent journalism.’ We should regularly publish price lists for such-and-such ‘leading journalists’ and reveal the real price tag of such-and-such ‘impartial’ articles, and the situation will improve gradually.”

Natalia KONDRATIUK, television reporter:

“Congratulations. This is a major victory. I guess it passed unnoticed by our colleagues primarily because of the lack of professional solidarity. Moreover, this problem was resolved in the legal field and not by means of protest rallies. If The Day tried to prove its right to have a personal opinion about such-and-such politician by setting up a tent town, say, outside the Communist Party headquarters, this would have been true to the spirit of the times. Meanwhile, the fact that this matter was taken to court, and the European Court to boot, took all the excitement out of it. It wasn’t done the Ukrainian way. Perhaps it will be a while before the Ukrainian media understand that freedom of the press can also be defended by legal means, not just in the streets. They also might have ‘overlooked’ this news because Ukraine is good now, with a good president and government, and it’s no use spoiling their mood by reminding them that they will have to pay for a past wrongdoing, literally.

“The Day fought to defend its rights for nearly five years. Few would have as much patience, which means that this victory will hardly produce fundamental changes in the media space. Meanwhile, people will continue to confuse value judgments with defamation to the extent of their understanding and professionalism, and depending on those who ordered any particular publication. No restraints will be effective in this case unless the law draws a clear line between value judgments and defamation. Otherwise, there will always be a temptation to overstep this line.”

Mykola OZHEVAN, Ph.D., professor at the International Relations Institute:

“One of the fundamental human rights is every individual’s right to freely seek, collect, and disseminate information, which may be done by every means available, state borders notwithstanding. Respect for this right is the best indicator of how civilized any particular country is. “The right to information has a genetic bond with the concept of natural human rights and is instrumental in the exercise of all other rights and freedoms.

“This is the essence of the social and public value of journalism, especially political journalism. It enables every person to use his or her natural right to information in the most democratic and accessible way. As far as the state is concerned, the right to obtain information, on the one hand, precludes the state from creating obstacles to obtaining information. But on the other hand, this right does not make the state duty-bound to collect and disseminate information among its citizens. Obviously, this is none of its ‘royal’ business.

“However, our country is still a long way from appreciating and adequately understanding these simple truths. For this reason, the recent ruling by the European Court of Human Rights in favor of the daily Ukrainian political newspaper The Day, which simultaneously defended Clause 10 of the European Convention on Human Rights that sets forth the right to know and freely express personal opinions, is an epoch-making event if not for Europe, then certainly for Ukraine. This calls for congratulations to the editors, their newspaper’s many readers, along with the Ukrainian political elite in general.

“In the past, the courts have repeatedly stated that the public is entitled to information of general public interest or significance (for example, the ruling in the cases of the British newspapers Observer and Guardian, series A No. 216, paragraph 59). They have also stated that the mass media enjoy a broad and sometimes unprecedented freedom to convey views and information in the light of their leading public role, i.e., their right and duty to relay information on issues of general public interest, and in the light of the public’s right to receive such information (for example, the ruling in the Sunday Times case, series A No. 30, paragraph 65).

“Ukrainian journalism is still dominated by a motley genre based on a mixture of facts and value judgments. It would be safe to assume that there are more value judgments than factual information in Ukrainian media reports. Because of the extremely limited access to reliable sources of information, journalists embellish facts with value judgments. Every so often their opinions get ahead of the facts. And there would be nothing wrong with this if it weren’t for the infamously sensitive public servants, who are quick to take offence and see defamation everywhere, beginning with an inaccurate epithet and ending with a clumsy arrangement of facts in a report.

“Our journalists are rarely or almost never brought to account for what their Western colleagues are normally convicted, i.e., illegal disclosure of classified materials (Dr. Kelly’s case in Great Britain, for example). Meanwhile, Ukraine provides fertile ground for lawsuits to “defend honor and dignity,” even though honor and dignity are basically moral categories that have no bearing on the practice of law in the genuine sense of this word. In this case it would be more appropriate to speak of damage to reputation, which often comes at a high cost and the loss of which would indeed entitle its owner to compensation of damages.

“However, it remains to be proven in court that, first, the plaintiff really possessed this positive reputation, and, second, that the journalist’s material has in fact done irreparable damage to his reputation. Notably, all this talk of reputation applies exclusively to business people, who use their reputation to earn money. As for politicians, they knew what they were getting involved in. They have no right to take offence, because theirs is a public profession that is organically linked with the need to attract media attention. The nature of this media attention, whether good or bad, does not matter (because every political product will find its buyers) as long as they get this attention. To say that our politicians do not understand this would be to insult them. It is precisely because they understand this perfectly well that they fan all kinds of media scandals at the cost of these same media outlets, constantly accusing them of all sorts of defamations. This is impolite, to say the least. Moreover, this is thoughtless, for it is unwise to cut the bough one is comfortably perched on.

“It seems to be the main lesson that Ukrainian politicians should draw from the lawsuit that The Day has won in the Strasbourg court. Of course, they can do so only if they still know how to learn from their own or, better still, somebody else’s mistakes.”

Yevhen LAUER, chief editor of the Internet publication Trybuna:

“It didn’t make headlines because it is in the nature of the Ukrainian mass media to achieve popularity by mudslinging. Not bothering to collect facts and evidence, they operate by using the Soviet-era word-of-mouth principle, getting journalists to rehash and embellish rumors. Or they do so by means of direct insults as practiced by Korobova — a shameful phenomenon in Ukrainian journalism — whose pieces appear on many Web sites. Such propagandists of natural excrements as Korobova deserve to be published only on fences — this is not journalism. Others of her kind hide behind aliases.

“Therefore, by publicly recognizing the fairness of the European Court’s ruling, many media outlets would indirectly condemn their own mudslinging tactics. The collection of evidence requires significant funding for journalistic investigation and research (gathering materials, paying the source, telephone bills, etc.). It is therefore much simpler to hire a scribbler, who will present a few unconfirmed facts in the form of hard evidence. This example can be confirmed with numerous facts of mudslinging against public servants, who were unlucky enough to occupy some posts under the old leadership. If you served under Kuchma, knew Bakai, had lunch with Yanukovych, or shook hands with Kivalov, this automatically qualifies you as a scoundrel. This is why managers of many media outlets are reluctant to praise the European Court for its just ruling. It’s also a fact that nobody has yet filed big lawsuits against publishers.

“One Web site in particular is slinging mud at all the people who have ever angered Turchynov and his team. With the knowledge and, most probably, backing of the SBU Security Service, it is posting countless materials that with no foundation whatsoever accuse both famous and as yet unknown individuals of many deadly sins. And all of this goes unpunished. It is commonly held that litigation with the print media is a thankless business, which can only do greater damage. For this very reason we must emphasize the following issue (this is where I side with Larysa Ivshyna). We have the concept of journalistic ethics, but it is somewhat distorted. In Ukraine it is interpreted as the duty of journalists not to criticize each other. Your chief editor was perhaps the first to address this acute problem.

“It seems to me that Ukraine needs professional media analysts to advise politicians on what they should say and how they should deal with the press. Such experts should combine the knowledge of a psychologist, lawyer, and PR specialist. Politicians and their personal lives should not remain secret. They must resign themselves to being in the public eye. At the same time, they should closely follow what is being written about them. If a politician receives bad press for no reason, which defames him or his relatives, he should demand a retraction and apology before filing a defamation lawsuit. The court should determine the extent of reputation and moral damages, and choose a serious punishment for libel: enough playing games. We live in a capitalist world and profess democratic values. Democracy is not only about freedom of speech, but also about respect for every individual’s personality and his or her right to defend the rights and freedoms violated by the mass media. Aside from being proclaimed, values should be supported by banning publications and barring journalists from the profession. Let them publish their articles under pennames. For example, the court may ban a journalist who has been building his own name for 10 years from publishing his materials for five years, which would leave him no choice but to work hard to popularize his penname.”

Natalia LIHACHOVA, chief editor of the Internet publication Telekrytyka:

“This didn’t make top headlines in the Ukrainian media simply because the European Court practice is not exceptionally interesting to Ukrainian journalists. It is still far removed from our mentality, which is a major disadvantage for Ukrainian journalism because this ruling is in fact very significant for all Ukrainian media outlets. But so far we are simply not ready to approach European problems and European practice in the way that they are approached elsewhere. For example, when I recently visited Germany, European Commission resolutions were discussed there at all levels. Many people know about these resolutions, agree or disagree with them, or look forward to them. For us the European institutions have yet to become institutions that can tangibly influence the Ukrainian reality; hence the lack of special interest in them. Proof of this was a recent European ministerial conference on press issues. Although held in Kyiv, it received more attention abroad than in Ukraine.

“As for the significance of this ruling, it is definitely tremendous and cannot be overemphasized. It is the first important ruling that concerns the print media. Second, it is a signal to Ukrainian journalists on the one hand and politicians on the other. It is a signal to the effect that it is possible to win cases at the European Court, and that Ukrainian journalism is gradually becoming part of world journalism. The Iron Curtain that isolated the Soviet press is crumbling. Now is the time for us to adopt global trends in terms of our journalistic rights and duties. Likewise, Ukrainian politicians must understand the role of the print media and the fact that the Ukrainian press has defenders both inside the country and at the level of European and international institutions. Of course, it is important that the ruling is based on clauses that separate value judgments from facts. This is very important for journalism in our country because, unfortunately, few journalists can professionally separate value judgments from facts. I will not mention politicians. The two groups treat this issue differently: while politicians want to hold journalists liable for value judgments, journalists are not always able to separate facts from commentaries in news reports. On the other hand, it is important that Ukrainian politicians were once again given a chance to understand that their public status opens them and their political activity, and sometimes even their private life, to public scrutiny.”

Serhiy HARMASH, director of the Internet publication Ostriv:

“Frankly, I didn’t know or hear about this case until now. I’m surprised that it reached the European Court. I always thought that everybody understood that value judgments do not entail any liability because the Constitution guarantees freedom of speech. However, last year a Donetsk bank took my organization to court for publishing value judgments on its actions. Even before the case was heard in court, the judge arrested our accounts, which nearly put us out of business even before our guilt was proven. But this was merely a case of a biased and venal judge. The fact that a similar case reached the European Court is evidence of serious problems in our justice system and the lack of understanding by politicians, judges, and journalists of the role of public servants and media outlets in the functioning of a democratic system. Perhaps this is the reason behind media indifference to this event. First, the fact that the original lawsuit was at all filed against the newspaper runs counter to the principles of a democratic society. Second, democratic values are unfledged among the political and intellectual elites. Another factor that is directly linked to the previous two is run of the mill professional jealousy and the lack of culture in professional relations. Our journalists are reluctant to advertise their colleagues. When one publication shamelessly borrows an exclusive news report from another one, but attributes the source as “a certain newspaper,” I view this as a lack of basic civility and unhealthy jealousy of somebody else’s success. But it’s possible that your victory at the European Court received little coverage because of more banal reasons. In a society oversaturated with information you have been unable to bring this news to journalists. This victory has great significance because it legitimizes common sense. Finally, there can be no politicians without journalists, just as there can be no journalists without politicians. This problem would not exist if politicians agreed on the ethical aspects of their relations with the press, and if journalists united in their demand for respect for themselves and their freedom.”

Oleh YELTSOV, director of the Internet project Tema:

“It’s hard for me to say why this event didn’t make headlines because I’m not a news reporter. But it is very important news to me, which I would like to post on my Web site. “Speaking of its significance, I would say that it will have tremendous significance both for my colleagues and me. I’m certain that no aspect of any politician’s life should be off-limits to the public. Everybody chooses his/her occupation consciously. When a person joins the police force, s/he is aware of the odds of getting killed. When a person becomes a politician and preaches to the people from the podium, s/he must accept the fact that people want to know who exactly is preaching to them. That’s it. I can see from my practical experience that this isn’t happening in Ukraine. And value judgments can easily be contested in courts with big lawsuits. For example, I was sued for $15,000 merely for reprinting an article. Of course the court was bribed. But this is not the problem here. You see, the European Court has set a precedent for others to follow. But nobody will do so because our justice system is functioning in the same old way. So we cannot hope that, for example, one day your newspaper or any other journalist will not come under fire from some court.”