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Moscow Times
March 2, 2005.
Supreme Court Opens Door to Better Rules
By Mikhail Fedotov
Mikhail Fedotov, former press and information minister of Russia, holds the UNESCO chair in copyright and other intellectual property rights at the Institute of International Law and Economics in Moscow. He contributed this comment to The Moscow Times.

Most people don't pay much attention to the distinctly nontraditional figure of Themis that adorns the pediment of the new Supreme Court building on Povarskaya Ulitsa. But in a plenary session last Thursday, Russia's highest court of general jurisdiction adopted a resolution that gave new meaning to the sculptor's deviations from the accepted norms for portraying the Greek goddess of justice. Now we understand why Themis isn't wearing a blindfold and why she is holding a shield instead of a sword in her hand. Last Thursday she looked toward Strasbourg with her eyes wide open, thinking not about punishment but defense -- of honor, dignity and professional reputation. For the first time she consented to use her traditional scales to find a balance between the right to defend oneself against defamation and the right of access to information, freedom of self-expression and freedom of the press.

The Supreme Court resolution provided rare evidence to back up President Vladimir Putin's assurances at the Bratislava summit of Russia's commitment to democratic values. It provides real hope for a radical improvement in the way the courts handle libel cases. The resolution clearly states that in such cases the courts "must take into account the legal position of the European Court of Human Rights as expressed in its resolutions on the interpretation and application" of Article 10 of the European Convention on Human Rights. The courts must also bear in mind that the concept of defamation employed by the European Court of Human Rights is "identical to the concept of disseminating false and defamatory information" contained in the Civil Code. This innovation could be likened to the creation of a single time zone encompassing both Moscow and Strasbourg.

To this point, nearly two-thirds of defamation cases have ended in defeat for the press, and frequently for the public interest as well. The courts afford little protection when pensioners and schoolteachers file suit against major publishing houses or television stations. But when the plaintiff is a Cabinet member, governor, mayor or anyone else who either holds power or is close to power, victory over the press and the truth is practically guaranteed. Damages awarded for emotional distress and damage to reputation are often enough to bankrupt even the most successful publishing house or broadcasting company. Many of these lawsuits are intended not to defend the honor and dignity of unjustly injured bureaucrats, but to destroy independent media outlets. As a result, when the courts order the press to retract unproven assertions about a high-ranking or well-connected plaintiff that everyone nevertheless knows to be true, society, not the press, is the real loser.

Don't forget that the parties in a legal dispute of this kind are far from

equal: Journalists are required to prove the truth of their words, but plaintiffs are not required to prove the opposite. The plaintiff enjoys a sort of presumption that journalists spread lies. The Supreme Court cannot redistribute the burden of proof spelled out in the Civil Code, of course. But after further consideration, the court for the first time concluded that plaintiffs must prove not simply that information about them has been disseminated, but that this information is defamatory. The court further defined as defamatory "information containing assertions that a natural or juridical person has violated existing law, performed a dishonorable act, has behaved improperly or unethically in personal, social or political life, is guilty of bad faith in business activities or has violated professional ethics or deviated from customary business practices.

The Supreme Court's definition of false information is particularly important. The editorial commission that drafted the final text of the resolution deliberated long and hard on this issue. In the end we settled on a definition of false information as "the assertion of facts or events that did not obtain in reality at the time indicated by the disputed information."

Information contained in official documents can no longer be considered defamatory under the resolution. If a journalist cites a State Audit Chamber report to the effect that a governor has embezzled state funds, he cannot be taken to court. The outraged governor will have to deal with the Audit Chamber directly. If a journalist cites an interview with an Audit Chamber official, he can be taken to court, but the official will also now be called as a defendant.

The Supreme Court also performed a service to the press and society by mentioning the "Declaration on Freedom of Political Debate in the Media," adopted last year by the Council of Europe. The court explained that "by courting public opinion, political figures agree to be the object of political debate in society and criticism in the mass media." The court further noted that "government employees can be subjected to criticism in the mass media regarding their job performance because this is essential to ensuring the open and responsible performance of their duties." For the first time, recommendations from the Council of Europe have become practically obligatory for Russian courts. This is a valuable precedent.

The Supreme Court didn't forget about the Internet. It explained that online defamation is punishable no less than the offline variety --

provided its source can be determined, of course. Even if the source cannot be determined, injured parties can petition the courts to recognize defamatory information about them as having no basis in reality. If the Internet source of this information is officially registered as a mass media outlet, all claims against it must be considered under established rules regarding the mass media. The mass media law provides for the lifting of responsibility in a range of cases.

The Supreme Court resolution coincided with the position of the European Court of Human Rights most strikingly on the necessity to distinguish opinions from statements of fact. This distinction is nothing new in Strasbourg, but in Moscow it comes as a revelation. Until now, the courts have confused statements of fact (violist D. performed drunk as usual) with subjective opinions (in my view, violist D. performed with a terrible hangover). Moreover, the Constitution forbids compelling anyone to renounce his opinion.

The Supreme Court did not change its position on a number of points, however, making its internal contradictions even more obvious. Notably, courts of general jurisdiction will continue to consider defamation suits filed by noncommercial organizations. In principle, this makes it possible to punish critics of any government body from the presidential administration to the local police station.

The Supreme Court also chose not to follow the Supreme Arbitration Court in limiting organizations -- as opposed to individuals -- to compensation for actual damages, not for moralny vred, or emotional distress. Nor were the judges bothered by the Civil Code's definition of moralny vred as "physical or emotional suffering," which organizations cannot experience by their very nature. On the other hand, the resolution gave reason to hope that the courts will no longer force media outlets to pay exorbitant awards. Its resolution clearly states that compensation "must be commensurate with the damage incurred and should not lead to the restriction of freedom of the press."

The Supreme Court resolution gives us clear and concise rules for applying the Civil Code and the mass media law in cases of defamation. It could also provide a reliable shield for fair-minded judges and honest journalists. But it remains to be seen whether the potential of this resolution can be realized given the high level of corruption and administrative pressure on the courts.