In victory for journalists, recriminalization of defamation rejected

Reporters Without Borders hails the rejection of a draft law that would have seriously endangered freedom of information in Ukraine by recriminalizing defamation. After a wave of protests by journalists, 349 of the parliament's 450 members voted today to withdraw Draft Law No. 11013, which had been approved on first reading on 18 September. -------- 01.10.2012 - Recriminalization of defamation must be rejected on final reading On the eve of the final reading of a bill that would recriminalize defamation, Reporters Without Borders reiterates its appeal to Ukraine's parliamentarians to reject the proposal once and for all. Reporters Without Borders has also added its signature to joint letter by most of Ukraine's media freedom groups making a similar call. "We welcome the latest statements by government and ruling party representatives, who seem to be backing off in the face of all the protests by media and journalists," Reporters Without Borders said. "We fervently hope that a provision that would send Ukraine 11 years back into the past will be rejected for good by parliament. "But it is too soon to claim victory and we will remain vigilant even if parliament does vote it down in an understandable desire to defuse anger just a month ahead of legislative elections. It would be unacceptable if the recriminalization of defamation later reappeared, especially as Ukraine will assume the Organization for Security and Cooperation in Europe's rotating presidency in 2013." Many Ukrainian journalists protested against the bill's approval on first reading on 18 September (see below) and many leading media put a banner on their websites last week urging readers to challenge the 244 parliamentarians who voted in favour. The banner said: "Defend your right to know. Say no to the law on defamation." Several newspapers also brought out an issue with a blank front page in protest. The bill's author, Party of the Regions parliamentarian Vitali Zhuravskiy, announced on 25 September that he wanted to withdraw his initiative "in order to take account of the circumstances and in the state's interest" even if he still thought the law was necessary. The next day President Viktor Yanukovych said the bill's approval on first reading was an "error" and that the country should "adopt European standards in all areas." On 28 September, Reporters Without Borders received a letter with similar comments from Ukraine's ambassador for cooperation with international organizations and civil society, Yevgen Perebyinis, in response to the open letter it sent to Ukraine's parliamentarians on 2 August (see below). -------- 19.09.2012 - Threat to freedom of information from plan to recriminalize defamation Reporters Without Borders firmly condemns the Ukrainian parliament's approval on first reading yesterday of a bill that would recriminalize defamation, and urges lawmakers to reverse this decision by rejecting the bill on second reading. "Ukraine will go back 11 years if defamation's re-inclusion in the criminal code is confirmed," Reporters Without Borders said. "It would run counter to the worldwide trend and would clearly violate the international conventions Ukraine has ratified, starting with the European Convention on Human Rights and the International Covenant on Civil and Political Rights. "Such a return to the past would have a major impact on freedom of information in Ukraine. Journalists already have to confront many dangers and an increase in self-censorship inside news organizations. Now they would have to fear judicial harassment as well. The resulting intimidatory effect would threaten the very existence of independent journalism." Reporters Without Borders calls on Stefan Füle, the European Commissioner for Enlargement and European Neighbourhood Policy, to make it clear to the Ukrainian government that adoption of this bill would be incompatible with closer association with the European Union. Passed on first reading by 244 votes out of 450, Draft Law No. 11013 reestablishes criminal responsibility for media offences and makes them punishable by up to five years in prison (see below). ------- 02.08.2012 - Appeal on Parliament about dangerous draft law Paris, 31 July 2012 Dear Members of Parliament, Reporters Without Borders, an international organization that campaigns for freedom of information, wishes to inform you of its profound concern over draft law n° 11013, presented to Parliament last week, which is designed to amend the criminal code and the code of criminal procedure regarding defamation. It is more than 10 years since the Ukrainian Parliament decriminalized defamation. When it adopted its new criminal code in January 2001, Ukraine took an encouraging first step towards greater protection for freedom of expression, which is indispensible for democratic debate. Draft law 11013, presented by Vitaly Zhuravskiy, a member of the Party of Regions, and aiming to recriminalize defamation, is a dangerous backward step. We believe its adoption would be a serious blow to freedom of the press. The penalties for which the bill provides are harsh indeed. Sections 145.1.2 and 145.2.2 state that information deemed to be defamatory or insulting “published openly in the media” would be liable to a fine of between 500 and 1,500 times the minimum wage of the individual concerned (i.e. up to approximately 14,000 euros) or a sentence of between one and two years’ community service, and even, in the case of defamation, suspension from work or a ban of between one and three years on “occupying certain positions or carrying out certain activities”. Paragraph 5 of section 145.1 provides for a possible prison sentence of between three and five years if the defamatory act “damages the health” of the victim. Such penalties are clearly disproportionate and in breach of article 10 of the European Convention on Human Rights as interpreted by the European Court of Human Rights in Strasbourg. The lack of clarity surrounding the definition of defamation, which the bill describes as “disseminating false information, insulting the honour and dignity of a person or damaging his or her reputation", arouses fears of abuse resulting from varying interpretations. Criminal proceedings could be taken against journalists for publishing articles on the activities of politicians or influential businessmen. Where journalists face imprisonment for publishing investigative stories, this puts the very operation of an independent media under threat. These provisions are in breach of article 19 of the International Covenant on Civil and Political Rights, to which Ukraine is a signatory. The United Nations Human Rights Committee, an independent body that oversees the application of the covenant, said in its General Comment No. 34 in July last year that defamation laws “must be crafted with care” to ensure that they comply with the test of necessity and “that they do not serve, in practice, to stifle freedom of expression” and that “imprisonment is never an appropriate penalty” for press offences (paragraph 47). International experience has shown that making those responsible for press offence criminally liable helps to create an atmosphere of intimidation that is likely to discourage journalists from tackling sensitive subjects. The European Court of Human Rights condemned Turkey on 5 April 2011 for interfering in the work of the writer Fatih Tas, ruling that the penal nature of his conviction was likely to discourage him from contributing to public debate on issues affecting the life of the community. Mr. Zhuravskiy says he took his inspiration for drafting the bill from neighbouring Russia, which approved a law on 13 July recriminalizing defamation. We should like to remind members of Parliament that this was condemned by the Organization for Security and Co-operation in Europe (OSCE) and that it seriously damaged that country’s international reputation. Reporters Without Borders urges you to abandon this bill, which appears to us to be repressive, punitive and counter-productive. While we understand the government’s desire to do all it can to protect Ukraine’s citizens, we have serious doubts about the spirit of this law, which seems to be aimed at curbing the independent media and encouraging self-censorship on the part of journalists. I thank you for your consideration of this matter. Yours sincerely, Olivier Basille
Director General, Reporters Without Borders