Thursday, 20 September

Court of Cassation Decision Definitely Restricts the Activities of the Press



Attorney Ara Ghazaryan comments on the April 27, 2012 decision of the Cassation Court regarding insult and slander.

The Court of Cassation has finally made its long awaited decision on insult and slander known. What issues has this decision settled?

It’s a long awaited but somewhat tardy decision. Almost one year ago I said that it was vital for the Court of Cassation (CC) to make its position known on slander and insult. It had the chance but didn’t take it, so the Constitutional Court, based on the petition of the Human Rights Defender, expressed a number of opinions in its decision.

I do not belittle the role of the Constitutional Court’s decision but it is very vital that those positions be expressed by the highest court tribunal and not the Constitutional Court.

The Court of Cassation came to its decision based on the cassation petition filed by the defendant (to reject slander and the demands to pay compensation) in the case of Tatul Manaseryan v Skizb Media Center. Several points in the decision express the same conclusions as the Constitutional Court. But at the same time, it settles several issues that the Constitutional Court failed to address. First, the issue of who assumes the burden of responsibility in those cases when a press outlet publishes, for example, information received by this or that civic group in an on-line format, received a legal procedural order.

According to the discussed decision, if a news outlet publishes a statement by an organization that isn’t a legal entity or a piece of information, the news outlet assumes the responsibility. What’s your take on this?

The news outlet receives news from a certain source and decides to publish it, almost verbatim. Then a person shows up demanding a retraction, the chance to respond or monetary compensation. The attorney, when writing the suit, clashes with the following query – who assumes responsibility for the publication, the news outlet who published the information or the one who disseminated it in the first place.

In this case, the Cassation Court included some concepts by saying that even if the reprinting of the information was done in a diligent manner; this doesn’t mean that the news outlet automatically is free of responsibility.

The source used by the news outlet, according to this decision, must be an author based on Article 1087.1, Part 6, of the RA Civil Code. What does this mean? The Court of Cassation, in page 14 of its decision, gives the following interpretation of the concept of an author: “sources of information can be authors and news agencies”. The Cassation Court stresses that:

A person shall be exempted from liability for insult and defamation if the factual data stated or presented by him/her are the verbatim or diligent reproduction of information disseminated by an information agency, as well as of information contained in another person’s public speech, official documents, other information means or information contained in any creative piece; and when disseminating it a reference has been made to the information source

With this decision, the Cassation Court is forcing news outlets to enter the ethical arena. If a news outlet has the source of the information and believes in that source, let it disseminate it. But if it disseminates information on behalf of a source that isn’t a legal entity, it shouldn’t accept it. The legal regulation of this issue is lacking in the Cassation Court’s decision.

The Court of Cassation’s decision regarding the source of information has been given a variety of judgemental interpretations. According to some opinions, the Court’s concept of a source restricts the right of news outlets to receive and disseminate information.

Regarding the concept of information sources, that is noted in Part 9 of Article 1087.1, it says that a source can either be a physical or legal entity. In this case, the Zhamanak newspaper received questionable information from its source – Anton Arakelov, a private individual.

The Cassation Court notes that a company, according to Article 1087.1 of the Civil Code, cannot be regarded as a source of news, since it doesn’t represent the author of any form of information dissemination or an implementer of media activities. This means that if a news outlet uses the information or rumors provided by any private individual, it assumes the risk of responsibility on itself.

In other words, the new outlet goes to court as the defendant. The Cassation Court notes that the risk in such cases belongs to the news outlet. If you were to even reveal the identity of the private individual who is your source in court, it’s the same. You will be the defendant.

Thus, if you want to utilize non-specified sources, that cannot free you from responsibility later on. The news outlet must note the source of news when it disseminates it. If it doesn’t, then the outlet assumes responsibility.

Recently, in one discussion on this issue, it was stated that the judicial acts of the courts are obligating news outlets to take steps never demanded by the plaintiffs. Have you come across such incidents in your research?

That practice, when the court puts obligations on news outlets not envisaged by the law, has already disappeared. This problem used to surface in much earlier court cases when judicial practice hadn’t yet satisfactorily developed.

For example, a questionable publication had been published on page 7, but the court obligated a retraction on the first page. It also obligated a public apology, even though the plaintiff never presented such a demand in his suit. (Hrach Keshishyan v Hraparak newspaper)


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