On 12 January 2017, the Court of Human Rights handed down judgment in the case of Lykin v Ukraine ( ECHR 17), providing a timely reminder that freedom of political expression under Article 10 can trump reputation.
On January 28, 2007, the defendant, president of a local branch of the Party of Regions – a Ukrainian political party – read out a letter at a meeting attended by over forty other local party members, including the plaintiff, Mr G. Sh, the Deputy President of the town’s District Executive Committee. The letter contained a number of statements highly critical of the plaintiff, describing him as a “gabber and a petty tyrant”; accusing of destroying “all the work in Zolotarevka [their town] during his four years in office”; accepting a salary, but doing no work, and getting away with misspending funds. The letter demanded G. Sh’s resignation. The plaintiff was then immediately given the floor, where he claimed the allegations lacked any evidentiary basis.
The Ukrainian courts upheld G. Sh’s defamation claim, reasoning that the defendant had made the allegations public without verifying the serious accusations contained therein.
Having exhausted all local remedies, the defendant applied to the European Court of Human Rights, claiming that the defamation judgment violated his Article 10 free speech rights.
To be justified under Article 10(2), the defamation proceedings had to be “necessary in a democratic society”. In this case, the ECtHR held, they were not.
The Court reiterated its well-established case law that while freedom of expression is important for everybody, it is especially so for elected representatives of the people, who represent the electorate, draw attention to their preoccupations and defend their interests. A politician is entitled to have his reputation protected, but the requirements of that protection have to be weighed against the interests of open discussion of political issues.
The statements in this case concerned the official performance of a local politician elected to a post of responsibility within the district council. Having regard to the subject matter of the letter, the public status of the speaker, the chosen forum (a gathering of party members and politically active voters), the defendant’s discourse represented political speech in the strict sense, the restriction of which called for the closest scrutiny by the Court. Yet, the Court held, the Ukrainian courts had failed to give consideration to such factors.
The Court distinguished between statements that, seen in the context of the manner and scope of their dissemination, could be viewed as fair comment on matters of public interest, and those that amounted to gratuitous personal attack. The Court issued the reminder that political invective often spills into the personal sphere – “such are the hazards of politics and the free debate of ideas, which are the guarantees of a democratic society”.
While the letter included severely critical comments and accused G.Sh of very serious misconduct, evidence and submissions made by the parties before the national courts indicated that the accusations were based on certain true facts and events that had generated public discussion. The authors of the letter were frustrated and enraged by G.Sh’s conduct, as perceived by them based on available factual information. There was no reason to doubt that they had voiced their indignation in good faith. Moreover, the letter had been read before an audience that should have been reasonably well informed of the underlying facts and in G.Sh’s presence, who was then given the floor to respond.
As such, the Court concluded, confining the legal analysis to whether the defendant had verified the truthfulness of the negative allegations against G.Sh before making the letter public did not meet the high threshold necessary under Article 10 to restrict political speech.
The court’s reasoning is a reminder that where political speech is concerned, context, not just verification of facts, is key.
Ed Klaris is the founding partner of Klaris Law PLLC. Alexia Bedat is an Associate at the firm.