- Extrajudicial procedure
- Defamation disputes in court
- The respondent does not acknowledge that he/she/it owns the disputed statements and the account
- Respondent’s irrevocable removal of a post containing inaccurate information
- The claimant is a public figure
- Value judgements are not subject to refutation
Public criticism of one or another activity on social networks has become commonplace. The desire to convey thoughts to a large number of people through social networks has taken on a unique scale.
In the age of the information society, almost every Ukrainian knows about social networks, popular video hosting platforms, services, and applications that allow a wide range of photos, videos, and information to be published for the general public. When creating content on such platforms, authors sometimes knowingly or unknowingly post false or offensive information on their pages/channels. However, posting such information may have negative consequences both for the person about whom the information is posted and the author. Today, we will try to find out whether it is possible to protect oneself from the dissemination of inaccurate information on social media and what effective mechanisms are available to protect one’s rights.
Given the existing freedom of speech on social networks, it is impossible to avoid the risks that any information about a person will be disseminated.
However, it is not necessary to go straight to court if inaccurate information is disseminated. This problem can be solved in a simpler way, namely by filing a complaint with such a social network.
In order to file a complaint about a post on Facebook, for example, you should go to “Privacy Complaint” from your Facebook page and answer a number of questions. Afterwards, the complaint will be dealt with by Facebook Support. The algorithm for filing a complaint about a posted video on YouTube or post on Instagram or other platforms is similar.
If the social network, after considering the complaint, decides that the content violates its standards, the post will be removed from the platform. The more users file complaints about violations of community rules, the higher is the chance of further removal of the post.
It is also important to remember that such an extrajudicial procedure for the protection of violated rights and interests does not provide for any compensation for damage or refutation of inaccurate information. Therefore, if it is important for a person to receive material consideration or confirmation that the information was inaccurate, the possibility of initiating a defamation dispute in court should be considered.
Defamation disputes in court
In situations where a complaint on a social network has not led to the desired result and the inaccurate information has not been removed, the most common way to protect the violated rights of a person is to take legal action to protect honour, dignity, and business reputation and to refute the inaccurate information. Such cases are called defamation disputes.
The legislation of Ukraine does not sufficiently regulate this category of cases, thus for detailed explanations and in order to establish the preconditions for successful consideration of cases, I suggest analyzing the case law.
The Grand Chamber of the Supreme Court, in its Resolution of 12 November 2019 in case No. 904/4494/18, states that the following circumstances are required for a defamation action to be settled:
- dissemination of information, i.e. bringing it to the attention of at least one person in any way;
- the information disseminated relates to a specific individual or legal entity, i.e. the claimant;
- dissemination of inaccurate information, i.e. information that is not true;
- dissemination of information that violates personal non-property rights, i.e. either damages the personal intangible property or prevents the person from exercising his or her personal non-property rights in full and in a timely manner.
That is, the claimant must prove that the information was disseminated by the respondent and that his or her non-property rights have been violated as a result.
At the same time, the judicial remedy in this category of cases also has certain difficulties. Let’s consider the difficulties that may await the claimant in refuting inaccurate information on social networks in court.
The respondent does not acknowledge that he/she/it owns the disputed statements and the account
First of all, the situation becomes more complicated when the respondent does not acknowledge that he or she owns the disputed statements and in general the social network page. Such cases are quite common in judicial practice. For example, on 2 June 2021, in case No. 201/6995/17, the Supreme Court stated that the claimants had not proved by proper evidence that the Facebook page belonged specifically to the respondent and that it was he/she who had posted the inaccurate information. At the same time, the court noted that the parties did not apply for a forensic examination in order to establish the owner of the account.
In most cases, the position of the courts comes down to the fact that anyone can register on the social network and under any name. Therefore, screenshots showing the content of such pages do not constitute proper evidence (Resolution of the Cassation Civil Court within the Supreme Court of 27 November 2019 in case No. 667/266/15-ц).
Given the course of events, the claimant’s main efforts should be directed specifically at linking the social networking page to a particular person – the respondent.
The evidence base can be strengthened, in particular, by an expert report. Thus, in case No. 753/13197/18 the court stated that the expert report made by the Center of Competence for Internet Address Space based on recording and examining the content of the page on Facebook is adequate evidence to confirm the person who owns the page, where inaccurate information was disseminated (Resolution of the Kyiv Court of Appeal of 8 April 2021 in case No. 753/13197/18).
Respondent’s irrevocable removal of a post containing inaccurate information
As you can see, the problematic issue may not only be establishing the respondent’s connection to the social network page but also confirming the existence of the disputed post.
Social network posts can be irretrievably deleted by the user at any time, making it more difficult for the claimant to prove that the respondent disseminated inaccurate information.
To prevent the above situation, the claimant has several options:
- The claimant is entitled to apply to the court to secure the evidence by examining it in court in order to establish and record its contents. If necessary, the court may engage a specialist to carry out such an examination. However, this option is not very reliable because at the time of such examination the post may already have been deleted, thus destroying the claimant’s evidence base.
- The claimant may engage an expert who will record the existence of a particular post or obtain a certificate, such as from the Centre of Competence for Internet Address Space, which will record the content of the web page.
- The claimant may also apply to a foreign notary in order to obtain a notarial certificate and examination report of the website and to certify the existence and content of the information on them.
Ukrainian legislation does not give domestic notaries such powers, while notaries in Belarus and the Russian Federation are authorized to record the content of a web page on the Internet. According to the international treaties in force in Ukraine, this evidence is accepted in our country without legalization.
The practice of providing notary public examination reports is usual and is confirmed, in particular, by the content of the Resolution of the Supreme Court of 14 April 2021 in case No. 757/37903/18-ц.
The claimant is a public figure
When bringing an action for the protection of honour, dignity and business reputation and the refutation of inaccurate information, public figures should be aware that the scope of acceptable criticism is much wider than that towards an average citizen.
For example, in the Resolution of 22 May 2019 in case No. 757/22307/17-ц, the Supreme Court, analyzing information circulated on Facebook about the first deputy head of the Security Service of Ukraine, stated that given the need for public scrutiny of the activities of state bodies and officials, information that is circulated regarding state officials, public figures is publicly important information, and the limits of dissemination of this information and the limits of criticism and evaluation of behaviour are wider than those of an average citizen. Public figures and civil servants must be prepared for an increased level of criticism, including in a harsh form, public scrutiny and an increased public interest in their activities and/or personal life, etc., because by choosing a career as a public figure they have agreed to such attention. As a result of consideration of this case, the court came to the conclusion that the disputed judgments do not encroach on the honour and dignity of the claimant, and are admissible criticism towards him.
However, each case is individual and the nature of the information disseminated may differ. Thus, the Supreme Court in its Resolution of 01 March 2021 in case No. 577/4402/19-ц concluded that although the claimant is a public figure, potentially subject to severe and strong public criticism for the way he/she has performed or is performing his/her functions, the information circulated on Facebook about the claimant concerns the accusation of committing a crime without any evidence, which clearly defames the honour, dignity and business reputation of the claimant. That is why the defamation claim was satisfied and moral damage in the amount of UAH 50,000.00 was recovered.
Value judgements are not subject to refutation
It should also be noted that value judgments are not subject to refutation and truthfulness. Value judgments include statements containing no factual data, but criticism, evaluation of actions, as well as statements that cannot be interpreted as containing factual data, in particular given the nature of the use of language and stylistic devices (use of hyperbole, allegory, satire).
In this context, the Supreme Court in its Resolution of 30 July 2020 in case No. 200/20351/18 noted that in deciding whether to declare disseminated information to be inaccurate, the courts shall determine the nature of such information and ascertain whether it is a factual statement or a value judgment, or whether it exceeds the limits of acceptable criticism under the factual circumstances of the case established by the courts. A distinction should be made between facts and judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof (LINGENS v. AUSTRIA, No. 9815/82, § 46, ECHR, 8 July 1986).
In practice, in order to confirm that certain information is a factual statement, claimants seek the reports of a linguistic expert to establish the nature of the information in dispute.
Thus, protection against the dissemination of inaccurate information on social networks is mostly provided by filing a complaint with the social network support service or with the court, which, in turn, led to the emergence of a separate category of defamation disputes in court practice. In the context of a judicial remedy, it should be considered that it is not enough that the claimant believes the information disseminated is inaccurate. A claim may be satisfied if such information is a factual statement, i.e. it can be verified as true, and if the dissemination of such information is confirmed by a specific person. Therefore, in order to successfully resolve a defamation dispute, it is necessary to identify the appropriate respondent, establish that the inaccurate information is a factual allegation and gather the relevant evidence.