Author: Lika Eristavi

Controversial possible amendments to the law about broadcasting, prepared by the National Communications Commission of the Georgian Government, were discussed at the parliament On July 6 of 2020. Per the proposed changes to the “Law on Broadcasting," appealed legal acts of the Commission in the court will receive a lawsuit, but this will not lead to the suspension of the acts. The Commission may also appoint a special manager to implement its decisions in media companies. Many experts and business representatives find the changes problematic. “Any changes that will be made today in terms of freedom of expression, which are even slightly lowering the standard we already have, will worsen media freedom condition in Georgia,” says Mariam Gogosashvili, Executive director of the Georgian Charter of Journalistic Ethics.

Maintenance of the balance between guarantying the fundamental right to freedom of expression and protecting the honor and reputation of persons is a big challenge in the free world. This is especially problematic in Georgia, where public officials and others sometimes manipulate the law and try to fail to give sufficient weight to the right to freedom of expression.

In early 2019, the President of Georgia, Salome Zourabichvili, came out with the initiative to make the corrections in the defamation law to change the status of the burden of proof. Irakli Kobakhidze, the former Speaker of the Parliament, and Kakha Kaladze, the Mayor of Tbilisi, supported this initiative with their statements.

„The president’s initiative shifting the burden of proof means that the media has to prove the correctness of writing. This is incorrect because when it comes to a particular person, it is easier for that person to say why it is not right than for the media outlet, which gets the information from different sources,” Gogosashvili said.

This is not the first time when different government officials in Georgia are tempted not to give sufficient weight to the right to freedom of expression. From 2017, for 4 years there were several attempts to restrict freedom of speech and expression by Eva Gotsiridze, Eka Beselia and Levan Gogichaishvili, Emzar Kvitsiani, Georgian Patriarchate, Salome Zourabichvili, and lastly, by the government of Georgia and the National Communications Commission. None of these legislative initiatives has been officially approved yet.

Therefore, it is important to have a precise idea about defamation law, existing legislation in Georgia, and international experience.

What is Defamation?

The Law on Freedom of Speech and Expression was adopted by the Parliament of Georgia in 1999 with the first reading, however, its official and final acceptance became possible on June 24, 2004. We find the definition of defamation within the framework of this law, according to which "Defamation is a substantive statement that contains a substantially false fact and is detrimental to a person." It is not considered a punishable act by the Criminal Code and is governed by the law of Freedom of Speech and Expression.

The expression of opinion and the dissemination of one's views are protected by law. Consequently, the punishment of a person for expressing his own opinion is inconsistent with the law. In the Constitution of Georgia, we read the following: "Freedom of thought and expression is protected. It is inadmissible to persecute a person because of an opinion and its expression." (Chapter 2, Article 17)

The definition of thought and the importance of its free dissemination is emphasized by the Law on Freedom of Speech and Expression, where freedom of expression is protected. "The state recognizes and protects absolute freedom of thought."

Chapter 4 of the Law of Georgia on Freedom of Speech and Expression Distinguishes between the circumstances of liability for defamation of a private person and a public person.

In the case of a private person, the plaintiff must prove that:

• The statement contains a substantially erroneous fact directly about the plaintiff;
• This statement harmed him.

In the case of a public figure, the plaintiff must prove that:

• The statement contains an essentially erroneous fact directly about the plaintiff;
• This statement harmed the plaintiff;
• The error of the stated fact was known to the defendant in advance;
• The defendant showed obvious and gross negligence, which led to the publication of a statement containing a substantially erroneous fact.

Important issues connected with freedom of speech and expression are fake news and disinformation. Internet is a huge space, where it is easier to get lost in between true and false information. Regulations against fake news and disinformation are not precisely adjusted and balanced in the framework of the defamation law and that’s why it does not have a big value in these terms.

“Defamation is regulated by the Law on Freedom of Speech and Expression, and in this case, of course, it does not include fake news, disinformation, and hate speech. If defamation will be regulated, of course, it’ll have some effect on fake news and misinformation as well, even in the sense that they will be also considered defamatory. So, it may spread to some extent, but it will not eliminate the problem of fake news and misinformation," Gogosashvili noted.

Different opinions about existing law in Georgia

According to Article 18, Part 2 of the Civil Code of Georgia, "A person has the right to protect his honor, dignity, privacy, personal inviolability or business reputation from abuse through the courts, under the law."

However, as the State Counselor of Justice in 1998-2001, Deputy Prosecutor General in 2001, and Professor of Law, Temur Moniava, supports the idea of defamation law in Georgia because he thinks, that this article is a blanket norm, which means that it needs to use other legislative acts to ensure that the plaintiff, through the court, “ensures the protection of the violated personal non-property rights,” Moniava said.

Such a legislative act is the Law of Georgia on Freedom of Speech and Expression, specifically, Article 9 of the same law, according to which "the law may establish the substantive regulation of speech and expression if it refers to: defamation, obscenity, face-to-face insult" and several other circumstances.

It should be noted that the practice of both Georgian and international courts imposes an obligation of high tolerance and patience on politicians, which is expressed in the following: “Criticism of a politician is much broader than the individual or even a public official. Therefore, a politician should be more patient with criticism if it is not an unjustified attack on his personality," Moniava noted.

„The most important thing is the context. In Germany, for example, this norm is read in terms of fascist expressions. With the introduction of this type of regulation in our country, even if it is not a criminal matter and only a conversation about the assessment of certain interventions or media content by the administrative bodies, it will be disastrous for developing countries like ours,“ Gogosashvili, said.

"Despite the inviolability of Article 17 of the Constitution, the standard of human dignity or otherwise the protection of the right to reputation is not high under Georgian law. Damage to reputation is usually done while exercising freedom of expression. Georgian legislation gives freedom of expression a clear priority when deciding on issues related to defamation,” said Eva Gotsiridze, a lawyer and a judge of the Constitutional Court of Georgia, in a comment on the Constitution of Georgia.

There are different views also on the issue of perception of dignity and respect. Professor of Criminal Law, Emeritus of Tbilisi State University, Mzia Lekveishvili in her work “Criminal Law”, considered respect and dignity of a person as a complex concept. Moniava calls them "intangible rights protected by each other, protected by the Constitution. The only difference is the subjective and objective approach to them, in particular, respect for those around them, and dignity for self-esteem.”

According to the Professors of civil law in different universities of Georgia, Mikheil Bichia and Giorgi Barabadze, who are supporters of defamation law, “respect means the objective assessment of a person's moral or other qualities by society, which determines the attitude of the society towards the individual and is the social characterization and social evaluation of the individual.” As for the notion of dignity, Mikheil Bichia considers it to be the central sphere of general personal rights. He says a person has it even if it is not yet appreciated and recognized by society.

The current Georgian legislation, including the constitution of the new edition of Georgia (2018), considers honor and dignity to be synonymous.

Judicial Experience in Georgia

Based on the data from the Institute for the Development of Freedom of Information (IDFI), in 2014-2018 (as of October 18), the Supreme Court of Georgia made 16 decisions, six of which fail to give sufficient weight to the right of the freedom of expression. Per the judicial decisions relating to the denial of defamatory facts, seven requests were not granted, but five were upheld; In the decisions related to compensation for non-pecuniary damage due to defamation four were not satisfied, but one was satisfied. Therefore, freedom of expression was not respected in 37.5% of court decisions in 2014-2018.

One of the outstanding cases is the dispute between the newspaper "Asaval-Dasavali" and Mamuka Khazaradze, former chairman of the supervisory board of TBC Bank. According to the BLC Law Office, which was defending the rights of Mamuka Khazaradze, from 2013 for several years “Asaval-Dasavali” was accusing Mmauka Khazaradze and TBC Bank of various allegations, including misappropriation of assets of Borjomi Mineral water production, Elite Electronics, and so-called Tsekavshiri building; Dispersal of peaceful protesters with batons in 1989; Physical abuse of the leader of the National-liberation movement in Georgia, Merab Kostava, etc.

The courts of all three instances, in particular, Tbilisi City Court, Tbilisi Court of Appeal, and the Supreme Court of Georgia found guilty the publishing house “Asaval-Dasavali” and they were charged with denying the information and material compensation for moral damages.

“This was the first time that the yellow and KGB-run media had lost a trial in all three instances on the article of defamation. They apologized, denied the facts in the same font on the same pages and the amount imposed was also paid,” said Tamuna Kirvalidze, the public relations manager of TBC Bank and Mamuka Khazaradze.

Hence, under current law, it is possible to protect honor and dignity if a person proves the falsity and defamatory nature of the material published in his or her address.

However, the question arises, if the existing legislation allows it, then why do we need a defamation law?

International Experience

Council of Europe Legal Acts on Freedom of Speech and Expression, specifically Article 10 of the European Convention, states that freedom of expression includes the freedom to receive and disseminate information and opinions without the intervention of public authorities.

It is important to note that this article of the Convention within the European Court of Human Rights (ECHR) supports and underlines the commitment of politicians and government officials to addressing the high tolerance. Relevant examples in this regard are the following cases: “Lingens v. Austria”, “Oberschlick v. Austria” and “Thoma v. Luxembourg” - In all three cases, the ECHR acquitted the applicant and stated that in all three cases there had been a restriction on freedom of expression. The European Court also noted that public officials should be more equipped with patient obligations than private individuals.

“According to the Court, the limits of acceptable criticism are wider for a politician than for a private individual. Unlike private individuals, politicians consciously expose themselves to scrutiny by both journalists and the public at large. Politicians must therefore display a greater degree of tolerance,” Maud De Boer-Buquicchio, Special Rapporteur on the sale and sexual exploitation of children at the Regional Conference on Defamation and Freedom of Expression said.

The ECHR has called for the creation of an environment in states under its jurisdiction where a person does not shy away from expressing an opinion on matters of public interest for fear of imposing criminal or other sanctions.

„When striking a fair balance between these interests, the Court cannot overlook, as the applicant and the Commission rightly pointed out, the great importance of not discouraging members of the public, for fear of criminal or other sanctions, from voicing their opinions on issues of public concern,” the ECHR's judgment on Barford v. Denmark case said.

The European Court of Human Rights has directly ordered the competent authorities of the national states, due to their dominant condition, to be patient and refrain from the start of a criminal case even if the criticism has been provocative and offensive.

“The dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media,” the ECHR’s judgment on Dink v. Turkey case said.

In countries where the law of defamation applies, defamation can be considered a civil or criminal offense. There are two types of slander: slander in the written form (Libel) and slander in the common oral form (Slander).

For instance, in the United Kingdom to make slander the basis for restricting freedom of speech and expression and plaintiff to be successful, him/her must present and prove the following circumstances:

• The statement must be a negative, erroneous piece of evidence;
• The plaintiff must be identified in the statement;
• Or be the addressee of the statement.

Also,

• The application must be made public;
• The statement must harmful to the plaintiff.

The Defamation Law and Freedom of Speech

In order not to violate the fundamental human right - freedom of speech and expression, nor to justify unwarranted and unfounded defamation, it is imperative to maintain a fair balance between possible crime and freedom of speech.

However, whether this is possible or whether one excludes the other or not is a matter of debate.

Brian Martin, professor and an author of the leaflet “defamation law and free speech” thinks that the law has a lot of complicated components, which makes it hard to operate properly.

He highlights several problems connected with the operation of this law, which are: high cost, unpredictability, complexity, and slowness.

According to the professor defamation law mostly serves those, who possess power and create threats to freedom of expression.

“The result is that defamation law doesn't do much to protect most people, but it does operate to inhibit free speech,” Brian Martin said.

The 2018 Freedom of Information Development Institute (IDFI) guidelines state that it is inadmissible to restrict freedom of speech in the case of personal opinion, or dissemination of opinion, which implies: evaluative reasoning, point of view, comment, and expression of attitude.

Consultant on human rights and media law, Peter Noorlander’s words at the Regional Conference on Defamation and Freedom of Expression, summarize the idea and connection between defamation law and freedom of speech: “While most people agree defamation laws serve a legitimate purpose, political bodies and public figures often abuse these laws to silence their critics. In some cases, governments effectively muzzle debate and critical voices by invoking harsh defamation laws to fine or imprison members of the opposition and journalists. In others, the technicalities of litigation and the cost of defending defamation actions serve to chill free discussion on matters of public interest.”

Sources:

• The Constitution of Georgia

https://matsne.gov.ge/ka/document/view/30346

• Law of Georgia On Freedom of Speech and Expression

https://matsne.gov.ge/ka/document/view/33208?publication=6

• The Civil Code of Georgia

https://matsne.gov.ge/ka/document/view/31702?publication=108

• European Convention on Human Rights

https://www.echr.coe.int/Documents/Convention_ENG.pdf

• The report of The Institute for the Development of Freedom of Information (IDFI)

https://idfi.ge/public/upload/FBarticle/Freedom_of_Expression_final.pdf

• Law of Georgia on Broadcasting Amendments to the Law of Georgia

https://info.parliament.ge/file/1/BillReviewContent/256957

https://info.parliament.ge/file/1/BillReviewContent/256954

https://info.parliament.ge/?fbclid=IwAR1Ajz7Vwbt0PccnUrgRUij7D42pAdFPjNtOyTKxpDZwwfcshxRforbs6bM#law-drafting/20689

• Jorbenadze, S., Bakhtadze, U., Macharadze, Z. (2014). Media Law. Tbilisi.

http://lawlibrary.info/ge/books/giz2014-ge-MediaLaw.pdf

• Lekveishvili, M. (1996). Criminal law (special part). Tbilisi.
• Moniava, T. (2005). Protecting honor, dignity and business reputation in Georgia. Tbilisi.
• Commentary on the Constitution of Georgia. Citizenship of Georgia. Fundamental human rights and freedoms. (2013). Tbilisi.

http://www.library.court.ge/upload/Constitution_Commentary_Human_Rights.pdf

file:///Users/lika/Downloads/001-57430.pdf

• Media Division. Directorate of Human Rights. Defamation and Freedom of Expression. (2003) Strasbourg.

https://rm.coe.int/1680483b2d

• Martin B., Defamation law and free speech. (2017). Australia.

https://www.bmartin.cc/dissent/documents/defamation.html#fn2

• https://info.parliament.ge/?fbclid=IwAR1Ajz7Vwbt0PccnUrgRUij7D42pAdFPjNtOyTKxpDZwwfcshxRforbs6bM#law-drafting/20689
• https://transparency.ge/ge/blog/ratom-ar-unda-sheizgudos-gamoxatvis-tavisuplebis-standartebi
• https://www.bmartin.cc/pubs/08mercury2.html
• http://www.gccc.ge/wp-content/uploads/2015/10/%E1%83%9B%E1%83%A3%E1%83%AE%E1%83%9A%E1%83%98-18.pdf?fbclid=IwAR1Pq1uI8HoeGqkMFcsUjhkMbZzDkI1OwzqpWcm2N7Ll45hlF8Unj1_RIjc
• https://www.mediachecker.ge/ka/blogio/article/49988-cilistsameba
• file:///Users/lika/Downloads/001-57430%20(1).pdf
• https://globalfreedomofexpression.columbia.edu/cases/dink-v-turkey/