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11.01.2022

Are evaluative judgments subject to rebuttal: the position of the Supreme Court

A person who expresses not facts, but his own views, critical statements, assumptions, cannot be obliged to prove their veracity, as this is a violation of the freedom to have his own point of view. This conclusion was reached by the Supreme Court as a member of the panel of judges of the Second Judicial Chamber of the Civil Court of Cassation, having considered in a previous court session in the order of written proceedings a person’s cassation appeal against the decision of the Vinnytsia Court of Appeal dated July 20, 2021 in case No. 134/55/19 .

The circumstances of the case
The plaintiff, who works as a Ukrainian language teacher at school No. 2, village Horodkivka of the Vinnytsia region, appealed to the court with a lawsuit against another person for the protection of honor, dignity and business reputation and compensation for moral damage.
Her son commented on the photo, which is posted on the page in the social network “Facebook”: “an advanced teacher with you.” After this comment, a stormy correspondence broke out in the comments, in which the principal of the school and her daughter took part.
In the comments, the defendant’s daughter rudely responded to the above-mentioned comment, after which she turned to personal insults, addressing her son: “…it’s not your mother who goes to various authorities and introduces herself as my mother, without any authority to do so?!. …”.
Her son began to defend the plaintiff against such an accusation and asked where such statements came from at all, whether there were any evidence or facts at all. The director’s daughter offered to prove the truth of the written words by going to Kryzhopol, where the specified incident took place.
When this correspondence began, the plaintiff’s husband and son were working together. The son showed the correspondence to the father, which infuriated the husband, and he stood up for his wife in the correspondence.
After that, it was agreed to hold a meeting in the village of Kryzhopol between the plaintiff, the defendant and a person from whom, as an unknown woman, documents were demanded regarding the registration of the land plot. She went with her husband to this meeting.
In the office of an employee of a private enterprise (PE), the defendant accused her of the fact that on August 13, 2018, under her name, she wanted to receive documents prepared by the PE for registration of property rights to a land plot located near a village school.
The defendant came to the meeting with her daughter. However, the PP employee who was involved in the preparation of documents for the land plot for school No. 2 of the village. Horodkivka, clearly said that he was seeing her for the first time, that she was not in their office and did not introduce herself by the name of the director. However, the woman in response insisted on the accusations. As a result, all those present went to the police station, where they gave their explanations.
At the meeting of the labor team of school No. 2 of the village. Horodkivky, on August 29, 2018, the defendant – the director of the school, in the presence of the RDA commission, confirmed her opinion that the plaintiff allegedly demanded school documents from the land management organization under her name.
The plaintiff noted that the above-mentioned post on the Facebook network and the information about it at the meeting of the labor team are such as to degrade her honor, dignity and business reputation, and therefore are subject to legal protection. This whole story made it impossible for her to exist in the village, at school, in the circle of friends, parents of students and work colleagues.
Therefore, I asked to recognize the specified information as unreliable and as such, which humiliates and disgraces the honor, dignity and business reputation, which was spread on the social network “Facebook” and at the meetings of the labor team. To collect UAH 19,000 from the defendant in her favor as compensation for moral damage.
By the decision of the Kryzhopol district court of the Vinnytsia region dated April 9, 2021, the claims were satisfied.
The false information that was spread on the social network “Facebook” and at the meetings of the labor collective was recognized as unreliable and degrading and dishonoring the dignity, honor and business reputation.
The defendant was charged UAH 2,689.40 for court fees, UAH 3,454.00 for examination costs, and UAH 15,000.00 for providing professional legal assistance. In addition, UAH 2,000.00 was charged as compensation for moral damages.
The decision of the court of first instance is motivated by the fact that from the case materials and evidence presented to the court, explanations of witnesses, it was established that the information spread by the defendant on the social network “Facebook” and at meetings of the school’s labor team is false. Under the established circumstances, the court came to the conclusion that in this case, due to the defendant’s widespread dissemination of negative information about the plaintiff on the Facebook social network, significant damage was caused to the latter’s reputation, as the teacher’s authority among colleagues, students, and the public was significantly damaged.
The defendant did not agree with this decision of the court of first instance and filed an appeal. By the ruling of the Vinnytsia Court of Appeals dated July 20, 2021, the appeal was satisfied. The decision of the Kryzhopol district court of the Vinnytsia region dated April 9, 2021 was canceled and a new court decision was adopted, which refused to satisfy the claims.
The decision of the appellate court is motivated by the fact that such actions of the defendant were not aimed specifically at the dissemination of information, which is a mandatory element of the legal composition of the offense, for which the presence of a set of circumstances is necessary, which can be the basis for satisfying a claim for the protection of honor, dignity and business reputation of a person. According to the court, the evaluation judgments of the defendant are not subject to judicial protection and are not subject to refutation. The plaintiff has the opportunity to protect his rights through the right of reply granted to him by law.
On August 27, 2021, the plaintiff filed a cassation appeal with the Supreme Court, in which she asked to annul the decision of the Vinnytsia Court of Appeal dated July 20, 2021 and to uphold the decision of the Kryzhopol District Court of the Vinnytsia Region dated April 9, 2021.
The Supreme Court concluded that the cassation appeal should be dismissed without satisfaction on the following grounds.
The court pointed out that the provisions of Article 277 of the Civil Code of Ukraine provide that a natural person whose personal non-property rights have been violated as a result of the dissemination of inaccurate information about her and her family members has the right to a response, as well as a refutation of this information.
Information that does not correspond to reality or is presented falsely, that is, contains information about events and phenomena that did not exist at all or that existed, but information about them is not true (incomplete or distorted), is considered unreliable.
According to part two of Article 30 of the Law of Ukraine “On Information”, evaluative judgments, with the exception of defamation, are statements that do not contain factual data, criticism, evaluation of actions, as well as statements that cannot be interpreted as containing factual data . Evaluative judgments are not subject to refutation and proof of their truth.
The court pointed out that Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms stipulates that everyone has the right to freedom of expression. A person who expresses not facts, but his own views, critical statements, assumptions, cannot be obliged to prove their veracity, as this is a violation of the freedom to have his own point of view.
According to the provisions of Article 277 of the Civil Code of Ukraine and Article 12 of the Code of Civil Procedure of Ukraine, the duty to prove that the disseminated information is reliable rests with the defendant, however, the plaintiff has the right to submit evidence of the inauthenticity of the disseminated information. The plaintiff must prove the fact that the defendant disseminated information, as well as the fact that his personal non-property rights were violated as a result.
The court indicated that the arguments of the cassation appeal are reduced to a reassessment of the evidence and the applicant’s disagreement with the conclusion of the appellate court regarding the established circumstances of the case. At the same time, in accordance with the first part of Article 400 of the Civil Code of Ukraine, during the consideration of a case in the cassation procedure, the Court verifies within the limits of the cassation appeal the correctness of the application of the norms of substantive or procedural law by the court of first or appellate instance and cannot establish or consider as proven circumstances that were not established in the decision or rejected by him, to decide on the reliability or unreliability of this or that evidence, on the superiority of some evidence over others.
Considering the above, the panel of judges left the cassation appeal unsatisfied, and the resolution of the Vinnytsia Court of Appeal of July 20, 2021 – unchanged, since there are no grounds for annulment of the court decision.
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