Conduct of Defence in Cases of Insult or Slander on Religious Grounds

Introduction

The cases of insult or slander on religious grounds are not exceptions in practice and unfortunately, they have a tendency to grow. In such cases the person (the religious organization or the individual) which considers that the honor, dignity or business reputation thereof have been disgraced, can make use of the means of judicial and/or extrajudicial protection of the rights thereof.

Applicable Legal Principles, Norms, Precedential Decisions

The applicable legal regulations of the legal relationship of insult and slander on religious grounds, in their degree, start from the Constitution of RA.

The Article 29 of the Constitution guarantees the prohibition of discrimination, which defines among other features, that discrimination based on religion is prohibited.

The Article 3 of the Constitution, which is a non-amendable article, defines that human being is the highest value and the inalienable dignity of the human being constitutes the integral basis of his or her rights and freedoms.

The Article 23 of the Constitution guarantees a very important principle: the human dignity is inviolable, which means that no circumstance or situation can be a ground for violating the human dignity. The mentioned norm bears a component of absoluteness, i.e. it assumes that the state cannot restrict this right by any law or other legal act.

Applicable legal regulations are also provided for by the conventions signed and verified by Armenia as international agreements. In particular:

The Article 10 of the Convention “For the Protection of Human Rights and Fundamental Freedoms” guarantees the right to freedom of expression. The 2nd part of the Article defines the bases for the restriction of freedom, i.e. the restrictions are to be prescribed by law and among other bases are to be aimed at the protection of the reputation or rights of people. In other words, the freedom of expression is not unlimited and it can be limited if it is provided by law and if it has a legitimate purpose.

Under the Article 14 of the Convention the prohibition of discrimination is defined, where it is mentioned that the enjoyment of the rights and freedoms set forth in the Convention are to be secured without discrimination on the ground of religion in addition to others.

The Article 7 of the UN “Universal Declaration of Human Rights” guarantees the right of equality of people without any discrimination, and the Article 19 defines the freedom of opinion and the right to its free expression.

The main regulations related to insult and slander are provided by the Article 1087.1 of the Civil Code of RA, and the legal interpretations applicable during the resolution of various legal issues under these cases are provided by the following decisions of RA Constitutional Court and the Court of Cassation:

  1. RA Constitutional Court Decision number SDO-997 as of 15.11.2011,
  2. Decision of the Court of Cassation under the Case number EKD/2293/02/10 as of 27.04.2012,
  3. Decision of the Court of Cassation under the Case number EKD/1495/02/11 as of 19.10.2012,
  4. Decision of the Court of Cassation under the Case number EKD/3246/02/11 as of 05.04.2013,
  5. Decision of the Court of Cassation under the Case number EKD/0807/02/11 as of 04.07.2013,
  6. Decision of the Court of Cassation under the Case number EKD/3260/02/11 as of 04.10.2013,
  7. Decision of the Court of Cassation under the Case number EADD/0524/02/12 as of 04.10.2013,
  8. Decision of the Court of Cassation under the Case number AVD/0179/02/13 as of 08.05.2014,
  9. Decision of the Court of Cassation under the Case number EMD/2775/02/14 as of 22.07.2016,
  10. Decision of the Court of Cassation under the Case number EKD/1320/02/14 as of 02.12.2016,
  11. Decision of the Court of Cassation under the Case number EADD/2612/02/16 as of 18.10.2019.

The above mentioned legal principles, norms and precedents are applicable against the legal relations of insult and slander on religious grounds and may be cited during the extrajudicial or judicial protection of the rights, both in oral speech and in relevant written documents.

Means and Methods of Protection of Rights

A person, who considers that he/she has become a victim of insult or slander, may protect his/her dignity by judicial and extrajudicial methods of the protection of rights.

Regulations of Judicial Protection

 A person whose honor, dignity or business reputation have been disgraced through insult or slander, may apply to court against the person having insulted or slandered within one month after the person has become aware of the insult or slander, but not later than within six months from the moment of the insult or slander.

The person’s right to apply to the court in cases of disgracing the honor, dignity or business reputation, as well as the procedure and terms of compensation for the damage caused to honor, dignity or business reputation are defined by the Article 1087.1 of RA Civil Code, hereinafter referred to as Article in this section.

Moreover, it is necessary to separate honor and dignity from business reputation. The legal entities or entrepreneurs can only refer to the disgracing of their business reputation, and the physical persons usually can refer to the disgracing of their honor and dignity. It should be clearly stated that legal entities or entrepreneurs cannot refer to the disgracing of their honor and dignity, and physical persons must substantiate which factual data substantiate the disgracing of their business reputation.

The legal content of insult and slander is defined under the 2nd and 3rd parts of the Article 1087.1 of the Civil Code.

Insult is deemed as a public statement made with the purpose of disgracing the honor, dignity or business reputation through speech, image, voice, sign or other means.

Slander is deemed as public representation of factual data (statement of fact) relating to a person, which do not correspond to reality and which disgrace the honor, dignity or business reputation thereof.

The main difference between “insult” and “slander” is that in case of slander it refers to the disgracing of the person’s dignity through the deliberate dissemination of false facts and factual data that do not correspond to reality, accusing the latter of a crime or delinquency on the basis of facts that do not correspond to reality; and insult deems the deliberate and premeditated derogation of a person.

The negative opinion or value judgment insulting one’s reputation, which is based on verified or accepted facts and is expressed with fair intentions, does not obviously exceed the limits of legality, may not be considered insult.

For the assessment of a specific statement as an insult, it is necessary to have the following conditions simultaneously, in particular:

  1. the statement made must actually disgrace the person’s honor, dignity and business reputation, and the procedural burden of proving such fact lies with the plaintiff,
  2. the person making statement should initially aim at disgracing the person’s honor, dignity or business reputation, i.e. should deliberately abase the person’s reputation and humiliate him/her through the statement he/she made. In particular, the existence of such purpose may be evidenced by a situation where the person has not taken all the reasonable measures to verify that the information corresponds to the reality, or he/she knew or must obviously have known that the information is not based on accurate facts. The burden of proving this fact also lies with the plaintiff.
  3. the statement should be made publicly, and the procedural burden of proving such fact again lies with the plaintiff.

The public statement may not be deemed as an insult in a specific situation and by virtue of its content if it is based on accurate facts (except for congenital disorders) or is conditioned by overriding public interest.

For the assessment of a specific statement as slander, the following criteria are important; in particular:

  1. factual data about the person should be represented, i.e. the representation must contain specific, definite information about certain action or inaction, it should not be abstract,
  2. the factual data about the person should be presented publicly,
  3. the factual data presented should not correspond to reality, i.e. should be false, groundless and not trustworthy,
  4. the factual data presented should actually disgrace the person’s honor, dignity or business reputation.

Just assuming or doubting about the slanderous nature of the publications is not enough to confirm the fact that damage was caused to a specific person. In the factual circumstances of the case, there must be such a circumstance that even the ordinary reader will feel that the given statement in fact is directly addressed to the applicant, or that he himself has been the target of the criticism.

Unlike insult, when the existence of the circumstance of the information being conditioned by the overriding public interest excludes that information from being considered an insult, additional set of facts is required in case of slander. Particularly, the person who published the factual data must prove that before publishing it, he/she had taken such measures that made it possible for the latter to conclude that those factual data are conditioned by the overriding public interest and could correspond to reality. In addition, the publishing person must disclose the mentioned data conscientiously, which implies a complete narration of the information (factual datum (data)) without alteration of essential facts; and balanced, in terms of the correlation of the submitted factual data and the overriding public interest. The publication of the factual data, being conditioned by the overriding public interest, should not contain other slanderous information that is not relevant to the given issue.

According to the 5th part of the Article the publication of such expressions shall not be considered slander which:

  • were presented by the participant of the proceeding during the pre-trial or court proceeding,
  • in the given situation and with their content are conditioned by the overriding public interest, when the person making the statement has taken measures to find out the truthfulness and justification thereof, as well as he/she presented those data in a balanced and conscientious manner. In case of simultaneous existence of the three above-mentioned circumstances, there is no slander,
  • derive from the public speech or response of the slandered person or the representative thereof, or the document arising therefrom.

The 6th part of the Article defines another basis for exemption from liability for insult or slander: the person shall be exempt from liability in such cases when he/she has reproduced literally or conscientiously the information and the information contained in a public speech, document, work published by a news agency or other person.

Special rules are defined for the distribution of the burden of proof in cases concerning slander, which may contradict the procedural rules for the distribution of the burden of proof set forth in the Article 62 of RA Civil Procedure Code; but in practice the courts apply the peculiarities defined in the Article and distribute the burden of proof in accordance with the rules defined in the Article.

The requirements presented to the court in case of insult are defined in the 7th part of the Article. The plaintiff may submit one or several of the following requirements simultaneously:

  • respondent’s public apology. The form of apology shall be defined by the court;
  • if the insult appeared in the information disseminated by an entity carrying out media activities, promulgation of the court judgment in full or partially through the given media. The manner and volume for promulgation shall be defined by the court;
  • paying a compensation in the amount of up to 1 million AMD. The amount of the compensation shall be defined by the court.

The requirements presented to the court by the plaintiff in case of slander, are defined in the 8th part of the Article. The plaintiff may submit one or several of the following two requirements simultaneously:

  • if the slander appeared in the information disseminated by an entity carrying out media activities, public refutation through the given media of the factual data considered as slander and(or) publication of its response with regard thereto. The form of refutation and the response shall be approved by the court, guided by the Law of the Republic of Armenia “On Mass Media”,
  • paying a compensation in the amount of up to 2 million AMD.

If no reference of the source (author) of the information is made during the insult or slander, or the source (author) of the information is not known, or the entity carrying out media activities does not disclose the name of the author, exercising its right of not disclosing the source of the information, then the liability for compensation shall lie with the one having publicly insulted or slandered; and if insult or slander are contained in the information disseminated by the entity carrying out media activities, then the liability for compensation shall lie with the entity carrying out media activities (Part 9 of the Article). This clause is essential for the cases, when the disgracing information is disseminated by mass media. In this case, attention should be paid whether the mass media has made reference to the source or author of the information or not. If there is such a reference and the source of the information is easily identified then the complaint may be submitted against the source or the author of the information, and the given mass media may be involved as a third party.

            Thus, the plaintiff may include in the subject of his/her claim the following:

  • non-material claims
  • claim for apology and/or,
  • claim for publishing a refutation and/or,
  • claim for equivalent material compensation (in the form of money) for the non-material damage caused,
  • material claims
  • claim for compensation (in the form of money) of property damage caused as a result of slander and/or insult.

These claims must be segregated to make it easier both for the plaintiff and the respondent to fulfill their liability of proving thereof.

The person may not benefit from the means of protection defined in points 7 and 8 of the Article, if before applying to the court he/she has required refutation and(or) publication of the response thereof as prescribed by the Law of the Republic of Armenia “On Mass Media”, and the entity carrying out media activities has complied with that request (Part 10 of the Article).

There are some criteria for the courts in defining the amount of the compensation prescribed by law for insult or slander, particularly: the courts are to pay attention to the form of insult or slander, the scope of dissemination thereof, as well as the property status of the person having insulted or slandered (Part 11 of the Article). When defining the amount of compensation, the court should not take into account the property damage caused as a result of insult or slander.

The person has the right to claim in judicial procedure from the person having insulted or slandered thereof also the property damages caused to him/her due to insult or slander, including the reasonable judicial expenses and the reasonable expenses incurred for the restoration of violated rights. The property damages should not be confused with the amount of the compensation, as it is considered a means of property compensation, and the property damages should be considered in accordance with the legal relationship of the general damage in the procedure prescribed by the Chapter 60 of RA Civil Code.

Another means of judicial protection of rights is provided for by RA Civil Code: in case of impossibility to identify the person who has disseminated information disgracing a person’s honor, dignity or business reputation, the person in respect of which such information was disseminated has the right to apply to court with a claim of recognizing the disseminated information as not corresponding to the reality (RA Civil Code, Article 19, part 3).

In this case a legal problem arises, as although the RA Civil Code sets forth the right to apply to the court, the claim of recognizing the disseminated information as not corresponding to reality is not included in the scope of the cases considered by the special adversary proceeding set forth in the Civil Procedure Code (when it is possible to apply to the court without involving any person as a respondent); and it is impossible to make such a claim by adversary proceeding due to the mandatory condition of involving a respondent.

Procedure for Applying to Court and Appealing the Judicial Acts

Taking into account the fact that the cases of insult and slander are civil relations, they are considered in the court of general jurisdiction.

When filing a complaint, the requirements must be complied with, in particular, according to the Article 121 of the Civil Procedure Code, the complaint must indicate the name of the court to which the complaint is submitted, the name of the plaintiff, the address of the place of registration (location), the notification address (if different from the address of the place of registration (location)), including the data of the identification document (hereinafter referred to as passport data) of the citizen who is the plaintiff, the state registration number of the legal entity which is the plaintiff, the name of the representative thereof, the passport data, the notification address, and if the claim was filed by the official entitled to do it, then the name and position of that person as well, the name of the respondent,  the address of the place of registration (location), in case of not having a place of registration the address of residence, the name of other persons participating in the case, the address of the place of registration (location) thereof, in case of not having a place of registration the address of residence, the facts on which the claims are based, in case of property compensation the amount claimed or disputed and the calculation, the material and legal claim (claims) addressed to the respondent, the list of the documents and evidence attached to the complaint.

The complaint may also include the legal norms applicable to the disputable legal relationship, the evidence verifying each of the facts the claim is based on, with an appropriate note indicating which evidence is addressed to the verification of which fact, the motions of the plaintiff, and other information significant for the examination and solving of the case, the information on the means of electronic communication with the motion of noticing through that means.

The complaint is to be signed by the plaintiff or the representative thereof. The complaint signed by the representative is to be accompanied by a document certifying the powers thereof and a copy of the identification document. The copy of the identification document of the plaintiff, the original receipt certifying the payment of state duty in the form and amount established by law or the relevant code certifying the transfer to the corresponding treasury account provided by the payment organization, the copy of the complaint and the evidence verifying the sending of the copies of the documents attached thereto to the persons participating in the case, unless a motion is filed to secure the claim, are also to be attached to the complaint. In case of motion to secure the claim, the copy of the complaint and the enclosed documents are attached.

If the evidence attached to the complaint is voluminous, then the evidence proving that the complaint was sent to the persons participating in the case is attached to the complaint.

The court has the right to return the complaint not complying with the form and content of the complaint in accordance with the procedure prescribed by the Article 127 of the Civil Procedure Code. The plaintiff has the right to correct the errors within three days and to submit the complaint to the court again.

In case of a negative judicial act of the Court of General Jurisdiction of the First Instance, the person may submit an appeal against that judicial act to the Civil Court of Appeal within one month. The appeal must indicate the name of the Court of Appeal, the names and addresses of the person who brings the appeal and persons participating in the case, the name of the court the judicial act of which is appealed, the case number and the year, month and day of the adoption of the judicial act, the bases of the appeal, i.e. the violations of the norms of substantive or procedural right, which may affect the outcome of the case, the substantiations of the appeal, i.e. the substantiations on the violations of the norms of substantive or procedural right indicated in the appeal as well as the effect thereof on the outcome of the case, the claim of the appealing person, the list of the documents attached to the appeal.

In case of a negative judicial act of the Court of Appeal, the person may appeal the judicial act in the Court of Cassation within one month. The appeal submitted to the Court of Cassation must indicate the name of the Court of Cassation, the names and addresses of the person who brings the appeal and persons participating in the case, the name of the court the judicial act of which is appealed, the case number and the date of the adoption of the judicial act, the bases of the cassation appeal, i.e. the violations of the norms of substantive or procedural right, which have affected or could affect the outcome of the case, the substantiations of the cassation appeal, i.e. the substantiations on the violations of the norms of substantive or procedural right indicated in the cassation appeal as well as the effect thereof on the outcome of the case, the basis for accepting the cassation appeal for proceeding and the substantiation thereof, the demand of the appealing person, the list of the documents attached to the appeal.

Means and Methods of Extrajudicial Protection of Rights

One of the means of the protection of rights under the cases of insult and slander is extrajudicial means of protection. Such are the legal toolkits prescribed by the RA Laws "On Mass Media" and "On Audiovisual Media".

To use this toolkit, first of all, it is necessary to find out the data on the media (the name of the company or individual entrepreneurs, TIN, data of the director, registration data) publishing the information, which can be obtained from the website www.e-register.am.

Article 8 of RA Law “On Mass Media’’ defines the rights of refutation and response, where it is prescribed that persons have the right to demand from the entity carrying out media activities to refute the factual inaccuracies violating the rights thereof, contained in the information disseminated by the entity carrying out media activities, if the latter does not prove that those facts correspond to reality.

The demand for refutation may be submitted within one month from the day of dissemination of the information to which the refutation refers.

Within one week after receiving the refutation demand, the entity carrying out media activities is obliged to inform the person submitting a refutation demand about the time of the dissemination of refutation or to inform in written form about the refusal to disseminate the refutation.

The refutation is to be disseminated by the same media, and if impossible by other means acceptable for the person demanding a refutation. The refutation is to be published within a period of one week after the day of receiving the demand of refutation. If within this period the media product is not issued or the only issue has already been endorsed for publication, the refutation is to be included in the nearest issue of the media product. Refutation is placed under the title “Refutation”. In terms of the placement, layout, font size and type, and the time of broadcasting, the refutation should not be different from the information being refuted.

Along with refutation, a person shall have the right to demand the publishing of the response thereof. The entity carrying out media activities may choose to accompany or not the publishing of the response with the refutation. By publication of the response, the demand of refutation is considered fulfilled.

The response shall not contradict to the requirements of RA Law “On Mass Media” and shall refer solely to the actual inaccuracies in the information of the subject of response. It shall not contain criticism of the person who had prepared or disseminated the information of the subject of response, any other person or activities thereof if it is not directly pertinent to that information. The volume of the response shall not exceed the volume of the information being responded to. If the refuted information is a separate, clearly divisible section from the whole volume of the material, then the response volume shall not exceed the volume of that section. The response shall be published free of charge.

A demand for a refutation and (or) publication of a response shall be denied if that demand is anonymous or contradicts a judicial act that entered into a legal force or does not comply with the requirements of the Article 7 of the Law “On Mass Media”, particularly when the demand of refutation and (or) publication of a response contains secret information as stipulated by law, or information advocating criminally punishable acts, as well as information violating the right to privacy of ones’ personal or family life. 

The demand for refutation and (or) publication of a response may be denied if the term prescribed has not been complied with or the demand refers to such information that has been disseminated with a reference to a public speech, official documents of state bodies, other media or any work of authorship, and the original source has not disseminated a refutation.

The demand for publishing a response submitted along with the refutation demand may be denied if the response does not conform to the requirements of the Law “On Mass Media”.

If the entity carrying out media activities refuses to disseminate the refutation or the response, or violates the procedures and term of the dissemination thereof as provided by the law, the person whose rights are violated have the right to apply to the court in the procedure prescribed by law, with the claim to disseminate the refutation and to publish the response thereof.

The responsibility of the entity carrying out media activities is defined by the Article 9 of the RA Law “On Mass Media”, according to which implementation of media activity with violation of the requirements of law by the entity carrying out media activities shall result in liability as provided by law. Except for the mass media broadcasting on TV, the responsibility of which is defined by the RA Law “On Audiovisual Media”, in other cases, no special measures of responsibility are defined. Therefore, the Article 9 of the RA Law “On Mass Media” is of a purely declarative nature.

Thus, there are no effective mechanisms (except for audiovisual media) of responsibility of media means in Armenia.

According to the RA Law “On Audiovisual Media’’, the audiovisual programs that pursue the purpose of propagating discrimination on religious and other grounds, or contain information pursuing such purpose, as well as programs that disseminate calls for acts prohibited by the legislation, such as calls for acts on the ground of religious hatred or motives of religious fanaticism prohibited by the RA Criminal Code (Article 9.7,1) are prohibited.

RA Law ''On Audiovisual Media'', Article 9, part 7

The audiovisual programs that pursue the purpose of propagating discrimination on national, racial, gender and religious grounds or contain information pursuing such purpose shall be prohibited.  

RA Law ''On Audiovisual Media'', Article 9, part 1

  1. It is prohibited to disseminate calls for acts in the audiovisual programs prohibited by the legislation.

According to the Article 3 of the RA Law “On Audiovisual Media'', audiovisual program is the material containing disseminated images and (or) sounds with limited duration, which in its organizational form is separate and complete and is considered an object of copyright and (or) of related right.

It follows from the above mentioned that audiovisual program is the program that is protected by copyrights and is broadcasted by images and sounds (video).

When the expression or act contains also corpus delicti defined by the Criminal Code, the criminal procedure rules shall be applied to those relations, and the person must apply to the law enforcement bodies with a report on crime. If at the same time there is information in the expression that is disgracing, the person shall have the right to use extrajudicial or judicial protection means simultaneously.

In such cases when the audiovisual media uses materials posted or available on other social networks or internet platforms (such as “www.facebook.com”, “www.youtube.com”, etc.) aiming at propagating discrimination on religious grounds or containing hate speech, then it shall bear responsibility under general procedure. In this case, it is necessary to inform the Commission on TV and Radio about this for the initiation of administrative proceeding and the examination of the fact, which does not deprive the person of the right to extrajudicial and/or judicial protection of the rights thereof.

Taking into account the fact that the state has assumed the obligation under the Constitution and international legal acts to ensure the right of being devoid from discrimination, then the Public Broadcaster, established by the Government of RA in the form of a closed joint-stock company and being under the ownership of the company belonging with 100% to the Republic of Armenia, unlike the private broadcaster shall be obliged to refrain not only from violating the rights of individuals in its activity, but also to provide consumers with programs aimed at overcoming the stereotypes containing discrimination on religious and other grounds.

RA Law “On Audiovisual Media”, Article 22, part 9, point 3, paragraph C/

The public broadcasters shall be obliged to provide consumers with programs aimed at overcoming the stereotypes containing discrimination on national, racial, religious and gender grounds.

For violation of the requirements of the legislation on Audiovisual Media the measures of responsibility and the procedure of application thereof are defined in the Chapter 9 of the RA Law “On Audiovisual Media” and the persons who consider that their honor, dignity or business reputation have been disgraced on religious ground by the dissemination of the specific audiovisual program, may apply to the Commission on TV and Radio demanding the audiovisual media to be held liable.

In case of discovering cases of violation of the requirements of the legislation regulating the field of the audiovisual media by the Commission on TV and Radio, as well as in cases of discovering cases of violation of the requirements of the legislation regulating the field of audiovisual media by other state bodies within the scope of their competence, and informing about this in written form the Commission on TV and Radio, the latter shall apply the following administrative fines: written warning, fine, suspension of authorization or license, as well as termination of authorization or license.

Moreover, in case of discovering features of administrative offence or act prohibited by the Criminal Code of the Republic of Armenia, during the implementation of the supervisory functions granted thereof by law, the Commission on TV and Radio shall apply to the competent bodies for the legal assessment of the facts.

Applying to the Information Disputes Council

To receive a professional opinion on the cases of insult and slander in mass media people can apply to the Information Disputes Council. The Council was founded on May 1, 2011 and the aim of the latter is to protect freedom of speech, access to information, as well as the right of dignity and privacy of the person. The function of the Information Disputes Council is to release advisory professional opinions in relation to juridical cases concerning slander, insult, protection of privacy and freedom of information, as well as to provide the necessary advice to the legislative and executive authorities, local self-government bodies and citizens on relevant issues.

Information on the Information Disputes Council can be found at www.idcarmenia.am website.

 

Applying to the Human Rights Defender

An extrajudicial method of the protection of rights by the persons under the cases of insult and slander is also applying to the Human Rights Defender. However, it is possible to apply to the Human Rights Defender only in cases when the person having insulted or slandered is a state and local self-government body and an official, an organization providing public services (Article 15.1).

It is necessary to bear in mind that applying to the Human Rights Defender as a means of extrajudicial protection of rights is a complementary measure with other means of extrajudicial or judicial protection.

The complaint addressed to the Human Rights Defender should be submitted within one year from the day when the applicant got to know or should have known about the presumable violation of the rights and freedoms thereof. The complaint shall be submitted either in written or oral form. State duty shall not be charged for the submitted complaints. It should be signed including the name, surname, place of residence (address) of the person submitting the complaint or the name, location of the legal entity and contact information.

There is no special form defined for the complaint. However, it is more convenient and quick to apply to the Human Rights Defender online following the link https://www.ombuds.am/am/site/ApplyTeamAddress.

Within 30 days upon the receipt of the complaint the Human Rights Defender shall examine the complaint, based on which the Defender shall render one of the following decisions:

1) on accepting the complaint for consideration;

2) on not considering the complaint;

3) on presenting to the complainant the possible means for the protection of rights and freedoms thereof;

4) on transferring the complaint for consideration to another body.