How to figure out the appropriate defendant in defamation cases
- February 15, 2017
- news of legislation
- Rublya Oleksandr
Defamation cases take a special place among big diversity of cases resolved by Ukrainian courts. Due to the technological revolution we are experiencing today , these cases are becoming more popular and at the same time more complicated because national legislation does not match modern information realties.
First of all this refers to the Internet, which is an inevitable part of information space. The Internet has become one of the main information sources for most people, which have its consequences. For instance, web is a convenient platform for slander, which can violate personal non-property rights of individuals or cause damage to their honour, dignity and business reputation.
Current legislation that regulates legal relations in protection of honour, dignity and business reputation consists of Civil Code of Ukraine, the Law of Ukraine “On information”, the Law of Ukraine “On printed media”, the Law of Ukraine “On television and radio broadcasting”.
That legislation is mostly outdated and does not perform a function of protection of personal non-material rights. None of them contains any reference to the Internet, moreover, provisions of Commercial code concerning removal of newspapers or books circulation as a method of violated rights protection (p.2 art.278 of Commercial Code) sound as if they were written in the nineteenth century.
Thus, if negative information is spread in traditional sources – printed editions, on the television or radio, and the rights of individual were violated, the defendant is clear. According to the Law, it can be the author of information, editorial office of the publication or broadcasting company.
If information is spread on the Internet, identification of defendant is really complicated, unless information comes from a well-known journalist, politician or blogger. However, very often author of the material posted on the internet stays unknown by using made-up nicknames, etc. In this case the Supreme Court ruling “On judicial practice in cases of protection of honour and dignity of individual and business reputation of individual and legal entity” has to be used. In p.12 of the ruling the Supreme Court has established rules of defining an appropriate defendant in the following cases:
1) appropriate defendants are the author of information and the owner of website;
2) plaintiff has to identify the author and the owner of the website;
3) if the author of the information is unknown , an appropriate defendant is the owner of the website, since he created the technological opportunity for spread of the information;
4) information about the website’s owner can be retrieved by the court from manager of registration and domain name database of Ukrainian network;
5) in case neither author nor owner can be defined, the court can ascertain the lack of credibility in spread information in special proceedings.
No doubt such clarification is very useful, however it still leaves some unanswered questions. For example, how to define “the owner of the website”, how this term correlates with the domain name and what information can be provided by the manager of registration and domain name database of Ukrainian network? What if the information was posted on the foreign website?
The more we deepen in the problem, the more questions we have. There are too much websites, where information about the owners and managers is hidden, so-called “trash” websites.
Current legislation does not contain the definition of such term as “owner of the website” as well as the legal definition for “the website”.
National legislation deals with such terms as “domain”, “domain UA”, “domain name”. According to p.3 art.56 of the Law of Ukraine” On television”, managing of the Internet adress space in domain UA is carried out by non-governmental organization, which is created by self-ruled organizations of internet-providers and is registered according to international requirements. Due to the Order of Cabinet of ministers #447-p dated 22.07.2003 this organization is business association“ Ukrainian web-based data center” (Web Center). This organization is responsible for accrediting the domain name registrars (domen UA).
Individuals, who apply for registration of domain name, are registrants. Web Center can provide information about registrants, but not about owners of the website.
The question is: can registrant be considered as owner of the website? In our opinion, this is fault, because the website and domain name are different things. A website is the accumulation of information, structured in a particular way, held in a particular place (at server), accessed by unlimited number of people through the Internet.
We can conclude that hosting provider contacts real “owner” of the website, that is why he can provide information about the owner: name and surname of individual, name of the legal entity, address of registration, etc.
As for registrant, he is actually most likely to be the owner of the website, as he owns the domain name.
As we can see, the real author of negative information on the Internet can easily hide and avoid liability for violation of non-property rights. The offended party will have to put a lot of effort to protect violated rights according to current legislation.
We strongly believe that appropriate amendments to legislation will help to resolve the above mentioned problems. First of all, it is necessary to enshrine modern ways of protecting violation of rights by spreading slander on the Internet and correlated remedies. For instance, it would be useful to determine cases about ascertainment of the lack of credibility in information spread on the Internet in the new Commercial Code with jurisdiction rules, identification of individuals that should be involved in a case, facts that should be examined by court, etc.
Furthermore, establishment of appropriate defendant presumption in such cases for registrant of domain name of the website, which contains slander, is justified, because he is much easier to identify than the owner of the website. That’s because registrant is either the owner himself or he knows who uses and maintains the website.
If registrant of the domain name has nothing to do with the correlated website, he has to prove it in court and provide information about the person that has an access to that domain name. This means that he can deny the presumption of him being an appropriate defendant.
Despite the above mentioned problems, lawyers practicing defamation cases still manage to find effective remedies for personal non-property rights, including identification of an appropriate defendant, collection of evidence, order of the proceedings and tactic for the case. Nevertheless, further development of social fabric requires legislative changes and modernization of legal regulation.