Interview

“One shouldn’t joke with Freedom of Speech”: Ara Ghazaryan

20.11.2011

Arthur Grigoryan filed a lawsuit against "Hraparak" newspaper for publishing the comments of the readers (according to the lawyer, these comments are defaming and degrading). This is a precedent in Armenia. What are the provisions of the RA Legislation related to this case?

What has the newspaper done? It has taken the comments of the readers and posted in its website. This means, that if we are guided by the 6th point of article 1087 of the Civil Code, the person is exempt from liability if he/she literally copied another person's words. This is one of the media protection mechanisms.

But in this case the problem is whether "Hraparak" newspaper created a forum, where people can express their opinions, and if they can, is the "Hraparak" newspaper responsible for that forum or not?

In Armenia this is the first case. All over the world this problem remains unsolved. Situation is created now when it is dangerous to give final solutions. 

What is the approach of the European Court of Human Rights in such cases?

There is only one such case in ECHR - "DELFI against Estonia". The courts of Estonia gave two different conclusions: the problem was whether the role of the means of providing information is of active or passive nature. If in case the role is passive, then there is no liability unlike if it is active.

DELFI is an organization providing space for forum. In this forum anyone can express his/her opinion. DELFI's role is active on one the hand, and passive on the other. European Union, the member of which is Estonia, declares clearly, that if you choose beforehand which comment to post, or after posting the comment you delete some part of it or make corrections, then you have an active role.

European Court often uses American precedents, and in this case I think it will again use the criteria of active or passive role. The world has not created anything new.

Does it mean that since the website of "Hraparak" newspaper has an administrator, the person who approves the comments then the newspaper has an active role, which means they will be liable and the 6th point of article 1087 will not be taken into consideration?

The situation with "Hraparak" newspaper is something new. On the one hand it is a media company, on the other hand it provides a space for forum, where any person can express his/her opinion.

If we discuss whether the role of "Hraparak" newspaper is active or passive, then according to me, it is active. But on the other hand the editor of the newspaper can state that there cannot be censorship in the webpage at her discretion.

Particularly this case has one more specificity: when "Hraparak" got a letter from the lawyer, where he was asking them to remove the defaming phrases from the website, "Hraparak" newspaper could react and remove it. The more we discuss the problem, the further we get into the field of ethics. In this case it is worth to mention that "Hraparak" doesn't have norms of ethics.

In such case comments should be removed from everywhere, whenever people find the comments addressed to them insulting and defaming.

We have freedom of speech and freedom of private life. The law suggests balancing the rights, but many things are left to the ethics and discretion of the publisher.

The law was defending the newspaper, since it literally copied the words, but on the other hand the insulting phrases of the comments intruded the private life and activities of the lawyer. Besides, this material was not an issue of an open public debate. This was the problem of concrete people, and if these people are not happy with the activities of the lawyer, this doesn't yet mean that this issue should be a subject of an open public debate.

The other problem however, is that Arthur Grigoryan announced that he aims to close the newspaper. This is a serious challenge, an obvious violation. I think the amount of progressive lawyers today makes around 10% and Arthur is one of these lawyers. However, the last step was quite unexpected for me. I think he shouldn't have gone so far. One shouldn't play with freedom of speech, because it is such an important, multifaceted right, that if you play with it, the response will be even worse.

«Hraparak» newspaper provides the possibility for eveyone to leave comments on its webpage. Nothing prevents anyone, including Arthur Grigoryan to get involved in the discussion, deny the libel, ask for proofes and demand apology.

That would have been the best solution. The court should be the last step. When all steps are made, only after that one should apply to court. I am sure dialogue would have been the best solution.

The administration of the blog cannot verify each comment or demand proofs from the readers. Besides, if  each comment is deleted because of lack of verification, the freedom of speech of the reader would be violated.

The same is stated about DELFI's case, the same is stated by one of the Estonian courts, the same is stated in the analysis of Helsinki foundation. But one of the problems is who should verify that information. This is an open question and no one can decide on it.

Maybe the only way is to pay attention on whether the problem is of public importance or not. European Court always pays attention to it. If it is a debate on issues that are important for the public, then the court protects the corresponding rights.

What is your forecast for ''Hraparak''  newspaper's case?

Definitely the demand of 18 million AMD as a compensation should be rejected. If we judge according to article 1087, the lawsuit should be against the readers, not the newspaper.

The court may reject the suit based on public law, as American courts did, by stating that this is a result of the progress of science and technologies: if we limit the science  we will have no progress. If we think today that we have neither social networks nor online debates, we will lose a very important tool. Whatever the newspapers are afraid to write about, the social network gives the possibility to express.

Freedom of speech should be self-regulatory: the best model is American type, when all the ideas are piled in marketing field, and there it is decided what is important and what is not.

Interview by Aghavni Yeghiazaryan

Source: www.hra.am