President Boris Yeltsin signed an edict on November 30 “privatizing” Ostankino Broadcasting Company. The new entity, to be called Russian Public Television, will take control and be responsible for emissions on the first channel as of January 1, 1995.
The new company, a joint stock corporation, will have 51% of its shares owned by the State Committee for the Management of State Property. The remaining 49%, according to press reports, will be spread among twelve major private companies. These include Menatep, Stolichnyy, Inkomban and Roskredit banks, ITAR-TASS, Avtovaz and Teletsentr.
According to Andrei Richter, the media-conscious Most bank was not included among the private entities, precisely because of its key and expanding role in owning or investing in other media properties, including Igor Malashenko’s increasingly powerful NTV. Indeed, the very model of privatization for Ostankino might have been put in place to strengthen the tradition-bound entity in its coming struggle with newcomers like NTV.
The decision to privatize was apparently made in such secret and with such speed that, according to Kommersant, some of the potential investors learned about their role through the newspapers. Kommersant also reported that the transformation of Ostankino does not mean government renunciation of control. The channel will be extremely important in the upcoming parliamentary and presidential elections.
The conversion of Ostankino comes against a background of intense discussions between Aleksander Yakovlev, chair of Ostankino and of the President’s Radio and Television Commission. Earlier in the month, Yakovlev went to great pains to stamp out rumors of a merger between the first channel—now privatized, and the second Russian Television channel which became the property of the Federation in the late Gorbachev period.
The merger was spurned, according to Yakovlev, because “democracy would not profit from narrowing the room for manoeuvre.” Journalists and prominent public figures had opposed the merger on the grounds that it would lessen freedom of speech in Russia.
According to Reuters, Yakovlev favors the stock split because the participation of both state and private investors would provide a balance and ensure the genuine independence of the new channel.
The privatization of Ostankino also may be a response to Mikhail Poltoranin’s proposed National Fund for the Media, contained in the Duma bill “On State Support for the Media,” reprinted in the documentary section of this issue.
The pace to privatization In a recent interview with Seattle-based GlasNews, Grigory Shevelyov, first deputy chairman of Russian state television and radio, stated that Ostankino have already had more success than any other state-owned television company in using non-traditional methods to fund-raise: “We are engaged in very efficient, active advertising operations. We’re developing television production companies that would be offspring of Ostankino. These companies would supply us with material, and on top of that the productions would be distributed to third parties, with Ostankino receiving a share of the revenues.”
While being required to provide their films to Ostankino, these satellite companies would nevertheless be independent, and not barred from international trade. Some independent companies are already forming as spin-offs from former organic units of Gostelradio, and these companies are having to learn new market skills. Shevelyov argues that entering the market will enhance the quality of their programs:
“We want to see them become independent in the market and not tightly connected by an umbilical cord. It’s time to cut the cord. We want them to be free, because air time is very limited. They have time slots on Ostankino, but we’d like to see them find other opportunities. The intellectual level and the caliber of our facilities are so great that the output could be significantly higher, and all that output could not be used on Channel 1.”
Sergei Gryzunov, who has been permanently appointed chair of the Russian Press Committee is already off to a controversial start. (The officially appointment occurred on Wednesday, November 2, though Gryzunov has in fact been acting as chair since Boris Mironov’s dismissal on September 2. See PSMLPN, issue 10).
Gryzunov has contrasted his policies with those of Mirnov, asserting that the committee would no longer support the “outright nationalist and chauvinist” ideas of his former chief, and declaring that “those sharing the views of the former chairman and going to put them into practice will have to quit.” He warned his colleagues that from now on they would be working “in a new capacity, with new goals and objectives.”
In an interview broadcast on Radio Russia, Gryzunov articulated what in his view these goals and objectives were:
“I think that the committee must address matters which, unfortunately, it has not tackled so far - that is, it must embark on developing a state media policy. In the recent past relations between the authorities and the media have not been formed correctly. The authorities still consider the media to be a convenient mechanism for injecting their own enlightened views into society. This is wrong. I think these relations must be built differently. The command-administrative mechanism must be reorganized with a view to cooperation. What I have in mind is that every Russian citizen must have the right to have full and exhaustive information about what the authorities intend to do and what they are doing. And the other way round: the top executive, legislative and other branches of power must receive information about what society thinks about the steps which they intend to take. If we succeed in this endeavor I will consider my goals fulfilled.”
Gryzunov accused the State Duma’s Committee for Information Policy and Communications of “seeking to push through a number of bills that may bring to zero Russia’s achievements concerning freedom of the press.”
There is already controversy over Gryzunov’s objectives. Mikhail Poltoranin, chair of the State Duma Committee on Information Policy and Communications, rejected Gryzunov’s objections to his proposed legislation, charging Gryzunov with launching a major smear campaign against him.
Poltoranin argues that beneath Gryzunov’s objections is his disagreement over an amendment to the law “On State support for the mass media,” which states that bodies of state may not found periodicals. This amendment, Poltoranin argues, would strip the Press Committee of its influence over the mass media.
Gryzunov has stated that the draft law is “particularly attractive” to the parliamentary opposition because the national foundation for press support is to be formed by the State Duma, and this will give the opposition the right to involvement in decision making on the management and control of publishing houses, printing complexes and TV and radio corporations as well as the right to buy them out.
Gryzunov has caused more tempers to rise by closing down the virulently anti-Semitic paper “al-Kods” on November 16. The formal pretext for the closure is Article 7 of the law on the press, which prohibits foreign citizens from opening Russian newspapers. However, the editor of al-Kods Russian edition, Vladimir Yakushev, called the action “a glaring case of arbitrary rule”, arguing that it is just an attempt to shut down an opposition paper. “We will suethe Press Committee if we cannot publish,” said Yakushev, “if they are allowed to do this, there can be no freedom of speech in Russia.”
Meanwhile, Poltoranin has also indicated suspicions that the press committee was possibly discriminating in the existing pattern of subsidies of the mass media. If instance of abuses were confirmed, the committee would recommend that Yeltsin sack Gryzunov, he said.
The rash of civil defamation actions in Russia continues, as detailed in a November 27th Observer by Victoria Clark entitled “Sueing is All the Rage in Russia’s Top Circles.” The Russian Federation Parliament is close to enacting a new law governing civil defamation claims, including those against mass media defendants. As reported in issue #10 of this newsletter, Russian legislation since 1990 has allowed plaintiffs to seek monetary damages for non-material (moral) harm in such cases. The potential availability of substantial monetary awards accounts in significant part for the rapid escalation in the number of lawsuits against mass media defendants for alleged violations of honor and dignity.
One of the most recent highly-publicized awards was against the newspaper Izvestiia and politician Yegor Gaidar for the latter’s article labelling plaintiff Vladimir Zhirinovskii “a Fascist” and a “leader of Fascists”. While the Moscow court in its September 15th decision imposed damages amounting only to one million rubles (approximately $320), the decision highlights once again the threat that the lack of predictability of damages awards can pose for defendants, particularly those with smaller resources than Izvestiia and Gaidar.
The new rules governing civil defamation are contained within one small chapter in the massive (some 450 articles) draft Civil Code, Part One, which was passed by the State Duma on third reading on October 21st and sent to the Federation Council, the Parliament’s upper house. The bulk of the draft Code is devoted to contract and property law issues. If the Federation Council passes the bill, as expected, it will then go to President Boris Yeltsin for his signature. It is predicted that the bill will become law by January first.
The draft Civil Code does not significantly change existing civil defamation law. The Code, which would supersede other Russian Federation laws inconsistent with it (Article 3(2)), and therefore presumably override any conflicting defamation law provisions in the Russian Mass Media Law, addresses “Nonmaterial Benefits and the Defense Thereof” in Chapter Eight. Articles 151-152 in that chapter protect the “honor, dignity, and business reputation” of individuals and juridical persons (business entities) against false defamatory publications and permits successful plaintiffs to demand compensation for their losses (such as business goodwill) and moral harm (damage to reputation in the community).
Historically (and currently) in civil defamation actions, the burden of proof as to the truth of the statement has been on the defendant, and a defendant will be liable even if it is without fault (intent or negligence). Article 152(1) explicitly retains the rule as to burden of proof, and while the draft Code does not address directly the standard of liability question, there is nothing to indicate that the current standard is being changed.
As is the case in existing law, the draft Civil Code does not place limits on the size of monetary awards in civil defamation cases. Article 151 does, however, list certain factors that courts are to take into account: the degree of the defendant’s fault; the depth of physical and moral suffering connected with the individual peculiarities of the plaintiff; and “other circumstances deserving of attention”. In this author’s opinion, the usefulness of such open-ended criteria is questionable; in effect, courts will have broad discretion to fashion whatever awards they find appropriate. This absence of meaningful limits on damages awards probably will contribute to the ever-rising number of defamation claims against mass media defendants.
The achievement of a proper balance between rights of free expression and reputation is a challenging task in all legal systems, leaving room for a broad range of reasonable legislative and judicial approaches to the problem. In this regard, it must be noted that the Russian Constitution and the International Covenant on Civil and Political Rights, to which Russia is a party, both contain guarantees of rights of both sets of fundamentals rights. One wonders if in the complex process of drafting the new comprehensive Russian Civil Code the possible constitutional and international law implications of potentially unlimited moral damages in civil defamation cases have received particular attention.
Peter Krug
University of Oklahoma College of Law
Box: Other Remedies
In addition to civil defamation claims seeking large monetary damages, other forms of sanctions against prohibited speech have lately been receiving attention in Russia. For example, Defense Minister Pavel Grachev in October filed a criminal complaint, charging the editors of the newspaper Moskovskii Komsomolets with “insult” because of their reports that Grachev was involved in the murder of reporter Dmitri Kholodov, and on December fifth a Moscow trial of the newspaper Zavtra on charges of disseminating hate speech will begin.
Regarding the Moskovskii Komsomolets case, Russia’s
acting Prosecutor-General, Aleksei Ilyushenko, was quoted on November 12th
as condemning the newspaper’s “outright boorishness” in its insulting publications
which reminded him of the press campaigns during the 1937 purges.