Post-Soviet Media Law & Policy Newsletter

Issue 22     Benjamin N. Cardozo School of Law     October 19, 1995

Defamation, the Fascist Cases and the Russian Civil Code

    (Here are two excerpts from an extraordinarily comprehensive and insightful pair of articles by Peter Krug, Professor of Law at the University of Oklahoma. The first part of the complete article, FROM “RULES OF SOCIALIST COMMUNITY LIFE” TO THE 1995 CIVIL CODE: MASS MEDIA DEFENDANTS AND PUBLIC AND PRIVATE INTERESTS IN RUSSIAN CIVIL DEFAMATION LAW, appears in volume 13, No. 3, Cardozo Arts and Entertainment Law Journal. For a copy of the issue in which the article appears, send a fax to the Journal, at (212) 790-0205). 

    Fundamental changes have taken place for the Russian press in the sphere of individual, non-state, personality rights protection in the 1990’s.1 Before 1990, the press operated under an extra-legal “duty to criticize” and therefore enjoyed broad latitude to subject to public criticism and ridicule individuals for whom the legal system offered limited protection. Beginning with the 1990 Press Law, however, and culminating in a new Civil Code effective January 1, 1995,2 the press has been made subject to a comprehensive system of post-publication civil responsibility for dissemination of statements injurious to personality interests. The scope of protection for individual rights of personality has been broadened incrementally to include new protected interests, such as a right to privacy, and a potent new remedy—recovery of monetary damages for non-material harm (“moral damages”). 

    This expansion of personality rights protection has been accompanied by a significant increase in the number of civil lawsuits, many of them against press defendants.3 Among those recognizing the new possibilities afforded plaintiffs has been State Duma Deputy Vladimir Zhirinovskii, who in a news conference candidly warned reporters:     The increasing litigiousness is occurring amid widespread concern over perceived press abuses and the general level of discourse in the mass media. In June 1995, a joint declaration by the Union of Russian Journalists and the Judicial Chamber for Information Disputes (See PSMLPN, Issue 21), a tribunal of jurists and journalists which makes non-binding determinations in individual complaints against the mass information media, decried the widespread dissemination of inaccurate information, willful distortions, and “crude, insulting” journalistic style, warning that such publications “discredit the mass information media in the eyes of the public.” The declaration cited the increased level of suits against the press as testimony to the “ease” with which the mass media irresponsibly flout human rights, vilify reputations, and engage in willful falsification.

The “Fascist” Cases

    As do all legal systems seeking to protect personality rights, Russia confronts the choice of treating all defamatory statements alike or fashioning difficult distinctions between assertions of fact and statements of opinion. In the Russian Criminal Code, a distinction is made between false statements of fact (the subject of Article 130) and insulting forms of expression for which a truth/falsity determination is not relevant (the subject of Article 131). In the Soviet era, jurists debated whether some sort of distinction should also be made in the Civil Code, and in post-Soviet Russian law it appears that the question has been resolved in favor of treating all defamatory statements as susceptible to a determination as to their truth or falsity. As a result, because the burden of proof in defamation lies on the defendant, the effect of such treatment is the imposition of liability even in cases where the statement in issue is arguably opinion and where an assertion of facts was not intended.

    This conclusion, based in part on the absence of such a distinction in scholarly commentary on civil defamation law, is buttressed by the courts’ treatment of recent cases involving defendants’ use of the term “Fascist” to label plaintiffs or their beliefs.5 These cases are among a number of high-visibility defamation lawsuits in the 1990’s which have involved leading public officials or political figures as plaintiffs6 and in which the challenged statements were made in the context of discussion about political topics. 

    In Zhirinovskii v. Gaidar,7 Deputy Vladimir Zhirinovskii sued former Prime Minister Egor Gaidar and the newspaper Izvestiia, seeking 25 million rubles (some $12,500) in moral damages for publication of a May 17, 1994 article in which Gaidar described Zhirinovskii as “a fascist populist” and “the most popular fascist in Russia.” In September 1994, a Moscow district court determined that the statements were false and ordered the defendants to pay moral damages totalling one million rubles (approximately $500).8 In so ruling, the Court rejected the defendants’ argument that the article in question had been “a purely analytical one,” investigating Zhirinovskii’s “political essence,” and therefore the term “Fascist” was used as a “political characteristic only.” The defense had also sought to refute Zhirinovskii’s charge on a factual basis, introducing into evidence Adolf Hitler’s Mein Kampf, Zhirinovskii’s book The Last Dash South, and the Encyclopedia of Philosophy.

    Two months later, that decision was upheld on appeal by the Moscow City Court. According to published accounts of the proceeding, the Court’s primary focus was upon the truth or falsity of the statement that the plaintiff is a “Fascist.” Zhirinovskii rejected this designation, stating instead that he considers himself a “national-socialist,” and his attorney argued that the defendants’ evidentiary support for their assertions was inadequate. Attorneys for the defendants, on the other hand, sought to convince the Court that their clients had not intended to make a statement of fact, but rather a “political assessment” or “diagnosis.” As in the lower court, they also sought to draw parallels between the plaintiff and Adolf Hitler, presenting evidence of their writings as well as historical parallels between Germany in the 1920’s and Russia in the 1990’s—political assessments which the plaintiff’s lawyer urged the Court to ignore because they were not related to the facts.

    In upholding the lower court’s decision, the Moscow City Court ruled that the defendants had failed to meet their burden of proof. The Court rejected the use of scholars’ conclusions as evidence, stating that these conclusions represented “private opinion” and questioning the validity of claimed similarities between Zhirinovskii’s writings and Hitler’s Mein Kampf. One of the judges stated that no official documents had been presented to show that Zhirinovskii’s Liberal-Democratic Party is a Fascist organization.9

    The Moscow City Court’s decision was the subject of a January 1995 protest by the Deputy Procurator General to the Civil Law Chamber of the Russian Supreme Court.10 The grounds for the protest were that the Izvestiia article was an exercise of free expression guaranteed by the Russian Constitution: a discussion of the political and ideological characteristics of the views of Deputy Zhirinovskii and an analysis of those views by means of comparing them with those of other political figures. In February, the Civil Chamber denied the protest and thereby declined to review the decision.

    The Supreme Court’s denial of the protest suggests that Russian law is incorporating into its system of personality rights protection elements of a civil action based on “insult,” or “abusive comment,” as is found in certain other European legal systems and which might correspond to the crime of “insult” under Article 131 of the Russian Criminal Code. The courts’ statutory authority for protection of self-esteem, apart from its linkage with reputation as a protected interest in defamation, lies in the unspecified category of “other” among the protected personality interests in Article 150(1) of the 1995 Civil Code. Truth is not identified in the Code as a defense against alleged invasion of Article 150(1) interests. The absence of this defense may be irrelevant since the key question of whether an expression is insulting “in form” is not susceptible to a factual determination.11

    Whether it is more accurate to say that the courts in the Fascist cases treated the use of the term “Fascist” as an assertion of fact or in reality viewed it as “abusive comment,” it is clear that their approach was consistent with the Russian law governing protection of personality rights protection. The conclusion that the Moscow City Court strictly followed statutory requirements in Zhirinovskii v. Gaidar is reinforced by the remarks of two observers, Yulia Rakhayeva and Kronid Lyubarsky. While both authors were clearly sympathetic to the defendants and disagreed with the Court’s decision, they did not suggest that the panel was incompetent, or was motivated by anything other than an effort to apply the existing law.12 The authors’ frustration with the Court’s decision appears to stem from the absence in the law of public interest considerations.13

1 §§Personality rights are defined as “personal non-property right[s] not associated with property rights. . . .” Serge L. Levitsky, Copyright, Defamation, and Privacy in Soviet Civil Law, in Law in Eastern Europe Series, no. 22(1), xii passim (1979). See also Olympiad S. Ioffe, Soviet Civil Law, in Law in Eastern Europe Series, no. 36, 4 (1988) (discussing “personal non-property relations”). They are therefore distinct from rights related to copyright. For purposes of this article, the interests which personality rights protect are reputation, privacy, and self-esteem. For a detailed comparative survey, see Pierre-Dominique Ollier & Jean-Pierre Le Gall, Violation of the Rights of the Personality, in International Encyclopedia of Comparative Law, vol. XI (Torts), ch. 10, 70-106 (Andre Tunc ed., 1986).

2 The new Civil Code, Part One, was enacted by the Russian State Duma on October 21, 1994, and signed into law by President Yeltsin on November 30, 1994. Grazhdanskii Kodeks Rossiiskoi Federatsii, Chast’ Pervaia [Russian Federation Civil Code, Part One], Rossiiskaia Gazeta [Ros. Gaz.], December 8, 1994, at 4 [hereinafter 1995 Civil Code], translated in F.B.I.S.-SOV (Supp.), January 13, 1995, at 1.

3 The Russian Ministry of Justice, citing the continuing increase in the number of civil defamation actions, reported in early 1995 that the number of such actions in the first half of 1994 increased by 42% over the previous year. A. Gagarskii, O Rabote Sudov Rossiiskoi Federatsii za 1-e Polugodie 1994 Goda [Activity of Russian Federation Courts in the First Half of 1994], Ros. Iust., No. 1, 41, 46 (1995).

4 Vladimir Zhirinovskii, Press Conference (official Kremlin International News broadcast, Jan. 26, 1994).

5 The most highly publicized case was the 1994 action by Vladimir Zhirinovskii against Egor Gaidar and the newspaper Izvestiia, which reached the Russian Supreme Court in early 1995. For reports on other cases where treatment of the appellation “Fascist” as an assertion of fact was dispositive, see Boris Beliaev, General Makashov Wins Lawsuit Defending His Honor, TASS, January 19, 1995, available in LEXIS, Nexis Library, Curnws File (plaintiff awarded the equivalent of $2,500 U.S. dollars in moral damages); Calling Zhirinovsky Fascist Is No Insult, ITAR-TASS, March 18, 1994, available in LEXIS, Nexis Library, Curnws File (defendant not guilty of charges by Vladimir Zhirinovskii’s Liberal Democratic Party). 

6 In terms of numbers, the leading plaintiff has probably been Deputy Vladimir Zhirinovskii, who reportedly had filed nearly 100 suits by early July 1994. Liudmila Aleksandrova, Zhirinovsky-Gaidar Lawsuit Postponed Till September, ITAR-TASS, July 7, 1994. Other multi-suit plaintiffs include Moscow Mayor Iurii Luzhkov (at least 25 cases) and former Russian Federation Vice-President Aleksander Rutskoi. 

7 As in all defamation cases prior to January 1, 1995, this case was heard pursuant to Article 7 of the pre-1995 Civil Code. Article 7 and the provisions of the 1995 Civil Code are not materially different as to the legal issues in the Fascist cases.

8 The low damages award displeased Zhirinovskii’s supporters. Viktor Novoseltsev, an LDP spokesman, chided the court for setting the value of Zhirinovskii’s “honor and dignity at such a paltry sum as 1 million rubles.” 

9 This declaration prompted commentator Kronid Lyubarsky to remark: “It seems the ideal proof for the court would be a document with a stamp imprinted on it, certifying that Zhirinovskii is a fascist.” 

10 Under Russian law, the parties to most disputes do not have a right of appeal beyond the regional appellate courts such as the Moscow City Court. However, in their supervisory role over the legality of court decisions, certain members of the Russian Supreme Court and the Procurator-General may file a “protest” of the appellate court decision with the appropriate Chamber (civil or criminal) of the Supreme Court. The office of Procurator-General is a state organ which supervises compliance with the law by state agencies, including the courts.

11 It is under similar reasoning—that statements of opinion or value judgments cannot be proven true or false and that therefore the defendant should not bear the burden of proving truth—that the European Court of Human Rights has overturned defamation convictions in cases such as Lingens v. Austria (1986) and its progeny.

12 Julia Rakhayeva concluded her article by stating: 13 Kronid Lyubarsky, a lawyer and long-time human rights activist, concluded that while the court did not “seem to have the least particle of civil responsibility,” it was correct in a formal sense in “surgically restor[ing] Zhirinovskii’s innocence.”