On January 1 of this year, the Civil Code of Ukraine came into force. This is a large-scale document comprising 1,308 articles. Besides its physical weight (after all, it is clear that such a number of articles can only fit in a hefty "tome"), the Civil Code also has colossal social significance. "Colossal" is not an exaggeration or a pretty word needed for a kind of verbal interlude. The part of the Civil Code that is connected with the right to receive information can be said to be the New Testament of the information space — a guide to action for all who produce, distribute, and receive information.
This explains the attention currently focused on the Civil Code, as well as the efforts of deputies and journalists to improve individual articles of the code, because, as it turns out, all of us, starting from January 1, have been living and working not according to the law. At least not according to the Civil Code. So we have an alternative: either subject ourselves to vivisection in order to harmonize with the spirit and letter of the current Civil Code, or change the code itself. The latter, in my opinion, is both the wiser and the simpler way out.
Negative information is unreliable?
The Civil Code of Ukraine was signed by Leonid Kuchma on January 16, 2003 — almost immediately after the document was approved by the Verkhovna Rada. I well remember that the first sharply critical publications about this code began to appear in the summer of last year, that is, several months after its adoption. It is clear that some time was needed to comprehend the Civil Code. All the more so because some of its provisions seemed simply to be typographical errors, so impossible and openly regressive were they. Article 277 of the Civil Code can serve as an example — probably only a lazy journalist writing on legal topics has failed to mention both this article and the creators of the code as a whole in a kind word.
And point 3 of this article simply charms with its directness and indisputability: "It is considered that negative information disseminated about a person is unreliable." Consequently, any critical material addressed to a politician, businessman, or civil servant will be considered unreliable, and therefore untrue, slanderous. The press will be left with only the realm of dry, laconic reports akin to teletype bulletins: such-and-such a person held a meeting with another person at a high level. And no emotions, evaluations, or independent thoughts. With such an approach to the matter, journalistic skill as a sign of mastery of the craft will recede into the past and molder under the press of the cited article.
The group of developers of amendments to the Civil Code (headed by People's Deputy from "Our Ukraine," Chairman of the Parliamentary Committee on Freedom of Speech and Information Mykola Tomenko) proposes the following wording for point 3 of Article 277: "The obligation to prove the reliability of information is placed on the person who disseminated it."
By the way, about reliable information. What does such a definition cover? The answer to this is given by Article 302 of the Civil Code and, in particular, its third point: "It is considered that information provided by an official or service person in the performance of their official duties, as well as information contained in official sources (reports, transcripts, messages of mass media whose founders are the relevant state bodies or local self-government bodies), is reliable."
If you think carefully about this formulation, you can, in the end, sense the authors' intent: information originating from state bodies is not subject to doubt. That is, for example, if Prime Minister Yanukovych disseminates a statement according to which pensions in Ukraine will be increased not by a few hryvnias but twofold, then such a statement should be believed — after all, it was voiced by a high-ranking official. If, however, you look at the other side of this coin, it is not hard to imagine how our officialdom will abuse this article. From now on, any state body that has a conflict with the press over, say, failure to provide it with the necessary information, will deny its own lack of transparency and insist that its — and only its — explanation regarding this conflict is true.
Do not mention the name in vain
Serious objections are also raised by Article 278 of the Civil Code. "If the personal non-property right of a natural person," it says, "is violated in a newspaper, book, film, television program, etc., which have been released into the world, the court may prohibit (terminate) their distribution until this violation is eliminated, and if elimination of the violation is impossible — withdraw the circulation of the newspaper, book, etc., for the purpose of its destruction." The danger from the consequences of this norm lies in the fact that as a result of its application, for example, the publication of a particular print edition as a whole may cease. For one contestable item, to destroy a mass medium as such — is this not too high a price?
The authors of the amendments to the Civil Code decided that it was too high. And they proposed the following wording: "If the personal non-property right of a natural person is violated in an issue (edition) of a newspaper, television program, etc., the court may... withdraw the circulation of the newspaper, book, etc., for the purpose of its destruction." What is meant, as we can see, is the circulation of only one issue of a print medium, the broadcast of one program (out of an entire cycle of programs), etc. The difference is obvious and striking.
The norm of Article 296, which prohibits "the use of the name of a natural person in literary and other works as a character (actor)," was also deemed unacceptable. Let us reflect on what stands behind such democratism. Yes, any person may express their disagreement with having their name "declined" in some novel about a maniac-killer or the like. However, in the given formulation, the phrase "other works" is troubling. This definition undoubtedly covers both journalistic and documentary materials. Such as Dmytro Chobot's books — under current conditions, they, quite probably, would never have seen the light of day at all, because Serhiy Medvedchuk would hardly have voluntarily allowed the author of "Narcissiana" to use his name.
The way out is seen in specifying in which works exactly a real-life person cannot be mentioned. In those, the developers of the amendments propose, that are entirely a product of the author's imagination. "The use of the name of a natural person in artistic works as a character (actor) is permitted only with their consent..." — this is the new version of Article 296 submitted for discussion.
Journalists are deprived of the right to publicly defend their colleagues
An extremely regressive approach is also represented by the definition in the current Civil Code of the rights of a detained or arrested person, as well as the rights of the press to obtain information about such a person. "The name of a person who is detained, suspected, or accused of committing a crime... may be used (made public) only in the event that a guilty verdict of a court regarding them has entered into legal force," states point 4 of Article 296 of the Civil Code. But what about the principle of the presumption of innocence, we ask? And what if a person has been detained unlawfully — are such examples in the practice of our law enforcement agencies in short supply? It seems that under such conditions it is not only necessary but essential to indicate the name of the suspect — perhaps a similar SOS sounding from the pages of the mass media will save someone's life.
In any case, the application of the cited article means a significant restriction of citizens' right to receive information. And it also means the reduction to naught of court-legal topics in mass media materials. It is clear that today journalists have not yet given up naming the names of suspects (if they manage to learn them from informed sources) and have not yet introduced the practice of designating the heroes of publications by the first letters of their surnames (as the new code proposes to do). This is what determined the remark at the beginning of this publication regarding the fact that all of us are now out of step with the current Civil Code.
Sanctions against mass media that still allow themselves such a luxury as not forgetting about the main purpose of their existence — informing the public — will probably not take too long to arrive. One has only to officially start the presidential race, and lawsuits against the mass media from those in power will pour down as if from a horn of plenty. All the more so because the Civil Code provides more than enough hooks for this — take your pick, whatever suits anyone: unreliable information, mention of a tabooed name, disclosure of investigative secrets, etc. That is precisely why we should hurry with the adoption of amendments to the Civil Code. Before it is... not too late...