1. The Independent Media Council received a complaint from A. Levus, founder of NGO Ukrainian Strategic Initiative, and Y. Honcharenko, vice president of NGO Foundation for Support of Strategic Initiatives regarding the contents of the article ”Money for remembrance. How building a memorial in Babyn Yar has turned into a national issue” by Liubov Velychko published on Liga.net. The complainants emphasize the need to analyze the article for objectivity and balance, and adherence to journalistic standards while writing it (i.e. separating facts, judgments and assumptions, correcting inaccuracies, etc.).
The Independent Media Council believes that the article “Money for remembrance. How building a memorial in Babyn Yar has turned into a national issue” by Liubov Velychko published on Liga.net has violations of Principles 6, 9 and 10 of the Ethics Code of Ukrainian Journalists and also contradicts Paragraphs 4, 6, and 21 of PACE Resolution 1003 (1993) “Ethics of Journalism”.
1. The Independent Media Council received a complaint from A.Levus, founder of NGO Ukrainian Strategic Initiative, and Y.Honcharenko, vice president of NGO Foundation for Support of Strategic Initiatives regarding the contents of the article ”Money for remembrance. How building a memorial in Babyn Yar has turned into a national issue” by Liubov Velychko published on Liga.net. The complainants emphasize the need to analyze the article for objectivity and balance, and adherence to journalistic standards while writing it (i.e. separating facts, judgments and assumptions, correcting inaccuracies, etc.).
2. Liubov Velychko’s article is devoted to the history of the construction of a memorial in Babyn Yar. At the beginning of the article, the tragic events of the 1940s are discussed that affected the history of the Ukrainian Jewry, as well as the terrible consequences for this ethnic community. Later, the author assessed the three construction initiatives regarding the memorial providing the reasons for failures in the implementation of these projects. Mention is made of an American project sponsored by the Jewish charity organization Joint, an initiative supported by Ukrainian oligarchs, and the high-profile project sponsored in part by individuals holding Russian citizenship that was supposed to be implemented by the infamous Russian director Ilya Khrzhanovsky.
The inability to build the memorial complex at the first attempt was largely attributed by Liubov Velychko to opposition sentiment of Yosyf Zisels, a public figure, dissident, and co-president of the Association of the Jewish Organizations and Communities of Ukraine (hereinafter referred to as VAAD). His criticism of the possible site for building the memorial was particularly emphasized, just as was his criticism of individual investors, artists and members of the public supervisory board.
The article also contains a separate section devoted to the financial side of building monuments and memorials of the Jewish community in Ukraine. In the section, the author hints that VAAD should be able to find funding for most projects, given that it comprises more than two hundred organizations.
Further in the article, there are the sections entitled “Fraudulent Scheme” and “Crime and Punishment” about the history of accusations against Yosyf Zisels regarding misappropriation of property and funds of the emigrants who left for Israel in the early 90s. The article’s author provides no commentary from Yosyf Zisels regarding the accusations and criticisms, offering the reader only the public figure’s emotional remarks or comments unrelated to the subject of criticism.
At the end of the article, Liubov Velychko raises questions about public confidence in the person accused of corruption schemes. At the same time, the article does not contain any significant in-depth criticism of other persons involved in the aforementioned initiatives, nor the position of the supporters of state projects regarding building a memorial in Babyn Yar.
3. Building a memorial in Babyn Yar caused a public outcry. The topic raises issues of public interest in relation to important historical events. The relevance and importance of such articles have been repeatedly emphasized by the European Court of Human Rights (ECtHR) in Stoll v Switzerland (regarding respect for Holocaust victims), Dmitriyevskiy v Russia (regarding the right to search for historical truth), and Savva Terentyev v Russia (regarding the enhanced protection that should be guaranteed to vulnerable minority groups in the event of providing information about history of persecution, inequality or mistreatment of such groups). Besides, the ECtHR emphasized that there also is the public interest in cases of disseminating information about financial issues that significantly affect the life of a community, including suspicion of committing crimes (see White v Sweden), or the issue of disposing of public funds (see Novaya Gazeta v Voronezhe v Russia and Marchenko v Ukraine). That is why the Independent Media Council considers it necessary to provide an opinion on the quality of the journalistic piece devoted to building a memorial in Babyn Yar outlining the basic standards by which journalists must abide when reporting on such information.
Article 34. Everyone is guaranteed the right to freedom of thought and speech and the free expression of his or her views and beliefs.
Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.
The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, to prevent disturbances or crimes, protect the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially or supporting the authority and impartiality of justice.”
Article 8. The right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 10. Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Article 17. Prohibition of abuse of rights
Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.
3. Law of Ukraine On Information
Article 2. Main principles of information relations
1. The main principles of information relations are:
guaranteed right to information;
openness, availability of information, freedom to exchange information;
reliability and completeness of information;
freedom of expression of views and beliefs;
eligibility to receive, use, disseminate, store and protect information;
protection of a person from interference in their personal and family life.
Article 29. Dissemination of socially salient information
1. Restricted information may be disseminated if it is in the public interest, and the public’s right to know that information outweighs the potential harm from its dissemination.
2. The subject of public interest is information indicating a threat to state sovereignty, territorial integrity of Ukraine; ensuring the implementation of constitutional rights, freedoms and responsibilities; indicating possible human rights violations and misleading the public, harmful environmental and other negative consequences of the activities (inaction) of individuals or legal entities, etc.
Article 30. Exemption from liability
2. …Should a person thinks that value judgments or opinions degrade their dignity, honor or business reputation, as well as other personal non-property rights, they shall be entitled to exercising the right of reply granted by law, as well as their interpretation of the case in the same media to prove the groundlessness of the judgments spread, providing a different evaluation…
4. Ethics Code of Ukrainian Journalists (2013 version)
4. Coverage of trials shall be impartial towards defendants in court. Journalists cannot call a person a criminal until the respective court decision.
6. Respecting the public’s right to complete and objective information about facts and events is a journalist’s first duty. Journalists and editors must take steps to check the reliability of all reports, video and audio materials coming from the public, freelancers, press services and other sources.
9. Facts, judgments and assumptions have to be separated from each other. Spreading information containing biased or unfounded accusations is unacceptable.
10. The opponents’ viewpoints, including the views of the targets of media criticism, should be presented in a balanced way. Independent experts’ views should also be presented in a balanced way.
12. Journalists shall do everything possible to correct any imparted information should it turn out not to be true.
19. A deliberate violation of the journalistic ethical norms shall be deemed completely incompatible with professional journalism, subject to public condemnation, the reason for forfeiting a press card or membership in trade unions and the National Union of Journalists. Ethical and professional conflict situations are considered by the Commission on Journalistic Ethics.
5. PACE Resolution 1003 (1993) “Ethics of Journalism” [1]
3. The basic principle of any ethical consideration of journalism is that a clear distinction must be drawn between news and opinions, making it impossible to confuse them. News is information about facts and data, while opinions convey thoughts, ideas, beliefs or value judgments on the part of media companies, publishers or journalists.
4. News broadcasting should be based on truthfulness, ensured by the appropriate means of verification and proof, and impartiality in presentation, description and narration. Rumor must not be confused with news. News headlines and summaries must reflect as closely as possible the substance of the facts and data presented.
6. Opinions taking the form of comments on events or actions relating to individuals or institutions should not attempt to deny or conceal the reality of the facts or data.
15. Neither publishers and proprietors nor journalists should consider that they own the news. News organisations must treat information not as a commodity but as a fundamental right of the citizen. To that end, the media should exploit neither the quality nor the substance of the news or opinions for purposes of boosting readership or audience figures to increase advertising revenue
16. If we are to ensure that information is treated ethically, its target audience must be considered as individuals and not as a mass.
21. …Journalism should not alter truthful, impartial information or honest opinions, or exploit them for media purposes, in an attempt to create or shape public opinion, since its legitimacy rests on effective respect for the citizen’s fundamental right to information as part of respect for democratic values. To that end, legitimate investigative journalism is limited by the veracity and honesty of information and opinions and is incompatible with journalistic campaigns conducted on the basis of previously adopted positions and special interests.
26. At the request of the persons concerned, the news media must correct, automatically and speedily, and with all relevant information provided, any news item or opinion conveyed by them which is false or erroneous. National legislation should provide for appropriate sanctions and, where applicable, compensation.
1. When creating journalistic pieces, journalists are obligated to adhere to the principle of completeness and balance. This, in turn, includes checking the authenticity of material and veracity of historical facts, the authenticity of documents, the truth and completeness of the statements made by the persons referred to in the piece, etc. For instance, the case-law of the ECtHR shows that the media could be dispensed from its ordinary obligation to verify factual statements that were allegedly defamatory only in very exceptional cases. In particular, it depends on how serious the accusations are and how valid the grounds for the media to believe in the accuracy of the disseminated data (see McVicar v the United Kingdom, §84).
If the reputation of the person referred to in the article can be significantly affected by the disseminated information, and if media research does not include all available sources, each link should be subject to additional checks (see Bladet Tromsø and Stensaas v Norway, §66). Furthermore, in Times Newspapers Ltd v the United Kingdom, the ECtHR emphasizes that the media’s obligation to act in accordance with the principles of responsible journalism by ensuring the accuracy of historical information will be greater in the absence of urgency in publishing material. Besides, even though original historical documents need to be legitimate and sufficient for historical research of a particular topic (see Kenedi v Hungary, §43), they must be understandable and accessible to the reader.
As for the article about the memorial in Babyn Yar, most of the points are confirmed by the references to corresponding materials. However, some statements formulated as factual statements contain no reference to the sources. This specifically concerns the article’s parts devoted to possible fraudulent schemes (e.g. that the funds received for consulting services were spent on business and real estate) and an investigation into this case (e.g. a direct quote without reference to an interview with Israeli lawyer Maksim Sapozhnikov or without mentioning that the author interviewed him personally).
In addition, some references to materials in Hebrew (especially PDF documents and the like) are mostly impossible for Ukrainian-speaking audiences to read and analyze, and therefore readers cannot establish the authenticity of the source or the correspondence of journalistic analysis to its real content.
Also, Yosyf Zisels’ points from various discussions are often provided in an abbreviated form, without reference to the original source, and therefore may not fully reflect the underlying message or context of a particular statement. According to Węgrzynowski and Smolczewski v Poland, information stripped of its original context cannot be considered fully reliable and therefore does not constitute a significant public interest.
However, Principle 6 of the Ethics Code of Ukrainian Journalists regarding the fullness of material includes not only verifying the sources but also providing an appropriate context. This is exactly the problem with the piece in question: its topic is indicated to be issues relating to erecting a memorial in Babyn Yar, but its text focuses more on the person of Yosyf Zisels. He was indeed a consistent opponent of all the three memorial-related projects, but he was not the only opponent (in the case of the first two projects). However, the other opponents (except for Yosyf Zisels) are hardly mentioned or mentioned only in passing, and there is no detailed analysis of them as individuals. As a result, there is an impression that the article is a targeted attack on Yosyf Zisels intending to create a negative image of this person in the media space.
Minor points are also problematic, e.g. Yosyf Zisels’ position that the memorial cannot be built on the site of a former Jewish cemetery because it is not in line with Jewish tradition. It is not clear from the article what exactly tradition forbids: building directly where there were burials, or in general, on the site defined as a cemetery.
What the discussion between the project’s opponents and historians pointing to the absence of burials ended in is also not known. The article provides information about a part of historical research that found no burials as a result of excavations (marked in red in the diagram) based on which a conclusion was made about the permissibility of building a memorial. There is a lack of analysis on whether such archeological research was sufficient, nor does the article provide information about any alternative research or basis for the position on the presence of burials, which is in violation of Principle 6 of the Ethics Code of Ukrainian Journalists.
2. Facts, value judgments and assumptions need to be clearly separated from each other. This requirement is also part of the practice of the ECtHR: in McVicar v the United Kingdom, the Court emphasized that the existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible to proof. That is why the reader must be aware of which category this or that part of the article should belong to. The Court did not deny the possibility of using subjective assessment of facts by journalists, especially when they report on any matter of public interest (see Paturel v France, §37).
However, in Morice v France, the ECtHR emphasized that remarks and subjective comments should be assessed in context to determine whether they might give the impression of misleading allegations or a clearly personalized attack unrelated to the matter and the journalist’s fact base. The Court also singles out cases of using satirical and ironic statements that are value judgments. Thus, in Nikowitz and Verlagsgruppe News GmbH v Austria, the ECtHR stated that it should be clear from the piece whether a statement was a joke, irony or satire, or whether it informed the reader about the objective reality.
It is also important that the cumulative analysis of value judgments in journalistic pieces should not give the impression that someone committed a crime (see Ruokanen and Others v Finland, §48). In the article about the construction of a memorial in Babyn Yar, the failure of the three projects is attributed to the criticism of these initiatives by Yosyf Zisels. And yet other objective factors and aspects that could make the implementation of the aforementioned projects impossible are not taken into account. As a result, the author’s subjective opinion about Mr. Zisels as the sole reason for the failure of these initiatives is presented as a statement of fact, misleading the reader about the person featured in the article and creating a completely negative image.
Also, a negative assessment of the activities of the organizations headed by Yosyf Zisels is the author’s personal position presented as a fact based on financial data. Yet the data themselves are indicative not so much of the internal administrative problems as the external financial difficulties. For example:
“Are the funds and other structures overseen by Zisels successful? Not always”
«…One million euros is needed for the reconstruction of Beit Kadishin at the Jewish cemetery in Chernivtsi. But VAAD has not been able to find this amount, for the sixth year in a row. VAAD says that in 2017, the German government allocated only 100,000 euros for this project”
Based on this example, Liubov Velychko draws a conclusion about the unsuccessful financial activities of VAAD. At the same time, the author notes that there is no clear data on income and expenses due to the closed report format. Therefore, financial failure is the author’s assumption based on several examples rather than a statement based on objective facts. The author’s analysis was not clearly separated from the factual statements in the piece, which is in violation of Principle 9 of the Ethics Code of Ukrainian Journalists.
3. When creating journalistic pieces that contain criticism of a person, as well as the author’s factual statements and personal opinion, it is important that the reader correctly perceive the difference between the facts and value judgments. Otherwise, the contents of the article and the form of presenting information could be perceived as an attempt to manipulate the audience’s opinion.
In the cases of ambiguous perception of information, the ECtHR uses the standard of “ordinary reader”, i.e. someone having no special skills and knowledge regarding the topic or the technology to dig deeper and verify the authenticity of material. Specifically, in Reznik v Russia, the Court emphasized that it was important for the ordinary reader, not the person targeted by the criticism, to feel the material. A piece is of poor quality if the reader cannot establish a cause-and-effect relation, confuses criticism with objective facts, or gets one-sided coverage of a person’s activities. In Couderc and Hachette Filipacchi Associés v France, the ECtHR noted that there will be no protected public interest if the articles mislead the audience or distort the original content of the message. It will also be fair to refer to other relevant materials and provide the backdrop of a particular event (see Lopes Gomes da Silva v Portugal, §35).
The article dedicated to the construction of a memorial in Babyn Yar should contain a timeline of the initiatives, their contents and cause of failures, which, it would seem, should constitute the article’s central theme. However, the piece effectively focuses on the criticism of Yosyf Zisels. As a result, the reader gets the impression that the main issue with the memorial or any other project is opposition on the part of this particular person. So it ends up looking like a manipulation of the audience’s opinion by the author, which is a manifestation of shoddy journalism.
4. Besides covering events objectively and separating facts from value judgments, publications should generally comply with the principle of balance. The presence of criticisms, public debate or contradictory historical moments should thus be communicated to the reader in full, taking into account the views of each of the parties referred to in the article. In this regard, the ECtHR noted that everyone should have the right to communicate their versions of the facts and provide their interpretation if their interests are touched upon in the article.
For instance, in Verlagsgruppe Droemer Knaur GmbH & Co. KG v Germany, the media exaggerated the degree of suspicion shown in the official documents and had failed to prove this degree of suspicion with additional facts. As a result, the publication was not balanced since it simply does not suffice to refer to official sources without providing the position of the person being criticized or accused.
As for disseminating information about the construction of the memorial in Babyn Yar, criticisms of Yosyf Zisels were not accompanied by his comments directly related to the subject of criticism (e.g. that Yosyf Zisels “wanted to have 50% of his people in the supervisory and public board, as well as in the organization’s management”). The quotes from the interview contained mostly emotional statements, but not a detailed and constructive explanation of his position.
Also, no reply was provided to specific accusations, such as Mykhailo Kalnytskyi’s position that directly contradicts Yosyf Zisels’ vision or the accusation of his sharp change of attitude toward the third project of the memorial. Furthermore, the piece should be devoted not to criticizing the person, but to the topic of building the memorial. However, only the person of Yosyf Zisels is being criticized, while there is no detailed public criticism of the Russian artist Ilya Khrzhanovsky, the Ukrainian oligarch Ihor Kolomoisky and other individuals referred to in the article.
Another important aspect is that the position of the supporters of the state project was not provided, either. There is indeed mention of the private projects’ advantages and disadvantages, but the prospects of the state project advocated by Yosyf Zisels and a group of public activists were not outlined. The article fails to mention the conflict in a Verkhovna Rada committee, as well as many other factors causing public tension around the project of the memorial in Babyn Yar. This makes the article unbalanced by failing to present the positions of all stakeholders. Therefore, it is in violation of Principle 10 of the Ethics Code of Ukrainian Journalists.
5. The headlines “Fraudulent Scheme” and “Crime and Punishment” give the reader the impression that Yosyf Zisels committed a crime. On the one hand, according to Timpul Info-Magazin and Anghel v Moldova, when a private company decides to engage in financial transactions involving significant public funds, it voluntarily experiences increased public scrutiny and increased criticism. Therefore, journalistic investigations, criticism and re-analysis of this topic more than 20 years later are acceptable.
Moreover, according to Yordanova and Toshev v Bulgaria, passages containing phrases designed to draw attention to news, capitalized headlines, or other devices that can increase the readership are not deemed a violation of journalistic standards [§52]. However, what matters in such cases is the main goal set by the media when covering the news. For instance, if the goal is to “satisfy the prurient curiosity of a particular readership and boost the commercial interests” of the media, such articles cannot be deemed to contribute to any debate of general interest to society (see Biruik v Lithuania, §42).
Also, it is not legitimate in this case to manipulate the audience’s opinion, try to mislead readers or use excessive hyperbole to create a negative image of the person referred to in the article (see Couderc and Hachette Filipacchi Associés v France, §132). Given that only these subheadings are interactive in the article about Babyn Yar, it is safe to assume that not every person will go to the section to learn more about the full content of this part of the article. Part of the audience might regard the accusations contained in the headlines as established in the trial, and the person of Yosyf Zisels as a criminal. This, in turn, would potentially violate the presumption of innocence and the rules of media coverage of crime.
6. The Independent Media Council believes that the principle of objective and full coverage of events was violated while preparing the article about building a memorial in Babyn Yar. Without a doubt, by recognizing information about certain events to be “a perishable commodity”, the ECtHR emphasized that it is not always possible for journalists to verify the data published in the article, given the need for timely publication (Observer and Guardian v the United Kingdom, §60). The Court also stressed that it is even permissible to use “stories”, “public opinion” or “rumors” from others if they are not completely unfounded (Timpul Info-Magazin and Anghel v Moldova, §36). However, this rule does not mean that any opinion, let alone factual statement, can be disseminated without proper scrutiny.
The concept of journalists’ “duties and responsibilities” implies that the media should act in good faith to provide accurate and reliable information in accordance with the ethics of journalism (Bergens Tidende and Others v Norway, §53; Goodwin v the United Kingdom, §39; Fressoz and Roire v France, §54). This rule is particularly relevant in the cases where it is possible to obtain additional information or fact-check the available data without hindrance and in a short time.
In the event of errors on the part of the media, in Melnychuk v Ukraine, the ECtHR clearly established the duty to correct inaccurate (incomplete) or false information, as well as provide the opportunity to debunk statements or respond to them [§2]. In addition, in Smolorz v Poland, the ECtHR stressed that the obligation to publish public apologies and retractions applies regardless of the existence of a court decision on the illegality of the media’s actions, and the refusal to do so is an aggravating circumstance when establishing the media’s responsibility [§42].
In the present case, the complainant referred to numerous requests to correct the article and debunk inaccurate information. However, when requested by the Independent Media Council, the complainant did not provide evidence of these requests, and therefore Liga.net and Liubov Velychko cannot be considered to have not provided an alternative view or the right to reply. As a result, the Independent Media Council concludes that there was no violation of Principle 12 of the Ethics Code of Ukrainian Journalists.
7. Aggressive or provocative behavior exceeding the boundaries of ethic and responsible journalism is deemed a deliberate violation of the rules of journalistic ethics (Zarubin and Others v Lithuania, §53, 57). Besides, a deliberate failure to grant a person the right to reply to or debunk information published in the article can also be deemed a deliberate violation. The lack of response to the request to debunk information or correct inaccuracies can also be deemed inappropriate and unethical behavior.
With regard to the article about the memorial in Babyn Yar, the Independent Media Council did not receive from the complainant any evidence of the author or the Liga.net portal ignoring requests to correct the article or refusing the right to reply or retract. Also, no other facts have been supplied that can be used as proof of deliberate violations of standards of journalism on the part of the author or the portal. The Independent Media Council, therefore, does not see any violations of Principle 19 of the Ethics Code of Ukrainian Journalists in the article.
The Independent Media Council believes that the article “Money for remembrance. How building a memorial in Babyn Yar has turned into a national issue” by Liubov Velychko published on Liga.net has violations of Principles 6, 9 and 10 of the Ethics Code of Ukrainian Journalists and also contradicts Paragraphs 4, 6, and 21 of PACE Resolution 1003 (1993) “Ethics of Journalism”.
Votes:
Head of the Independent Media Council
Secretary of the Independent Media Council O. Holub
Secretary of the Independent Media Council P. Moiseyev
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