| Decision on admissibility | |
| Conclusion |
1. The Independent Media Council received a complaint (letter No.0055/21 dated June 11, 2021) from H. Bahmut, a representative of PE Trading House Galpidshypnyk, requesting that the Council examine several publications for violations of laws and basic standards of journalism. The complaint also contains a request to “assist with removing the inaccurate information from the Internet.”
2. Pursuant to paragraph 12 of the IMC Regulations, the Independent Media Council accepted the complaint for consideration on August 4, 2021, given the public importance of this case, including large-scale dissemination of information.
The Independent Media Council believes that the publications on the news portals Lenta.UA (“Galpidshypnyk helps the DPR militants repair equipment”), Golos.UA (“According to an expert, Galpidshypnyk helps the occupiers to repair equipment that kills the AFU soldiers”), KievVlast (“According to a political expert, the Swedish company SKF sponsors DPR militants with spare parts for their equipment”), Zaxid.Media (“According to media reports, the Swedish company SKF sponsors DNR militants with spare parts for equipment”), Rupor Kyivshchyny (“According to a political expert, the Swedish company SKF sponsors DPR militants with spare parts for their equipment”), and the national anti-corruption portal Antikor (“According to an expert, the Swedish SKF conducts business by selling auto parts in the DNR and sponsoring militants”) violated paragraphs 6, 9, 10 of the Code of Ethics of Ukrainian Journalists and Part 2 of Article 302 of the Civil Code of Ukraine.
The Media Council did not investigate the veracity of information about supplies of ball bearings to the occupied territories.
1. The Independent Media Council received a complaint (letter No.0055/21 dated June 11, 2021) from H. Bahmut, a representative of PE Trading House Galpidshypnyk, requesting that the Council examine several publications for violations of laws and basic standards of journalism. The complaint also contains a request to “assist with removing the inaccurate information from the Internet.”
2. Pursuant to paragraph 12 of the IMC Regulations, the Independent Media Council accepted the complaint for consideration on August 4, 2021, given the public importance of this case, including large-scale dissemination of information.
3. The first series of publications. On an unspecified date, a Facebook user identified by the media as “Nazar Prykhodko” allegedly wrote a post whose content amounted to allegations that PE Galpidshypnyk helped pro-Russian militants in eastern Ukraine by doing business there, namely selling ball bearings in the occupied territories. The post was deleted from the social network but links to it are found in the following media outlets’ publications:
3.1. The article on Lenta.UA entitled “Galpidshypnyk helps the DPR militants repair equipment” of April 21, 2021, is authored by Yevhen Medvedyev. According to it, PE Galpidshypnyk “supplies its products to the militant-occupied city of Donetsk. Thanks to them, the occupiers have the opportunity to repair the military equipment they later use to kill Ukrainian soldiers.” The piece refers to the aforementioned Facebook user captioned as a “blogger and political expert.” The entire article is essentially based on his story.
3.2. The article on Golos.UA entitled “According to an expert, Galpidshypnyk helps the occupiers to repair equipment that kills the AFU soldiers” also came out on April 21, 2021, but without attribution. Its content is nearly identical to that on Lenta.UA but also contains a hyperlink to the Facebook post and its image in the middle of the story, now unavailable because the post was later deleted.
3.3. The complaint also contains two Strichka.com publications hosted on this website (currently unavailable/removed).
4. Oleksiy Holobutskyi’s Facebook post and subsequent publications. On June 1, 2021, Oleksiy Holobutskyi wrote a post in which he referred to the previous post by “Nazar Prykhodko” (with a hyperlink) claiming that PE Galpidshypnyk is an intermediary that sells ball bearings in the occupied territories. He also added seven photos explaining that those were “forms belonging to the DPR’s Galpidshypnyk MTS bearing Galpidshypnyk’s logo and even in the Ukrainian language for the 2014-2015 war years.” Mr. Holobutskyi argued that the issue of supplies was also raised at the beginning of the war, but Alexander Tilman explained that his company was not affiliated with Galpidshypnyk MTS or registered in the so-called DPR and that its components and products were simply seized in Donbas. In A.Holobutskyi’s opinion, such seized products were not enough to also be still sold there today. Referring to an unnamed source, he argues that the ball bearings are now allegedly “shipped from Zaporizhia” and that “Lviv’s Galpidshypnyk is involved with this process.” The connection of these supplies to PE Galpidshypnyk was allegedly concealed by using structures with not-so-similar names (IE Shapovalov, Opel).
4.1. The article on KievVlast entitled “According to a political expert, the Swedish company SKF sponsors DPR militants with spare parts for their equipment” and published on June 2, 2021, is authored by Oleksiy Vetrov. The publication begins with the following paragraph (punctuation marks preserved): “In Russian-occupied Donetsk, ball bearings are still being sold by the Swedish company SKF, which is a world leader in manufacturing them. These parts are specifically used to repair equipment in the occupied parts of the Luhansk and Donetsk regions.” O.Holobutskyi’s lengthy quotes and a photo of his Facebook post are provided, followed by other extensive citations interspersed with short paragraphs containing his indirect speech. The article fails to include comments from PE Galpidshypnyk, the Swedish company or independent experts, nor is it indicated whether the media tried to obtain them. The material is illustrated with pictures of people in military uniform wearing St. George’s ribbons.
4.2. The Zaxid.Media network reprinted material from KievVlast on NEWS.TERNOPIL, NEWS.POLTAVA, NEWS.SUMY and NEWS.CHERNIHIV in Russian translation and under another title: “According to media reports, the Swedish company SKF sponsors DNR militants with spare parts for equipment.” The republications do not contain hyperlinks but are illustrated with pictures of a man in military uniform wearing St. George’s ribbon against the background of the so-called DPR flag. Neither the article’s author nor the exact publication dates are provided in the republished material (only the number of months from the date of publication is given).
4.3. On June 2, 2021, the website Rupor Kyivshchyny republished the article “According to a political expert, the Swedish company SKF sponsors DPR militants with spare parts for their equipment” referring to the KievVlast’s text (no hyperlinks). The piece contains a picture from Mr.Holobutskyi’s post on the social network (and the possibility to follow the link) and a picture of people in military uniform wearing St. George’s ribbons but no attribution.
4.4. On June 2, 2021, the national anti-corruption portal Antikor published the article entitled “According to an expert, the Swedish SKF conducts business by selling auto parts in the DNR and sponsoring militants” (without specifying the author’s name) with the text identical to KievVlast’s but without referring to the latter. The article contains two hyperlinks to O.Holobutskyi’s posts and a picture of boxes at the beginning with the SKF logo on them, i.e. a cropped version of one of the pictured in the aforementioned Facebook post.
4.5. In addition, the complaint mentions two other publications that were later deleted by the respective portals, namely Znaj.UA and the news aggregator MY.UA.
5. Review’s limitations. Pursuant to paragraphs 1 and 4 of the IMC Regulations, the Independent Media Council, while reviewing and assessing the contested material, cannot, and does not, evaluate the persons mentioned in the publications or their actions outside the information sphere. This opinion cannot serve to confirm or debunk the veracity of the allegations contained in the material under consideration.
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, prevent the publication of information received confidentially or support the authority and impartiality of justice.
Article 10. Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include the 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.
3. Law of Ukraine On Print Media (Press) in Ukraine
Part 1 of Article 1: “In this Law, Ukrainian print media (press) shall mean the periodicals and serial publications that are published under a permanent name with the frequency of one or more issues (releases) during a year and have a state registration certificate.”
Part 2 of Article 5: ” This Law shall be applied to print media established in Ukraine and print media set up in other countries and distributed in Ukraine.”
4. Law of Ukraine On News Agencies
Preamble: “This Law, in accordance with the Constitution of Ukraine, other laws of Ukraine and international legal documents, establishes the legal basis for the activities of news agencies in Ukraine and their international cooperation.”
Part 1 of Article 91: Legal entity may have the same civil rights and obligations (legal capacity) as a natural person other than those, which by their nature may belong only to a human
Article 275. Protection of the personal non-property right
1. A natural person shall be entitled to protect his/her personal non-property right against illegal invasions of other persons. Protection of the personal non-property right shall be exercised in ways established by Chapter 3 of this Code.
2. Protection of the personal non-property right may be also realized differently: according to the contents of this right, the manner of its violation and the consequences resulting from such violation.
Article 277. Disproof of untruthful information
1. A natural person, whose personal non-property rights were violated due to dissemination of untruthful information about him/her and his/her family members, shall have the right to respond and disprove this information.
[…]
4. Disproof of untruthful information is carried out by the person who disseminated such information.
[…]
If the person who disseminated untruthful information is unknown, the natural person whose right is violated may go to court to ascertain the fact of untruthful information and to disprove it.
[…]
6. A natural person whose personal non-property rights were violated in the press or other mass media shall have the right to respond, as well as to disprove such information in the same mass medium per the procedure stipulated by the law.
If the response and disproof in the same mass medium are impossible due to its termination, such response and disproof must be promulgated in the other mass medium at the expense of the person who disseminated the untruthful information.
Disproof of untruthful information shall be realized irrespective of the blame of the person who disseminated it […]
7. Disproof of untruthful information shall be made in the same manner as its dissemination
Article 299. The right to inviolability of business reputation
1. A natural person shall have the right to inviolability of his/her business reputation.
2. A natural person can address the court with a claim for the protection of his/her business reputation.
Article 302. The right to information
1. A natural person shall be entitled to freely collect, store, use and disseminate information.
[…]
2. A natural person disseminating information shall be obliged to be convinced of its authenticity.
6. Ethics Code of Ukrainian Journalists (2013 version)
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, 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.
7. PACE Resolution 1003 (1993) “Ethics of Journalism”
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.
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 based on previously adopted positions and special interests.
1. Since the issue of trade with the territories occupied by the Russian Federation and of Ukrainian enterprises continuing to do business there is a particularly sensitive topic of public interest in Ukraine, such cases should be covered by the media. Law enforcement agencies and courts can establish the facts of such trade. For their part, the media can collect and verify data that indicate signs of such trade, including on their own initiative. The Independent Media Council is neither a law enforcement body nor a media outlet. However, assessing the quality of media coverage of activities of Ukrainian enterprises in accordance with professional standards and laws is within its purview.
2. The contested material makes serious allegations against PE Galpidshypnyk, not so much in terms of the law as in terms of how society perceives them. The publications mainly amount to relating messages from a social network without adding any essential information. Depending on the source referred to, the contested material encompasses two large groups of publications, which the Council reviews together given the substantial similarity of content.
3. In Alithia Publishing Company Ltd and Constantinides v. Cyprus, the European Court of Human Rights notes the following:
“48. The Court observes that qualified privilege is an exceptional defense intended to ensure free communication without fear of litigation, even if that involves making defamatory statements of fact that cannot be proved to be true. It exempts newspapers from their ordinary obligation to verify factual statements that are defamatory so long as they have, taking into account all the relevant circumstances, acted in accordance with the standards of “responsible journalism” (see Times Newspaper Ltd v. The United Kingdom (dec.), No. 23676/03 and 3002/03, 11 October 2005).
49. In previous cases, when the Court has been called upon to decide whether to exempt newspapers from their ordinary obligation to verify factual statements that are defamatory of private individuals, it has exercised a discretion after taking into account various factors, particularly the nature and degree of the defamation and the extent to which the newspaper could have reasonably regarded its sources as reliable with regard to the allegations (Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 66, ECHR 1999-III). These factors, in turn, require consideration of other elements such as the authority of the source (Bladet Tromsø and Stensaas, cited above), whether the newspaper had conducted a reasonable amount of research before publication (Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no. 313, § 37), whether the newspaper presented the story in a reasonably balanced manner (Bergens Tidende and Others v. Norway, no. 26132/95, § 57, ECHR 2000-IV) and whether the newspaper gave the persons defamed the opportunity to defend themselves (Bergens Tidende and Others v. Norway, cited above, § 58).
[…]
51. Lastly, the Court notes that the district court that heard and examined in detail the applicants’ evidence concluded that the applicants had acted maliciously in that they had published their extremely defamatory allegations without making sufficient effort to verify them prior to publication, thus demonstrating the applicants’ indifference as to the truth of their statements. […] The Court considers that the applicants should have realized that by publishing a whole series of articles making seriously defamatory statements of fact, which were based on dubious sources, without affording the person defamed a reasonable opportunity to comment on them or, at least, to attempt to put his side of the story, they might well be considered to have failed to comply with the standards of “responsible journalism” and that, as a result, they would not be able to benefit from the defense of qualified privilege.”
4. All of the publications under consideration contain a source of allegations and object of criticism, namely PE Galpidshypnyk. However, none of the publications makes known the accused company’s position, nor is it said whether the media outlets made attempts to know it.
Naturally, the Facebook posts cited/related are lacking in the balance of views since social network users are not bound by professional standards of journalism. Yet this does not release the media from the obligation to balance information when reporting on topics raised on social networks. The republication of one online media’s material by another does not exempt from that either (the Council considers any analogies of potentially being released from liability in case of republishing the material in the press inappropriate as it is a matter of ethics, not legislation. Besides, there are no such regulations for online media).
That said, all of the contested material contains violations of the professional standard of balanced information.
5. Next, let us consider the aspect of verifying information and its sources. Turning to PE Galpidshypnyk for comment should be part of fact-checking the information. However, as stated in the previous paragraph of this opinion, there is no mention of such attempts on the part of the media outlets anywhere in the publications.
The only sources of information for each of the groups of the contested publications are Facebook posts. The initial post that allegedly triggered the first group of publications is no longer available, which indicates it may have been deleted by the author or the social network. We cannot assert with certainty the reason why the post disappeared but given the sources and dubious material, we can reasonably suspect the use of the well-known “planting” trick when the original source disappears sometime after the message is disseminated.
The second piece was posted by an unverified account user. Indeed, Mr. Holobutskyi’s identity is also dubious. Texty lists him in its database of pseudo-sociologists and covert PR people based on the facts interpreted as his being involved with and supporting certain politicians.
The publications in question do not include any comments of truly independent experts who could try to explain the context and how equipment parts are normally shipped to the occupied territories, the market size, demand, and whether such ball bearings can be used in military equipment (as hinted in the articles; see below), etc. Also, the publications contain no indication that the media tried to find out themselves what kind of ball bearings and who IE Shapovalov and other structures are referred to as Galpidshypnyk‘s intermediaries in the social network post.
That is, the media outlets and information portals essentially ignored the aspect of fact-checking information and its sources.
6. In the absence of elements such as balanced information, verification and analysis of sources, it is impossible to talk about compliance with the standard of complete information.
7. The articles based on Mr. Holobutskyi’s post (except for Antikor’s article) are illustrated with pictures of pro-Russian militants, although their text does not clearly say that the ball bearings in question are used in military equipment, which is not the same as the militants’ equipment (paramilitary formations are also likely to use civilian cars). The first series of publications, allegedly based on Mr. Prykhodko’s post, make mention of military equipment. However, the type of ball bearings is not specified, and it is not clear whether they could be used in military equipment, as indicated above. The allegations about repairing military equipment seem therefore to be unfounded. The pictures taken from O.Holobutskyi’s post do not point at the ball bearings as being purchased by paramilitary structures. It is, therefore, not clear on what basis they came to conclusions/hints that the ball bearings in question were used to repair the enemy’s military equipment.
On a separate note, the Independent Media Council brings attention to the fact that, as stated above, despite the serious allegations, no comments from PE Galpidshypnyk were provided in any of the articles. The information sources are dubious, and the newsrooms failed to fact-check the information. This indicates partial and biased information in these publications.
8. Such media as Lenta.UA, Golos.UA and Antikor made supplies of spare parts to the DPR part of their headlines, referring to an “expert”. Antikor posted its article in the sections “Position” and “Comments”. That is, the subjective nature of the message was initially indicated, and the article was not posted in the news section.
For their part, Rupor Kyivshchyny, KievVlast and ZaxidMedia posted their articles in the news section. Or, as in the latter case, the very website name allegedly indicates news material, with headlines referring to a “media” instead of an individual. That is, under the guise of news, subjective opinions are presented, which is a violation of the professional standard of separating fact from comment. The Media Council believes that publishing material in the news section imposes more obligations on the newsroom than if it were posted in the analysis section. The social network post addressing socially important topics is a fact per se, but the news piece does not cover this fact as such. In this case, it informs the media audiences about the alleged activities of PE Galpidshypnyk, although, in essence, the audience is only informed about a subjective and, possibly, deliberately manipulative position of the social network post’s author, not objective fact. The Facebook post contains factual statements while the news materials do not include any indication that the newsrooms fact-checked the allegations, as established earlier in this opinion. Instead of facts, there are lengthy quotes from Mr. Holobutskyi. That is, the original source of information in the news pieces was replaced by a biased commentator.
9. Regarding the violation of the laws of Ukraine “On Print Media (Press) in Ukraine” and “On News Agencies”, the Council notes that all of the articles were published on websites, with none of the media outlets referring to themselves as a newspaper or news agency. Given the scope and subjects regulated by the two laws, there is no reason to believe that these publications fall under their regulations.
Regarding the violation of the Civil Code of Ukraine, a lack of proper verification of information on the part of the online newsrooms and news portals was established in paragraph 5 of this opinion. It is, therefore, necessary to admit that the newsrooms violated Part 2 of Article 302 of the CCU.
Article 277 of the CCU regulates information accuracy. The current version contains no presumption of integrity (formerly, Part 3 of the Article). Given this, it cannot be presumed that the information disseminated about PE Galpidshypnyk is unreliable based on its negative nature. The company, however, has the right to go to court.
10. Regarding the request contained in the complaint to assist with removing the publications, the Independent Media Council does not have the competence to remove material. Yet the assessments provided herein can serve as a basis for the media outlets in question to delete or amend their publications’ stories.The Independent Media Council also does not include in this opinion those contested publications that were removed from the websites due to lack of a research subject.
The Independent Media Council believes that the publications on the news portals Lenta.UA (“Galpidshypnyk helps the DPR militants repair equipment”), Golos.UA (“According to an expert, Galpidshypnyk helps the occupiers to repair equipment that kills the AFU soldiers”), KievVlast (“According to a political expert, the Swedish company SKF sponsors DPR militants with spare parts for their equipment”), Zaxid.Media (“According to media reports, the Swedish company SKF sponsors DNR militants with spare parts for equipment”), Rupor Kyivshchyny (“According to a political expert, the Swedish company SKF sponsors DPR militants with spare parts for their equipment”), and the national anti-corruption portal Antikor (“According to an expert, the Swedish SKF conducts business by selling auto parts in the DNR and sponsoring militants”) violated paragraphs 6, 9, 10 of the Code of Ethics of Ukrainian Journalists and Part 2 of Article 302 of the Civil Code of Ukraine.
The Media Council did not investigate the veracity of information about supplies of ball bearings to the occupied territories.
Votes: “In favor” – 8;
“Against” – 0;
“Abstain” – 3.
Secretary of the Independent Media Council O. Holub
Secretary of the Independent Media Council
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