Protecting honor, dignity, and reputation in the digital age
Until recently, a typical situation involved the publication of inaccurate information in a newspaper or on a news website. Today, a significant number of such disputes have moved to social media, messaging platforms, and other digital platforms.
A single post can receive thousands of views within a few hours, be shared by dozens of users, appear in other media outlets, and then be deleted by its author. This raises not only the question of whether the information that was disseminated was false, but also how to prove that it was actually disseminated, who disseminated it, and what exactly was published.
The problem becomes particularly complex in criminal proceedings, when a person has not been convicted for years, yet is already being referred to as a criminal in the media or on social media.
Ukrainian legislation provides mechanisms for protecting honor, dignity, and business reputation. However, in the digital environment, the outcome of such protection largely depends on how properly the evidence has been preserved.
What is defamation?
The term “defamation” is not expressly established as a separate legal institution in the Civil Code of Ukraine. In practical terms, it refers to the dissemination of inaccurate information about a person that may harm their honor, dignity, or business reputation.
The Civil Code of Ukraine protects honor, dignity, and business reputation as personal non-property rights and provides for the possibility of their judicial protection. In particular, Article 277 of the Civil Code of Ukraine regulates the right of reply and the refutation of inaccurate information.
However, for legal assessment, it is not enough that the information is merely unpleasant, offensive, or damaging to a person’s reputation.
It is necessary to establish what exactly was said and to whom it was communicated, whom the information concerned, and whether it contains statements of specific facts.
This is precisely where one of the most important distinctions between defamation and ordinary criticism lies.
Fact or evaluative judgment?
Not every negative statement can be subject to a demand for refutation.
The law distinguishes between statements of fact and evaluative judgments. An evaluative judgment is criticism, an assessment of someone’s conduct, an assumption, or a subjective opinion that cannot be verified for truth in the same way as a specific fact.
The situation is different when a person states:
- “He misappropriated the money”
- “She forged the documents”
- “This person committed a crime”
- “This company deceives its customers”
Such statements may contain assertions of specific facts that can, in principle, be verified.
Therefore, the phrase “it’s just my opinion” does not, by itself, resolve the issue. The content of the statement, its form, and the context are important.
The European Court of Human Rights consistently distinguishes between statements of fact and evaluative judgments. At the same time, freedom of expression protects not only information that is neutral or pleasant to someone, but also statements that may offend, shock, or disturb. That is why defamation cases always require a balance between the right to reputation and freedom of expression.
Dissemination of inaccurate information on social media
Social media have significantly changed the nature of such disputes.
A publication may be made under a person’s real name, a pseudonym, or an anonymous account. Information may be disseminated through a post, story, video, comment, Telegram channel, or by reposting someone else’s material.
Therefore, several questions may arise in court:
- Was the relevant information actually disseminated?
- Did it concern the claimant?
- Was it inaccurate?
- Did it constitute a statement of fact?
- Who exactly disseminated it?
- Does the relevant account belong to a particular person?
- What was the context of the publication?
The last point is particularly important.
A screenshot of a page displaying a person’s name does not automatically mean that the person themselves made the publication.
The Supreme Court has noted that a screenshot of a social media publication may constitute admissible evidence if it is established that the information under the relevant account was disseminated by that particular person.
In other words, in such cases, it is necessary to prove not only the content of the publication, but also its connection to a specific person who disseminated it.
A screenshot is evidence, but not a magic button
Today, when a person discovers false information about themselves on the Internet, the first obvious thing they usually do is take a screenshot.
That is the right thing to do. But sometimes it is not enough.
The Civil Procedure Code of Ukraine expressly recognizes, among other things, websites and web pages, text, multimedia and voice messages, photographs, videos, audio recordings, metadata, and other data in electronic form as electronic evidence.
Therefore, in a potential dispute, it is important to preserve as much of the digital context as possible:
- the text of the publication
- the URL of the page
- the account name and identifiers
- the date and time
- photographs, videos, and other attached materials
- comments and replies, if relevant
- information about how the content was disseminated
- other data that may help establish the origin of the content.
It is advisable to do this before the author deletes or changes the publication.
The Supreme Court continues to pay considerable attention to the reliability and authenticity of digital evidence. Issues concerning digital evidence, OSINT, and the verification of its authenticity are increasingly discussed at professional events involving Supreme Court judges.
When the text alone is not enough
In cases involving the protection of honor, dignity, and business reputation, it is sometimes not enough simply to establish that a particular text or statement was published. It is also important to correctly determine the meaning and nature of that statement.
For example, it is not always obvious whether a particular phrase constitutes a statement of fact or an evaluative judgment. Social media publications can be particularly challenging, as they may involve sarcasm, slang, memes, implications, or statements whose meaning depends on the broader context.
In such cases, a linguistic (semantic and textual) expert examination may be ordered. It can help examine the content of the disputed statement, its semantic meaning, whether it contains statements of fact or evaluative judgments, as well as other linguistic features of the text.
In cases involving complex issues concerning digital data, accounts, the technical characteristics of electronic information, or deleted content, computer-technical expert examinations may also be relevant, depending on the circumstances.
At the same time, an expert examination is far from necessary in every case. It is one of the evidentiary tools that may be appropriate when the relevant circumstances cannot be properly established without specialized knowledge. In any event, the final legal assessment of the statement and the evidence falls within the court’s authority.
How to preserve the content of a web page and identify its owner?
If a publication may potentially become the subject of a court dispute, it is not advisable to rely on a single screenshot alone.
There are specialized tools that make it possible to preserve the state of a web page at a specific point in time and generate a document recording the results of such preservation.
One such tool is “WEB-FIX”, a service that allows a web page and the content published on it to be preserved as of a specific point in time.
Such preservation can be particularly useful if there is a risk that the publication may be changed or deleted. Once it disappears from the Internet, proving the original content of the information can become considerably more difficult.
However, defamation cases often involve another issue – who owns the web page or web resource?
To address this issue, a certificate containing information about the owner of a website (web page), the domain name registrant, or information used to identify them may be obtained. Such a certificate is another way of gathering information that may help identify a person connected with the relevant web resource.
At the same time, such a certificate, like any other individual piece of evidence, does not automatically establish who personally created or published a particular piece of content. Information about the owner of a web resource or domain name registrant may only be one element of the body of evidence that the court assesses as a whole.
Therefore, in digital disputes, it is important to work in two directions at the same time: preserve the content itself and identify the person who may be connected with its dissemination.
A deleted publication does not mean lost evidence
Deleting a publication does not mean that the dissemination of information can be “undone.” If other people have already seen it, the information has been disseminated. However, once the content has been deleted, proving its content and the fact that it was published becomes significantly more difficult.
Therefore, if a publication has already been deleted, it is worth looking for other sources documenting it. These may include saved screenshots, copies of the page, links to it, screen recordings, reposts, references in other publications, user comments, and other digital traces.
In certain cases, specialized technical examinations may also be relevant to establish the circumstances surrounding the existence or dissemination of deleted digital content.
If there are grounds to believe that evidence may be lost or that obtaining it in the future may become impossible or substantially more difficult, civil procedural law provides for the possibility of preserving evidence.
Therefore, deleting a publication does not mean that protection has become impossible. However, the more time that passes after its deletion, the more difficult it may become to reconstruct the content of the publication and prove the circumstances of its dissemination.
Refutation is not the only way to seek protection
The method of protection depends on the specific circumstances.
The Civil Code of Ukraine provides, in particular, for the right of reply and the refutation of inaccurate information. As a general rule, a refutation must be made in the same manner in which the information was disseminated.
In appropriate cases, it may also be necessary to seek an order to stop further dissemination of the information, remove specific content, and recover compensation for moral or material damage.
At the same time, not every case should end with the same set of claims.
For example, if the main issue is the dissemination of a specific false statement, the primary objective may be its refutation. If the information continues to be actively disseminated online, stopping such dissemination may become particularly important.
If, however, a person has suffered actual reputational, professional, or psychological consequences as a result of the publication, the issue of compensation for moral damage may also arise separately.
There is a common misconception that in such a situation it is possible to demand a public apology from the defendant. This is not entirely correct. An apology itself is not a legally established remedy for the protection of honor, dignity, or business reputation. A court cannot simply order a person to apologize to the claimant in a prescribed form.
This does not mean, however, that an apology is impossible. A person may apologize voluntarily, and the parties may agree on such an obligation as part of an agreement or settlement. This is fundamentally different, however, from a situation in which the claimant asks the court to compel the defendant to apologize.
Therefore, in most cases, it is legally more appropriate to seek a reply, refutation of inaccurate information, and, depending on the circumstances, other remedies provided by law, rather than simply seeking an “apology.”
This is why mechanically using a single “standard defamation lawsuit” is not always the right strategy. The appropriate remedy should be tailored to the nature of the information disseminated, the manner in which it was disseminated, and its consequences for the particular person.
Presumption of innocence and reputation protection
There are situations in which reputation protection becomes particularly important. This is especially true in the context of criminal proceedings.
The presumption of innocence means that a person is considered innocent until their guilt has been established in accordance with the law by a final conviction of a court.
However, criminal proceedings can last for years.
During this time, the media, social media, or public statements may create a completely different picture: the person has not been found guilty, yet is already being referred to as a criminal.
It is important to distinguish between reporting that criminal proceedings are being conducted against a person and stating that the person committed a specific crime. These are not the same thing.
For example, if a publication states that a particular person committed murder, misappropriated funds, forged documents, or committed another crime, the question of whether such a statement is accurate does not disappear simply because the relevant criminal proceedings exist.
On the contrary, this is where the balance between the public’s right to receive information and the rights of a person whose guilt has not yet been established becomes particularly important.
The European Court of Human Rights also recognizes that the Internet significantly increases the potential harm caused by unlawful or defamatory content, as information can be instantly disseminated to an unlimited audience and remain accessible for a long period of time.
Therefore, defense in criminal proceedings and the protection of honor, dignity, and reputation may require a comprehensive legal strategy.
It is not necessarily necessary to wait years for the final outcome of criminal proceedings if, in the meantime, inaccurate information about a person continues to be disseminated.
Practical example
In my practice, I handled a case in which the sister of the victim publicly claimed that my client had thrown her from the ninth floor.
At the time, there was no conviction against my client. In other words, the media were disseminating a statement about a specific person and a specific crime, even though the issue of that person’s criminal liability had not yet been determined by a court.
The defense did not wait for the criminal proceedings to conclude and filed a civil claim for the protection of the client’s honor and dignity, as well as for the refutation of inaccurate information concerning him. Following the proceedings, the court found the disseminated information to be inaccurate and prohibited its further dissemination.
The decision subsequently had practical significance in the criminal proceedings as well. The defense drew the court’s attention to the fact that the witness who testified in the criminal proceedings had previously disseminated information about the client that a court had found to be inaccurate.
This made it possible to call into question not only an individual statement made by the witness, but also her possible bias and the reliability of her testimony as a whole. In other words, the defense had an argument that her testimony should be assessed with particular caution, since there were circumstances that could indicate a prejudiced attitude toward the client.
Ultimately, the criminal proceedings were closed, and the question of the client’s guilt was never confirmed by a court conviction.
This example demonstrates that protecting a person’s honor and dignity through separate civil proceedings can sometimes serve not merely as a means of restoring their reputation. It can also become one element of an overall defense strategy in criminal proceedings.
When is criticism lawful?
Reputation protection does not mean that any negative information about a person can be prohibited.
This is particularly important to keep in mind with regard to journalists, public figures, politicians, public officials, and other persons in the public eye.
Freedom of expression is a fundamental right, and public figures must be prepared to accept a wider scope of criticism, especially when matters of public interest are involved.
The Supreme Court has specifically emphasized that the limits of permissible criticism of a public authority are significantly broader than those applicable to a private individual, and that defamation claims brought by public authorities should not become a tool for suppressing public criticism.
Therefore, in a defamation case, the court should not simply determine whose feelings were hurt more by the statement. It is necessary to establish what exactly was said, in what context, whether it constitutes a statement of fact or an evaluative judgment, how important the issue is to the public, and whether the interference with the right to reputation was proportionate to the freedom of expression.
Reputation in the digital world is also a right
The digital environment does not eliminate a person’s right to honor, dignity, and business reputation. On the contrary, the speed at which information spreads and the difficulty of removing it make the protection of these rights even more important.
However, such protection does not begin with filing a lawsuit. The first step is to properly assess the situation: what exactly was said, by whom, where, in what context, and whether it can be properly proven.
This is particularly important on social media, where a single post can reach a large audience in a short period of time and then be edited or deleted.
Therefore, modern protection of honor, dignity, and business reputation is not only about what was said about a person. It is also about how it was disseminated, how the evidence can be preserved, and which remedy will be effective in the particular circumstances.