CEDH · CASELAW;COMMUNICATEDCASES;ENG — 29 novembre 2023

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s60BFE16F { font-family:Arial; color:#1f1f1f } .sAE329FEF { font-family:Arial; font-size:8pt; vertical-align:super; color:#1f1f1f } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s1568E5EB { font-family:Arial; color:#1f1f1f; background-color:#ffffff } .sDFF97C9B { font-family:Arial; font-style:italic; color:#1f1f1f; background-color:#ffffff } Published on 18 December 2023   FIFTH SECTION Application no. 16965/20 Oleksandr Vasylyovych TOKAR against Ukraine lodged on 25 March 2020 communicated on 29 November 2023 SUBJECT MATTER OF THE CASE The application concerns an alleged failure of the respondent State to protect the applicant’s reputation from a purportedly defamatory publication posted on a privately-owned internet website. The applicant invokes Articles   6, 8 and 13 of the Convention. In 2017 the applicant brought proceedings seeking a declaration that a phrase published in December   2016 in an internet article entitled “ A top manager of the ATB [company] has been detained for financing terrorism” was defamatory. The phrase in question was: “ According to our sources, the matter concerns Oleksandr Tokar, the ATB-market legal matters deputy director-general ”. The article was published on a privately owned website entitled National anticorruption portal ( https://antikor.com.ua ). Referring to a certificate issued by consortium U.N.O.C. accredited with the Ukrainian Network Information Centre, [1] the first-instance court decided that a certain K.Ch., registrant of the aforementioned domain name, was the proper defendant, and found that the phrase was defamatory. K.Ch. appealed alleging, in particular, that he was an improper defendant, as he was neither an owner nor an administrator of the disputed internet site. He noted that the domain name registration procedure, which did not require verification of the registrant’s identity, had enabled unidentified third parties to register the disputed website in his name; and the U.N.O.C.’s certificate was inconclusive evidence as it had been issued without a proper investigation on the identity of the real website owner and publisher of the disputed material. The applicant disagreed, arguing, in particular, that U.N.O.C. had exclusive official competence to provide certificates concerning websites registration and ownership in the “ua” address zone; that in four other sets of defamation proceedings concerning publications on the same website (to which he provided references) the courts had already accepted that K.Ch. had been the proper defendant; and that in any event, K.Ch.’s affiliation to the website was of secondary importance in the applicant’s case, whose object was to declare the disputed statement defamatory without seeking to impose any obligations or penalties on K.Ch. personally. On 10 July 2019 the court of appeal allowed K.Ch.’s appeal and dismissed the applicant’s defamation claim, having found that the identity of the website’s owner was immaterial in the case at issue, since the applicant’s claim was in any event unmeritorious. More specifically, in the context of the entire publication, the disputed phrase, which did not in any event contain sufficiently identifying information concerning the applicant, was to be treated as a value judgment, which, by its very nature, could not be declared defamatory. On 18 December 2019 the Supreme Court, having examined the applicant’s appeal on points of law, quashed both previous judgments and dismissed the applicant’s claim on a different ground. More specifically, it found that examination of whether or not the disputed statement was defamatory could be carried out only if the applicant had discharged his burden of proof as to the identity of the defendant. As the evidence provided by the applicant did not make it possible to establish, unequivocally, that K.Ch. had been either the website owner or the publication author, according to the applicable law it was not appropriate for the courts to delve into the substance of the applicant’s defamation claim and to examine whether the disputed statement had been defamatory. QUESTIONS TO THE PARTIES 1.     Has the respondent State complied with its positive obligation to protect the applicant’s right to respect for private life within the meaning of Article   8 of the Convention?   The parties are invited to comment, in particular, on the following aspects: (a)     Did the State regulatory authorities take the measures that could be reasonably expected of them to set out an effective procedure empowering the applicant to identify the parties responsible for disseminating on the internet an allegedly defamatory content?   (b)     Did the applicable regulatory framework function properly in the applicant’s case? In particular, did the national judicial authorities provide relevant and sufficient reasons for dismissing his defamation claim?   2.     Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 8, as required by Article 13 of the Convention? [1] Cabinet of Ministers designated the Ukrainian Network Information Centre (“UANIC”) to act as the administrator of the Ukrainian segment of the internet addresses space by its decree no.   447-p On administering the “UA” domain issued on 22 July 2003.