Libel Laws Pose Obstacles to Ukraine’s Investigative Journalists

Not long ago I spoke at a NATO-sponsored event where representatives of Ukraine’s law enforcement and security and military forces listened to presentations by journalists who have investigated corruption. Speaking as a reporter who has worked on many local and cross-border investigations, I discussed a story I did in 2007 about a controversial investment project with cross-border links to organized crime. This project would have provided billions of dollars to the Ukrainians involved with it, but it did not happen, in part due to my investigative reporting.

In the question and answer session, I was amazed when a man in the audience asked if I realized that my work on that story had deprived Ukraine of $25 billion. In response, I asked him if he was suggesting that Ukraine should stop fighting organized crime and money laundering. He responded with words clearly chosen to please the organizers of this event, but his question accurately reflects the prevailing attitude toward investigative journalism in Ukraine. In a country deeply divided politically and with strong ties between the powerful players in business and politics, any investigation that involves a member of the ruling elite (a major businessman or political leader) is viewed as being politically motivated and is assumed to be funded by political opponents. Or, in the most extreme cases, the journalist is presumed to be working to undermine the state’s international image.

Things become far worse when the investigation focuses on major oligarchs or their companies. Then the threat of a lawsuit arises. Given the recent financial crisis, which downsized the print advertising market in Ukraine by almost a third, even publications that remain financially stable are reluctant to irritate the wealthiest people or risk being sued by them.

In this climate of financial uncertainty, publishers and editors in chief will ask reporters about the damage that a particular investigative story might cause. Typical of questions being asked of investigative journalists today is this one: “Do you realize that your article might cost people their jobs?” Hearing this makes us feel like a modern-day Herostratus, accused of being determined to destroy our publications for the sake of our investigative egos.

Doing Our Job

But as journalists we feel we are doing our job. We have performed the necessary due diligence and are prepared to face the court. We can prove that our story is accurate, such as the one involving a businessman who the police 10 years ago labeled a “mobster” or a company that boasts of its impeccable reputation but has been accused of being corrupt and having links to organized crime. Yet when we try to double-check our information—to prove that our publication is safe in case of possible litigation—by filing requests with the police and asking them to reconfirm statements they made just a year ago or verify the contents of the document they leaked to us, our jobs become very, very difficult.

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Resources for Investigative ReportersIn the absence of a better law regarding access to public information, the authorities have 30 days to respond, which could be their refusal to give us any information. If we ask for anything related to criminal cases launched by a previous government that could compromise people now in power, the system works impeccably—with silence. A law enforcement officer explained to me how his colleagues handle undesirable information requests: “They will answer that such a criminal case never existed, and before saying so will destroy any traces of it.”

The prospect of jeopardizing one’s publication thus becomes more real. But we still try to do our jobs properly. If we miraculously find a former police officer who is ready to testify that the documents we gathered are real, we will write a pleasant non-accusatory letter to the subject of our article, such as a former mobster who is now a wealthy businessman and major advertiser, asking him to share information about his rough background and tell us how he was able to overcome all the difficulties and become so successful. We give him more than enough time to respond. He doesn’t, and then we write our story, sticking to the facts.

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– Jonathan SeitzBut when the story has moved through all of the necessary four edits, the wealthy businessman finally responds. Only, instead of speaking with him, we get to talk to his London- or Washington-based lawyers who list all of the Ukrainian and European publications that apologized or lost in court to their client for making very similar inquiries into his past. If we decide to pursue the story, they guarantee that a lawsuit will be filed in London, the libel capital of the world, where the burden of proof is on the defendant—the journalist and his newspaper. In 90 percent of these cases, the defendants lose. As the result, they have to pay the damages and the plaintiff’s legal costs that start at $100,000.

At this point, it’s no longer about due diligence or getting our sources right. Our country’s richest businessman, Rinat Akhmetov, prevailed in libel cases filed in London against two Ukrainian publications; the Kyiv Post, where I work now, had to publish an apology while the other publication paid a fine of $77,500.

Just the prospect of becoming the next victim of such a lawsuit has a profound effect on media owners. As a result, no matter how well we did our investigative reporting, whenever the specter of a London courtroom is involved, the owner is likely to step back from publishing the story. It doesn’t help that most journalists’ contracts in Ukraine contain a clause requiring employees to indemnify the newspapers against libel and slander lawsuits resulting from their work.

Having to defend oneself in London, where lawyers’ fees can average $750 an hour, can sober up anyone.

Citizens of Kozyn, Ukraine, speak with a representative of the federal government in 2004 during a dispute over control of a valuable piece of land. Photo by Vlad Lavrov/Kyiv Post.

Removing Libel as An Obstacle

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Ukrainian translation of this article As a full-time journalist and editor in Ukraine since 2004, I’ve experienced all of this. In one of my first stories, I reported about a land deal in Kozyn, a small suburb of Kiev, Ukraine’s capital. The local council refused to comply with a federal request to hand over an extremely valuable piece of property. The council was defending the rights of local residents. One day the riot police simply stormed the village in an attempt to confiscate the land—or, in this case, the documents required to seize control of it—from the local council.

I was the only reporter on the scene when the police arrived. I hid in a resident’s home overlooking the council building that police had taken over so I could safely report on the incident. I remember being concerned about getting out safely since the police had blocked all of the roads from the village. Yet I would rather face the danger of being in that village under those circumstances than endure a routine conversation with foreign libel lawyers. As dangerous as that situation was for me, the ways I had to deal with it seemed more transparent and predictable.

As the result of lawsuits being threatened and filed, I joined the Organized Crime and Corruption Reporting Project (OCCRP) established by friends of mine who are also investigative reporters working in Eastern Europe. Through a grant, OCCRP obtained libel insurance, but qualifying for it requires proving to lawyers that our reporting and documentation is solid; otherwise, the lawyers who work for OCCRP will not approve the story. Using this method is how I was able to publish several stories that otherwise I would not have been able to get to readers in Ukraine. After their initial publication abroad, these articles could appear in Ukrainian media as reprints of foreign news stories. This method is much safer for the publishers.

My plan is to launch a similar investigative journalism project in Ukraine—and what I will do first is to use any funding we receive to make libel insurance available to local journalists. For now, a few of my Ukrainian colleagues joke that I have invented “offshore journalism.” I know they are actually happy for me. They understand that this is just a way to fight self-censorship.

Vlad Lavrov is an investigative reporter for the English-language Kyiv Post in Kiev, Ukraine and has taken part in several international investigative projects, including the award-winning “Tobacco Underground: The Booming Global Trade in Smuggled Cigarettes,” organized by the International Consortium of Investigative Journalists. Previously he worked as business and world editor for Korrespondent magazine in Kiev.