The New Civil Code and Freedom of Speech: Could the Proposed Changes Pose Risks to the Media?

The recodification of the Civil Code of Ukraine is one of the most far-reaching reforms of private law in recent years. The draft law aims to modernize civil legislation, align it with contemporary European approaches, and address the new challenges of the digital age. At the same time, certain provisions of the document have already been subject to expert analysis by the Council of Europe, which has highlighted potential risks to freedom of speech and the right to information.

Could the new Civil Code really affect the work of the media and journalists? Let’s take a look at the experts’ key observations.

The Balance Between Protecting One’s Reputation and Freedom of Speech

One of the key issues highlighted by international experts is striking a balance between an individual’s right to protection of honor, dignity, and professional reputation and the freedom of expression.

Freedom of speech in Ukraine is guaranteed by Article 34 of the Constitution of Ukraine, as well as by Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. At the same time, these rights are not absolute and may be restricted only in cases where such interference is lawful, necessary, and proportionate.

It is precisely the issue of the proportionality of certain provisions of the new Civil Code that has become the subject of debate.

Why Were These Reservations Raised?

The draft of the new Civil Code effectively establishes the same rules for the protection of honor, dignity, and professional reputation for private individuals as well as for politicians, civil servants, and other public figures.

At the same time, the case law of the European Court of Human Rights consistently holds that individuals who perform public functions or influence public life must be prepared to face significantly broader criticism than ordinary citizens. Such criticism is an integral part of a democratic society.

According to Council of Europe experts, the absence of such a distinction could create conditions for the use of civil law mechanisms as a tool to exert pressure on journalists and the media.

Can Certain Protective Measures Restrict Media Activities?

Another set of comments concerns the proposed remedies for violated rights.

In particular, the bill allows for the seizure or even destruction of an entire print run of a publication due to a single article. It also provides for the destruction of documents as a means of enforcing a court order to retract information.

Experts believe that such measures may not comply with the principle of proportionality applied in the practice of the European Court of Human Rights, since interference with freedom of expression must be the minimum necessary to achieve a legitimate aim.

Special attention is also given to the proposed mechanism for exercising the right of reply. In the absence of clear criteria for its application, there is a risk that this tool could be used to influence the editorial policy of media outlets.

Digital Rights: New Opportunities or New Risks?

One of the most controversial provisions of the draft law is the introduction of new personal non-property rights related to the digital environment.

These include, in particular, the right to a digital image, the right to be forgotten, and the right to informational peace. In and of themselves, these concepts are in line with current trends in the development of law.

At the same time, experts have pointed out that certain provisions require harmonization with European Union Regulation 2016/679 (GDPR).

In particular, the proposed model for processing information is largely based on the need to obtain consent, whereas European legislation provides for several legal grounds for processing personal data.

According to the experts, this structure could create additional challenges for journalistic investigations, the use of public registries, anti-corruption oversight, and OSINT research.

The Lack of Mechanisms to Counter SLAPP Lawsuits

Another point of concern was the absence in the bill of mechanisms to counter so-called SLAPP lawsuits (Strategic Lawsuits Against Public Participation)—legal actions used to put pressure on journalists, the media, civic activists, or human rights defenders.

The European Union has already implemented corresponding protective mechanisms that allow courts to respond promptly to baseless lawsuits filed not to protect a violated right, but to exert financial or psychological pressure.

Experts believe that incorporating such approaches during the finalization of the new Civil Code will help strengthen guarantees of freedom of speech and the right to participate in public discourse.

At present, there are no grounds to assert that the new Civil Code directly restricts freedom of speech. At the same time, expert analysis indicates that certain provisions may require further refinement to ensure an appropriate balance between the protection of personal non-property rights, the right to privacy, and freedom of expression.

That is why international experts recommend bringing certain provisions of the draft law into line with the case law of the European Court of Human Rights and European standards for the protection of human rights before the second reading.

If you have any questions regarding the application of the provisions of the Civil Code of Ukraine, the protection of honor, dignity, and business reputation, freedom of speech, the right to information, or other aspects of civil law, the specialists at the “Strategic Advocacy” Law Firm are ready to provide professional legal assistance.

The firm’s attorneys conduct legal analyses of specific situations, provide legal advice, assess legal risks, prepare legal opinions, and represent clients’ interests both in court and before government agencies.