Ecoclub won in the Supreme Court: our complaint about the right to freely disseminate critical remarks on the construction of the Kronospan woodworking plant was upheld. This reverses the decision of the courts of previous instances that the Ecoclub’s criticism of the planned activities of the plant is inaccurate information. The Supreme Court ruled that criticism of environmental policies was entitled to protection under the law.
Kronospan is building a woodworking plant near Rivne and plans to emit pollutants into the air. The Ecoclub analyzed the company’s Environmental Impact Assessment (EIA) Report and published its comments. Afterward, Kronospan filed a lawsuit against the Ecoclub for damaging his business reputation, in which Kronospan demanded to refute the allegations made in our posts and reimburse UAH 150,000 (then changed the amount to UAH 1).
The Ecoclub lost the case in the local and appellate courts. In order to defend our right to criticism, we filed a complaint with the Supreme Court.
The hearing in the Supreme Court took place on May 26. The Ecoclub’s appeal was upheld, overturning the decisions of the courts of first and appellate instance: the Court ruled that these decisions were unfounded and, accordingly, dismissed Kronospan’s lawsuit against the activists.
Kronospan’s lawsuit against the Ecoclub NGO is an example of a common way of putting pressure on the public by potential polluters – SLAPP (Strategic Lawsuit Against Public Participation.
The main points of the Supreme Court decision:
– In a democratic society public participation in solving socio-environmental problems is not only a means of realising civil rights but also a condition for the development of society and the state.
– In international treaties and national legislation, the rights of public environmental organizations to participate in the discussion and dissemination of environmental information were guaranteed.
– According to the provisions of the Aarhus Convention, public participation should not be limited to the assessment of the possible impact of the planned activity on the environment but should provide the public with an opportunity to submit any comments and remarks related to the planned activity, including aspects of the admissibility of this activity and its compliance with environmental legislation.
– The provisions of the Law of Ukraine “On Environmental Impact Assessment” do not restrict the right of public organizations to disseminate comments in order to inform the public, even outside the procedures and deadlines provided by this Law.
– Information disseminated by the Ecoclub regarding the planned construction of the Kronospan woodworking plant near Rivne was obtained on the basis of analysis of open data; took the form of forecasts of possible changes in the state of the environment due to the planned activities; and the legislator had not set strict restrictions on the reliability and scientific validity of these comments and suggestions.
– Ecoclub’s publications actually act as points that the subject of an environmental impact assessment must either refute or confirm. But not the reason for the lawsuit.
– Dissemination of criticism of the planned activities in order to ensure compliance with environmental requirements in carrying out economic activities, cannot be considered as dissemination of unreliable and negative information about a person due to the environmental nature of this information.
– The Law of Ukraine “On Information” establishes that no one can be prosecuted for making evaluative judgments.
Why is the Supreme Court’s decision in this case so important?
“This decision creates an important legal “umbrella” to protect anyone who has a say in projects that could have a negative impact on the environment. Зin particular, the public will not have to prove the “authenticity” of their comments in the environmental impact assessment process.
It is extremely important that the Ecoclub did not have to go to international courts and other bodies – the decision of the Supreme Court is much more effective both in terms of protection of rights in this case and in terms of its “umbrella” impact on all future cases.
The Supreme Court has practically supported the public on all possible grounds, although this required a complex analysis at the intersection of national and international law, the Law on Information, environmental law, the European Convention on Human Rights, and the Aarhus Convention.
We believe that this decision of the Supreme Court is one of the cornerstones of the Environmental impact assessment system, which will provide a true assessment of the acceptability of threatening projects. Environmentalists now clearly know that they do not have to prove the fact of excessive damage to the environment or human health from the planned activities. Instead, investors must prove that the damage will not exceed the permitted levels.