Kivisaar versus Raiend: a petition is a part of freedom of speech, racist expression can be publicly condemned

In June 2020, Katrina created a public petition to remove Kivisaar from the radio broadcasting, with the aim of defending the fundamental values of all of us and resisting injustices that belittle minorities. Kivisaar sued Raiend on defamation charges. On November 30, 2022 the Tallinn Circuit Court ruled that Katrina Raiend did not organise a smear campaign to get Alari Kivisaar ‘canceled’.  In July 2020, presenter at Radio Sky Plus Alari Kivisaar sued Raiend for drafting the petition and accused her of defamation. On 30 November, the case reached a positive verdict at Tallinn Circuit Court, which stated that a public petition is a legitimate and permissible way to exercise one’s freedom of speech.

In its ruling, the Tallinn Circuit Court found that Katrina Raiend did not organise an extensive smear campaign to get Alari Kivisaar ‘cancelled’. The Court stated that creating a petition is a permitted and legitimate way to express an opinion and exercise one’s freedom of speech. In the opinion of the Circuit Court, Alari Kivisaar’s statements in the Sky Plus Morning Programme shows have been chauvinistic and racist and that as a presenter he has spread racist stereotypes.

Katrina Raiend believes that this approach by the Court gives hope: “For the first time, I feel that my hope and vision of a more tolerant society, where the power and impact of words are understood, is possible. Recognition of a petition as an appropriate means of speaking out in a democratic society is also a tremendous boost for civic activism on a broader scale.”

“The ruling of the Circuit Court is significant as it recognises the right of everyone to object to racist speech and to draw public attention to its unacceptability through the so-called ‘counter-speech’, which is recognised by international law, alongside human rights education, as one of the most effective means of opposing racism,” says Meris Velling, the lawyer who represented Raiend. The ruling of the Circuit Court also opens up the nature of racist and chauvinistic speech for the first time in Estonian domestic case law. It clearly follows from the ruling that speech, which describes a person in terms of ‘race’ and implies that people are different from each other because of their ‘racial’ origin and may be unequal in some way because of their ‘racial’ origin can be considered racist.

The conclusions provided in the Circuit Court’s ruling are based on the explanations of the essence of racism and racist speech given by internationally recognised experts. For the average Estonian, racism can mean something that is supposed to express intolerance and malice. However, racist speech does not necessarily have to express hatred. Racism also manifests itself through statements that treat ‘race’ as objectively existing and use it to justify inequalities or differences between people. ‘Race’ as a concept is a social construct and its historical objective has been to recognise one ‘race’ as more valuable than another ‘race’.

As a democratic state governed by the rule of law and a member state of the United Nations, the Council of Europe and the European Union, Estonia is party to numerous international declarations, conventions and other important documents that do not recognise theories based on ‘race’. “With the ruling, the Circuit Court sends a clear message that the internationally accepted obligation to oppose any racist statements is truly part of Estonia’s human rights culture,” said Egert Rünne, Executive Director of the Estonian Human Rights Centre, which supports Raiend’s case.

The Circuit Court, however, identified the following sentence, which is included in the petition, as a deficiency of the petition: “Kivisaar claimed that the rapist may have been right, “when women’s private parts have ‘expanded’, their legs move faster”. According to the Circuit Court, this was a quote that Alari Kivisaar did not say in this wording when commenting on the rape incident in the Ugandan running team on the Sky Plus Morning Programme in 2014. The Court declared that this sentence must be removed from the petition and Alari Kivisaar must be compensated for the non-material damage in the amount of €2,000 caused to him by the misquotation. Considering that Kivisaar demanded €75,000 from Katrina Raiend as compensation for the alleged defamation and cancellation campaign, this is a modest amount.

However, Katrina Raiend did not make up this sentence. This sentence comes from an article published on the portal of the Estonian Public Broadcasting (ERR) in 2014. The fact that the petition relied on information published in the ERR, the truthfulness of which could be subject to the principle of trust, should, under the law, preclude the unlawfulness of the publication of the quoted sentence in the petition. Namely, the law does not consider the publication of inaccurate information unlawful if the publisher verified the information or fact with sufficient diligence. However, compensation for damages presupposes that the person’s actions were unlawful. Therefore, the case may be appealed to the Supreme Court of Estonia.

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