Kivisaar versus Raiend Case Continues in the Supreme Court

In 2020, student and artist Katrina Raiend created a public petition to remove Radio Sky Plus host Kivisaar from radio broadcasting. According to Katrina, she wanted to protect fundamental values and oppose language that demeans minorities. In July 2020, Kivisaar sued Raiendi for drafting the petition, accusing her of defamation. On November 30, 2022, the Tallinn Circuit Court reached a partially positive verdict, but at the end of December, both Kivisaar and Raiend appealed the decision to the Supreme Court of Estonia. It is yet to be seen if the Supreme Court will take the cassation appeal into proceedings.

In its decision, the Tallinn Circuit Court found that Katrina Raiend had not organized a large-scale slander campaign to “cancel” Alari Kivisaar. In addition, the court recognized that drafting a petition is a permitted and legitimate way of expressing an opinion and exercising freedom of speech. The decision of the Circuit Court opened up the nature of racist and chauvinistic speech for the first time in Estonian domestic jurisprudence. From the decision, it clearly follows that such a way of speaking in which a person is described in terms of “racial” affiliation and it is referred to as if people differ from each other due to “racial” origin and may be unequal in some way due to “racial” affiliation can be considered racist.

Why did Katrina Raiend turn to the Supreme Court?

1. The Circuit Court’s interpretation of the nature of hate speech is not in accordance with international law. Although the Circuit Court found that Alari Kivisaar’s statements contained a negative racist stereotype, the court did not consider it racist hate speech. The Estonian Penal Code contains a provision prohibiting incitement to hatred. At the same time, this provision also contains a restrictive requirement, according to which only incitement to enmity that causes a threat to a person’s life, health or property is prohibited. At the same time, Estonia is a member of the European Union and the Council of Europe, whose law interprets hate speech much more broadly. Under international law, negative stereotyping based on race is hate speech. If the decision of the Circuit Court remains valid, it would therefore create a misunderstanding in Estonia about the nature of hate speech, which in turn is contrary to international law.
2. It is not fair that the Circuit Court punished Raiendi for quoting the story published in ERR (Estonian National Broadcast Company). The Circuit Court declared that Katrina Raiend must compensate €2,000 to Kivisaar, as it considered the following text contained in the petition to be flawed: “The presenter Alari Kivisaar makes fun of the female runners of the Ugandan running team, whose coach is accused of raping women by manipulating the power. Kivisaar stated that the rapist might have been right, “when women’s private areas are “expanded”, their legs move faster.” These sentences are not invented by Katrina Raiend, but were published in an article on the website of the Estonian National Broadcasting Company in 2014. 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. However, according to the verdict, the fact that Raiend relied on the information published in the Estonian National Broadcasting Company (ERR) does not release her from responsibility. Therefore, it is important to debate in the Supreme Court whether and to what extent an ordinary citizen is responsible for the republishing of incorrect information published in the press, more precisely in the Estonian National Broadcasting Company.

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