Kivisaar vs Raiend: the End

Yesterday, a two-and-a-half-year-long lawsuit initiated by Alari Kivisaar against Katrina Raiend came to an end. Both Kivisaar and Raiend had turned to the Supreme Court to defend their rights, but the court’s decision yesterday left both complaints unprocessed. Therefore, the decision of the Tallinn Circuit Court has come into force. It has finally been confirmed that Alari Kivisaar’s statements on the Sky Plus Morning Program mentioned in the petition were chauvinistic and racist, and as a presenter, he has spread racist stereotypes. However, the ruling is partially problematic, as it potentially creates a basis for silencing socially active people.

There is a lot to be happy about for civil society and human rights advocates in the ruling. “The court opened up the essence of essentially racist and chauvinistic speech in Estonian domestic case law for the first time and set clear boundaries for its use in the public sphere. In addition, it is positive that the court confirmed that making petitions is part of freedom of expression, and racist expressions can be publicly condemned,” said Meris Velling, a lawyer for Katrina. The Tallinn Circuit Court’s opinion that Katrina Raiend had not organized a widespread smear campaign against Alari Kivisaar also remains in force. In the court’s view, drafting a petition is a legitimate way of expressing an opinion and exercising one’s freedom of speech.

However, the court ruling is not just a victory. According to the decision, Katrina Raiend must compensate Alari Kivisaar for two sentences published in the petition that the court did not consider to be in line with reality: firstly, the statement in the petition that Alari Kivisaar spreads false information, and secondly, a sentence taken from an ERR (Estonian National Broadcasting) article that condemned jokes made by Alari Kivisaar about the rape of the Ugandan athletics team.

Publishing statements that do not correspond to reality is generally illegal, and it entails an obligation to pay damages. Therefore, although the court found that Katrina Raiend had not organized a widespread smear campaign and that Alari Kivisaar’s statements were racist and chauvinistic, the court nevertheless awarded damages for two sentences published in the petition based on the above general principle.

Regarding the first sentence, the court was repeatedly reminded that since spreading racist stereotypes is spreading false information, the opinion expressed in the petition that Alari Kivisaar spreads false information corresponds to reality. Unfortunately, both the district and circuit courts agreed that spreading stereotypes is not spreading false information.

In the case of the sentence concerning the rape of the Ugandan athletics team, the courts could have excluded unlawfulness by relying on the fact that it was published in ERR. The principle of trust could apply to information published in ERR, i.e., an ordinary person should be able to assume that information published by a national broadcaster is reliable and corresponds to reality. In this case, the court could have compelled Katrina to remove the sentence from the petition that did not correspond to reality, but at the same time released her from the obligation to compensate Alari Kivisaar for damages.

Why is Kivisaar vs Raiend important for the future?

“By not taking the complaint into consideration, the Supreme Court either agreed with the lower courts or did not consider the above-mentioned questions significant enough from the perspective of developing the law to give its assessment,” Velling noted. Kelly Grossthal, Head of Strategic Litigation at the Estonian Human Rights Center, therefore considers the court ruling partly disappointing, as it takes away the courage of ordinary citizens to stand up for human rights: “It is completely wrong and even absurd that the Estonian court system holds a young person accountable for information published in the country’s most trusted media outlet while standing up for justice. The result of such practice is more silence. Today, human rights defenders, tomorrow climate activists?”

A topic important to many

In conclusion, something particularly positive: Katrina compiled the petition with the aim of standing up against racist, sexist, and minority-bashing speech, defending the fundamental principles of a democratic state. It is extremely positive to note that over the years, Katrina received support from numerous ordinary Estonian people, and she was not left alone at the end of the dispute. In response to a social media call, supporters donated 4237.57 euros in just a few hours to support her, testifying to the fact that the issue has hit societal sore points. Considering that the court left both parties to bear the legal costs and Kivisaar’s original claim was for 75,000 euros, there is also much to rejoice in the final outcome.

The entire legal process was made possible through the largely voluntary work of the Estonian Human Rights Center, generous donors, and lawyer Meris Velling. Thank you!

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