While a radio presenter did use racist and sexist language on air on multiple occasions, the initiator of a petition to remove the presenter from their show will still have to pay damages, on the basis of libel, the Supreme Court has found, upholding an earlier district court ruling.
Skyplus presenter Alari Kivisaar, while he used racist and chauvinistic expressions on during a broadcast, the court found, did not say anything which justified rape, nor did he spread false information relating to a person's race – both claims which Katrina Raiend, who set up the petition, made about Kivisaar.
Kivisaar took the matter to court in July 2020, seeking damages.
Raiend had demanded in the petition that Skyplus remove Kivisaar from its morning show, on the basis of inappropriate statements made while on air.
Raiend stated that Kivisaar had on a broadcast on the morning of June 2, 2020, used racist expressions in stating that: "Whether there was some sort of criminal tendency linked to the term 'black', I'm not going to go further into.." ; "This was one hot mess, obviously no one had wanted to kill anyone, but it still happens (...)" ; "Maybe 'blacks' are criminally inclined after all? Well, I don't now, perhaps someone can draw up some statistics on that," he went on.
Kivisaar had made his remarks in the context of the May 2020 murder in police custody of George Floyd, a black American, in Minneapolis, and the ensuing protests.
Raiend had also said that on a broadcast made April 16, 2014, Kivisaar had justified rape.
The petition authored by Raiend had stated: "Presenter Alari Kivisaar makes fun of women runners from the Ugandan athletics team, whose coach was accused of raping women athletes under his charge. Kivisaar has argued that the perpetrator may have been right to do so, stating that: 'when women's private parts are "expanded", their feet will move faster'."
The petition also stated that in the same morning show, Kivisaar allegedly said: "Well, but second, it should be investigated,; maybe he [the coach] was right: suddenly (the victims-ed.) started running faster. If you're an athlete, then sport comes first for you, and you are willing to do anything for that sake, sacrifice anything, so that little 'trick' does not present some terrible trouble now. /.../ After all, athletes pull magic tricks on everybody, they eat and inject [substances], tweak and rub things, and do god-knows-what. Maybe this would be a lot easier. There's no need take doses in that case, and god knows what else... to mess with molecular structures – instead a small 'trick' before the competition, throws open everything that is needed, and then things will go smoothly."
Furthermore, Raiend stated that in a show on September 30, 2019, Kivisaar had asked a co-host: "if his mother were an [N-word], then would she press a white or a black button, before birth?"
On the basis of these three examples, Raiend called for Kivisaar's removal from the airwaves, noting that she believed Kivisaar had in fact been instigating racism and sexist remarks on the air for many years, in so doing spreading misinformation about minorities and using racist stereotypes.
The petition went on to be shared on social media, leading to Kivisaar himself being the subject of much discussion by the commentariat, which was soon followed by his going to court, with an initial demand that that Raiend pay damages of €75,000.
A first tier county court issued its ruling in May 2022, and awarded Kivisaar €3,000 in damages, finding no substance to the claim that what Kivisaar had publicly stated was racist or sexist.
The court also found that Raiend could not prove that Kivisaar had in actuality made the comments about Ugandan runners, that she had attributed to him.
However, since both Raiend and Kivisaar appealed the decision, it did not take effect.
The second-tier circuit court ruled in November 2022 (see below), but Raiend immediately appealed again, to the Supreme Court. The latter ruled on March 13, ie. Monday, that it will not hear the case, meaning the circuit court ruling is final and binding.
Unlike the county court, the circuit court found that Kivisaar had indeed used racist and sexist language.
For instance, the court bench found the statement, posed as a rhetorical question, that "Maybe 'blacks' are thugs?" was racist, since it made an assumption about character traits based on race.
This meant that the defendant's, ie. Raiend's, claim that the plaintiff, Kivisaar, had used racial stereotypes on the June 2, 2020 Skyplus "Hommikuprogramm" was a true statement, according to the court decision.
The court concurred with Raiend that the term "neeger", which in English could be rendered either into the archaic term "negro" or to the even more offensive N-word which derives from it, implies a hierarchy of races, with that group in question not being high up in the structure.
How many times the term was used, be it once or multiple times, was irrelevant to that judgement, the court found.
The circuit court bench also agreed with Raiend that the example of pressing a button as set out in the petition — the question posed to another host on the September 30, 2019 edition of SkyPlus radio show "Hommikuprogramm" — provides grounds for considering the plaintiff's statement to be both racist and sexist.
However, the circuit court was of the same mind as the county court in relation to Raiend's statement, in the petition, that Kivisaar had propagated disinformation, which both courts found to be not true – because a statement of fact cannot be inferred from the words "maybe 'blacks' are criminally inclined after all" (original: "äkki mustad on pätimad"), the words Kivisaar used on air.
With the allegations made in the petition regarding the Ugandan running team, the district court also came to the same conclusion as the county court, namely that it was not possible to say that Kivisaar had said anything of the sort. In addition, the court found that, regardless of the existence of an article published by ERR in April 2014, in Estonian (and in English, here), Raiend should have also further proved the substance of her claim.
In summing up, the circuit court found that, while Kivisaar had used sexist and racist expressions, he was unlikely to have spoken or provided misinformation about Uganda. This means that Raiend is obliged to remove these last two allegations from her petition, and pay damages to Kivisaar, leaving both parties to bear their own costs of the proceedings to date.
On that subject, Raiend had tweeted that she had been given a day to pay the sum of €4,237.57.
Raiend wrote that she did not have funds herself to hand to pay the damages incurred, but had been able to amass them from donors within a matter of hours.
She also expressed frustration at the outcome, on her social media account, but also said that she would repeat her previous actions should the need arise and even knowing where that might end up.
Kivisaar's May 2020 remarks in the wake of the George Floyd incident were propagated via Twitter and were subsequently picked up by Black Lives Matter (BLM) Estonia, part of the wider global BLM movement.
Kivisaar had previously said that his individual remarks had been taken out of context, claiming he unequivocally condemned the police actions which led to Floyd's death.
As of the end of July 2020, the Raiend-instigated petition, placed on change.org, had garnered around 6,000 e-signatures.
Kivisaar was represented by lawyer Robert Sarv.
SkyPlus is owned by the Sky Media Group, an Estonian company which owns and operates four Estonian-language and two Russian-language radio stations.
Editor: Andrew Whyte, Huko Aaspõllu