European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

 

CASE OF RUSU v. ROMANIA

 

(Application no. 25721/04)

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

8 March 2016

 

 

 

 

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

 




In the case of Rusu v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          András Sajó, President,
          Vincent A. De Gaetano,
          Nona Tsotsoria,
          Paulo Pinto de Albuquerque,
          Egidijus Kūris,
          Iulia Antoanella Motoc,
          Gabriele Kucsko-Stadlmayer, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 9 February 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 25721/04) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Sergiu-Cristian Rusu (“the applicant”), on 3 May 2004.

2.  The applicant was represented by Ms A. S. Tudor, a lawyer practising in Suceava. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.

3.  The applicant alleged, in particular, that by ordering him to pay non-pecuniary damages as a consequence of publishing an article in a local newspaper, the national courts had infringed his right to freedom of expression.

4.  On 25 November 2010 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1979 and lives in Suceava. At the relevant time, he was a journalist for a local newspaper Monitorul de Suceava (hereafter “the newspaper”).

A.  The disputed newspaper article

6.  On 26 August 2003 the applicant published an article under the title “An inhabitant of Verneşti is wanted by police across the country, having been accused of breaking into the headquarters of the local branch of the Social Democratic Party” (“the PSD”).

The article, accompanied by a photograph of S.A., a suspect at the time, read as follows:

“S.A, aged 35, is accused of having stolen two television sets and approximately 17,000,000 Romanian lei (RON) from the local headquarters of the PSD. As he has fled in order to avoid criminal investigation for the offence of aggravated theft, a general search has now been launched by the police (a fost dat în urmărire generală) and his photograph is now on the desk of the policemen of the judicial service [Biroul Judiciar] throughout the country.

An inhabitant of Verneşti is wanted by police officers throughout the country, as he is the main suspect in a case of breaking and entering at the headquarters of the PSD in Suceava. S.A., aged 35, is suspected of being one of the organisers of the burglary of the local headquarters of the governing party committed at the end of last year. The night before Christmas Eve 2002 was marked by bad luck for the PSD in Suceava, as thieves visited their headquarters. On the morning of 24 December some of the members of this party arrived at the headquarters located in the centre of Suceava ... [and] noticed that the headquarters had been ravaged. After checking inside, they realised there had been a burglary and that the thieves had stolen two televisions and approximately RON 17,000,000. While searching for valuables, the thieves vandalised the offices, breaking all the doors, and yanking the televisions from the electric sockets. Following an investigation by the Suceava police, the main suspect was identified as S.A., who has been missing from his place of residence since that date. S.A. (see photo) fled in order to avoid criminal investigation for the offence of aggravated theft and so a general search has been instituted and his photograph has been sent to judicial service police officers throughout the country. In a case where someone tries to avoid ‘getting nicked’ [pârnaie] by fleeing, despite being sought by the police, a countywide search is launched. If the person is not found within ninety days, the police launch a national search. In a case where there is information that the person has left the country, an international arrest warrant is issued, and the arrest of the fugitive is only a matter of time.”

7.  Following the publication of the article, the father of S.A. sent a letter to the newspaper, which read as follows:

“To the editor of Monitorul de Suceava,

The undersigned A.D. found out from your newspaper that there was a national and local search order for my son, A.S., for the offence of aggravated theft. Regarding the [content of the] article, I can tell you that [at the time] my son was neither in the country nor in Suceava county as he was in Italy. The employees of the Suceava County Police Inspectorate promptly informed me that there had been a mistake and that the general search for my son had been called off. The document confirming this information is available to the public from the Suceava judicial service.

My wish would be to have the article retracted.”

8.  This letter was published in the newspaper on 29 August 2003.

B.  First-instance proceedings

9.  On 15 September 2003 S.A. lodged with the Suceava District Court a criminal complaint against the applicant for the offence of defamation, as prescribed at the time by Article 206 of the Romanian Criminal Code. After explaining that at the time of the theft he was in Italy and thus it was impossible for him to have participated in the alleged offence, he mentioned that once his father had found out about the article, he had written to the newspaper, asking that it be retracted. The letter was published unedited, but nothing else was done since then.

S.A. considered that the article contained serious allegations which considerably affected his public image, causing him personal suffering.

He therefore requested that those responsible be convicted and ordered to pay him non-pecuniary damages in the amount of RON 100,000,000.

10.  In his defence the applicant submitted that the information concerning the general search for S.A., as well as the photograph of S.A., were given to him on 25 August 2003 by the Suceava judicial service and thus there had been no reason for him to doubt it. He contended that at the time of the publication, the general search order issued in respect of S.A. was valid.

He further argued that he did publish a retraction in the newspaper, namely the letter of S.A.’s father.

11.  On 17 October 2003, the head of the Police Department of Suceava informed the first-instance court that:

“In response to your letter in which you enquire whether on 25 August 2003 a general search order was outstanding against S.A. ... I wish to inform you that on 31 December 2002 by Order no. 124000 of the General Inspectorate of the Romanian Police a general search order was issued in respect of this person as he was attempting to avoid criminal investigation while under suspicion of theft. The measure was revoked by Order no S/150522 of the General Inspectorate of the Romanian Police on 3 September 2003, after clarification of S.A.’s situation”.

12.  On 19 November 2003 the court acquitted the applicant of the charge of defamation; however it ordered the applicant to pay, jointly with the newspaper, the sum of RON 10,000,000 to S.A. The relevant excerpts from the judgment read as follows:

“Taking into account the fact that the applicant obtained information concerning the suspect from the judicial office within the General Police Inspectorate, he cannot be found to have deliberately (mens rea) defamed the plaintiff ...

Under the civil limb of the action, defamation concerns public communication of a distorted, negative image of a person, which is likely to cause him or her personal suffering and damage to reputation, leading to changes such as social embarrassment and injury to self-esteem. The first-instance court considers that publishing the article in the newspaper caused damage to the standing of the civil party ...

Moreover, it must be noted that although the civil party’s father notified the newspaper that the facts published about his son were false, the newspaper did not publish a retraction of the article written by the defendant.”

C.  Appeal proceedings

13.  By a final judgment of 23 January 2004 the Suceava County Court rejected an appeal by the applicant and upheld the first-instance court’s judgment.

The court stated in its reasoning the following:

“Even though there is no mens rea as far as the offence of defamation provided for in Article 206 of the Criminal Code is concerned, given the source of information at the date of the publishing of the article, the defendant’s obligation to pay compensation to the civil party cannot be set aside. This is because following the discovery of the error he did not publish a retraction in order to try to rectify it. The article caused non-pecuniary damage to the civil party which can be repaired only in the manner established by the first-instance court”.

II.  RELEVANT DOMESTIC LAW

14.  The relevant provisions of the Civil and Criminal Codes concerning insult and defamation and liability for damage, in force at the material time, as well as the subsequent amendments to them, are described in Cumpǎnǎ and Mazǎre v. Romania ([GC], no. 33348/96, §§ 55-56, ECHR 2004-XI) and Timciuc v. Romania ((dec.), no. 28999/03, §§ 95-97, 12 October 2010).

15.  The Romanian Press Act (Law no. 3/1974), as modified on 19 January 1978 and on 23 May 2000 (the latter amendment being repealed on 28 August 2001), was in force until 9 July 2012 and stated in its relevant parts:

Section 72

“Any natural or legal person defamed by statements made in the press which he or she considers untrue may request, within thirty days, that the press publishes or broadcasts an answer in the form of a reply, retraction or declaration.

The answer must be objective and seeking to re-establish the truth (...).

Section 73

The answer must be published by the press free of charge and within fifteen days upon its receipt, if it is a daily paper [...]

Section 74

The refusal to publish or to broadcast an answer in compliance with Section 73 must be communicated to the defamed person within fifteen days upon receipt.

Failure to publish or to broadcast the answer within the above delays is considered refusal, even if this was not communicated as prescribed above.

Section 75

In the circumstances described in Section 74 above, the defamed person may ask the court to oblige the press to publish or to broadcast the answer.

If the court concludes that the refusal was unfounded, it obliges the press to publish or to broadcast the answer within fifteen days from the moment when the judgment becomes final (...).”

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

16.  The applicant complained that the obligation imposed on him by the domestic courts to pay non-pecuniary damages to S.A. amounted to a breach of his right to freedom of expression. He further complained under Article 6 of the Convention of the unfairness of the trial, its outcome being based on judgments which lacked reasoning.

The Court considers that the applicant’s complaints are to be assessed under Article 10 of the Convention, which reads as follows:

“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

A.  Admissibility

17.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

18.  The Government accepted that the court decisions rendered against the applicant constituted interference with his right to freedom of expression but argued that the interference was provided for by law, notably Articles 206 of the Criminal Code and 998-999 of the Civil Code, and had pursued the legitimate aim of protecting the victim’s reputation.

The Government further argued that the issue raised by this case was the failure of the applicant and the newspaper to publish any rectification or retraction concerning the disputed article once they became aware - pending the criminal proceedings started by S.A. against the applicant - that the police had provided erroneous information and that the general search order had been revoked. In their view, in line with the reasoning of the domestic courts, the publication of the letter written by S.A.’s father did not qualify as a proper rectification in so far as it had been afforded only very limited space in the newspaper and the readers could not have made a connection between the first article and the letter. Furthermore, since the applicant had not provided any explanation for his omission to publish an appropriate rectification, the Government contended that he could not be considered to have acted in good faith.

The Government further pointed out that the civil sanctions imposed on the applicant by the courts were proportionate.

19.  The applicant reiterated that when publishing the disputed article, he had relied, in good faith, on official information which he had had no obligation or possibility of verifying (he cited Selistö v. Finland, no. 56767/00, 16 November 2004 and Colombani and Others v. France, no. 51279/99, § 65, ECHR 2002-V); and the article had not included any value judgments nor any personal opinions concerning the criminal liability of S.A.

The applicant further argued that by publishing S.A.’s father’s letter only a few days after the publication of the defamatory article and in so far as the letter contained explicit details, sufficient to clarify the situation of the aggrieved party, the obligation to rectify the article had been fulfilled.

He further claimed that the relevant Romanian legislation was not very precise in defining what form an appropriate retraction would take, therefore the domestic courts’ conclusions that he had failed to publish a retraction were ungrounded and arbitrary.

The applicant further submitted that by publishing the impugned article, he contributed to the clarification of S.A.’s situation, in so far as had it not been for the article, the general search warrant issued by mistake would have still been maintained. The applicant estimated that in such circumstances, it was the police and the investigative authorities who were responsible for the moral damage sustained by S.A.

Lastly, the applicant contended that the obligation imposed on him by the domestic courts to pay non-pecuniary damages of approximately 270 euros (EUR) had been excessive in view of his monthly revenue at the relevant time of about EUR 50, and thus had a significant chilling effect.

2.  The Court’s assessment

20.  The Court notes that the parties agree that there had been an interference with the applicant’s right to freedom of expression. It is further satisfied that the interference pursued the legitimate aim of protection of the rights of others, namely of S.A.’s right to reputation.

It remains to be ascertained whether the interference was necessary in a democratic society.

(a)  General principles

21.  The Court’s general principles on the application of the requirement in Article 10 § 2 of the Convention that any interference must be “necessary in a democratic society” were restated recently in Perinçek v. Switzerland [GC], no. 27510/08, § 196, 15 October 2015), as follows:

“(ii) The adjective “necessary” in Article 10 § 2 implies the existence of a pressing social need. The High Contracting Parties have a margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the law and the decisions that apply it, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” can be reconciled with freedom of expression.

(iii) The Court’s task is not to take the place of the competent national authorities but to review the decisions that they made under Article 10. This does not mean that the Court’s supervision is limited to ascertaining whether these authorities exercised their discretion reasonably, carefully and in good faith. The Court must rather examine the interference in the light of the case as a whole and determine whether it was proportionate to the legitimate aim pursued and whether the reasons adduced by the national authorities to justify it were relevant and sufficient. In doing so, the Court has to satisfy itself that these authorities applied standards which were in conformity with the principles embodied in Article 10 and relied on an acceptable assessment of the relevant facts.”

22.  The nature and severity of the sanctions imposed are factors to be taken into account when assessing the proportionality of the interference. As the Court has previously pointed out, interference with freedom of expression may have a chilling effect on the exercise of that freedom. The relatively moderate nature of the fines do not suffice to negate the risk of a chilling effect on the exercise of freedom of expression (see Morice v. France [GC], no. 29369/10, § 127, 23 April 2015).

23.  Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its duty is nevertheless to impart - in a manner consistent with its obligations and responsibilities - information and ideas on all matters of public interest. Thus, the duty of imparting information necessarily includes “duties and responsibilities”, as well as limits which the press must impose on itself of its own accord (see Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 89, 10 November 2015).

24.  In this respect, the Court reiterates that the protection afforded by Article 10 of the Convention to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism; this concept pertains to, inter alia, the contents of information which is collected and/or disseminated by journalistic means. In this context, journalists who exercise their freedom of expression undertake “duties and responsibilities”. It will be recalled in this connection that paragraph 2 of Article 10 does not guarantee a wholly unrestricted freedom of expression even with respect to media coverage of matters of serious public concern (see, mutatis mutandis, Pentikäinen v. Finland [GC], no. 11882/10, §§ 90-91, 20 October 2015 and the case-law cited therein).

25.  The Court further reiterates that a legal obligation to publish a retraction or a reply is a normal element of the legal framework governing the exercise of freedom of expression by the print media and it cannot, as such, be regarded as excessive or unreasonable. Such an obligation makes it possible, for example, for the person who feels aggrieved by a press article to present his or her reply in a manner compatible with the editorial practice of the newspaper concerned (see Kaperzyński v. Poland, no. 43206/07, § 66, 3 April 2012).

26.  Lastly, in cases which require the right to respect for private life to be balanced against the right to freedom of expression, the Court considers that the outcome of the application should not, in theory, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the news report, or under Article 10 by the publisher. Indeed, as a matter of principle these rights deserve equal respect. Accordingly, the margin of appreciation should in theory be the same in both cases (see, among many other authorities, Couderc and Hachette Filipacchi Associés, cited above, § 91).

(b)  Application of those principles to the present case

27.  The Court notes at the outset that in the case at hand the applicant reported on a matter of public concern, that is to say the criminal investigation of a theft for which the suspect was wanted throughout the country and for which he allegedly attempted to avoid prosecution by fleeing.

28.  As this information proved to have been erroneous and defamatory and in so far as no proper retraction was published, criminal proceedings were lodged against the applicant for defamation, at the request of the aggrieved party, S.A.

However, the domestic courts ultimately cleared the applicant of the charge of defamation. In so finding, they relied on the fact that the information published had been provided by official sources, specifically by the judicial service, a department of the local police. This authority confirmed before the courts that at the time of publication the facts presented in the article had been accurate, in the sense that at that time S.A. had been wanted, an order which had been revoked at a date subsequent to the publication of the article (see paragraph 11 above).

29.  Noting that the mens rea was found to be missing, the domestic courts considered that the applicant was responsible for the damage caused to the third party by the publication of the article. In so doing, the courts referred to the fact that a retraction should have been published once the applicant had become aware of the error contained in the article.

30.  The Court would refer to the circumstances of the case, as reflected in paragraphs 7-8 above, noting that the letter of S.A.’s father, pointing out the error committed in respect of his son, was promptly published in the newspaper; however, in spite of the explicit request that a retraction be published in the newspaper, this was never done.

Referring to the newspaper’s failure to publish the necessary retraction, S.A. filed the above-mentioned criminal complaint in which he requested that the applicant be punished in criminal proceedings and ordered to pay civil damages (see paragraph 9 above).

31.  In this context, the Court notes that the pertinent domestic legislation does not clearly lay out the terms for an appropriate retraction, thus leaving the matter at the discretion of the editor, initially, and ultimately of the judge (see paragraph 15 above). It is in these circumstances that the applicant argued that the prompt publication of the letter written by S.A.’s father constituted an appropriate retraction.

32.  However, the Court notes that the domestic courts’ arguments for rejecting the applicant’s defence and ordering the payment of non-pecuniary damages to S.A. focused mainly on the fact he did not publish a retraction once he had become aware of the defamatory information (see paragraph 13 above).

While considering it regrettable that the domestic courts did not give more details thereto, the Court cannot ignore the fact that the applicant has never confirmed or made it clear in the newspaper that the impugned information previously published was indeed erroneous and defamatory, not even after the respective error was officially acknowledged by the judicial service of the local police on 17 October 2003, thus more than one month prior to the delivery of the first instance’s judgment (see paragraphs 11 and 12 above). In fact, it was the applicant’s constant submission, both before the domestic courts and before this Court (see paragraphs 10 and 19 above) that by publishing the letter written by S.A.’s father, his obligation to retract had been fully complied with.

Furthermore, the Court considers that there is nothing in the case file to suggest that the applicant may have attempted to publish a proper retraction but was prevented by the editor to do so (see also paragraph 10 above).

33.  While reiterating the importance of the right of a person who feels aggrieved by a press article to a rectification, with a corresponding obligation on the journalist or newspaper, the Court considers that in the present case, the applicant has failed to act in accordance with the principles governing journalistic ethics, requiring of him to clearly and explicitly correct any published information which has proved to be erroneous or defamatory.

34.  Furthermore, looking into the severity of the sanction imposed on the applicant, specifically the obligation to pay non-pecuniary damages of approximately EUR 270, the Court considers that such an obligation does not appear excessive in view both of its amount and of the fact that the newspaper is bound to pay it jointly with the applicant.

35.  Therefore, in the overall circumstances of the instant case, the Court finds that the solution of the domestic courts struck a fair balance between the competing interests of the claimant and those of the applicant, and the reasons given to justify their decisions were “relevant and sufficient” and met a “pressing social need”. The Court also has regard to the award of damages made against the applicant in the context of a civil action and did not find it to be disproportionate. Therefore, the Court does not see any serious reason to substitute its own assessment for that of the domestic courts, which examined the question at issue in line with the principles laid down by the Court’s case-law (see, mutatis mutandis, Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina, no. 17224/11, § 35, 13 October 2015).

36.  There has accordingly been no violation of Article 10 of the Convention.

FOR THESE REASONS, THE COURT

1.  Declares, unanimously, the application admissible;

 

2.  Holds, by five votes to two, that there has been no violation of Article 10 of the Convention.

Done in English, and notified in writing on 8 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

     Fatoş Aracı                                                                          András Sajó
Deputy Registrar                                                                       President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Sajó and Tsotsoria is annexed to this judgment.

A.S.
F.A.

 




JOINT DISSENTING OPINION OF JUDGES
SAJÓ AND TSOTSORIA

To our regret we have to disagree with our colleagues in the majority. We take the view that the applicant’s Article 10 rights were violated in this case.

On 26 August 2003 the applicant, a journalist, published an article concerning a police investigation on the basis of information which he had received from the police about S.A. being suspected of aggravated theft and of absconding. Following the publication of the article, S.A.’s father sent a letter to the newspaper. In the letter the father stated that his son was out of the country and that the police had informed him that there had been a mistake and the search had been called off. In the letter the father claimed that the document confirming this information was available at the judicial service. Furthermore, the father requested the article’s retraction. The letter was published three days after the original publication of the article.

On 15 September 2003, as the journalist had taken no further action, S.A. lodged a criminal complaint against the applicant for criminal defamation. Thirty-two days later, on 17 October 2003 the police informed the local court that the search order had been revoked on 3 September 2003, that is to say after the publication of the father’s letter. The applicant was held liable for civil defamation. The domestic courts attached importance to the fact that although the injured party’s father had notified the newspaper that the facts published about his son were false, the newspaper had not published a retraction of the article written by the defendant. This consideration was held by the Court to show that the applicant had failed to correct the erroneous and defamatory information.

While we disagree with the judgment primarily because we find that the Court has departed from its clear case-law that protects freedom of expression and journalism, we have disagreements with regard to the reconstruction of the facts, and also to the domestic proceedings. In particular, we find that the injured party’s father was immediately granted the right to reply (although he was not a directly concerned party and apparently had no power of attorney).

Moreover, it is unclear whether under Section 72 of the 1974 Press Act a defamed person is entitled to request both reply and retraction.

Thirdly, at the time of the non-specific request for retraction the search had not been called off. There was nothing to retract. The search was called off later, and this was not known to the applicant until the police provided the information during the criminal proceedings. The plaintiff never provided the relevant official information that could have served as a basis for retraction. The Court itself accepts that at the time it was written the facts presented in the article were accurate (§ 28). The Court claims, however, that “the courts referred to the fact that a retraction should have been published once the applicant had become aware of the error contained in the article” (§ 29). We do not find such a limited approach in the domestic judgments quoted, where the main reference is to the notification by the father. At the time of that notification, as the present judgment clearly states, the contested information was correct. Moreover, the plaintiff in the domestic proceedings at no point requested rectification, even though he had thirty days to avail himself of that remedy. Instead he asked for damages for the defamation contained in the original publication which informed about the position of the police. The injured party initiated an action for damages as the original publication had allegedly damaged his reputation. During the proceedings it was shown that the police made a mistake. The injured party did not alter his plea and did not request rectification. Nevertheless, the journalist was ordered to pay damages for reputational injury for what he had failed to do during the proceedings, where he had not even been asked to act in any given manner. Furthermore, we also entertain serious doubts about the assumption that journalists have a duty of rectification whenever they become aware of an error in their article, especially if that error is not of their making. Such a duty is even more problematic in the absence of any request for a rectification when the error becomes known (if it really is an error on the part of the journalist, a very big “if” in this case).

However, our major concern is that the judgment, which seems to endorse the above-mentioned position, departs from the clear case-law of this Court. In the present case, the Court allegedly relies on a concept of “responsible journalism” with reference, mutatis mutandis, to “Pentikäinen v. Finland [GC], no. 11882/10, § 90, 20 October 2015 and the case-law cited therein)”. More specifically, the Court refers to the duty of the journalist (or newspaper) to enable a defamed person to present his or her reply in a manner compatible with the editorial practice of the newspaper concerned (see Kaperziński v. Poland, no. 43206/07, § 66, 3 April 2012). Needless to say, in the present case the right of reply was allowed, so the Kaperziński requirement of responsible journalism was satisfied. But perhaps there is something else in the general principles of Pentikäinen (even if it is quoted without going into specifics, mutatis mutandis) that justifies the non-violation of Article 10. The “case-law cited” in Pentikäinen is Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999-III; Fressoz and Roire v. France [GC], no. 29183/95, § 54, and so on.

Fressoz and Roire § 54 reads as follows:

“In essence, that Article [Article 10] leaves it for journalists to decide whether or not it is necessary to reproduce such documents to ensure credibility. It protects journalists’ right to divulge information on issues of general interest provided that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism (see, in particular, the Goodwin judgment cited above, p. 500, § 39; the Schwabe v. Austria judgment of 28 August 1992, Series A no. 242-B, p. 34, § 34; and, as an example of a finding to the contrary on the facts, Prager and Oberschlick v. Austria, 26 April 1995, Series A no. 313, p. 18, § 37).”

It is true that Pentikäinen (§ 90) uses a formula that may be seen as a slight and most unfortunate departure from the traditional position of this Court in matters of journalistic responsibilities[1].

“The Court also reiterates that the protection afforded by Article 10 of the Convention to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism (see, mutatis mutandis, Bladet Tromsø and Stensaas v. Norway [GC], cited above, § 65; Fressoz and Roire v. France [GC], no. 29183/95, § 54,...etc.)”

Pentikäinen also adds a new element (not taken into consideration by the Court, and not even cited in the present case), namely the lawfulness of the journalist’s behaviour: “the fact that a journalist has breached the law in that connection is a most relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly.” There can be no doubt that there is no issue with regard to this “most relevant” consideration: the journalist acted lawfully.

It is undeniable that the text of Fressoz and Roire is not fully reproduced in Pentikäinen (§ 90). The relevance of an accurate factual basis was omitted and, “in accordance with the ethics of journalism”, was replaced with “tenets of responsible journalism”. This is regrettable, especially as there are no reasons given. But in the absence of a specific statement to the contrary and in view of the direct reference to the earlier texts of the leading cases we see no reason to assume that the previous standards and case-law have been abandoned or reinterpreted in any way or sense. The role of the Court remains the same. It has to:

“examine whether the journalist who wrote the impugned article acted in good faith and in accordance with the ethics of the profession of journalist. In the Court’s view, this depends in particular on the nature and degree of the defamation at hand, the manner in which the impugned article was written and the extent to which the applicant newspaper could reasonably regard its sources as reliable with respect to the allegations in question. The latter issue must be determined in light of the situation as it presented itself to the journalist at the material time, rather than with the benefit of hindsight (see Bladet Tromsø and Stensaas, cited above, § 66, Flux v. Moldova (no. 6), no. 22824/04, § 26, 29 July 2008).”

There can be no question about the good faith of the article, which provided reliable information on the search and the reasons it was carried out. This is correct factual information. The only thing added to the information is that it has assumed that the wanted person was a fugitive. This was a logical conclusion drawn from the suspect’s absence, in order to describe the legal situation. Journalism is not stenography; if such comments are not allowed, official press communiques will replace the press.

The source (the police) was to be considered reliable.

In the most controversial Flux v. Moldova (no. 6) judgment even the majority would have accepted that the publication of a reply is a measure complying with the responsibilities dictated by journalistic ethics. Further, the present case does not involve someone being charged with criminal acts in the absence of a factual basis at the material time (see Bladet Tromsø and Stensaas, § 66). At the material time the information was correct. It accurately reported the facts of the police search. The injured party could have asked the police for a rectification (possibly at their own expense) after the search had been called off. Arguably he could also have asked the newspaper after the cancellation of the search, but he failed to do so, even during the criminal procedure. We cannot see why it should be a matter of journalistic ethics to provide rectification ex officio and proprio motu where the police mistake comes to the journalist’s attention in a criminal case against him. Of course, we would have given thought to that possibility had the Court given us reason to believe that such an obligation exists.

The Bladet Tromsø test requires us to consider the nature of the defamation. It was grave but inevitable and certainly not caused by the press which acted as a messenger in a matter of public interest (note that the burglary had targeted the headquarters of a political party).

The majority position is even more surprising if one compares the facts and the reasoning in the present case with that of a number of judgments concerning Romania. See for all Barb v. Romania, no. 5945/03, 7 October 2008 and further case-law cited there.

To our regret we observe time and again that the concept of responsible journalism (in the present case in the framework of a non sequitur) results in undermining freedom of the press. And this case is no exception! While there are responsibilities attached to all professional activities, when it comes to the press, the reference to responsible journalism is disturbing, just as when the little adjective “socialist” was added to democracy.

Responsible journalism is far too often equated with self-censorship, or is perhaps used as a judicial tool to enforce self-censorship. We do not intend to use that tool.

 




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[1]  The term “responsible journalism” was used in 2007 in Flux and Samson v. Moldova, no. 28700/03, 23 October 2007 to explain what is said in Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 63, ECHR 1999-III). It was shorthand for judicial respect for journalistic ethics. In Stoll v. Switzerland [GC], no. 69698/01, ECHR 2007-V, it was used to emphasise that there is no full immunity for journalists in the name of journalistic freedom in matters of criminal responsibility. It seems that this idea was transposed to responsibility in general, and the fact that journalists cannot claim unlimited protection in criminal cases in the name of freedom of expression is now increasingly understood as imposing special duties on journalists in reporting in general in the civil context.