EHRM, 29-07-2008, nr. 22824/04

On 4 February 2003 the applicant newspaper published an article about the Spiru Haret High School. The article was not based on investigations by the newspaper's reporters but merely quoted an anonymous letter it had allegedly received from a group of students' parents. The letter criticised the situation in the school, in particular, overcrowding and a lack of proper facilities for children. It alleged that the school's principal used the school's funds for inappropriate purposes, spending money on decorating his office and building a separate bathroom for himself, launching a school newspaper which only published articles related to relationships and sex. It also alleged he had received bribes of 200–500 US dollars for enrolling children in the school and that the authors of the letter had been afraid to sign for fear of reprisal against their children.

On an unspecified date the principal and the editorial staff of the school newspaper asked Flux to publish a reply to the article of 4 February 2003; however, their request was rejected. They finally managed to have their reply published in another newspaper called the Jurnal de Chisinău.

In their reply they expressed dissatisfaction with the fact that Flux had failed to seek their side of the story before publishing an anonymous letter, and said that the manner in which Flux had acted had been contrary to journalistic ethics. In their view, the fact that Flux had published an anonymous letter without even visiting the school or conducting any form of investigation showed that its aim was purely sensationalism. It was true that the school was overcrowded, but that was a result of its popularity. Had the journalist from Flux visited the school, she would have noted that it was not only the principal's office that had been renovated, but many other parts of the school. As to the issue of bribes, it was far too serious an accusation to be published without any supporting evidence. The editorial staff of the school newspaper stressed that the anonymous letter had misinformed the readers by only citing certain articles and overlooking many others concerning such matters as sport, cultural events and school events.

On 14 February 2003 the applicant newspaper reacted to the reply published in the Jurnal de Chisinău by publishing a new article which stated¸ inter alia:

On an unspecified date the principal brought civil proceedings for defamation against the applicant newspaper, arguing that many statements in the above article were defamatory of him.

During the proceedings the applicant newspaper called three witnesses, including V.L., who testified that bribes were taken for the enrolment of children in Spiru Haret.

On 18 September 2003 the Buiucani District Court gave judgment for the principal, after finding the allegations of bribery to be untrue and defamatory. It concluded that the statements of the three witnesses called by the applicant newspaper were not sufficient to overturn the presumption of innocence enjoyed by the principal. It ordered the newspaper to issue an apology within fifteen days and to pay the principal 1,350 Moldovan Lei (MDL) (the equivalent of 88 euros (EUR) at the time). As to the witnesses called by the newspaper, it stated:

Both the applicant newspaper and the principal appealed against this judgment. The applicant newspaper contested the finding that the statement concerning bribery was defamatory, arguing that it had not directly accused the principal of bribe-taking, but had brought to the attention of the public the well-known phenomenon of bribe-taking in schools. The principal claimed that the statement concerning bribery was not the only defamatory statement in the article. On 23 December 2003 both appeals were dismissed by the Chişinău Court of Appeal, which found the applicant newspaper's submissions ill-founded. As to the principal's appeal, it stated that being a public figure, he had to be more tolerant to criticism.

The applicant newspaper lodged an appeal on points of law with the Supreme Court of Justice, arguing again, inter alia, that the purpose of the article was not to accuse the principal of taking bribes but simply to make public the rumours to that effect. It submitted that the circulation of such rumours had been confirmed by witnesses. Penalising the newspaper for the lack of a criminal court judgment against the principal was disproportionate and unnecessary in a democratic society. Moreover, the newspaper had simply disseminated statements made by third parties.

On 31 March 2004 the Supreme Court of Justice dismissed its appeal.

The relevant provisions of the Civil Code in force at the material time read:

The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 4 above), the Court will immediately consider the merits of these complaints.

The applicant newspaper argued that it had abided by the rules of ethical journalism and that the domestic courts had not found otherwise. It had conducted a reasonable investigation before publishing the article. The journalist concerned had verified the authenticity of the anonymous letter and followed the events in Spiru Haret High School after its publication. The journalist knew the identities of the authors of the letter, but had not disclosed them in order to protect their children. The journalist had met V.L. and other persons to collect additional information concerning the allegations of corruption contained in the anonymous letter.

The applicant newspaper added that the article of 14 February 2003 had to be treated as a continuation of that of 4 February 2003, which had raised issues of clear public interest, namely the conditions of study at a famous Chişinău high school and alleged corruption in that institution.

The refusal by the applicant newspaper to publish the principal's reply to the first article did not indicate bad faith. It was based on the offensive nature of the reply. It had asked the principal to modify the reply but in view of his refusal to do so, the reply was not published.

The article of 14 February 2003 was a response to the article that had appeared in the Jurnal de Chişinău and was aimed at protecting the newspaper's reputation. Moreover, the principal was a public figure, a fact confirmed by the domestic courts, and the applicant newspaper was performing its duty to act as a ‘public watchdog’.

The Government argued that the applicant newspaper had failed to perform the duties and assume the responsibilities inherent in the exercise of freedom of expression. In particular, it had failed to verify the information before publication and the manner in which the article was written was incompatible with the public watchdog role of the press.

They further pointed to the national authorities' margin of appreciation in assessing the need for interference and submitted that where the Convention referred to domestic law it was primarily the task of the national authorities to apply and interpret that domestic law. They contended that in the present case the domestic authorities had not overstepped their margin of appreciation and had made use of it in good faith, carefully and reasonably.

The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and the safeguards to be afforded to the press are of particular importance. Not only does the press have the task of imparting information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ‘public watchdog’ (see, among other authorities, the Observer and Guardian v. the United Kingdom, judgment of 26 November 1991, Series A no. 216, pp. 29–30, § 59).

Article 10 of the Convention does not, however, guarantee wholly unrestricted freedom of expression even in respect of coverage by the press of matters of serious public concern. Where, as in the present case, there is question of attacking the reputation of individuals and thus undermining their rights as guaranteed in Article 8 of the Convention (see, inter alia, Pfeifer v. Austria, no. 12556/03, § 35, ECHR 2007-…), regard must be had to the fair balance which has to be struck between the competing interests at stake. Also of relevance to the balancing exercise which the Court must carry out in the present case is that, under Article 6 § 2 of the Convention, everyone has the right to be presumed innocent of any criminal offence until proved guilty.

Under the terms of paragraph 2 of Article 10, the exercise of freedom of expression carries with it ‘duties and responsibilities’ which also apply to the press. By reason of these ‘duties and responsibilities’, which are inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999-III). The Court will 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).

The Court notes that the applicant newspaper made attempts during the domestic proceedings to present the impugned statements not as a direct accusation of bribe-taking by the principal of Spiru Haret, but as an attempt to bring to the attention of the public the phenomenon of bribe-taking in schools (see paragraph 12 above). The Court finds this argument unconvincing and considers that in both the first and second articles the allegations were sufficiently explicit to suggest to readers that the principal was guilty of the criminal offence of bribe-taking.

The Court agrees with the applicant's representative that the articles of 4 and 14 February 2003 cannot be dissociated from one another (see paragraph 19 above) and therefore considers it important to examine the professional conduct of the applicant newspaper in the context of both articles.

It notes that despite the seriousness of the accusations made against the principal contained in the anonymous letter published on 4 February 2003, the journalist made no attempt to contact him and ask his opinion on the matter. Nor does it appear from the text of the article that the journalist conducted any form of investigation into the matters mentioned in the anonymous letter. Moreover, when the principal and the editorial staff of the school newspaper requested the right to publish a reply, this was refused on the ground that their reply was considered offensive. Having regard to the terms of the reply published in the Jurnal de Chişinău, the Court does not find the language used offensive. The principal did accuse the applicant newspaper of unprofessional conduct but such reaction was only normal and proportionate to the content of the first article.

In response to the principal's reply, the applicant newspaper published a further article on 14 February 2003. It argued before the Court that the purpose of that article was to discuss issues of public interest (see paragraph 19 above); however, in view of the repetition of some of the accusations made against the principal taken from the article of 4 February 2003 and of the language used, the Court regards this article more as a form of reprisal against the persons who had questioned the newspaper's professionalism. Indeed, the tone of the article indicates a degree of mockery and the article contains innuendo about an alleged personal relationship between the principal and a teacher, without any evidence of such or regard to the reputation and authority which school teachers must have in the eyes of their pupils.

The applicant newspaper endeavoured to repair an omission it had made in the first article by citing hearsay evidence to back up its accusation of bribe-taking. It was only when faced with the threat of civil proceedings that it called two additional witnesses in an attempt to lend substance to its allegations of bribe-taking. In the course of adversarial proceedings, the Buiucani District Court did not accept the applicant newspaper's arguments and evidence and found the allegations to be untrue and defamatory. The Court would underline that it does not accept the reasoning of the first-instance court, namely that the allegations of serious misconduct levelled against the claimant should have first been proved in criminal proceedings. Nevertheless, it should be stressed that the right to freedom of expression cannot be taken to confer on newspapers an absolute right to act in an irresponsible manner by charging individuals with criminal acts in the absence of a basis in fact at the material time (see Bladet Tromsø and Stensaas, cited above, § 66) and without offering them the possibility to counter the accusations. There are limits to their right to impart information to the public, and a balance must be struck between that right and the rights of those injured.

The Court has, in addition, had regard to the unprofessional behaviour of the applicant newspaper and the relatively modest award of damages which it was required to pay in the context of a civil action.

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 newspaper.

In view of the above and of the fact that the applicant newspaper acted in flagrant disregard of the duties of responsible journalism and thus undermined the Convention rights of others, the interference with the exercise of its right to freedom of expression was justified. Accordingly, there has been no violation of Article 10 of the Convention.