EHRM, 14-02-2008, nr. 36207/03

The applicant is a journalist by profession. At the relevant time she was employed as a reporter at 24 Hours, one of the leading national daily newspapers. She continues to work there at present.

Following a serious banking crisis in 1996–97, during which a number of banks were sunk into insolvency by, inter alia, non-performing and unsecured loans extended to corporate and individual clients, the Bulgarian legislature enacted a comprehensive package of bank reform legislation (see Capital Bank AD v. Bulgaria, no. 49429/99, § 45, 24 November 2005). Part of that package was the Information on Non-Performing Credits Act of 1997 (‘Закон за информация за необслужвани кредити’), which stipulated that the Bulgarian National Bank should compile a list of all bank borrowers with loans that had been due for more than six months, send this list to the Chief Prosecutor's Office, the Ministry of Internal Affairs, the tax and customs authorities, and the National Assembly, and publish it in a special bulletin. The persons on this list were colloquially referred to as ‘credit millionaires’.

On 21 January 1998 the head of the banking supervision department of the Bulgarian National Bank presented the list to the chairman of the National Assembly.

Between 1994 and 1997 Mr M. D. was a Member of Parliament elected on the ticket of the political party Movement for Rights and Freedoms. He was deputy chairman of the Economy Committee and a member of the Budget and Finance Committee of the National Assembly. In the spring of 2001 he became involved with the newly formed coalition National Movement Simeon II, which won the parliamentary elections on 17 June 2001. During the 1990s Mr M. D. was a member of and shareholder in a number of commercial companies. Between 1995 and 2001 his name was mentioned in at least twenty-four reports in national newspapers.

On 22 January 1998 Trud, a leading national daily newspaper, published an article under the headline ‘Credit millionaires disclosed’ and the caption ‘Several incumbent and former members of Parliament appear on the list’. In the article the newspaper reported on the handover of the list of ‘credit millionaires’ to the chairman of the National Assembly the previous day and mentioned, inter alia, that several companies connected with the name of Mr M. D. were on the list. According to the article, the company Maxcom Holding owed 3.2 billion old Bulgarian levs (BGL) to one bank, the company FBK Maxcom owed BGL 9.4 billion to another bank, and the company Maxcom OOD was indebted in an amount of BGL 7.8 billion.

On 30 January 1998 Mr M. D. issued civil libel proceedings against the publisher of Trud, Media Holding AD. He said that the allegation made in the article that he was a ‘credit millionaire’ was not true. He further averred that this allegation seriously tarnished his reputation as a public figure and a Member of Parliament. He sought BGL 10,000,000 in non-pecuniary damages.

In a judgment of 9 January 1999 the Sofia City Court dismissed the action. It held that Mr M. D.'s allegations had not been supported by any evidence and were therefore unsubstantiated. Neither party had attended either of the hearings in the case. Mr M. D. had not sought leave to adduce any evidence. He had therefore not proven his claim that he had suffered any damage on account of the impugned article. Apparently Mr M. D. did not appeal and the judgment entered into force on 9 March 1999.

The Court considers that this complaint, being closely linked with the complaint under Article 10 of the Convention (see paragraph 46 below), 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.

The Court starts with the general observation that it is not its function to deal with errors of fact or law allegedly committed by the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I), as it is not a court of appeal from these courts (see, among many other authorities, Cornelis v. the Netherlands (dec.), no. 994/03, ECHR 2004-V (extracts)). Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz, cited above, ibid.). In addition, a requirement for defendants in defamation proceedings to prove to a reasonable standard that the allegations made by them were substantially true does not, as such, contravene the Convention (see McVicar v. the United Kingdom, no. 46311/99, § 87, ECHR 2002-III; and Steel and Morris v. the United Kingdom, no. 68416/01, § 93, ECHR 2005-II).

Turning to the specific allegations made by the applicant, the Court notes the following.

The applicant found fault with the Sofia District Court's failure to gather evidence on and establish whether Mr M. D. had indirectly been a member of Vitaplant OOD — a company featuring on the list compiled by the Bulgarian National Bank (see paragraphs 6, 25 and 26 above). However, the Court notes that this omission was rectified on appeal. The Sofia City Court admitted evidence on this point and found that Mr M. D. had indirectly participated in that company. However, it went on to hold that this indirect participation had not rendered the applicant's statement non-defamatory, as her statement that Mr M. D. was a ‘credit millionaire’ had been made on the basis of his alleged ownership of three other companies (see paragraphs 29 and 30 above). The Court cannot countenance a challenge to this ruling, which it does not find arbitrary.

The applicant further criticised the Sofia District Court's failure to summon the Member of Parliament as witnesses of its own motion (see paragraph 25 above). However, according to the Court's settled case-law, Article 6 § 3 (d) leaves it to the national courts to assess whether it is appropriate to call witnesses (see, among many other authorities, Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003-V). Seeing that the applicant did not name this Member of Parliament, the national court can hardly be criticised for not calling him to the witness stand. In any event, in view of the grounds on which the applicant was found guilty, it does not appear that his testimony would have been decisive for her conviction or acquittal (ibid., §§ 31 and 32).

In so far as the applicant complained about the manner in which the Sofia District Court and the Sofia City Court had assessed the evidence and had established the facts, as well as about the manner in which the Sofia City Court had interpreted her duty to carry out a proper journalistic enquiry, the Court observes that it is not its function to deal with errors of fact or law allegedly committed by a national court (see paragraph 39 above). It does not consider that the domestic court's judgments were arbitrary and reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among many other authorities, Thorgeir Thorgeirson v. Iceland, judgment of 25 June 1992, Series A no. 239, p. 25, § 58; and Casado Coca v. Spain, judgment of 24 February 1994, Series A no. 285-A, p. 18, § 43).

In the light of the above considerations, the Court does not consider that the proceedings against the applicant were unfair.

There has therefore been no violation of Article 6 §§ 1 and 3 (d) of the Convention.

The Court considers that this complaint 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.

It is not in dispute between the parties that the applicant's conviction constituted an interference by a public authority with her right to freedom of expression. The Court sees no reason to hold otherwise. Such interference will breach the Convention if it fails to satisfy the criteria set out in the second paragraph of Article 10. The Court must therefore determine whether it was ‘prescribed by law’, pursued one or more of the legitimate aims listed in that paragraph and was ‘necessary in a democratic society’ to achieve that aim or aims.

The Court finds, and this was not disputed, that the interference was ‘prescribed by law’, the applicant's conviction having been based on Articles 147 and 148 of the Criminal Code (see paragraphs 26, 32 and 33 above). The Court further finds that the interference pursued one of the legitimate aims set out in paragraph 2 of Article 10: the protection of ‘the reputation or rights of others’, namely of Mr M. D.

It remains to be established whether the interference was ‘necessary in a democratic society’. In this respect, the following general principles emerge from the Court's case-law (see, as a recent authority, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, §§ 68–70 and 76 in limine, ECHR 2004-XI, with further references):

The Court notes that in the instant case the applicant, a newspaper journalist, was convicted and punished for having written an article (see paragraphs 5, 12 and 14 above). The case therefore concerns in particular the freedom of the press. The Court has emphasised on numerous occasions the essential role played by the press in a democratic society. It has pointed out that, although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is to impart — in a manner consistent with its obligations and responsibilities — information and ideas on all matters of public interest, and that not only does the press have the task of imparting such information and ideas, the public also has a right to receive them. The national authorities' margin of appreciation is thus circumscribed by the interest of a democratic society in enabling the press to play its vital role of ‘public watchdog’ (see, as a recent authority, Radio France and Others v. France, no. 53984/00, § 33, ECHR 2004-II, with further references).

The Court also notes that the article in issue in the present case was reporting facts relating to the candidacy of a well-known politician (see paragraph 8 above) for the position of deputy Minister of Finance. The matter was apparently considered serious enough to warrant a meeting of the ruling coalition's parliamentary group (see paragraph 12 above). There can be no doubt that this was a question of considerable public interest and that the broadcasting of information about it formed an integral part of the task allotted to the media in a democratic society (ibid., § 34).

It should further be observed that, being a politician and a candidate for public office, Mr M. D. had inevitably and knowingly laid himself open to public scrutiny (see Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 26, § 42; and Oberschlick v. Austria (no. 1), judgment of 23 May 1991, Series A no. 204, p. 26, § 59), in particular as regards issues touching on his financial integrity.

Article 10 of the Convention does not, however, guarantee wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern and of political figures. Under the terms of paragraph 2 of the Article the exercise of this freedom carries with it ‘duties and responsibilities’, which also apply to the press. These ‘duties and responsibilities’ are liable to assume significance when, as in the present case, there is a question of attacking the reputation of named individuals and undermining the ‘rights of others’. By reason of the ‘duties and responsibilities’ 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, mutatis mutandis, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999-III).

The statement that Mr M. D. featured on the list compiled by the Bulgarian National Bank through his ownership of three specifically named companies was clearly an allegation of fact and as such susceptible to proof (see, among many other authorities, McVicar, § 83; Steel and Morris, §§ 90 in fine and 94, both cited above; and Panev v. Bulgaria, no. 35125/97, Commission decision of 3 December 1997, unreported). Unlike the remainder of the article, that statement was phrased in a way which left no doubt that it emanated from the applicant, not from the Members of Parliament who had tipped her off on doubts relating to Mr M. D.'s candidacy for deputy Minister of Finance. It was couched in terms which suggested that the information provided by the applicant was directly based on the official list drawn up by the Bulgarian National Bank, not on other publications, such as that of Trud (see paragraph 14 above). It cannot therefore be said that the applicant was reporting what others had said and had simply omitted to distance herself from it (see, mutatis mutandis, Radio France and Others, cited above, § 38; Thoma v. Luxembourg, no. 38432/97, §§ 63 and 64, ECHR 2001-III; and Pedersen and Baadsgaard, cited above, § 77). Having adopted the offending allegations as her own, she was liable for their truthfulness.

As already noted (see paragraph 41 above), in the ensuing proceedings the applicant was allowed to adduce evidence of the truth of her averment (see, by contrast, Colombani and Others v. France, no. 51279/99, § 66, ECHR 2002-V). In view of the nature of that averment, that task was not unreasonable or impossible (see, by contrast, Thorgeir Thorgeirson, cited above, p. 28, § 65in fine). However, she was only able to prove that Mr M. D. featured on the Bulgarian National Bank's list through the company Vitaplant OOD, not through the companies Maxcom Holding, FBK Maxcom and Maxcom OOD, cited in the article (see paragraphs 14, 25, 29 and 30 above). The Sofia City Court held that this did not render her statement non-defamatory, because it was one thing to allege that an individual was a ‘credit millionaire’ because of his indirect involvement in one company and quite another to say that he fully owned three companies which appeared on the bad debtors' list. The Court sees no reason to question that finding.

The Court must further examine whether the research done by the applicant before the publication of the untrue statement of fact was in good faith and complied with the ordinary journalistic obligation to verify a factual allegation. The Court's case-law is clear on the point that the more serious the allegation is, the more solid the factual basis should be (see Pedersen and Baadsgaard, cited above, § 78in fine). The applicant's allegation appears quite serious (see, mutatis mutandis, Thoma, cited above, § 57) and therefore required substantial justification, especially seeing that it was made in a popular and high-circulation national daily newspaper (see paragraphs 5 and 18 above). The Court notes on this point that the domestic courts unequivocally found that the applicant had not sufficiently verified her information prior to its publication. These courts established that in her desire to get the news out quickly she had failed to consult trustworthy sources, preferring to rely on sources which could not, according to best journalistic practice, be deemed dependable (see paragraphs 26 and 30 above). The Court sees no reason to reach a different conclusion.

Special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations (see, among other authorities, McVicar, § 84; and Pedersen and Baadsgaard, § 78, both cited above). The Court notes on this point that the preface of Trud's publication clearly did not amount to an official report. The applicant was accordingly not entitled to rely on it unconditionally, (see, by contrast, Bladet Tromsø and Stensaas, §§ 66, 68, 71 and 72; and Colombani and Others, § 65, both cited above). Nor could she unreservedly rely on the informal statements made by two Members of Parliament in the National Assembly lobby. That conclusion does not change even if the situation is examined as it presented itself to the applicant at the material time rather than with the benefit of hindsight (see Bladet Tromsø and Stensaas, cited above, §§ 66 in fine and 72). The domestic courts, which specifically dealt with this point, found that, even if the ‘time and means available to a journalist in a daily newspaper for a proper enquiry concerning a current issue [we]re greatly limited’, the applicant had still not adequately verified the facts from reliable sources and had thus failed to comply with the customary rules of investigative journalism, publishing facts which she knew or ought to have known were dubious (see paragraphs 26 and 30 above). The Court sees no reason to hold otherwise. Nor does it consider that the applicant was dispensed on other grounds from properly verifying her information.

It is true that shortly after its publication the offending article was amended because of the complaint by Mr M. D. (see paragraph 17 above). However, the amendment did not detract from the fact that the article's original version had been made known to a considerable number of readers (see, mutatis mutandis, Radio France and Others, cited above, §§ 35 and 38 in fine). It is also true that two days later the newspaper published Mr M. D.'s response (see paragraph 19 above). However, this response, while indicative of the newspaper's willingness to rectify the situation, did not fully wipe out the damage inflicted on Mr M. D.'s reputation. In any event, these developments, which took place only after the newspaper and the applicant had been made aware of the defamatory nature of the allegations, do not show that the applicant was concerned with verifying their truth or reliability to a high standard before writing her article (see McVicar, cited above, § 86).

In assessing the necessity of the interference, it is also important to examine the way in which the domestic courts dealt with the case, and in particular whether they applied standards which were in conformity with the principles embodied in Article 10 of the Convention (see paragraph 57 above). A perusal of the judgments by the Sofia District Court and the Sofia City Court (see paragraphs 26 and 30 above) reveals that they fully recognised that the present case involved a conflict between the right to impart information and protection of the reputation or rights of others, a conflict they resolved by weighing the relevant considerations.

Having regard to the foregoing, the Court is satisfied that the reasons adduced by the national courts for convicting the applicant were relevant and sufficient within the meaning of its case-law. In this connection, the Court observes that it is unable to follow the applicant's argument that the very use of criminal-law sanctions in defamation cases is in violation of Article 10. In view of the margin of appreciation left to Contracting States by that provision, a criminal measure as a response to defamation cannot, as such, be considered disproportionate to the aim pursued (see Radio France and Others, cited above, § 40; and Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 59, ECHR 2007-…). Nor is it contrary to the Convention to require the defendant to prove, to a reasonable standard, that her allegations were substantially true (see paragraph 39 above). It should also be observed that the proceedings were instituted on the initiative of Mr M. D., not by a State authority (see, by contrast, Raichinov v. Bulgaria, no. 47579/99, § 50in fine, 20 April 2006), and that, though they started as criminal, they ended with a mere administrative punishment (see paragraphs 26 and 34 above).

The Court must finally ensure itself that the penalty to which the applicant was subjected did not upset the balance between her freedom of expression and the need to protect Mr M. D.'s reputation (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 111, ECHR 2004-XI). It considers that the sanction imposed on the applicant — an administrative fine of BGN 5001., plus an order to pay Mr M. D. compensation amounting to BGN 2,0002. and to reimburse his costs (BGN 5503.) — does not, in the specific circumstances of the case, appear excessive. The Court attaches particular weight to the fact that, as already noted, after convicting the applicant, the Sofia District Court waived her criminal liability and imposed an administrative punishment, opted for the minimum fine possible, taking into account the applicant's earnings and certain other mitigating circumstances, and refrained from ordering the applicant's occupational disqualification (see paragraphs 26 and 34 above and compare and contrast Cumpǎnǎ and Mazǎre, cited above, §§ 37, 112, 113 in fine and 118). It also awarded only one fifth of the damages sought by Mr M. D. and gave cogent reasons for its ruling on this point (see paragraphs 22 and 26 above), in line with this Court's case-law that an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered (see Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316-B, pp. 75–76, § 49; and Steel and Morris, cited above, § 96). The fact that the court ordered the applicant to pay Mr M. D.'s costs, which were not unreasonably high, was not disproportionate either (see McVicar, cited above, § 81).

In sum, in view of the reasons adduced by the national courts for convicting the applicant and of the relative lenience of the punishment imposed on her, the Court is satisfied that the authorities did not overstep their margin of appreciation.

There has therefore been no violation of Article 10 of the Convention.