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FIFTH
SECTION
CASE OF
EDITORIAL BOARD OF PRAVOYE DELO AND SHTEKEL v. UKRAINE
(Application
no. 33014/05)
JUDGMENT
STRASBOURG
5 May 2011
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 Editorial Board of
Pravoye Delo and Shtekel v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel Jungwiert,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Ann
Power,
Ganna Yudkivska, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 5 April 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33014/05) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by the editorial board of the newspaper Pravoe
Delo (“the first applicant”) and a Ukrainian national
Mr Leonid Isaakovich Shtekel (“the second applicant”) on
22 August 2005.
- The
applicants were represented before the Court by Ms L. V. Opryshko,
a lawyer practising in Kyiv. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr Y. Zaytsev,
of the Ministry of Justice.
- On
13 October 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first applicant is the editorial board of Pravoe Delo, a
newspaper officially registered in
Odessa in May 2000. The second applicant
is the editor-in-chief of Pravoe Delo. He lives in Odessa.
- At
the material time Pravoe Delo
was a local newspaper published three times a week with a circulation
of 3,000 copies. It published reports and material on
political and social matters in Ukraine and, in particular, the
Odessa Region. Due to lack of funds, the newspaper often reprinted
articles and other material obtained from various public sources,
including the Internet.
- On
19 September 2003 Pravoe Delo
published an anonymous letter allegedly written by an employee of the
Security Service of Ukraine, which the second applicant’s
colleague, Ms I., had downloaded from a news website. The letter
contained allegations that senior officials of the Odessa Regional
Department of the Security Service had been engaging in unlawful and
corrupt activities, and in particular that they had connections with
members of organised criminal groups. One of the paragraphs of the
letter read as follows:
“... The Deputy Head of [the Odessa
Regional Department of the Security Service] [I. T.], a close
friend and assistant of the Head of the Department P., established
‘business’ contacts with [the organised criminal group]
of [A. A.] ... A member of [the organised criminal group G. T.], an
agent of [A. A.], who is in charge of the main areas of activities of
the gang: [he is] a coordinator and sponsor of murders, [he] meets
with [I. T.] and resolves financial issues for the top officials of
the Department of [the Security Service] in the Odessa Region ...”
- The
letter was followed by these comments, prepared by Ms I. on
behalf of the editorial board:
“When publishing this letter without the knowledge
and consent of the editor-in chief, I understand that I may not
only face trouble ... but I may also create problems for the
newspaper. Because, if this letter is [misinformation], then [the
media], in which it appears may be endangered. On the other hand, if
this letter is genuine, then its author faces a higher risk. Besides,
given that this anonimka [anonymous letter] has already been
published on the Odessa website Vlasti.net (to which we refer, in
accordance with their requirement), we have the blessing of God [to
publish it]. We are proceeding on the understanding that, in
accordance with the Act on democratic civil control over the military
organisation and law-enforcement organs of the State, we are carrying
out civil control and, pursuant to section 29 of the Act, we would
like to receive open information concerning the facts described in
this letter from the relevant authorities. Moreover, [it is to be
noted] that the Department of [the Security Service] in the Odessa
Region did not react to an analogous publication in the Top Secret
[newspaper] ... I remind [you] that the [Pravoe Delo]
newspaper ... is widely open for letters in reply and comments from
all interested agencies.”
- In
October 2003 G. T., who at the time lived in Odessa and was the
President of the Ukraine National Thai
Boxing
Federation, lodged a defamation claim with the Prymorskyy District
Court of Odessa against the applicants. G. T. alleged that the
information in the Pravoe Delo
issue of 19 September 2003 concerned him, that it
was untrue and had damaged his dignity and reputation. He asked the
court to order the applicants to publish a retraction and an apology
and to pay him compensation for non-pecuniary damage in the amount of
200,000 Ukrainian hryvnias (UAH).
- The
applicants first argued before the court that they were not
responsible for the accuracy of the information contained in the
material that they had published, as they had reproduced material
published elsewhere without any modifications. The publication
contained a reference to the source of the material and was followed
by comments explaining the editors’ position regarding the
material and inviting comments from the persons and bodies concerned.
The applicants also submitted that, if the court were to award G. T.
the amount of compensation he had claimed, the newspaper would become
insolvent and would have to close.
- Subsequently,
at a hearing on 24 April 2004, the second applicant stated that the
article was not about the claimant and that its wording did not
necessarily establish that it was a particular “G. T.”
who was being referred to.
- On
7 May 2004 the court ruled against the applicants. It found that the
information at issue did concern the claimant, who was a public
figure involved in public activities in the Odessa Region and had
represented Ukraine at sports events abroad in his capacity as the
President of the Ukraine National Thai
Boxing
Federation. In that context, the court noted that this had not
been contested by the applicants in their initial submissions and
that the publication was about the activities of the Security Service
in the Odessa Region. The court further held that the content was
defamatory and that the applicants had failed to prove that it was
truthful. It found no grounds to release the applicants from civil
liability under section 42 of the Press Act, as the internet site to
which the applicants referred was not printed media registered
pursuant to section 32 of the Press Act.
- The
court ordered the first applicant to publish a retraction of the
following content of the publication:
“... A member of [the organised criminal group G.
T.], an agent of [A. A.], who is in charge of the main areas of
activities of the gang: [he is] a coordinator and sponsor of murders,
[he] meets with [I. T.] and resolves financial issues for the top
officials of the Department of [the Security Service] in the Odessa
Region ...”
- The
court further ordered the second applicant to publish an official
apology in the newspaper.
- In
determining the amount of compensation to be paid to the claimant,
the court considered the submissions of the latter and the
information concerning the financial situation of the newspaper. It
noted that its gross annual income was about UAH 22,000
and found it reasonable to order the applicants jointly to pay G. T.
UAH 15,000
for non pecuniary damage. The applicants were also ordered to
pay to the State Budget UAH 750
in court fees.
- The
applicants appealed. They maintained the submissions they had made
before the first-instance court and also contended that the editorial
board had not been registered as a legal entity pursuant to the
relevant regulations on registration of the media and that the second
applicant had not been appointed as editor-in-chief in accordance
with the law. Thus, in their view, they could not take part in the
proceedings.
- The
applicants further argued that invoking their civil liability was
contrary to section 41 of the Press Act and section 17 of the Act on
the State support of mass media and social protection of journalists,
stating that they had not intended to defame G. T. and that, by
publishing the material, they had wished to promote public discussion
of the issues raised in that material which were of the
high public interest. According to them, it was their duty to
disseminate the material and the public had the right to receive it.
- The
second applicant also submitted that he had not authorised the
publication of the material at issue and that the legislation did not
provide for an obligation to apologise as a sanction for defamation.
- On
14 September 2004 and 24 February 2005, respectively, the Odessa
Regional Court of Appeal and the Supreme Court rejected the
applicants’ appeals and upheld the judgment of the
first-instance court.
- On
3 July 2006 the applicants and G. T. concluded a friendly-settlement
agreement, pursuant to which the latter waived any claim in respect
of the amount of compensation under the judgment of 7 May 2004. The
applicants, on their part, undertook to cover all the costs and
expenses relating to the court proceedings and to publish in Pravoe
Delo promotional and informational materials at G. T.’s
request, the volume of which was limited to the amount of
compensation under the judgment.
- In
2008 the applicants discontinued publishing Pravoe Delo.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of Ukraine of 28 June 1996
- Relevant
extracts from the Constitution read as follows:
Article 32
“... Everyone is guaranteed judicial protection of
the right to rectify incorrect information about himself or herself
and members of his or her family, and of the right to demand that any
type of information be rectified, and also the right to compensation
for pecuniary and non-pecuniary damage inflicted by the collection,
storage, use and dissemination of such incorrect information.”
Article 34
“Everyone is guaranteed the right to freedom of
thought and speech, and to the free expression of his or her views
and beliefs.
Everyone has the right to freely collect, store, use and
disseminate information by oral, written or other means of his or her
choice.
The exercise of these rights may be restricted by law in
the interests of national security, territorial indivisibility or
public order, with the purpose of preventing disturbances or crime,
protecting the health of the population, the reputation or rights of
other persons, preventing the publication of information received
confidentially, or maintaining the authority and impartiality of
justice.”
B. Civil Code of 1963 (repealed with effect from 1
January 2004)
- Relevant
extracts from the Civil Code read as follows:
Article 7. Protection of honour, dignity and
reputation
“A citizen or an organisation shall be entitled to
demand in a court of law that material be retracted if it is not true
or is set out untruthfully, degrades their honour and dignity or
reputation, or causes damage to their interests, unless the person
who disseminated the information proves that it is truthful ...
A citizen or an organisation concerning whom material
that does not conform to the truth and damages their interests,
honour, dignity or reputation has been disseminated shall be entitled
to demand compensation for pecuniary and non-pecuniary damage as well
as a retraction of such information ...”
C. Civil Code of 2003 (in force from 1 January 2004)
- The
provisions of the Civil Code of 2003 pertinent to the case read as
follows:
Article 16
Protection of civil rights and
interests by a court
1. Every person
has the right
to apply to a court of law for the protection of
his/her ... right and interest.
2. The means for the
protection of civil rights and interests may include:
1) recognition of the
right;
2) declaration of nullity
of an act;
3) cessation of actions
violating the right;
4) restoration of the
situation which existed before the violation;
5) forced fulfillment of
an obligation;
6) modification of legal
relations;
7) discontinuance of legal
relations;
8) compensation of
[pecuniary] damage ...;
9) compensation of moral
(non-pecuniary) damage;
10) declaration of
unlawfulness of a decision, actions or inactivity of a State body ...
The court
may give
protection to the civil right or interest by other
means envisaged by a contract or law.
...”
Article 277
Retraction of untrue information
“1. A physical person whose
non-pecuniary rights have been infringed as a result of dissemination
of untrue information about him or her and (or) members of his or her
family, shall have the right to reply, and [the right to] the
retraction of that information.
...
3. Negative information disseminated about a
person shall be considered untrue if the person who disseminated it
does not prove the contrary.
4. Untrue
information shall be retracted by the person who disseminated the
information ...
5. If
the untrue information is contained in a document which has been
accepted (issued) by a legal entity, that document shall be recalled.
6. A
physical person whose non-pecuniary rights have been infringed in
printed or other mass media shall have the right to reply, and also
[the right to] the retraction of the untrue information in the same
mass media, in the manner envisaged by law...
Untrue information shall be retracted irrespective of
the guilt of the person who disseminated it.
7. Untrue
information shall be retracted in the same manner as it was
disseminated.”
D. Information Act of 2 October1992
- Relevant extracts from the Information Act provided,
as worded at the material time, as follows:
Section 20. Mass media
“Printed mass media are periodical prints (press)
– newspapers, magazines, bulletins – and occasional
prints with a set circulation.
Audiovisual mass media are radio, television, cinema,
audio, video records and so on.
The procedure of establishing ... of particular media
shall be determined by the laws concerning such media.”
Section 47. Liability for infringement of the
legislation on information
“...
Liability for infringement of the legislation on
information shall be borne by persons responsible for the following
infringements:
...
dissemination of information that does not correspond to
reality, defames the honour and dignity of a person ...”
Section 49. Compensation
for pecuniary and non-pecuniary damage
“If physical or legal persons
have suffered pecuniary or non-pecuniary damage caused by an offence
committed by an entity engaged in informational activities, those
responsible [for the offence] shall compensate [for the damage]
voluntarily or pursuant to a court decision
...”
E. Printed Mass Media (Press) Act of 16 November 1992
- Relevant
extracts from the Press Act provide:
Section 1. Printed
mass media (press) in Ukraine
“Printed mass media (press) in
Ukraine, as referred to in this Act, are [defined as] periodical and
continuing publications issued under a permanent name [at least] once
a year pursuant to a certificate of State registration ...”
Section 7. Entities
engaged in printed mass media activities
“Entities engaged in
printed mass
media activities
shall include
[their] founders
(or co-founders),
editors (or editors-in-chief),
editorial boards ...”
Section 21. Editorial board of the printed mass media
“The editorial board ... shall prepare and issue
printed mass media under the instructions of its founder (or
co-founders).
The editorial board shall act on the basis of its
organisational charter and shall implement the programme of the
printed mass media approved by its founder (or co founders).
The editorial board ... shall acquire the status of a
legal entity from the day of State registration, which shall be
carried out in accordance with the legislation of Ukraine.”
Section 21. Editor (editor-in-chief) of the printed
mass media
“The editor (or editor-in-chief) ... shall be the
head of the editorial board, authorised by the founder (or
co-founders).
The editor (or editor-in-chief) ... shall manage the
editorial board’s activities within his competence, as
envisaged by its organisational charter, shall represent the
editorial board in its relations with the founder (or co-founders),
the publisher, authors, State organs, associations of citizens, and
individual citizens, as well as before the courts and arbitration
tribunals and shall be responsible for compliance with the
[legislative] requirements as to the activities of the printed media,
its editorial board ...”
Section 26. State registration of the printed mass
media
“...All printed mass media in Ukraine shall be
subject to State registration, irrespective of the area of its
dissemination, circulation and the manner of its creation ...”
Section 32. Publishing data
“Every issue of printed mass media shall contain
the following publishing data:
(1) name of publication ...
Distribution of [publications] without publishing data
shall be prohibited.”
Section 37. Retraction of information
“Citizens, legal entities and State organs, and
their legal representatives shall have the right to demand that the
editorial board of the printed mass media publish a retraction of
information disseminated about them which does not correspond to
reality or defames their honour and dignity.
If the editorial board does not have any evidence that
the content published by it corresponds to reality, it must, if
requested by the claimant, publish a retraction of such information
in the next issue of the printed mass media or to publish the
retraction on its own initiative ...”
Section 41. Grounds for liability
“Editorial boards, founders, publishers,
distributors, State organs, organisations and associations of
citizens shall be liable for infringements of the legislation on the
printed mass media.
Infringements of Ukrainian legislation on the printed
mass media are:
1) violations envisaged by section 47 of the
Information Act ...
For such an infringement the guilty party shall be
brought to disciplinary, civil, administrative, or criminal liability
in accordance with the current legislation of Ukraine.
The journalist ... editor (or editor-in-chief) or other
persons with whose permission the material which violates this Act
has been published shall bear the same liability for abuse of the
freedom of the printed mass media as the authors of that material.”
Section 42. Indemnity from liability
“Editorial board and journalists are not liable
for the publication of material that does not correspond to reality,
defames the honour and dignity of citizens and organisations,
infringes the rights and lawful interests of citizens, or constitutes
abuse of the freedom of the printed mass media and the rights of
journalists if:
1) the information has been received from
news agencies or from the founder (co founders) [of that media
source];
2) the information is contained in a reply
given in accordance with the Information Act to a request for access
to official documents and to a request for written or oral
information;
3) the information is a verbatim reproduction
of official speeches of the officials of State organs, organisations
and associations of citizens;
4) the information is a verbatim reproduction
of material published by other printed mass media and contains a
reference to [the latter];
5) the information contains secrets that are
specifically protected by law, where the journalist has not obtained
this information unlawfully.”
F. State Support of Mass Media and Social Protection of
Journalists Act of 23 September 1997
- Relevant
extracts from the Act provide:
Section 17. Liability for trespass or other actions
against the life and health of a journalist and a journalist’s
liability for non-pecuniary damage caused by him
“... In the process of consideration by a court of
a dispute concerning non-pecuniary damage between a journalist or
mass media, as a defendant party, and a political party, electoral
bloc, [or] an office holder (or office holders), as a claimant, the
court may award compensation in respect of non-pecuniary damage only
if the journalist or officials of the media [acted] intentionally.
The court shall take into account the outcome of the use by the
claimant of extrajudicial, in particular pre-trial opportunities for
retraction of untrue material, defending of his honour and dignity
and reputation, and settlement of the entire dispute. Having regard
to the circumstances, the court may refuse compensation in respect of
non-pecuniary damage.
The intention of the journalist and/or official of the
media means his or their stance in regard to dissemination of
information when the journalist and/or official of the media are
aware of the untruthfulness of the information and have anticipated
its socially injurious consequences.
The journalist and/or the mass media shall be released
from liability for dissemination of the information that does not
correspond to reality if the court establishes that the journalist
acted in good faith and checked the information.”
G. Resolution of the Plenary Supreme Court of Ukraine
of 27 February 2009 on judicial practice in cases concerning the
protection of the honour and dignity of a physical person, and of the
reputation of a physical person and legal entity
- The
relevant extracts from the Resolution of the Plenary Supreme Court
read as follows:
“26. According
to Article 19 of the Constitution of Ukraine legal order in Ukraine
is based on [the principle] according to which no one shall be forced
to do what is not envisaged by the legislation. In its turn, Article
34 paragraph 1 of the Constitution of Ukraine guarantees everyone the
right to freedom of thought and speech, and to the free
expression of his or her views and beliefs.
A court has no power to oblige a respondent to apologise
to a claimant ... as forced apology is not envisaged by Articles 16
[and] 277 [of the Civil Code of 2003] as a means of judicial
protection of honour, dignity, [and] business reputation [in case of]
dissemination of untrue information.”
H. Judicial practice of the Supreme Court in cases
concerning the application of Articles 16 and 277 of the Civil Code
of 2003
- The
Supreme Court confirmed the Plenum’s approach in a defamation
case, having quashed the lower courts’ decisions by which a
respondent was ordered, inter alia, to apologise as not based
on law. In particular, the relevant extract of the Supreme Court’s
judgment (dated 17 June 2009) reads as follows:
“...
The court[s] are not entitled to oblige a respondent to
apologise to a claimant in one or another form, as Articles 16 [and]
277 [of the Civil Code of 2003] do not provide for forced apology as
a means of judicial protection of honour, dignity, [and] business
reputation [in case of] dissemination of untrue information;
compulsion of a person to change his/her beliefs is an interference
with the freedom of speech and expression guaranteed by the
Constitution of Ukraine and Article 10 of the Convention...”
II. Relevant
COUNCIL OF EUROPE AND international material
A. Recommendation CM/Rec(2007)16 of the Committee of
Ministers to member states on measures to promote the public service
value of the Internet
- At
their 1010th meeting on 7 November 2007 the Ministers’ Deputies
considered essential aspects of the use of new information and
communication technologies and services, in particular the Internet,
in the context of protection and promotion of human rights and
fundamental freedoms. They acknowledged the increasingly important
role the Internet was playing in providing diverse sources of
information to the public and the people’s significant reliance
on the Internet as a tool for communication.
- It
was noted however that the Internet could, on the one hand,
significantly enhance the exercise of human rights and fundamental
freedoms, such as the right to freedom of expression, while, on the
other hand, the Internet might adversely affect other rights,
freedoms and values, such as the respect for private life and secrecy
of correspondence and for the dignity of human beings.
- The
Ministers’ Deputies adopted recommendations to the Council of
Europe’s member States with regard to the governance of the
Internet. These included recommendation to elaborate a clear legal
framework delineating the boundaries of the roles and
responsibilities of all key stakeholders in the field of new
information and communication technologies and to encourage the
private sector to develop open and transparent self- and
co-regulation on the basis of which key actors in this field could be
held accountable.
B. Joint Declaration by the UN Special Rapporteur on
Freedom of Opinion and Expression, the OSCE Representative on Freedom
of the Media and the OAS Special Rapporteur on Freedom of Expression,
adopted on 21 December 2005
- The
growing importance of the Internet as a vehicle for facilitating in
practice the free flow of information and ideas was also recognised
in the Joint Declaration issued by Mr A. Ligabo, Mr M. Haraszti,
and Mr E. Bertoni. They stressed the need for strict
application of international guarantees of freedom of expression to
the Internet. In the context, it was stated that no one should be
liable for content on the Internet of which they were not the author,
unless they had either adopted that content as their own or refused
to obey a court order to remove that content.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicants complained that their right to freedom of expression had
been violated in that the courts had allowed G.
T.’s claim concerning the content published in Pravoe
Delo on 19
September 2003. They stated that the interference had neither
been in accordance with the law nor necessary in a democratic
society. The applicants relied on
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
- The
Government submitted that the applicants could not claim to be
victims of a violation of Article 10 of the Convention, as the
interference with their right to freedom of expression had been based
on the decisions of the domestic courts. The applicants did not
complain under Article 6 § 1 of the
Convention that the impugned court proceedings had been
unfair, there had been no irregularities in these proceedings, and
the Court had limited jurisdiction regarding the assessment of facts
and the application of law by domestic courts. On these grounds, they
invited the Court to declare the application incompatible ratione
personae with the provisions of the Convention.
- The
applicants disagreed.
- The
Court considers that the Government’s objection is closely
linked to the substance of the applicants’ complaints under
Article 10 of the Convention and that it must therefore be joined to
the merits.
- The
Court further 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.
B. Merits
1. Submissions of the parties
(a) The
applicants
- The
applicants argued that the domestic legislation concerning the
liability of the press for defamation lacked clarity and
foreseeability and that the domestic courts had disregarded the
relevant legislative guarantees against punishment for unverified
statements made by journalists. They submitted that the courts had
not taken into account the fact that they had not disseminated
information about G. T., that the second applicant had not given his
permission for the publication of the material, that they had
sufficiently distanced themselves from the publication, and that G.
T. had not used the opportunity of asking the editorial board for a
retraction before bringing his defamation claim before the courts.
- The
second applicant also contended that Ukrainian law did not provide
for an obligation to apologise as a sanction for defamation.
- The
applicants further submitted that they had disseminated the material,
which had already been published on the Internet, with a view to
promoting further discussion of the important political issues raised
in the material. They stated that the amount of compensation which
they had been required to pay had been too high given the annual
income of the newspaper, and had placed a disproportionate burden on
them. In this context, they stated that they had had to discontinue
publishing Pravoe Delo.
(b) The
Government
- The
Government submitted that the interference with the applicants’
right to freedom of expression had been lawful in that it had been
based on the clear, accessible and foreseeable provisions of the
domestic law, namely, on Article 7 of the Civil Code of 1963, section
47 of the Information Act of 2 October 1992, and sections 1, 32 and
42 of the Printed Mass Media (Press) Act of 16 November 1992, as
applied by the national courts in the applicants’ case.
- The
Government further submitted that the interference had been aimed at
protecting the honour, dignity and business reputation of a private
person, whose rights had been prejudiced by the publication at issue.
According to them, this had been a legitimate aim within the meaning
of Article 10 § 2 of the Convention, which the applicants did
not deny.
- The
Government argued that the publication had contained serious factual
allegations directed against a prominent public figure who had
contributed to the development of sports in Ukraine. The applicants
had failed to prove these allegations. The fact that they had
reproduced the material obtained from a website had not been
sufficient to release them from such an obligation, as the legal
status of information derived from the Internet had not been
determined under the domestic law. Therefore, the Government stated
that the interference had been necessary in the present case.
- They
also submitted that the applicants had not actually been required to
pay the compensation awarded by the courts to the claimant, as they
had settled the matter at the stage of enforcement of the judgment of
7 May 2004. According to the Government, it had not been proved
by the applicants that they had discontinued publishing their
newspaper because of the interference at issue.
- Relying
on the Court’s decision as to the admissibility of Vitrenko
and Others v. Ukraine ((dec.), no. 23510/02, 16 December 2008),
the Government contended that the court’s order to
apologise had not been contrary to the principles embodied in Article
10 of the Convention.
- On
the above grounds, the Government stated that the impugned
interference had not been disproportionate.
2. The Court’s assessment
(a) Whether there was an interference with
the right to freedom of expression
- The
Court observes that the publication at issue involved defamatory
statements of fact. According to the findings of the civil courts, it
was stated that a public figure, the President of the Ukraine
National Thai Boxing Federation, was a member of an organised
criminal group and “a coordinator and sponsor of murders”.
The applicants had failed to show that those statements were true and
the courts ordered them to publish a retraction and apology and to
compensate the person concerned for the non pecuniary damage
caused by the publication.
- The
Court considers that the courts’ decisions constituted an
interference with the applicants’ right to freedom of
expression.
- The
Court reiterates that its task in exercising its supervisory function
under Article 10 of the Convention is to look at the
interference complained of in the light of the case as a whole and,
in particular, to determine whether the reasons adduced by the
national authorities to justify it are relevant and sufficient (see,
among many other authorities, Fressoz and Roire v. France
[GC], no. 29183/95, § 45, ECHR 1999-I). This inevitably entails
a review of the decisions taken by the courts at the domestic level,
irrespective of whether any complaints have been raised concerning
the courts’ compliance with the procedural guarantees under
Article 6 of the Convention. Therefore, the Court dismisses the
Government’s objection as to the applicants’ victim
status.
- The
Court will now examine whether the interference was justified under
Article 10 § 2 of the Convention.
(b) Whether the interference was
prescribed by law
- The
Court notes that the first and most important requirement of Article
10 of the Convention is that any
interference by a public authority with the exercise of the freedom
of expression should be lawful: the first sentence of the second
paragraph essentially envisages that any restriction on expression
must be “prescribed by law”. In order to comply with this
requirement, interference does not merely have to have a basis in
domestic law. The law itself must correspond to certain requirements
of “quality”. In particular, a norm cannot be regarded as
a “law” unless it is formulated with sufficient precision
to enable the citizen to regulate his conduct: he must be able –
if need be with appropriate advice – to foresee, to a degree
that is reasonable in the circumstances, the consequences which a
given action may entail (see, for example, Lindon,
Otchakovsky-Laurens and July v. France [GC], nos. 21279/02
and 36448/02, § 41, ECHR 2007 XI).
- The
degree of precision depends to a considerable extent on the content
of the instrument at issue, the field it is designed to cover, and
the number and status of those to whom it is addressed (see
Groppera Radio AG and Others v. Switzerland, 28 March 1990, §
68, Series A no. 173). The notion of foreseeability applies not only
to a course of conduct, of which an applicant should be reasonably
able to foresee the consequences, but also to “formalities,
conditions, restrictions or penalties", which may be attached to
such conduct, if found to be in breach of the national laws (see,
mutatis mutandis, Kafkaris v. Cyprus [GC], no.
21906/04, § 140, ECHR 2008 ...).
- Turning
to the circumstances of the present case, the Court observes that the
applicants’ submissions regarding the question of the
lawfulness of the interference essentially concern two specific
issues, namely, the alleged lack of clarity and
foreseeability of the relevant legislative provisions concerning
journalists’ specific safeguards and the alleged absence
of legal grounds for an obligation to apologise in cases of
defamation.
(i) Measures envisaged by Ukrainian law in
cases of defamation
- As
regards the latter issue, the Court observes that Ukrainian law
provides that, in cases of defamation, injured parties are entitled
to demand a retraction of untrue and defamatory statements and
compensation for damage. Both measures were applied in the
applicants’ case. However, in addition to those measures, the
courts ordered the second applicant to publish an official apology in
the newspaper. The Court observes that such a measure was not
specifically provided for in the domestic law.
- The
Court has already dealt with a similar situation in a case against
Russia. In that case it was prepared to accept that the
interpretation by the domestic courts of the notions of retraction or
rectification under the relevant legislation as possibly including an
apology was not such as to render the impugned interference unlawful
within the meaning of the Convention (see Kazakov
v. Russia, no. 1758/02, §
24, 18 December 2008).
- However,
in contrast to the latter case, the present case contains no evidence
or, at the least, a persuasive argument that Ukrainian courts were
inclined to give such a broad interpretation to the legal provisions
concerning the measures applicable in cases of defamation or that
that was their general approach in such cases.
- The
Court further observes that, despite the second applicant’s
specific and pertinent complaints in that connection, the domestic
courts failed to give any explanation for the obvious departure from
the relevant domestic rules (see paragraph 17 above). The
Government’s submissions in that regard did not clarify the
issue either.
- As
it appears from the relevant domestic judicial practice, though
subsequent to the events at issue, imposition of an obligation to
apologize in defamation cases may run counter the Constitutional
guarantee of freedom of expression (see paragraphs 27-28 above).
- In
these circumstances, the Court finds that the court’s order to
the second applicant to apologise was not prescribed by law and that
accordingly there has been a violation of Article 10 of the
Convention in that respect.
(ii) Journalists’ specific
safeguards in Ukrainian law
- The
Court observes that the publication at issue was a verbatim
reproduction of material downloaded from a publicly accessible
internet newspaper. It contained a reference to the source of the
material and comments by the editorial board, in which they formally
distanced themselves from the content of the material.
- Ukrainian law, specifically the Press Act, grants
journalists immunity from civil liability for verbatim reproduction
of material published in the press (see paragraph 25 above). The
Court notes that this provision generally conforms to its approach to
journalists’ freedom to disseminate statements made by others
(see, for instance, Jersild v. Denmark, 23 September
1994, § 35, Series A no. 298; and Thoma v. Luxembourg,
no. 38432/97, § 62, ECHR 2001 III).
- However,
according to the domestic courts, no such immunity existed for
journalists reproducing material from internet sources not registered
pursuant to the Press Act. In this connection, the Court observes
that there existed no domestic regulations on State registration of
internet media and that, according to the Government, the Press Act
and other normative acts regulating media relations in Ukraine did
not contain any provisions on the status of internet-based media or
the use of information obtained from the Internet.
- It
is true that the Internet is an information and communication tool
particularly distinct from the printed media, in particular as
regards the capacity to store and transmit information. The
electronic network serving billions of users
worldwide is not and potentially cannot be subject to the same
regulations and control. The risk of harm posed by content and
communications on the Internet to the exercise and enjoyment of human
rights and freedoms, particularly the right to respect for private
life, is certainly higher than that posed by the press. Therefore,
the policies governing reproduction of material from the printed
media and the Internet may differ. The latter undeniably have to be
adjusted according to the technology’s specific features in
order to secure the protection and promotion of the rights and
freedoms concerned.
- Nevertheless,
having regard to the role the Internet plays in the context of
professional media activities (see paragraphs 29-32 above) and its
importance for the exercise of the right to freedom of expression
generally (see Times Newspapers Ltd v. United Kingdom (nos. 1 and
2),
no. 3002/03 and 23676/03,
§ 27, 10 March 2009), the Court considers that the absence
of a sufficient legal framework at the domestic level allowing
journalists to use information obtained from the Internet without
fear of incurring sanctions seriously hinders the exercise of the
vital function of the press as a “public watchdog” (see,
mutatis mutandis, Observer and Guardian
v. the United Kingdom, 26 November 1991, § 59,
Series A no. 216). In the Court’s view, the complete exclusion
of such information from the field of application of the legislative
guarantees for journalists’ freedom may itself give rise to an
unjustified interference with press freedom under Article 10 of the
Convention.
- The
Court further observes that under Ukrainian law journalists may not
be required to pay compensation in defamation cases if they did not
disseminate the untrue information intentionally, acted in good faith
and made checks on such information, or if the injured party failed
to use the available possibilities to settle the dispute before going
to court (see paragraph 26 above). In the domestic proceedings, the
applicants explicitly raised the defence of qualified privilege under
the latter provision. In particular, they argued that they had
no malicious intent to defame the claimant
by the publication of the material in question and that the public
had an interest in receiving the information. Furthermore, they
argued, that by reproducing the material previously published on
the Internet, their intention was to promote debate and discussion on
political matters of important public interest. They also argued
that the claimant had not taken any steps to settle the dispute with
the applicants despite the fact that in the same publication they had
invited any person concerned to comment on it. However, their plea
was entirely ignored by the courts.
- Therefore,
the Court finds that, given the lack of adequate
safeguards in the domestic law for journalists using information
obtained from the Internet, the applicants could not foresee
to the appropriate degree the consequences which the impugned
publication might entail. This enables the Court to conclude that the
requirement of lawfulness contained in the second paragraph of
Article 10 of the Convention was not met.
- In
these circumstances, the Court does not consider it necessary to deal
with the parties’ remaining submissions concerning this
provision or to examine the proportionality of the interference at
issue.
- Accordingly,
there has been a violation of Article 10 of the Convention as regards
this aspect of the case.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Submissions of the first applicant
- The
first applicant submitted that the appropriate just satisfaction in
the case would be a finding of a violation of Article 10 of the
Convention and an indication of general measures to be adopted by
Ukraine to bring its legislation and judicial practice into
compliance with “European standards of freedom of expression”
as regards the use of “socially important information,
available on the Internet, the credibility of which is open to
question.”
- The
Government did not comment on this aspect of the case.
- Having
regard to the circumstances of the present case and the conclusions
the Court has reached under Article 10 of the Convention (see
paragraphs 64-68 above), it does not consider it necessary to examine
this case under Article 46 of the Convention with a view to
indicating specific measures that might be taken in order to put an
end to a violation found in the case (see, mutatis mutandis,
Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR
2004-V). The Court also notes that there is no call to award the
first applicant any sum for just satisfaction.
B. Submissions of the second applicant
1. Damage
- The
second applicant claimed 7,000 euros (EUR) for non-pecuniary damage.
- The
Government contested the second applicant’s claim.
- The
Court considers that the second applicant has suffered some distress
and anxiety on account of the violations of his right to freedom of
expression. Ruling on an equitable basis, as required by Article 41
of the Convention, it awards him EUR 6,000 in this connection.
2. Costs and expenses
- The
second applicant made no claim as to costs and expenses. Therefore,
the Court makes no award under this head.
3. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join to the merits the Government’s
objection concerning the applicants’ victim status and
rejects it;
- Declares the application admissible;
- Holds that there has been a violation of Article
10 of the Convention on account of the domestic courts’ order
to the second applicant to publish an official apology;
- Holds that there has been a violation of Article
10 of the Convention on account of the applicants’ punishment
for the impugned publication;
- Holds
(a) that
the respondent State is to pay the second applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 6,000 (six
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the national currency of
the respondent State at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
- Dismisses the remainder of the second
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 5 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann,
Registrar President
