Compensation against a broadcasting company for broadcasting news about vaccines against a Minister. Violation of freedom of expression
JUDGMENT
Radio Broadcasting Company B92 AD v. Serbia (application no. 67369/16)
SUMMARY
The case concerned civil proceedings brought against the applicant broadcasting company by a
former assistant health minister for its reporting in 2011 that she had been suspected of abuse of
office, amid an ongoing controversy over the procurement of swine flu vaccines.
The Court found that the Serbian courts had acknowledged that the information published by the
applicant company had contributed to a public debate and that someone in the assistant health
minister’s position should have shown a greater degree of tolerance.
The courts had gone too far, however, in their criticism of the applicant company’s fact-checking.
The company had based its reporting on a note obtained from police officers about the investigation
into the controversy, and there had been no doubts over the note’s credibility. The language used in
the reporting had been accurate and not exaggerated, and all the parties had been contacted to
obtain their version of events.
The Court found that, overall, the applicant company had acted in good faith and with the diligence
expected of responsible journalism.
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Radio Broadcasting Company B92 AD, is a company based in Serbia which owns a
television channel and an Internet portal.
On 27 November 2011 one of the items on its 11 o’clock evening news slot was about an ongoing
controversy over the procurement of AH1N1 flu vaccines. The applicant company reported that
12 names, including Z.P., an assistant health minister at the time, had disappeared from a police list
of suspects of abuse of office in relation to the controversy, allegedly because of pressure exerted by
the Special Prosecutor on the Ministry of the Interior.
In the following days similar news slots were broadcast, and articles were published on the
company’s Internet portal.
The reporting was based on an investigation by a team of B92 journalists in the preceding months
and in particular a note obtained from two police officers which had been drawn up by a division of
the Fight Against Organised Financial Crime Department.
In April 2012 Z.P., who had been named in the note, instituted civil proceedings against the applicant
company.
The courts found that the company’s TV broadcasts and online articles had damaged the assistant
minister’s reputation, and ordered it to pay 1,750 euros (EUR) in respect of non-pecuniary damage
and EUR 900 for costs. It was also ordered to remove the article in question from its Internet portal
and to publish the judgment against it.
All the courts, and ultimately the Constitutional Court in 2016, found that the applicant company
had failed to check their facts with due diligence, particularly with regard to the allegation that the
criminal complaint against Z.P. had not been filed because of pressure on the Ministry of Interior.
THE DECISION OF THE COURT…
First, the Court noted that the final civil judgment against the applicant company had amounted to
an interference with its right to freedom of expression. That interference had been “prescribed by
law”, namely it had been based on the Public Information Act and the Obligations Act, and aimed to
protect “the reputation or rights of others”.
Furthermore, the information which the applicant company had broadcast and published had clearly
concerned an issue of public interest, in particular irregularities in the procurement of swine flu
vaccines. The assistant minister had been a public official and as such should have shown a greater
degree of tolerance. The Serbian courts had acknowledged both those aspects of the conflict.
However, the courts had taken a rather limited view when characterising all of the allegations in the
applicant company’s reporting as statements of facts, for which proof had to be given. The Court
agreed that the first two allegations – that Z.P. had been among those the police had reason to
suspect of abuse of office and the 12 names disappearing from the list of suspects – had been
statements of facts. Those allegations had been confirmed by the police note, and there were no
doubts over its credibility. Nor did the courts find that the applicant company had breached laws on
confidentiality by publishing information from the note.
The courts had failed, on the other hand, to consider whether the third allegation – concerning
pressure on the Ministry of the Interior – could have been a value judgment (which would not have
been susceptible of proof) or to assess the language used in the applicant company’s reporting of it.
The Court considered that the expressions “a reason to suspect” and “the police’s list of suspects”
had been accurate and without exaggeration.
Nor had the courts taken into account the fact that the applicant company had sought to achieve a
balance in their reporting. The company had contacted Z.P., the Ministry of the Interior and the
Special Prosecutor’s Office, to give them an opportunity to give their version of events.
The Court therefore found that the applicant company could not be criticised for not having taken
further steps to establish the truth of the disputed allegations and was satisfied that it had acted in
good faith and with the diligence expected of responsible journalism.
In conclusion, the courts had overstepped their limited leeway (“narrow margin of appreciation”) to
restrict discussion on matters of public interest and the interference with the applicant company’s
freedom of expression had been disproportionate to the aim pursued and not “necessary in a
democratic society”, in violation of Article 10.
Just satisfaction (Article 41)
The Court held that Serbia was to pay the applicant 2,740 euros (EUR) in respect of pecuniary
damage, EUR 2,500 in respect of non-pecuniary damage and EUR 2,400 in respect of costs and
expenses.
