Failure of the authorities to protect the applicant’s reputation from intense criticism and attacks in the online media. Violation of private life
JUDGMENT
Ungur v. Romania 12.03.2024 (app. no. 2156/16)
SUMMARY
Failure of national courts to protect the applicant’s reputation from attacks in the online media.
The applicant, who was a well-known businessman and philanthropist in his town, filed a lawsuit against C.A., director of Bistrițeanul.ro (website), accusing him of extortion. Shortly after, Bistrițeanul.ro published an editorial by C.A. The article explained that the applicant, who aspired to run for the position of mayor of Bistrița, was spreading rumors that Bistrițeanul.ro was the only publication that provided him with negative press coverage, since he had not procured advertising space from this. The domestic courts found that the language used by the respondents did not exceed the limits of excess and provocation permitted by Article 10 of the Convention and that the applicant had not established that the contested main article had caused him any damage.
The Strasbourg Court agreed with the national courts’ assessment that the contested main article concerned a matter of public interest, in particular having regard to the applicant’s declared candidacy in the upcoming local elections.
However, it held that the main article of 27 January 2012, making accusations so serious as to lack any factual basis, namely that the applicant had attempted to bribe the authorities and had illegally appropriated goods intended for flood victims, exceeded the acceptable limits of criticism in the context of journalism on issues of general interest.
Consequently, the ECtHR found a violation of Article 8 of the Convention.
PROVISION
Article 8
PRINCIPAL FACTS
On 24 January 2012 the applicant, who was a well-known businessman and philanthropist in his town, filed a criminal complaint against C.A., the manager of the Bistrițeanul.ro online publication, in which he accused her of blackmail. He alleged that a foundation led by him had been procuring advertising space from C.A.’s publication in the past. Following the cessation of such purchase, C.A. had allegedly resorted to blackmail to coerce him to continue purchasing advertising or face the prospect of unfavourable articles being published in the publication. According to the applicant, the prosecuting authority supervising the investigation informed him that the evidence in favour of the allegation was insufficient. Therefore, he decided to meet with C.A. and make an audio recording of their exchange to assemble evidence in support of his criminal complaint. Nonetheless, according to the applicant, C.A. purportedly perceived his proposal as a ruse and sent a journalist to the meeting who recorded the exchange with him.
On 27 January 2012 Bistrițeanul.ro published an editorial by C.A., under the headline “The Hungarian Bulan [An equivocal reference to the applicant’s surname] wants to buy our silence” (Unguru Bulan vrea să ne cumpere tăcerea). The editorial expounded on the fact that the applicant, who aspired to run for the post of Mayor of Bistrița, was disseminating rumours that Bistrițeanul.ro was the only publication that was giving him negative press coverage since he had not procured any advertising space from it. The applicant had decided to resolve this issue by approaching a journalist from the publication and proposing money for silence. Little did he know that the conversation was being recorded by the journalist. The editorial went on to imply that the applicant was a morally bereft person implicated in reproachable conduct who thought that everything and everyone was for sale. In particular, the editorial contained the following assertions:
“He is the individual who, in a similar vein, tried to buy building permits from the Bistrița Mayor’s Office, subsequent to building without documentation.” (“Este omul care a încercat să cumpere prin metode similare autorizații de construcții de la Primăria Bistrița, după ce a construit fără acte.”).
“He is the individual who aspires to become Mayor with the aim of decimating the planning department because it had previously declined to accept his bribes and had refused to issue building permits to him whenever and however he desired.” (Este omul care vrea să ajungă primar pentru a rade serviciul urbanism tocmai pentru că nu a acceptat șpăgile lui și nu i-a dat autorizații de construcții când și cum a vrut el.”)
“He is the individual who appropriated relief aid intended for the [flood] victims in Vișeu to finance his campaign in Bistrița.” (“Este omul care a luat din ajutoarele sinistraților din Vișeu pentru a-și face campanie la Bistrița.”)
On an unspecified date, the applicant initiated defamation proceedings against C.A. and the publication, arguing, inter alia, that the aforementioned three phrases defamed him since they contained false allegations that he had perpetrated two criminal offences, bribery and theft. He also contended that the defendants had acted in bad faith and had launched a defamation campaign against him. The applicant mentioned as an example of their bad faith the fact that the publication had deleted all positive comments about him from the article published on its webpage and had blocked the IP addresses of the users who had posted such comments, while retaining only neutral or negative comments, including comments calling for his assassination.
In a judgment of 18 November 2014, the Bistrița District Court granted the applicant’s action in part, having determined that the article was defamatory of him.
On 1 April 2015 the Bistrița-Năsăud Regional Court overturned the above judgment and dismissed the applicant’s action.
In so far as the first impugned phrase was concerned (see paragraph 2 above), the court considered that it had been written in a particular context: the day before, the applicant had attempted to pay the newspaper to avoid negative press coverage, and the press had previously reported on his building without appropriate permits. The court also noted that the applicant had admitted to having been sanctioned for building without a permit on one occasion.
Concerning the second impugned phrase (see paragraph 2 above), the court relied on the defendants’ statement, according to which the applicant himself had stated to the press in 2010 that the Mayor and the architect in chief had taken away from him a plot of land (m-au ușurat de) of 700 square metres worth EUR 175,000 before issuing him a document (notă de constatare). The applicant had made this statement in the context of announcing that he had lodged a criminal complaint against the Mayor and the architect in chief, alleging blackmail. The court considered that the applicant had thus admitted to having given up the plot of land, albeit unwillingly, in exchange for a document. As to the term “bribes” used by the author of the editorial, the court concluded that this was an “artistic” exaggeration by the defendant journalist and not a defamatory statement. The court held that such an exaggerated expression was acceptable in the context of journalistic freedom.
Finally, with regard to the third impugned phrase (see paragraph 2 above), the court relied on statements of a witness who was an employee of the defendant publication and a subordinate of C.A. The witness stated that during the 2008 flood, the goods collected for the relief of the victims had been stocked in an apartment belonging to the applicant. There were rumours at the time that some of those goods never reached the victims of the flood.
The court concluded that as a public figure who intended to run for the position of Mayor, the applicant was subject to a wider range of acceptable criticism. On the other hand, the court noted that the defendants were members of the press and that they were reporting on an issue of public interest. Furthermore, the court found that all the impugned phrases contained factual statements, and that the defendants had acted in good faith and had a reasonable factual basis for their statements. The court held that the language employed by the defendants did not exceed the limits of exaggeration and provocation permitted by Article 10 of the Convention and that the applicant had not proven that the impugned editorial had caused him any damage.
The applicant lodged an appeal on points of law against the above judgment and argued that the Regional Court had treated the impugned statements as value judgments rather than as statements of facts. He submitted that the aim pursued by C.A. had not been to impart information of public interest but to slender him and that the defendants had not proved the veracity of the accusations contained in the impugned phrases.
On 26 June 2015 the Cluj Court of Appeal dismissed the applicant’s appeal on points of law and confirmed the judgment of the Regional Court.
THE DECISION OF THE COURT…
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
The general principles concerning protection afforded by Article 8 to the right to reputation as part of the right to respect for private life have been summarized in Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 95-99, ECHR 2012, Axel Springer AG v. Germany [GC], no. 39954/08, §§ 82-84, 7 February 2012, and Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007). In cases that concerned allegations of criminal conduct the Court also took into account that under Article 6 § 2 of the Convention, individuals have a right to be presumed innocent of any criminal offence until proved guilty (see, among other authorities, Worm v. Austria, 29 August 1997, § 50, Reports of Judgments and Decisions 1997‑V; and Du Roy and Malaurie v. France, no. 34000/96, § 34, ECHR 2000-X).
A careful distinction is to be made between factual statements on the one hand, and value judgments on the other. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof (see Lingens v. Austria, 8 July 1986, § 46, Series A no. 103; Erla Hlynsdόttir v. Iceland (no. 2), no. 54125/10, § 66, 21 October 2014).
Whilst recognising the discretion enjoyed by the press in its choice of methods of journalistic reporting, in assessing the proportionality of an interference the Court has had regard to whether the news reporting in question was objective and balanced, including whether the target of the criticism was given an opportunity to comment or afforded a right to reply (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, ECHR 1999-III; Bergens Tidende and Others v. Norway, no. 26132/95, ECHR 2000‑IV; Selistö v. Finland, no. 56767/00, 16 November 2004).
Turning to the facts of the present case, the Court notes that the defendants in the domestic proceedings explicitly stated in the first and second impugned phrases that the applicant had attempted to bribe authorities to secure building permits. In the third impugned phrase, the applicant was accused of wrongfully appropriating goods belonging to others. Such conduct attributed to the applicant corresponds to offences provided for in Articles 290 and 228 of the Criminal Code. Therefore, the accusations against him were serious enough to have adversely impacted his reputation and to have exposed him to public contempt.
The Court agrees with the domestic courts’ assessment that the impugned editorial addressed a matter of public interest, particularly considering the applicant’s declared candidacy in the imminent local elections. It also agrees with the domestic courts concerning the special protection enjoyed by the defendants who represented the media. Nonetheless, freedom of expression carries with it “duties and responsibilities” that also apply to the media, even with respect to matters of serious public interest. Those “duties and responsibilities” are significant when there is a question of attacking the reputation of a named individual and infringing the “rights of others”. Thus, 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, Björk Eiðsdóttir v. Iceland, no. 46443/09, § 70, 10 July 2012; McVicar v. the United Kingdom, no. 46311/99, § 84, ECHR 2002-III; Bladet Tromso and Stensaas, cited above, § 66; and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78, ECHR 2004-XI.
The domestic courts classified the impugned statements as statements of fact and found that they were grounded on true facts. The Court agrees with the classification made by the domestic courts and recalls its previous case-law according to which when exercising its supervisory function, the Court’s task is not to take the place of the national courts but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on.
The Court notes in the first place that the Regional Court considered proof of the applicant’s attempted bribery the defendants’ argument to the effect that he had previously been penalised for building without permit combined with the defendants’ speculation that, since the applicant had attempted to offer money to the defendant publication for positive media coverage, he may have done the same with the authorities for securing building permits. The Regional Court also accepted as proof of the same conduct the defendants’ allegation about a blackmail involving the applicant and considered that the term “bribes”, employed by the defendant journalist, was an artistic exaggeration acceptable in the context of journalistic freedom. The Court cannot but observe that none of the above arguments and speculations prove in any meaningful manner the allegation that the applicant attempted to bribe the authorities. Moreover, the Court finds unconvincing the Regional Court’s reasoning that the term “bribes” used in the impugned statement was nothing more than an acceptable artistic exaggeration. It notes that no criminal conviction or even criminal accusation came to corroborate the defendants’ allegations and, in the absence of any relevant evidence, concludes that the defendants failed to substantiate the truth of their allegations that the applicant had attempted to bribe the authorities in order to secure building permits.
Secondly, with respect to the accusation that the applicant unlawfully took possession of goods intended for flood victims, the domestic court found that the defendants’ proof was founded on a witness statement recounting rumours that not all the goods collected for the flood victims and stored in an apartment belonging to the applicant had reached the intended recipients. The Court observes firstly that the witness in question was employed by the defendants. Moreover, she merely referred to rumours which the domestic courts failed to verify, and no other evidence which could corroborate such rumours were presented. The journalist thus reproduced the contents of an unverified rumour and presented them as the objective truth. Consequently, the Court finds itself unconvinced that the defendants established the truth of this allegation either.
The Court finally notes that the defendants did neither grant the applicant the opportunity to comment nor afforded him a right to reply. The Court cannot overlook the history of discord which existed between the applicant and C.A., specifically after the applicant had filed a criminal complaint against her. The timing and the tone of the impugned editorial are factors that cannot be ignored in determining whether there was a connection between the criminal complaint submitted by the applicant against C.A. several days earlier and the publication of the editorial. Regrettably, the domestic courts failed to take such a crucial element into account when examining the case.
In conclusion, the Court considers that the editorial of 27 January 2012, in making such severe accusations which lacked any factual foundation, that is, that the applicant had attempted to bribe the authorities and that he had misappropriated goods intended for the flood victims, exceeded the acceptable limits of criticism in the context of reporting on issues of general interest. The Court also finds that the reasons relied upon by the domestic courts to protect the defendants’ right to freedom of expression were insufficient to outweigh the applicant’s right to respect for his reputation. Hence, there has been a violation of Article 8 of the Convention.
