CASE OF GOLDSTEIN AND S.C. RING PRESS SRL v. ROMANIA

THIRD SECTION

DECISION

Application no. 877/04
Florian GOLDSTEIN and S.C. RING PRESS SRL
against Romania

The European Court of Human Rights (Third Section), sitting on 10 April 2012 as a Chamber composed of:

Josep Casadevall, President,
Alvina Gyulumyan,
Egbert Myjer,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Mihai Poalelungi
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 8 December 2003,

Having regard to the decision taken by the President of the Chamber to appoint Mr Mihai Poalelungi to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court), as Mr Corneliu Bîrsan, the judge elected in respect of Romania, had withdrawn from the case (Rule 28 of the Rules of Court),

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The first applicant was born in 1951 and lives in Bucharest. He is a journalist; on the date of the events in issue in this case he was the editor‑in‑chief of the daily newspaper Bursa and senior partner and legal representative of the applicant company. The applicant company is the owner and publisher of Bursa and has its headquarters in Bucharest.

The applicants are represented by Mrs Gabriela Romanita, a lawyer practising in Bucharest. The Romanian Government (“the Government”) are represented by their Agent, Mrs Irina Cambrea, of the Ministry of Foreign Affaires.

2. The facts of the case, as submitted by the parties, may be summarised as follows.

3. Starting in 2001, the first applicant wrote a series of over fifty articles in Bursa concerning the difficult financial situation of the media trust M.P. He also expressed his dissatisfaction with the alleged preferential treatment being given to M.P. by the State in the payment of taxes.

4. M.P. lodged a complaint against the applicant company, claiming that the articles written by the first applicant constituted acts of unfair competition. It based its action on Article 4(e) of the Competition Act (Law no. 11/1991), which prohibited denigration as an act of unfair competition.

The trust made reference to the following articles: “Minister [V.D.] allows himself to be manipulated by [M.P.]” (“Ministrul V.D. se lasă manipulat de [M.P.]”); “[M.P.] – possible subject of interstate criminal investigation” (“[M.P.] – posibil subiect de cercetare penală interstatală”); “[M.P.] – choked by debts but insolent” (“[M.P.] – înglodat în datorii, dar cu tupeu”); “According to American accounting CME’s profits are showing a loss at [M.P.]” (“Profiturile CME după contabilitatea americană reprezintă pierderi la [M.P.]”); “Naivety? Incompetence? Corruption?” (“Naivitate? Incompetenţă? Corupţie?”); “[M.P.] of Romania is being investigated by the Washington Securities and Exchange Commission” (“[M.P.] din România a intrat sub investigaţiile Securities and Exchange Commission din Washington”); and “[P. TV] – ANTINATO” (“[P. TV] – ANTINATO”).

The articles contained references to reports by the Security and Exchange Commission, the European Commission and the White Book of Governance of December 2000. In an article from the same series, published on 7 May 2001 in Bursa, M.P. were invited to present their point of view on the matter.

5. On 14 November 2002 the Bucharest County Court allowed the action and ordered the applicant company “to refrain from spreading, through its publications, defamatory statements about the plaintiff’s activities”. The applicant company was also ordered to pay 800,000,000 Romanian Lei (ROL) in respect of non‑pecuniary damage and to publish a copy of the court’s seven-page decision in Bursa.

The relevant parts of the court’s reasoning read as follows:

“That [the applicant company’s] acts fall within the sphere of competition is proved by the manner in which, in a series of articles in the newspaper Bursa, it presented the activities of the [media trust], activities which ... concern the public at large.

Relevant in this respect are the articles concerning the news agency [owned by M.P.] about which [the applicant company] commented, for example, that: ‘... a press review cannot be entrusted to an agency which is part of the media trust with the highest debt in the country – [M.P.]; it is in its interest to eliminate any reference to the corrupt circle which tolerates its debts.’...

Most of the articles contain ... open accusations about [M.P.].

They concern, for example, [M.P.]’s financial situation: ‘the group with the highest debt in the country’, ‘an inveterate debtor’, ‘choked by debts but insolent’, ‘incorrect’, ‘... accounting mishmash’; or the group’s business dealings: ‘Romania’s Enron’, ‘possible candidate for an interstate criminal investigation’, promoting ‘incestuous management’.

Because of their gravity, these statements, even if proved true, promote a feeling of disapproval, even disgust towards the media group. The phrases indicate that the [applicant company] misunderstood the freedom of the press and the right to hold an opinion and to impart information...

The repeated publication, over a long period of time, of negative information concerning a competitor’s activities, in a manner capable of arousing their clients’ disapproval, cannot constitute fair and acceptable competition ...

Guilt exists as long as there is unfair competition.

Bad faith is no more than an aggravating circumstance ... [negative consequences] may ensue even without intent. [Lack of intent] does not preclude responsibility.

Indeed, other newspapers published similar articles, but they did not constitute acts of competition, and were not defamatory or repeated over time. In any case, [the fact that other newspapers published similar articles] does not preclude the defendant’s responsibility.”

6. On 10 June 2003 the decision was upheld by the Bucharest Court of Appeal. It thus became final.

The relevant parts of the appeal court’s decision read as follows:

“... the impugned articles present a comparative evaluation of the journalistic means used by Bursa and [M.], a comparison unfavourable to [M.P.]...

The [applicant company’s] bad faith is proved by its behaviour: extremely serious, biased accusations; length [of the campaign] and the frequency of the articles against the [M.P.]; and also the manner in which the incriminated articles were written and presented ...

The first-instance decision has not infringed the [applicant company’s] freedom of expression. [The applicant company] retains the liberty to publish any information, even unfavourable or negative, so long as the information is correct and true and the publication does not become a press campaign aimed at destroying a competitor’s image and reputation ...

In the case at hand, the accusations of corruption, fraud, political blackmail and manipulation, as well as manipulation through mass media, undoubtedly affect the public image, prestige and reputation [of M.P.] ...”

7. Several other actions were lodged by M.P. against the applicants: a similar complaint of unfair competition (dismissed on 24 April 2002 by the Bucharest County Court as M.P. failed to pay the court fees), two actions in tort (the first dismissed on 23 November 2003 and the second allowed by the first-instance court, but appealed against by the first applicant), and an action in defamation against the first applicant (dismissed on 24 October 2002 by the Bucharest District Court).

COMPLAINTS

8. The applicants complained that in convicting them of unfair competition as a consequence of the publication of a series of articles criticising the activities and alleged corrupt relations with State officials of a competitor media group, the courts restricted their freedom of expression, in violation of Article 10 of the Convention.

9. They also complained under Article 6 of the Convention that the proceedings lodged by M.P. under the Competition Act had been unfair. They argued that the courts had not heard evidence by the defence. They lastly complained about the manner in which the courts had qualified the impugned articles as being acts of competition.

THE LAW

A. On the complaint raised under Article 10 of the Convention

10. The applicants considered their conviction for acts of unfair competition to be a restriction of their freedom of expression which contravened 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.”

11. The Government contended that the articles fell outside the scope of Article 10. In their view, the wording and aim of the articles in issue showed that they had not been intended to influence or mobilise public opinion, but to promote economic interests. Quoting the dissenting opinion in Hertel v. Switzerland (25 August 1998, Reports of Judgments and Decisions 1998‑VI), the Government argued that in matters of unfair competition States should be afforded a wider margin of appreciation than in other spheres of free speech. Furthermore, the Government argued that the measure taken by the domestic courts against the applicants had been necessary in a democratic society. They also averred that the applicants had failed to prove the veracity of their statements. As to the sanction imposed, they pointed out that the applicants had not suffered significant consequences, as the amounts they had had to pay had not been excessive and the court order had not stopped them from publishing articles, as long as the information contained in them was correct and true. They reiterated that the Court should not substitute its own evaluation of the facts for that of the domestic courts.

12. The applicants disagreed with those arguments. Firstly, they contended that Article 10 was applicable to their case. They argued that the articles under review concerned the State budget and the State’s attitude towards companies that had not paid their taxes, and they were thus a matter of public concern that affected the public at large.

The applicants further reiterated that the articles had touched upon matters of public concern, that they had been thoroughly researched and included references to sources available for general consultation (Government reports, the European Commission’s 2002 Annual Report on Romania, Parliamentary reports). They had reported strictly on matters involving the State budget and thus concerning the public, and refrained from making public any confidential or private information concerning M.P. They pointed out that although they had tried to obtain M.P.’s position on the matter, the trust had refused to make comments.

The applicants considered that the sanction imposed had been disproportionate and breached their freedom of expression.

13. Even assuming that the case concerns purely the issue of unfair competition, the Court has already found that such matters fall within the scope of Article 10, in particular when related to competing newspapers (see Krone Verlag GmbH & Co. KG v. Austria (no. 3), no. 39069/97, § 20, ECHR 2003‑XII). It sees no reason to reach a different conclusion in the case at hand.

14. The Court reiterates that under its case-law the States parties to the Convention have a certain margin of appreciation in deciding on matters pertaining to freedom of expression. Such a margin of appreciation is particularly essential in the complex and fluctuating area of unfair competition. It is however necessary to reduce the extent of the margin of appreciation when what is at stake is not a given individual’s purely “commercial” statements, but his participation in a debate affecting the general interest (see Krone Verlag GmbH & Co. KG, cited above, § 30; and Hertel v. Switzerland, 25 August 1998, § 47, Reports 1998‑VI).

It also reiterates that assessment of facts is primarily a matter for the national courts, and therefore it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, mutatis mutandis, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I).

15. In the current case, the Court notes that the applicants were convicted for a series of articles reporting on the financial situation of another media trust. Similar articles were published by other newspapers at the time. In addition, the impugned articles were based on public reports from various national and international sources. The domestic courts accepted that the subject concerned the public at large. For the purposes of Article 10 of the Convention, the Court is therefore satisfied that the articles presented a matter of general concern and contributed to a public debate on the matter.

16. However, it notes that based on the evidence presented before them, the domestic courts considered in lengthy and thoroughly argued decisions that the publication of the articles was no more than a press campaign aimed at destroying a competitor’s image and reputation, being thus in itself prejudicial to the media trust, whether or not the information imparted was true. It also considered that the first applicant acted in bad faith, with intent to denigrate M.P. (see Ieremeiov (no. 2), cited above, § 44). There is no indication of arbitrary in the manner in which the courts disposed of their functions.

The Court also attaches relevance to the fact that other domestic courts that had dealt specifically with a defamation complaint lodged for the same reasons as the unfair competition action had acquitted the applicants.

17. Reiterating that the domestic courts are better placed to examine and interpret the facts, the Court sees no reason to depart from the conclusions reached by the domestic courts in the case (see mutatis mutandis, García Ruiz, cited above, § 28). It also considers, in the circumstances of the case, that even assuming that there had been an interference with the applicants’ right to freedom of expression, such interference was proportionate to the legitimate aims pursued.

Having regard to all the arguments above, the Court concludes that the reasons adduced by the domestic courts to convict the applicants were relevant and sufficient and that the national instances did not overstep their margin of appreciation in the present case (see, mutatis mutandis, Kuliś and Różycki v. Poland, no. 27209/03, § 39, 6 October 2009).

18. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. On the complaint raised under Article 6 of the Convention

19. The applicants alleged that the proceedings brought against them under the Competition Act had been unfair.

20. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights guaranteed by Article 6 § 1 the Convention. In particular, the Court reiterates that it found no indication of arbitrary in the manner in which the domestic courts examined the evidence and applied the relevant law to the facts of the case (see, notably, paragraph 16 above).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Santiago QuesadaJosep Casadevall
RegistrarPresident

Full & Egal Universal Law Academy