Communicated on 27 September 2018
FOURTH SECTION
Applications nos. 84048/17 and 84051/17
Eduardas EIGIRDAS against Lithuania and
VĮ ‘DEMOKRATIJOS PLĖTROS FONDAS’ against Lithuania
lodged on 11 December 2017 and 11 December 2017 respectively
STATEMENT OF FACTS
The first applicant, Mr Eduardas Eigirdas, is a Lithuanian national, who was born in 1970 and lives in Vilnius.
The second applicant, VĮ ‘Demokratijos plėtros fondas’, is a public establishment, registered in Vilnius.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The second applicant publishes a journal, Valstybė, and the first applicant is a journalist, member of the editorial board and founder of the second applicant.
1. The first article
In February 2015 an article, written by the first applicant, was published in the journal managed by the second applicant. The article was called “Ten richest and most dangerous oligarchs of Lithuania”. One of the persons described in the list was a large business owner and politician, V.M., who later became the mayor of Kaunas. The article described V.M. as follows: “V.M. only stands out in this context by, in my opinion, spending the most money out of all the entrepreneurs in Lithuania and he will use the fact that his business is one of the biggest advertisers in the upcoming elections. This is why almost all media publishes only good news about V.M. before these elections. It can be another sign indicating the influence the money received from the advertisements has on the media... V.M. deserved sixth place for great efforts to become one of the representatives of a large capital, who have a lot of influence on politics, and for strengthening the positions of the large capital before the upcoming local and parliamentary elections” (V.M. šiame kontekste išsiskiria tik tuo, kad, manau, metė daugiausia pinigų iš visų Lietuvos verslininkų, o rinkimuose pasinaudos ir tuo, kad jo valdomas koncernas – vienas didesnių reklamdavių. Todėl beveik visoje žiniasklaidoje apie V.M. prieš šiuos rinkimus sklinda tik geros žinios. Tai gali būti dar vienas ženklas, demonstruojantis, kokia šiandien reklamos pinigų įtaka ‑ žiniasklaidai...V.M. šeštą vietą skyrėme už dideles pastangas įsiliejant į stambiojo kapitalo atstovų, darančių įtaką politikai, gretas ir stiprinant stambiojo kapitalo pozicija prieš artėjančius savivaldos ir Seimo rinkimus).
V.M. submitted a complaint to the Commission on the Ethics of Public Information (the Commission) stating that the arguments presented in the article written by the first applicant had no basis and no other opinions were provided. On 17 August 2015 the Commission stated that the article had no basis and that no specific facts had been provided to substantiate it and decided that the article breached domestic law (Article 3 of the Code on Ethics of Journalists and Publishers). The Commission obliged the second applicant to publish its decision in the journal.
V.M. also complained to the Inspectorate of Journalistic Ethics (the Inspectorate), who published its decision on 20 August 2015. The Inspectorate stated that a person’s honour and reputation in the context of publication of certain information was defended if there was a publication of news, if the news concerned the person at issue and if the news was defamatory and untrue. The Inspectorate stated that the news was a publication of facts and data and an opinion was a point of view, understanding, perception, thoughts and commentaries about ideas of a common nature, assessment of facts and information, phenomena and events, conclusions or observations about news related to the real facts. An opinion could express valid arguments and it was usually subjective. An opinion could only breach someone’s honour and reputation if the manner it was expressed in was unfair, unethical and had no objective basis to it. The main difference between news and opinions was that the news had to be based on a criterion of truth. In the present case, V.M. was a member of the Kaunas municipality, a candidate to become the mayor of Kaunas and the president of the committee “Vieningas Kaunas”, which meant that he was a public figure and he could not enjoy the same protection of honour and reputation as private individuals. Moreover, the analysis of the publications at issue revealed that the information was related to the public figures and their participation in the elections, which was a very important issue for the general public. The Inspectorate noted that the purpose of the publication at issue was to analyse the influence of the oligarchs to Lithuanian politics, law enforcement and media. The statements V.M. complained about were opinions about the money V.M. had allocated to the elections and the influence V.M.’s company had had on his image in the media and future influence on the elections. The arguments were presented as guesses about the future and commentaries and they were not presented as news. The opinion that V.M. had allocated the most money out of all the entrepreneurs had a factual basis in the data collected by the Central Electoral Commission. Moreover, the information about the money allocated to the electoral campaign could not breach V.M.’s honour and reputation because that information had not suggested that V.M. had committed an offence or other dishonourable act or that he had acted inappropriately in his family or public life. The Inspectorate thus concluded that the first applicant’s article had not overstepped the margins of freedom of expression and had not breached V.M.’s honour and reputation.
The second applicant brought a claim against the decision of the Commission of 17 August 2015. The first applicant participated in the proceedings as an interested party.
On 29 February 2016 the Vilnius Regional Administrative Court allowed the second applicant’s claim. The court held that the Commission’s decisions had to be immediately published and if a publisher had not published them within two weeks from the date of the Commission’s decision, the decision had to be presented on the national radio. The decision was also published on the Commission’s webpage. The court further reiterated the formal requirements applicable to the Commission’s decisions and stated that in the present case not all required information was put in the protocol of the hearing and that domestic regulations were breached. As regards the merits of the complaint, the court held that the first applicant had expressed his opinion because he had used the word “I think”, and that the opinion was subjective and it only had to be expressed in good faith, in an ethical manner and not concealing or distorting facts and information. The court also reiterated that a fact was a real event, phenomenon or matter. Data was information disclosing the substance of the fact. News was information about the facts and their data that could be secured by the means of verification and evidence, thus the criterion of truth was applicable, contrary to an opinion. In order to distinguish between news and opinion, it was necessary to analyse the whole context of an article or a speech, the circumstances of the speech, construction of sentences, etc. In the present case, there was no doubt that V.M. had owned companies producing food products of wide use, the brands of these products were widely advertised in the media. Also, it was not disputed that the companies controlled by V.M. had a right to decide the media companies with which to conclude advertising agreements. The statement in the article that V.M. was a big advertiser and media did not dare to publish negative information about him was not based on false information. It was not intended to offend or humiliate V.M. The court thus decided that the balance between the interest of the public to receive information and a person’s right to privacy, honour and reputation had not been breached. The second applicant’s argument that the Commission’s decision was contrary to the Inspectorate’s decision was dismissed as not important because these two authorities were independent subjects, they had a right to adopt independent decisions, they had been functioning on the basis of different legal acts and they had been implementing different functions. The court thus decided that the Commission had not been obliged to take into account the Inspectorate’s decision.
V.M. appealed and on 26 June 2017 the Supreme Administrative Court overturned the first-instance decision. The court held that it was not only important to assess whether the information published was accurate and correct but also whether other alternative opinions existed. Also it had to be established whether the Commission had not breached the requirements of domestic law. As regards the latter, the court held that the breaches of domestic law were not severe enough to raise doubts as to the lawfulness of the decision and the formal shortcomings had no influence on the substance of the Commission’s decision. The court further held that the mere use of words “I think” was not enough to state that the arguments presented in the article were valued judgments. The court decided that the Commission had a reason to believe that the statements in the article were news, and the criteria of truth and accuracy had to be applied. Moreover, the accuracy of information had to be proved by the person who had published it. However, the second applicant had not provided any proof as to the accuracy and fairness of the published information and based its position on the decision of the Inspectorate. The court held that the fact that V.M. was an entrepreneur, owner of a company who was advertising his brand and production was not enough as a basis for the published information. The court considered that no sources of information were provided and held that the first-instance court had incorrectly drawn a line between opinions and facts. The statements presented in the article were declarative and publishing of information that had no factual basis was contrary to the principles of a democratic society. The court thus decided to dismiss the second applicant’s claim and satisfy V.M.’s appeal.
It appears that the second applicant has not published the Commission’s decision.
2. The second article
The second applicant published an article by the journalist M.B. The article was called “In the political marketing – the dual of Paksaitė and Matijošaitukas” (Politinėje rinkodaroje – Paksaitės ir Matijošaituko dvikova; Paksaitė is a daughter of a former Lithuanian president and Matijošaitukas, which is a diminutive for Matijošaitis, is a son of V.M., a large business owner and a politician in Lithuania). The article portrayed various techniques of political marketing. It described the picture of the son of V.M., portrayed in the well-known journal in Lithuania “Žmonės”. One of the sentences in the article was: “without analysing the context and making our assessment economical, we would call such article as another derogatory essay by a tabloid...” (neanalizuodami kontekso ir vertindami ūkiškai, tokį stripsnį pavadintume dar viena bulvarinio leidinio rašliava...).
The company who owns the journal “Žmonės” (the company) submitted a complaint to the Commission. On 17 August 2015 the Commission held that the company had not been given a possibility to respond and to deny the information published by the second applicant, and ordered the latter to publish the decision of the Commission.
On 20 August 2015 the Inspectorate of Journalistic Ethics analysed the same publication on the basis of a complaint submitted by V.M.’s son and found that the information published had been related to public interest and that certain arguments had been provided; moreover, V.M.’s son was a well-known figure in Lithuania. It could not therefore be concluded that the second applicant had overstepped the margins of freedom of expression. It was not necessary to provide the right of reply in all cases because otherwise it would be difficult for any person to publicly criticise the activities of State and municipal institutions and officers.
The second applicant complained against the decision of the Commission to the domestic courts. On 29 March 2016 the Vilnius Regional Administrative Court held that the right of reply could only be used if it was established that the information published amounted to criticism. The court referred to the Lithuanian dictionary and stated that criticism was an examination, assessment and highlighting shortcomings of a certain issue. The second applicant stated that it had only published an opinion of a journalist, and that no false information had been published. The court stated that the article was aimed at drawing the public’s attention to certain problems, and that it expressed the author’s concern. Because the article had merely expressed an opinion, the right of reply was not applicable, and thus the second applicant’s complaint was allowed.
The second applicant, the Association on the Ethics of Public Information and the company submitted appeals. On 31 August 2017 the Supreme Administrative Court considered that the first-instance court had not analysed specific accusations published about the company and returned the case to it for fresh examination.
On 16 November 2016 the Vilnius Regional Administrative Court analysed the notion of the right of reply. The court held that the publication in question expressly mentioned the journal owned by the company and explored the issues of political advertising. The court considered that the publication had examined and assessed the activities of the journal, and that the second applicant had to offer it a right of reply.
The first, the second applicants and M.B. appealed. On 13 February 2018 the Supreme Administrative Court upheld the first-instance decision and stated that the second applicant had had to offer the journal “Žmonės” the right of reply before publishing the article at issue.
B. Relevant domestic law
1. The Constitution
Article 25 of the Constitution provides that everyone shall have the right to have his own convictions and freely express them. No one must be hindered from seeking, receiving, or imparting information and ideas. The freedom to express convictions, as well as to receive and impart information, may not be limited otherwise than by law when this is necessary to protect human health, honour or dignity, private life, or morals, or to defend the constitutional order. The freedom to express convictions and to impart information shall be incompatible with criminal actions ‑ incitement to national, racial, religious, or social hatred, incitement to violence or to discrimination, as well as defamation and disinformation. Citizens shall have the right to receive, according to the procedure established by law, any information held about them by state institutions.
2. The Code on Ethics of the Lithuanian Journalists and Publishers
Article 3 provides that a journalist or organiser of public information has to publish accurate and correct information and various opinions. He or she cannot publish opinions that are contrary to the law and ethics.
Article 19 provides that journalists, organisers and publishers of public information have to comply with the rule that the level of criticism of a private person is much narrower than of a public figure, therefore when providing information about a private person, priority has to be given to the protection of private life and providing information about a public figure has to be in the public interest.
According to Article 22 § 2, a person who is being criticised has to have a right of reply.
3. The Law on Public Information
Article 2 § 36 describes an opinion as a point of view, understanding, perception, thoughts and commentaries about ideas of common nature, assessment of facts and information, phenomena and events, conclusions or observations about news related to the real facts. An opinion is usually subjective and the criteria of truth and accuracy are not applicable. However, it has to be expressed in good faith, in an ethical manner and not concealing or distorting facts and information.
Article 3 § 3 provides that public information provided in the media has to be accurate, precise and impartial.
Article 9 provides that every person has a right to publicly criticise the activities of State and municipal authorities and officers. It is prohibited to persecute for criticism.
According to Article 15, every natural person whose honour and reputation is humiliated by untrue, inaccurate or arbitrary information published in the media has a right of reply and to rebut the published information or to clarify it, or to require that the organiser and/or publisher of public information retract the untrue information.
Article 16 § 1 provides that organisers and publishers of public information has to provide in the media as many different independent opinions as possible in order to respect the variety of opinions.
Under Article 19 § 2, it is prohibited to publish disinformation and defamatory, offensive information or information that is abasing a person’s honour and reputation.
Article 41 § 2 (1) provides that journalists have to provide accurate, correct and impartial information, to critically assess their sources of information, to verify the facts attentively and carefully, to base their information on several sources.
Finally, according to Article 461 § 3 (3), the Commission has a right to examine complaints regarding the activities of the publishers and organisers of public information.
COMPLAINT
The applicants complain under Article 10 of the Convention that the requirement to publish the Commission’s decisions in its journal had violated their freedom of expression.
QUESTION TO THE PARTIES
Has there been an interference with the applicants’ freedom of expression by the decision to order the first applicant to publish the decisions of the Commission, within the meaning of Article 10 § 1 of the Convention (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 IV; Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 88-91, ECHR 2004 XI; and Redaktsiya Gazety ‘Zemlyaki’ v. Russia, no. 16224/05, §§ 34-38, 21 November 2017)? If so, was the interference with the applicants’ right to freedom of expression necessary in a democratic society within the meaning of Article 10 § 2 of the Convention? The parties are specifically asked to comment on whether the characterisation of the first applicant’s utterances as statements of fact, rather than value judgments, was justified.
The Government is asked to comment on the difference of views taken by the Commission on the Ethics of Public Information and the Inspectorate of Journalistic Ethics, their relationship and their competencies.
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