Information Note on the Court’s case-law No. 113
November 2008
Mihaiu v. Romania - 42512/02
Judgment 4.11.2008 [Section III]
Article 10
Article 10-1
Freedom of expression
Journalist's conviction for criminal defamation in respect of article in a satirical publication accusing, without good faith or a factual basis, an editor of populism and corruption: no violation
Facts: The applicant published an article in a satirical weekly criticising the political character of the writings of D.T., the editor in chief of a daily newspaper. In it he described how D.T. deplored the zeal shown by the authorities when it came to the restitution of property that had belonged to representatives of the Romanian monarchy, compared with the inefficiency of restitution measures concerning the rest of the population. The photo illustrating the article showed a man’s wrist wearing an expensive watch, which certain editors in chief had been offered by an industrial group at a press conference which D.T. had purportedly attended. When the applicant learnt that D.T. had not attended the press conference in question, a rectification was published in the following edition of the weekly.
D.T. brought criminal proceedings against the applicant for defamation, suing the applicant and his newspaper for damages. The applicant told the court that his assertions had been based on the statements of a newspaper director, S.R.S., who had attended the conference, and that he had also sought confirmation of D.T.’s presence from a press agency representative, but in vain, as the person had not been in Romania at the time. S.R.S. confirmed that he had stated that D.T. had been invited to the conference, but added that he had suggested that the applicant check whether he had actually attended. He also stated that when the article was published he had called the applicant to let him know that D.T. had not attended the conference. The applicant attended three hearings then had a lawyer represent him at subsequent hearings. He was acquitted of criminal defamation, for even though his affirmations had been defamatory and inaccurate, the court had deemed that there was no evidence in the case file that he had published the article with the intention of defaming the plaintiff. However, considering the negative image that had been given of D.T. and his newspaper, which was capable of undermining their credibility, the court sentenced the applicant, jointly and severally with his weekly publication, to pay the plaintiff the equivalent of about EUR 300 in respect of non-pecuniary damage. The parties appealed to the County Court. The applicant did not attend the hearings, but was represented by his lawyer, who presented written submissions. No evidence was adduced. Having regard to the content of the article, the circumstances of its publication and the author’s position, the court found that there had been no negligence but that, on the contrary, the applicant had accepted the idea that he would be discrediting and compromising the person targeted by his inaccurate public affirmations. It found that there had been criminal defamation, ordered the applicant to pay a fine equivalent to EUR 300, and increased the damages to the equivalent of about EUR 1,300.
Law: Article 10 – The County Court’s decision amounted to interference that was prescribed by law and pursued the legitimate aim of the protection of the reputation of others. The offending article was not simply part of a quarrel between journalists. It concerned a particularly topical matter of general interest in Romania, namely the independence of the press. Consequently, this was not a matter of corruption of senior civil servants, the activities of politicians or economic, social or other issues of interest to society, but of protecting the very role of the press as a “watchdog” in a democratic society. Examining the offending article as a whole, the Court noted that it contained factual allegations about D.T. Making such direct allegations about a specific person, stating his name and function, placed the applicant under obligation to provide a sufficient factual basis in the proceedings against him. However, as the allegations concerning D.T.’s presence at the conference and his receiving a watch were not corroborated by any evidence, the Court was not convinced by the applicant’s argument that he had acted in good faith. On the contrary, in repeating statements made by third parties he should have shown greater rigour and particular caution before publishing the article. The photo illustrating the impugned article was likely to make readers believe that the article was based on fact and not open to doubt. As the applicant himself acknowledged, however, it was not a photo of D.T. Therefore, in the absence of good faith and of a basis in fact, and although the offending article was part of a broader and highly topical debate in Romania, the Court did not consider it possible to view the applicant’s assertions as an example of the degree of exaggeration or provocation permitted in the exercise of press freedom. It therefore considers relevant and sufficient the reasons given by the County Court for finding the applicant guilty of defaming D.T. and convicting him. As to the proportionality of the interference with freedom of expression, the sums the applicant had been ordered to pay were relatively small. Moreover, according to information submitted by the Government, neither the applicant nor the weekly newspaper had paid D.C. any the damages. In the light of the circumstances of the case, the applicant’s conviction was not disproportionate to the legitimate aim pursued and the impugned interference could therefore be deemed necessary in a democratic society.
Conclusion: no violation (unanimously).
Article 6 – The applicant was convicted by the County Court without having been heard in person.
Conclusion: violation (six votes to one).
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This summary by the Registry does not bind the Court.
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