Communicated on 26 June 2015
FIRST SECTION
Application no. 2840/10
OOO MEMO
against Russia
lodged on 24 December 2009
STATEMENT OF FACTS
The applicant company, OOO Memo, is a Russian limited liability company with the registered office in Moscow (“the applicant company”). It is represented before the Court by Ms A.K. Soboleva, a lawyer practising in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant company, may be summarised as follows.
1. Background to the case
The applicant company owns the news website “the Caucasian Knot” (Кавказский узел), which is focused on politics and human rights issues arising in the south of Russia, including the Volgograd Region.
In 2008 the executive authority of the Volgograd Region, the Administration of the Volgograd Region (“the Regional Administration”), with reference to the fact that its budget limit for subsidies had been exceeded, suspended a transfer of a subsidy in the amount of RUB 5,294,000 (approximately EUR 145,000) to the Town of Volgograd.
As appears, the lawfulness of the decision to suspend the transfer was widely discussed in the Volgograd Region.
2. Publication
On 1 July 2008 “the Caucasian Knot” published an article written by its correspondent, Mr Ya., on the basis of his interview with certain Mr S., introduced to the readers as an expert of the Fund for the Development of Information Policy (Фонд развития информационной политики).
The article was headlined “[Mr S]: the Mayor’s Office of Volgograd fell out with the Administration of the Volgograd Region over a bus factory” and read as follows:
“Interests of officials of the Administration of the Volgograd Region and the management of the Volzhanin bus factory might be the reason of a financial confrontation between the Mayor’s Office of Volgograd and the Regional Administration”.
The above conclusion has been made by an expert of the Fund for the Development of Information Policy, Mr [S.], in his interview with a correspondent of “the Caucasian Knot”.
“In my view, there are two main reasons for the financial conflict surrounding the order of the Administration of the Volgograd Region to suspend allocation to the Town of Volgograd of subsidies from the regional budget. As you remember, the amount totalled RUB 5,294,000”, explained Mr [S.]. “Undoubtedly, the first reason is a political one. It is linked to the [results] of the regional elections [of 2 March 2008]. The second reason is not widely known. It is of a purely economic character”.
Mr [S.] further stated that many officials of the Administration of the Volgograd Region are “impresarios” of the Volzhanin factory. According to him, the Regional Administration gave a significant support to the bus factory for opening of its branch in the Republic of Kabardino-Balkaria, which took place on 30 January 2008.”[The governor of the Volgograd Region] himself attended the opening ceremony”, noted the expert.
“Recently the Mayor’s Office held an open market tender to buy buses. The Regional Administration lobbied the Volzhanin factory to win the tender, but it was won by another company which offered buses, each of which was 1,000,000 cheaper [than the buses offered by the Volzhanin factory]. The total budget saving was significant. It amounted to RUB 35,000,000”, said the expert.
“The officials of the Regional Administration came down on the Mayor’s office, saying “What’s that? You did not support the national producer!” It appears to me that the Mayor’s Office’s refusal from business with the Volzhanin factory was one of the main reasons of the regional officials’ anger”, noted Mr [S.].
In conclusion the expert [said that he] could not exclude that the suspension of allocation of subsidies to the Town of Volgograd from the regional budget was an act of revenge for the lost tender...
“The Caucasian Knot” has reported earlier that the members of the [parliament] of the Volgograd Region sent a letter to the Administration of the Volgograd Region with a request to revoke the order ... to suspend ... allocation to the Town of Volgograd of subsidies from the regional budget ...
The regional authorities, in their turn, explain this step by the municipal authorities’ failure to respect the limits of expenditure fixed by [the former]...
The members of [the regional parliament] called into doubt the lawfulness of that decision. [They] applied to the Governor [of the Volgograd Region] with a request to suspend the impugned order and to ensure its compliance with the federal method of development of inter-budget relations, with due regard to calculation and substantiation by [the Mayor’s Office of Volgograd].”
3. Defamation proceedings
On 2 October 2008 the Regional Administration brought a defamation claim against the applicant company and the editorial board of “the Caucasian Knot” seeking the publication of a disclaimer against the following expressions:
“...there are two main reasons for the financial conflict surrounding the order of the Administration of the Volgograd Region to suspend allocation to the Town of Volgograd of subsidies from the regional budget. As you remember, the amount totalled RUB 5,294,000”, explained Mr [S.]. “Undoubtedly, the first reason is a political one. It is linked with the [results] of the regional elections [of 2 March 2008]. The second reason is not widely known. It is of a purely economic character.”
“Recently the Mayor’s Office held an open market tender to buy buses. The Regional Administration lobbied the Volzhanin factory to win the tender, but it was won by another company...”
“The officials of the Regional Administration came down on the Mayor’s office, saying “What’s that? You did not support the national producer!” It appears to me that the Mayor’s office’s refusal from business with the Volzhanin factory was one of the main reasons of the regional officials’ anger...”
“...the suspension of allocation of subsidies to the Town of Volgograd from the regional budget was an act of revenge for the lost tender...”
The regional authorities contested those expressions as false, complaining they had been disseminated as Mr S.’s opinion and had tarnished the Regional Administration’s “business reputation” (деловая репутация). The regional authorities insisted that they had not put any pressure on the municipal authorities and had not lobbied the Volzhanin factory to win the tender, and that the suspension order had been issued solely because the budget limit for subsidies had been exceeded.
The applicant company disagreed with the claim. It argued, with reference to the practice of the European Court of Human Rights and Resolution no. 3 of the Plenary Supreme Court of Russia of 24 February 2005, that the impugned expressions were the expert’s value judgments based on his opinion rather than statements of fact. It further argued that the publication at hand aimed at addressing an issue of public concern, and namely attracting the readers’ attention to the complex relations between the regional and municipal authorities. The applicant company insisted that the impugned expressions had not been offensive, had not represented a gratuitous attack on any particular official in the Regional Administration, and had not exceeded the limits of acceptable criticism in respect of the regional authorities, who, being political institutions, should display a higher degree of tolerance towards such criticism than private individuals.
On 8 April 2009 the Ostankinskiy District Court of Moscow examined the case on the merits. It noted that, by virtue of Article 152 of the Civil Code of Russia, in defamation proceedings a claimant carried an obligation to prove a fact of dissemination of the information and its nature, whereas a defendant was under an obligation to prove the accuracy of that information.
The court further held as follows:
“On 1 July 2008 an article entitled “[Mr S.]: the Mayor’s Office of Volgograd fell out with the Administration of the Volgograd Region over a bus factory” authored by Mr [S.] was published on [the applicant company’s] website “the Caucasian Knot”. In the article the author made a conclusion about an economic nature of the conflict between the Mayor’s Office of Volgograd and the Administration of the Volgograd Region, the reason for which was lobbying by the Administration of the Volgograd Region of the Volzhanin factory’s interests at an open market tender, and the suspension of allocation of subsidies to the Town of Volgograd from the regional budget as an act of revenge for the lost tender. The defendant has not contested the fact that the impugned information was published. It has only argued that the expressions in question were not statements of fact, but value judgments. However, the court considers that it was the aforementioned expressions that the defendant disseminated in the form of statements that the Administration of the Volgograd Region had lobbied the Volzhanin factory’s interests. Lobbying, in its essence, implies someone’s intent to create advantageous conditions for one person in comparison with the others. In other words, it means to incline a person or a State body, through the use of unlimited resources for achieving the aim pursued with a view to creating a priority for someone over the others.
Though the author is using such an expression as “it appears to me”, he is affirming that the suspension of allocation of subsidies to the Town of Volgograd is an act of revenge by the Administration of the Volgograd Region.
Allegations of lobbying a particular legal entity’s interests and those of revenge on the part of an executive authority, are, in themselves, damaging for the reputation of the Administration of the Volgograd Region, as they can make numerous Internet users believe that the Regional Administration is involved in unclean and unethical – even if not unlawful and criminally punishable – activity condemned by society. At the same time, the defendant has failed to provide any evidence to prove that the events, referred to in the article, did take place. The Administration of the Volgograd Region has submitted its orders to suspend allocation of subsidies to the Town of Volgograd in connection with exceeding the limit of expenditure envisaged for the municipal authorities..
Therefore, the fact of dissemination of the information damaging for the business reputation of the Administration of the Volgograd Region has been proved during the examination of the present dispute. On the other hand, the accuracy of the disseminated information has not been proved by the defendant, who neither submitted any evidence, nor requested the court to assist it in obtaining evidence.”
The court further ordered the applicant company, within 30 days after the present judgement had become final, to publish on “the Caucasian Knot” website a disclaimer stating that the extracts saying that “the Regional Administration [had] lobbied the Volzhanin factory to win the tender” and that “the suspension of allocation of subsidies to the Town of Volgograd from the regional budget [had been] an act of revenge for the lost tender” were false and damaging to the business reputation of the Administration of the Volgograd Region, as well as to publish the operative part of the present judgment.
The applicant company appealed, complaining that the first-instance court had not taken into account any of its arguments. It further maintained its arguments advanced before the first-instance court, arguing that the expressions in issue were value judgments and were not formulated in absolute terms. It also noted that the article elaborated on a topical issue and that the author, being a professional journalist, had not overstepped the limits of allowed criticism.
On 16 July 2009 the Moscow City Court, endorsing the reasoning of the first instance court, upheld the judgment on appeal.
B. Relevant domestic law and practice
1. Constitution of Russia
Article 29 guarantees freedom of thought and expression, together with freedom of the mass media.
2. Civil Code of the Russia
Article 152 provides that an individual may apply to a court with a request for the rectification of statements (“svedeniya”) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non‑pecuniary damage sustained as a result of the dissemination of such statements.
3. Resolutions of the Plenary Supreme Court of Russia
Resolution of the Plenary Supreme Court of Russia no. 11 of 18 August 1992 (amended on 25 April 1995 and in force at the material time) provided that, in order to be considered damaging, statements had to be untrue and contain allegations of a breach of laws or moral principles (for example, the commission of a dishonest act, or improper behaviour at the workplace or in everyday life). “Dissemination of statements” was understood to be the publication of statements or their broadcasting (section 2). The burden of proof was on the defendant to show that the disseminated statements were true and accurate (section 7).
On 24 February 2005 the Plenary Supreme Court of Russia adopted Resolution no. 3, which required the courts examining defamation claims to distinguish between statements of facts which can be checked for veracity, and value judgments, opinions and convictions which are not actionable under Article 152 of the Civil Code because they are expressions of a defendant’s subjective opinion and views and cannot be checked for veracity (paragraph 9). Furthermore, it prohibited the courts from ordering defendants to extend an apology to a claimant, because that form of redress had no basis under Russian law, including Article 152 of the Civil Code (paragraph 18).
COMPLAINT
The applicant company complains under Article 10 of the Convention about an unjustified interference with its freedom of expression.
QUESTION TO THE PARTIES
Was the interference with the applicant company’s right to freedom of expression, in particular its right to impart information and ideas, justified under Article 10 § 2 of the Convention? In particular, was such interference “prescribed by law”? If so, did it pursue a legitimate aim? If so, was it necessary in a democratic society? In particular, were the reasons adduced by the domestic courts “relevant and sufficient” to justify the alleged interference?
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