Communicated on 27 June 2017
THIRD SECTION
Application no. 28873/15
OOO TELEKANAL DOZHD
against Russia
lodged on 28 May 2015
STATEMENT OF FACTS
The applicant is a limited-liability company producing the Russian independent television channel TV Rain (ООО «Телеканал Дождь», “the applicant channel”). It is represented before the Court by Ms M. Samorodkina and Mr G. Reznik, lawyers practising in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 26 January 2014, the eve of the 70th anniversary of the lifting of the 872-day siege of Leningrad during the Second World War, the applicant channel ran a live poll of its viewers, asking them the question:
“Should Leningrad have been surrendered in order to save hundreds of thousands of people [who died during the blockade]?”
In February 2014 two pensioners filed an action for defamation against the applicant channel. One of them was born in 1938 and had lived in Leningrad during the siege until his evacuation in 1942. The other was born in 1941 and his father, a serviceman in the Red Army, brought him to Leningrad in November 1943. They claimed that the question had hurt their feelings and undermined their dignity by putting into doubt the “heroic actions of the Leningrad defenders which had been acknowledged by all civilised nations as an uncontroversial and unconditional historic fact”. They sought compensation in respect of non-pecuniary damage in the amount of 1,000,000 and 50,000,000 Russian roubles respectively.
On 7 August 2014 the Zamoskvoretskiy District Court in Moscow granted their claims, finding as follows:
“Taking into account that the plaintiffs are residents of St Petersburg who had lived there during the siege, the court considers that the wording of the poll is indicative of a breach of moral and ethical norms, is disrespectful and offensive for the plaintiffs, and undermines their honour and dignity. Accordingly, the court finds that the defendant committed a breach of the plaintiffs’ incorporeal assets by conducting the poll, and, by virtue of Article 150 § 2 of the Civil Code, directs the defendant to publish the present judgment ... on the internet.”
The District Court did not accept the applicant channel’s reference to Article 10 of the Convention, holding that it was outweighed by the plaintiffs’ right under Article 3 not to be subjected to inhuman and degrading treatment.
On the issue of compensation, the District Court found as follows:
“Taking into account the circumstances of the case, the fact that the poll was conducted on the eve of the 70th anniversary of the liberation of Leningrad from German Fascist occupiers, the personalities of the plaintiffs and their attitude to the poll, the court ... [awards] 100,000 Russian roubles to each plaintiff [approximately 2,000 euros].”
On 28 November 2014 the Moscow City Court rejected the appeal in a summary decision.
On 25 March and 8 July 2015 the City Court and the Supreme Court of Russia, respectively, refused the applicant channel leave to appeal to the cassation instance.
B. Relevant domestic law
The Russian Civil Code provides:
Article 150. Incorporeal assets
“1. Life and health, dignity, personal integrity, honour and goodwill, business reputation, privacy, home, personal and family secrets, freedom of movement and the right to choose place of temporary and permanent residence, the right to a name, copyright, other incorporeal assets which a person possesses by virtue of birth or by operation of law shall be inalienable and non-transferable by any means.
2. Incorporeal assets shall be protected under the present Code and other laws in the cases and procedure established therein ... If it is necessary for the protection of the citizen’s interests, his [or her] incorporeal assets may be protected by way of a judicial acknowledgement of a breach of his [or her] personal non-property right, publication of the judgment acknowledging such a breach ...”
COMPLAINT
The applicant channel complains under Article 10 of the Convention about an unjustified restriction on its right to freedom of expression.
QUESTIONS TO THE PARTIES
Was there a violation of Article 10 of the Convention? In particular, was the interference “prescribed by law” and was that law sufficiently clear and foreseeable in its application? What was the objective link between the question of the poll and the plaintiffs (compare Dyuldin and Kislov v. Russia, no. 25968/02, § 44, 31 July 2007; Godlevskiy v. Russia, no. 14888/03, § 44, 23 October 2008, and Reznik v. Russia, no. 4977/05, § 45, 4 April 2013)?
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