Communicated on 22 November 2016
FIRST SECTION
Application no. 71470/12
SKIZB MEDIA KENTRON LTD (II)
against Armenia
lodged on 27 October 2012
STATEMENT OF FACTS
The applicant company, Skizb Media Kentron, is a limited liability company with its registered office in Yerevan. It is represented before the Court by Mr N. Baghdasaryan, a lawyer practising in Yerevan.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant company publishes Zhamanak, a daily newspaper.
On 29 September 2010 an article was published in issue no. 159 entitled “Criminal Case against an Adviser to the Speaker of Parliament?” with the following content:
“To our knowledge, a criminal case has been instituted against [T.M.], an adviser to the Speaker of the Armenian Parliament, [H.A.], which is currently being dealt with by the Central Investigative Unit of the Police by one of the investigators who deals with cases of special significance. [T.M.] is suspected of usury. One of the persons summoned as a witness in another criminal case has unwittingly blabbed that [T.M.] lent him money at interest. They say that is how the criminal case came into being.”
On 30 September 2010 another article was published in issue no. 160 entitled “[Mr M.], Have You Not Lent 40,000 [United States dollars (USD)] at Interest?” with the following content:
“Yesterday the editorial office received a telephone call from [T.M.], an adviser to the Speaker of Parliament, [H.A.], who was concerned and furious because of the news published the day before (‘Criminal Case against an Adviser to the Speaker of Parliament?’) and demanded that we retract the inaccurate information and apologise. He stated, in justification of his demand, that he had personally enquired of the head of the Central Investigative Unit of the Police, [M.], whether there had been a criminal case instituted against him on account of usury, which [M.] had denied. [T.M.] said that the police had also denied that statement and had advised us to call the relevant officer to make sure. But we called the police press office, which was not aware of this, and they advised us to call back the next day when they would have clarified this with the investigators. We asked [T.M.], in any case, to send us the text of the retraction but he said that he would do it after having enquired from us about the answer of the police. He also denied that he had testified the day before. Nevertheless, our sources insist that there has been a criminal case instituted on account of usury, in which another person is facing charges, to whom [T.M.] lent 40,000 USD at a 12% interest rate. The investigation is still underway. We are not publishing other details yet and will definitely call the police today.”
On an unspecified date T.M. instituted civil proceedings against the applicant company, claiming that the above articles contained defamatory statements and seeking their retraction and payment of damages.
The applicant company objected to the claim.
On 20 September 2011 the Kentron and Nork-Marash District Court of Yerevan partially granted the claim, ordering the applicant company to publish a retraction and to pay damages and legal costs in the amount of 510,000 Armenian drams (AMD). In doing so, the District Court reached the following findings:
(a) The information contained in the article published in issue no. 159 was false and did not correspond to reality, had tarnished T.M.’s honour and dignity and constituted defamation. The applicant company had failed to produce any evidence confirming that a criminal case had been instituted against T.M., whereas the latter had submitted a notice provided by the police certifying that there had been no criminal case instituted against him; and
(b) The information contained in the article published in issue no. 160 did not constitute defamation. The statement that T.M. had lent a sum of money could not be considered as tarnishing his honour and dignity as it referred to conduct permitted under civil law, namely lending money at interest. A criminal case had indeed been instituted on account of usury and T.M. had been questioned as a witness.
On 20 October 2011 the applicant company lodged an appeal.
On 15 December 2011 the Civil Court of Appeal dismissed the appeal and upheld the judgment of the District Court.
On 16 January 2012 the applicant company lodged an appeal on points of law.
On 27 April 2012 the Court of Cassation dismissed the appeal on points of law, finding, inter alia, that the applicant company had failed to verify the veracity of the information before publishing it, while the publication of the second article, which mentioned the fact that T.M. had been involved in the criminal case only as a witness, could not be considered as a formal retraction. As an instruction to the lower courts examining defamation cases, the Court of Cassation also stressed, inter alia, the importance of distinguishing between value judgments and statements of fact, as well as taking into account the wider permissible limits of criticism of politicians and civil servants, although without treating the latter on an equal footing to the former when it came to the criticism of their actions.
B. Relevant domestic law
Article 1087.1 of the Civil Code provides that a person whose honour, dignity or business reputation has been tarnished through insult or defamation can institute court proceedings against the person who made the insulting or defamatory statement. An insult is a public statement made through words, images, sounds, signs or other means with the aim of tarnishing someone’s honour, dignity or business reputation. A public statement may be considered not an insult if it is based on precise facts (except congenital defects) or pursues a paramount public interest. Defamation is a public statement of fact about a person, which does not correspond to reality and tarnishes his or her honour, dignity or business reputation. In cases of defamation, the obligation to prove the existence or absence of the relevant factual circumstances is placed on the defendant. This obligation will be shifted to the claimant if presenting such proof requires the defendant to perform unreasonable actions or efforts, whereas the claimant possesses the necessary evidence. A person shall be absolved of liability for defamation or insult if the statements of fact expressed or presented by him are a verbatim or bona fide reproduction of information disseminated by a media outlet, or of information contained in a public speech, official documents, other mass media or any creative work, and if he or she makes a reference to the source (that is to say the author).
COMPLAINT
The applicant company complains under Article 10 of the Convention that its right to freedom of expression was breached.
QUESTION TO THE PARTIES
Has there been a violation of the applicant company’s right to freedom of expression, in particular its right to impart information and ideas, contrary to Article 10 of the Convention?
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