Communicated on 8 February 2018
FIFTH SECTION
Application no. 32638/11
Rayna Ivanova TOSHEVA
against Bulgaria
lodged on 5 May 2011
STATEMENT OF FACTS
The applicant, Ms Rayna Ivanova Tosheva, is a Bulgarian national, who was born in 1951 and lives in Vratsa. She is represented before the Court by Mr A. Kashamov and Mr S. Terziyski, lawyers practising in Sofia.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a journalist in Vratsa and editor-in-chief of the local newspaper Shans Express.
On 7 November 2006 the newspaper published an article by the applicant entitled “Doctor freaks out patient with a fatal diagnosis” and with a subtitle “A specialist takes a mole for cancer”.
The article told the story of a 73-year-old patient who was examined by Dr M.S. after an X-ray image of his chest showed a dark spot. It claimed that the doctor had “confused a most common mole with cancer” (it had turned out eventually that the “spot” in his lungs had just been the X-ray reflection of a mole on his chest) and that the “fatal” diagnosis had “shocked” the patient, who had “started counting his days”, had lived a “nightmare” and had considered himself “doomed”. During this time he had underwent “lots of unnecessary procedures, including with radioactive substances and X-ray imaging”. After the tests had shown no cancer, the doctor had prescribed treatment for tuberculosis, after which the patient had been “totally shocked”. After eventually he had been cleared off (by a doctor who had “burst into laughter” after discovering the truth), he had complained to the health authorities, who had been of the opinion that the doctor had acted competently. The article concluded that there had thus been “no spot on the white overall” of Dr M.S. and no spot on the patient’s lungs, “even though the ‘competent’ doctor saw it, and was so frightened of it that she freaked out her patient”.
On 4 December 2006 Dr M.S. brought a tort action against the applicant and the company publishing the newspaper (it appears that the applicant is the sole owner of that company), claiming that the article had contained untrue statements and that it encroached upon her professional reputation and personal dignity. She claimed jointly from the two defendants 11,000 Bulgarian levs (BGN, the equivalent of 5,600 euros – EUR) in non‑pecuniary damage.
In the context of the ensuing proceedings a court-appointed expert explained that Dr M.S had acted competently and in accordance with good medical practice. She had prescribed the tests necessary to confirm or reject the cancer diagnosis (the patient had been at risk) and, suspecting after that latent tuberculosis, had prescribed the appropriate treatment. The expert explained also that moles were very rarely reflected on X-ray images.
In a judgment of 25 February 2008 the Vratsa Regional Court rejected Dr M.S.’s claims. It found that in publishing the article at issue the applicant had not acted unlawfully, but in exercise of her right to freedom of expression. Prior to writing the article she had consulted a doctor and had been “convinced” of the veracity of the facts to publish. Moreover, she had not made particularly defaming or insulting statements. Lastly, Dr M.S. had not shown that she had indeed suffered the damage claimed.
Upon an appeal by the doctor, in a judgment of 21 January 2010 the Sofia Court of Appeal reversed and found against the applicant. It pointed out that according to the expert heard by the lower court Dr M.S. had prescribed adequate treatment and had acted professionally, which had also been confirmed by the health authorities after the patient had complained to them. The article’s tone, on the other hand, was “ridiculing, insulting and defaming” and it contained “untrue statements” and “skewed information”. This could not be altered by the fact that prior to writing the article the applicant had consulted another doctor. The article had reached a large audience and as a result Dr M.S. had felt “insulted” and “upset”. The Court of Appeal considered it justified to award in full the amount claimed by her, namely BGN 11,000, plus default interest.
In a final decision of 5 November 2010 the Supreme Court of Cassation refused to accept for examination the appeal on points of law lodged by the applicant.
In the meantime, after the Sofia Court of Appeal’s judgment, Dr M.S. instituted enforcement proceedings against the applicant. In August 2010 a bailiff calculated the total amount due by her, including the principal award of BGN 11,000, default interest and costs, at BGN 21,065 (the equivalent of EUR 10,770).
COMPLAINTS
The applicant complains, relying on Article 10 and Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, that she was ordered to pay damages, after the Sofia Court of Appeal found that she had insulted and defamed Dr M.S. in her article of 7 November 2006. The applicant argues that she had acted as a responsible journalist, that she had reported on matters of public interest and that the sanction imposed on her was clearly excessive.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to freedom of expression, guaranteed by Article 10 of the Convention, on account of the court decisions ordering her to pay damages to Dr M.S. in relation to the article published on 7 November 2006?
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