FIFTH SECTION

DECISION

Application no. 35211/09 TELERADIOKOMPANIYA NBM against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 2 July 2019 as a Committee composed of:

Síofra O ’ Leary, President, Ganna Yudkivska, Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar ,

Having regard to the above application lodged on 12 June 2009,

Having deliberated, decides as follows:

THE FACTS

1. The applicant company, Teleradiokompaniya NBM, is registered in Ukraine and owns a TV channel “5 Kanal” (“5 th Channel”, hereafter – the Channel). It was represented before the Court by Mr O.E. Grabyezhov, residing in Kyiv.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . On 17 November 2006 the applicant company concluded a contract with the Poltava Region Association of the All-Ukrainian Society “Prosvita” (hereafter – the Association) according to which the applicant company had to broadcast the materials submitted by the Association. Under paragraph 4.1.4 of the contract the Association had to ensure that the information contained in the materials submitted for broadcasting was correct. Paragraph 6.3 of the contract provided that the applicant company was not responsible for the contents of the broadcast materials. While the contract itself did not specify the materials to be prepared by the Association, the applicant company submitted an annex to the contract which mentions a 15-minute programme “Forum-Poltava”.

4. In its application form of 8 May 2009 lodged before this Court the applicant company stated that on 19 November 2006 a TV programme “Forum-Poltava” was broadcast on the Channel. In the same application form it further stated that it was “advertising material” and “election campaign advertising”. In the proceedings before the domestic courts (see paragraph 10 below) the applicant company claimed that the programme had been broadcast as “election campaign materials” or, alternatively, “advertising materials” or that it was not a TV programme at all, or had been never broadcast by the Channel.

5 . No video or written transcript of the programme at issue has been provided to the Court. As transpires from the domestic courts ’ judgments on the matter, the programme in question concerned a certain M., who was at that time a local council member who ran for the Mayor of Poltava post (to which he was eventually elected on 26 November 2006), and spoke about him as being corrupt and involved in various criminal affairs. In particular, it was alleged in the programme that M. was “involved in several criminal cases”, that he “received a bribe” for buying furniture for the local tax department, that while working for the tax authorities he “covered up violations of tax legislation” by a private enterprise, etc.

6. On 21 November 2006 the above programme was also retransmitted by two local TV companies. Allegedly, the retransmitted programmes contained the logo of the Channel.

7. On 28 March 2007 M. instituted defamation proceedings before the Oktyabrskyy District Court of Poltava against the applicant company and the two local TV channels. He claimed that the information contained in the programme was untrue and requested that the defendants refute this information. He also claimed 25,000 hryvnias (UAH) (around 3,400 euros (EUR) at the material time) in compensation for non-pecuniary damage which he stated would be used for the construction of a playground. In support of his claims M. submitted a video recording of the programme.

8 . According to the applicant company, it received M. ’ s claim on 28 April 2007 when all original video materials of 19 November 2006 had already been destroyed.

9. On 26 December 2007 the Oktyabrskyy District Court of Poltava found for M. The court established that by broadcasting the “Poltava ‑ Forum” programme the applicant company had spread untrue information about M., namely that M. was corrupt and involved in various unlawful affairs such as covering tax offences and receiving bribes. The court found that neither of the defendants had proven that the information in question was true. The claimant, on the contrary, submitted evidence that there were no criminal cases or other charges against him. The court further rejected the applicant company ’ s arguments that it was not the author of the programme, which was prepared by a third person and broadcast under a contract, and noted that the applicant company had to check the veracity of information it was broadcasting. The court decided that the defendants had to refute the information and to apologize. The applicant company was also ordered to pay M. UAH 25,000 in non-pecuniary damage.

10 . The applicant appealed stating that the local court had failed to properly establish the nature of the legal relations at stake and, respectively, to apply the proper legislation. In particular it claimed that the programme was broadcast as “election campaign materials” or, alternatively, “advertising materials” or that it was not a TV programme at all. It further claimed that the court had failed to involve the Association and/or the authors of the programme as co-defendants. According to the applicant company the video-recording submitted to the court by M. was “from an unknown source” and not a proper copy of the broadcast programme (which no longer existed by that time) and that the logo of the Channel on the retransmitted programmes was falsified. The applicant company also challenged the amount of the compensation for non-pecuniary damage as unjustified and unreasonable.

11. On 21 April 2008 the Poltava Regional Court of Appeal rejected the applicant company ’ s appeal and upheld the decision of the first instance court. The court essentially agreed with the findings of the local court.

12 . The applicant company appealed in cassation. On the merits of the case it repeated its previous arguments. As to the compensation for non ‑ pecuniary damage, it claimed this time that M., being a mayor, could not claim compensation for non-pecuniary damage as provided by Article 49 of the Law of Ukraine “On Information” (see paragraph 14 below).

13 . On 11 November 2008 the Supreme Court rejected the applicant company ’ s cassation appeal. Referring to section 1 of Article 335 of the Code of Civil Procedure of Ukraine (see paragraph 15 below) setting out the scope of consideration of cases by the court of cassation, the Supreme Court found that the arguments advanced in the cassation appeal did not disclose any appearances of violation or incorrect application of the domestic material or procedural law.

This decision was sent to the applicant company on 5 December 2008 and delivered on 31 December 2008.

B. Relevant domestic law

14 . Relevant provisions of the Law of Ukraine “On Information” (in force at the material time) read as follows:

Article 47. Responsibility for the violations of legislation on information

“Violations of the legislation of Ukraine on information shall entail disciplinary, civil, administrative or criminal liability according to the legislation of Ukraine.

The responsibility for the violations of legislation on information shall be carried by the persons liable for the following offences:

(...)

dissemination of untrue and defamatory information; (...)”

Article 49. Compensation for pecuniary and non-pecuniary damage

“In cases where the offence committed by a person or a body engaging in the information activities has caused pecuniary or non-pecuniary damage to individuals or legal entities, the person liable shall compensate it voluntarily or on the basis of a court decision.

State and local self-government authorities, as plaintiffs in cases relating to the protection of honour, dignity and business reputation, are entitled to claim before the courts only the refutation of untrue information and have no right to claim compensation for non-pecuniary damage. This does not deprive a State official or local self-government official of the right to defend his honour, dignity and business reputation in court.”

15 . Article 335 of the Code of Civil Procedure of Ukraine (in force at the material time) reads as follows:

“Article 335: Scope of consideration of the case by the court of cassation

“1. When examining a case in cassation, the court shall verify, within the limits of the cassation appeal, whether the first-instance or appellate court applied the provisions of the substantive or procedural law correctly and may not establish or hold proven facts which were not established or dismissed by the judgment, [or] decide on the reliability of evidence, [or] the weight to be attached to certain evidence.

2. The court of cassation shall examine the lawfulness of judicial decisions only within the limits of the claims raised before the court of first instance.

3. The court shall not be limited by the arguments of the cassation appeal if in the course of the consideration of the case it discerns the wrongful application of substantive legal provisions or a breach of procedural rules, constituting grounds for the compulsory quashing of a decision.”

COMPLAINTS

16. The applicant company complained about the violation of its rights under Article 10 of the Convention in that the courts ordered it to pay non ‑ pecuniary damage to M., who being a mayor, had no right under the domestic law to claim compensation for non-pecuniary damage. It thus considered such interference as not pursuing a legitimate aim and as being unnecessary.

17. Referring to Article 6 of the Convention the applicant company complained that the courts were not independent and impartial for they failed to involve in the proceedings the authors of the programme or other persons responsible for its contents. It further claimed that they failed to establish the nature of the legal relations at stake, i.e. whether the impugned programme was a TV programme, advertising material or election campaign material. It finally complained that the court decisions were not well ‑ reasoned.

THE LAW

18. The Court reiterates that it is master of the characterisation to be given in law to the facts of the case and it does not consider itself bound by the characterisation given by the applicant. Therefore, regarding the facts and the complaints made, the Court considers that the application should be analysed solely under Article 10 of the Convention, which reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

19. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society. It is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Nevertheless, the media and the press must not overstep certain bounds, in particular in respect of the reputation and rights of others. As enshrined in Article 10, freedom of expression is subject to exceptions which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999 III; Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 89, ECHR 2015 (extracts)).

20. The Court notes from the outset that in its application form the applicant company acknowledged that the “Forum ‑ Poltava” programme was broadcast by the Channel on 19 November 2006.

21. As to the nature of the programme the Court notes that the applicant ’ s submissions were inconsistent throughout the proceedings. In particular, it claimed that the programme was broadcast as “election campaign materials” or, alternatively, “advertising materials” or that it was not a TV programme at all. It further claimed that either the advertising or elections legislation be applied to the case – apparently, at the national court ’ s discretion. The domestic courts did not accept these arguments and proceeded from the fact that the programme was prepared under the contract between the applicant company and the Association as a TV programme.

22. As to the contents of the programme and the applicant company ’ s argument regarding the domestic courts ’ failure to establish the nature of the legal relations at stake, the Court notes that no video recording of the programme was provided by the applicant company to the Court. Moreover, according to the applicant company, it did not exist already before the start of the court proceedings at issue (see paragraph 8 above). While the applicant company claimed that the video, submitted by M. and examined by the courts, had been “from an unknown source” and that local TV channels had falsified its logo when retransmitting the programme (see paragraph 10 above) it failed to prove this point before the domestic courts and it did not provide any substantiation in this respect before this Court. Moreover, it appears that the applicant company has never endeavoured to obtain the video from a different source, e.g. requesting the authors of the programme for a copy of the video. The Court will thus rely on the findings of the domestic courts as regards the contents of the programme.

23 . T he Court observes that the national courts, in particular the Oktyabrskyy District Court of Poltava in its decision of 26 December 2007, established that the above programme concerned M., a local council member and later the mayor of Poltava, and contained various accusations of him being involved in corruption and other crimes (see paragraph 5 above). The applicant company was held liable for defamation and ordered to pay non-pecuniary damages to M.

24. Having established that, the Court considers that in the present case the domestic judgments adopted in the course of the civil proceedings against the applicant company amounted to an interference with its right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. An interference with the applicant ’ s rights under Article 10 § 1 will infringe the Convention if it does not meet the requirements of paragraph 2 of that Article. It should therefore be determined whether the interference complained of was prescribed by law, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was necessary in a democratic society in order to achieve those aims.

25. Th e applicant company complained that the award of the non-pecuniary damages to be paid to M. was unlawful as it was directly prohibited by the legislation for the State and local self-government authorities to claim non-pecuniary damages (see paragraphs 12 and 14 above). The Court notes at the outset that the applicant company has raised this argument for the first and only time before the court of cassation whose role was to review the lawfulness of the lower courts ’ decisions within the scope of the claims raised before the first ‑ instance court only (see paragraph 15 above). Apart from being lodged at a late and inappropriate stage of the proceedings, the applicant company ’ s argument was not substantiated. In particular it in no way addressed the situation in the case, namely whether M., being at the time the programme was broadcast a local council member and later a mayor, could be considered a “ State and local self-government authority” within the meaning of Article 49 of the Law “On Information” and if so, in which of the above two capacities. While in its decision rejecting the applicant company ’ s cassation appeal the Supreme Court did not provide detailed reasoning, it still found that there had been nothing to show any violations or incorrect application of the domestic material or procedural law in the applicant company ’ s case (see paragraph 13 above).

26 . In view of the above, it is difficult for the Court, given its fundamentally subsidiary role, to evaluate the applicant-company ’ s complaint as to unlawfulness of award of the non-pecuniary damages , in particular as it raises certain questions of fact and interpretation of domestic law (see for similar approach, Gough v. the United Kingdom (dec.), no. 2153/15, § 56, 12 June 2018). The Court has already found that in the absence of manifest arbitrariness it will not substitute its own interpretation for that of the domestic courts (see, for example , in respect of Article 6 of the Convention, Tejedor Garc í a v. Spain , 16 December 1997, § 31, Reports of Judgments and Decisions 1997 ‑ VIII). Accordingly, the Court cannot conclude that the domestic courts ’ decisions to award non-pecuniary damages were contrary to the requirements of the law.

27. The Court is further satisfied that the interference in question was intended to protect the honour and dignity of M. and had thus pursued a legitimate aim, namely “the protection of the reputation or rights of others”.

28. Turning to the issue of proportionality, the Court notes that the defamatory pieces of information contained in the programme broadcast by the applicant company were allegations of fact susceptible of proof. However, neither before this Court nor before the domestic courts did the applicant company endeavour to provide any justification for the disseminated information and to prove its veracity.

29. The applicant company complained that the domestic courts failed to involve the authors of the programme in the proceedings. The Court reiterates that the protection of the right of the media to impart information on issues of general interest requires that it should act in good faith, on an accurate factual basis, and provide “reliable and precise” information in accordance with the ethics of journalism (see, for example, Bladet Tromsø and Stensaas , § 59, cited above, and Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999 ‑ I). Under the terms of paragraph 2 of Article 10 of the Convention, freedom of expression carries with it “duties and responsibilities”, which also apply to the media even with respect to matters of serious public concern. Moreover, these “duties and responsibilities” are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the “rights of others”. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations (see, among other authorities, McVicar v. the United Kingdom , no. 46311/99, § 84, ECHR 2002-III, and Bladet Tromsø and Stensaas , cited above, § 66).

30. In considering the “duties and responsibilities” of the media, the potential impact of the medium concerned is an important factor and it is commonly acknowledged that audiovisual media often have a much more immediate and powerful effect than print media ( Delfi AS v. Estonia [GC], no. 64569/09, § 134, ECHR 2015 ).

31. In the present case the impugned programme was allegedly prepared by the Association and it was broadcast under the contract with the applicant company which absolved the latter from the responsibility for the contents of the broadcast materials (see paragraph 3 above). The Court cannot accept the approach under which the applicant company claims to have only provided its technical equipment to broadcast the programme prepared by another person as it was through the Channel that the programme was made public and the defamatory information actually disseminated. The domestic law clearly envisaged a responsibility for the dissemination of untrue and defamatory information (see paragraph 14 above) and this could not be overridden by a contract. The Court further notes that as it transpires from the applicant company ’ s submissions before the domestic courts, it did not claim that it should not have been held responsible for the dissemination of untrue information but rather that the authors of the programme should have also been involved in the proceedings. The Court has already established in its case law that civil liability of a media for the statements of a defamer that it published, was in itself, not incompatible with the requirements of Article 10 of the Convention but fell within the margin of appreciation left to the States (see, mutatis mutandis, Schneider Austria GmbH v. Austria , no. 21354/93, Commission ’ s decision of 30 November 1994, and Krone Verlag GmbH & Co. KG v. Austria (no. 4) , no. 72331/01, 9 November 2006). With this in mind and having regard to the amount of compensation which the applicant company was ordered to pay and which the Court considers not to be excessive, the interference with the applicant company ’ s freedom of expression was not disproportionate.

32. It follows that the application must be rejected as manifestly ill ‑ founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 25 July 2019 .

Milan Blaško Síofra O ’ Leary Deputy Registrar President