FIFTH SECTION

DECISION

Application no . 55103/09 REGINA LTD against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 29 August 2017 as a Committee composed of:

Nona Tsotsoria , President, Síofra O ’ Leary, Lәtif Hüseynov , judges, and Anne-Marie Dougin, Acting Deputy Section Registrar ,

Having regard to the above application lodged on 30 September 2009,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Regina Ltd, is a Ukrainian limited liability company, which has its offices in Vinnytsya .

A. The circumstances of the case

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

3. The applicant company is the publisher of 33 Kanal regional newspaper published weekly in Vinnytsya .

4. On an unspecified date a letter arrived at the newspaper ’ s offices. The letter contained a number of negative statements, in virulent terms, about the poor management of school no. 2 located in Mohyliv-Podilskiy , a town of about 32,000 inhabitants located in the Vinnytsya Region, by its director, referred to in the letter as Ms “O.P. Viktyuk ”. The full names of five individuals, supposedly teachers at the above school, appreared in the letter as signatories. The letter contained a description, in virulent terms, of a number of acts of abuse of office and corruption by the school director and of scandalous incidents at the school, including dissemination of sexually explicit images by a couple of students, attributing such incidents to the director ’ s poor management.

5 . On 5 March 2008 the newspaper published the letter. The number of the school and Ms “O.P. Viktyuk ’ s ” name were redacted from the letter but the rest of the content was published verbatim . No author was indicated.

6. Ms T., director of Mohyliv-Podilskiy ’ s school no. 5, brought a claim for defamation, alleging that the content of the letter unmistakably pointed to her and to her school. She sought retraction of the negative information in the letter and damages.

7. On 15 October 2008 the Vinnytsya Leninskiy District Court allowed the claim in part, ordering the applicant company to publish a retraction of the negative information contained in the article. It found that there was no school no. 2, no school director by the name of “O.P. Viktyuk ” and no teachers appearing in the letter as signatories in Mohyliv-Podilskiy . At the same time it refused to hold that the information published defamed the plaintiff and rejected her claim for damages holding that the letter, as published, had not referred to the plaintiff by name and had not disclosed the school number.

8 . On 26 December 2008 the Vinnytsya Regional Court of Appeal allowed the plaintiff ’ s appeal, held that despite omitting the director ’ s name and the school number, the published letter contained numerous details allowing the reader to unmistakably identify the plaintiff as the subject. In particular, there was only one school director in Mohyliv-Podilskiy who was a woman past retirement age and a municipal council member, the plaintiff. The court noted that it had been undisputed that the negative factual information contained in the letter was untrue. It had been established by the first-instance court and not disputed by the parties that the names of the letter ’ s supposed signatories had been fictitious and the applicant company had published the letter without checking its content. In disseminating false information without checking it, the applicant company acted contrary, in particular, to section 17 of the State Support of Mass Media Act (see paragraph 11 below). Accordingly, the court awarded the plaintiff UAH 30,000 (about EUR 2,633 at the time) in damages and UAH 7,960 (EUR 698) in costs.

9. In its appeal on points of law the applicant company argued that the events described in the letter were shocking and in publishing it the newspaper had the intention of drawing attention of the State authorities to the alleged abuses. The letter gave no signs of being a fake and the newspaper ’ s editors took steps to safeguard interests of the subject of the letter by redacting the school number and the director ’ s name. Therefore, no intent to disseminate the defamatory information, within the meaning of section 17 of the State Support of Mass Media Act, had been shown.

10. On 1 April 2009 the Supreme Court upheld the Court of Appeal ’ s decision finding that neither the decision nor the appeal disclosed any grounds for quashing that decision.

B. Relevant domestic law

11 . Section 17 of the State Support of Mass Media Act of 1997 provides that a journalist and/or mass media professional shall be released from liability for the dissemination of untrue information if the court establishes that the journalist acted in good faith and checked the information. In claims brought against journalists and mass media professionals by public officials, the intent of the defendant to disseminate false information must be proven to hold the journalist or media professional liable.

COMPLAINTS

12. The applicant company complained under Article 6 of the Convention that the proceedings had been unfair because the domestic courts sided with the plaintiff and rejected the applicant company ’ s arguments and because they erred in the assessment of evidence and the interpretation of domestic law. Under Article 10 of the Convention it complained that the domestic courts ’ decisions had breached its right to the freedom of expression.

THE LAW

A. Alleged violation of Article 6 of the Convention

13. Article 6 reads, insofar as relevant:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair... hearing... by an independent and impartial tribunal...”

14. The applicant company disagreed with the assessment of facts and the interpretation of domestic law by Ukrainian courts.

15. According to its long-standing and established case-law, it is not for this Court to deal with alleged errors of law or fact committed by the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention. The Court should not act as a fourth instance and will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08 , § 61, ECHR 2015 ).

16. In the present case the domestic courts at three levels of jurisdiction examined the applicant company ’ s case and gave reasons for their decisions, notably as concerns assessment of evidence and interpretation and application of domestic law. The Court perceives nothing arbitrary or manifestly unreasonable in their assessment.

17. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Alleged violation of Article 10 of the Convention

18. Article 10 reads:

“ 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. ...

2. 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 applicant company argued that the published letter concerned matters of public interest, that its journalists had had no intent to disseminate false information, which was a condition for liability under domestic law (see paragraph 11 above) and, on the contrary, had taken measures to protect the interests of the subject of the letter by redacting the name of the director and the school number from the published version.

20. The Court accepts that the domestic courts ’ decisions constituted an interference with the applicant company ’ s freedom of expression.

21. The Court considers that the interference was “prescribed by law”. To the extent that the applicant company alleged that it had had no intent to disseminate false information, which was a condition of liability under domestic law, the Court considers that this matter is closely connected to the issue of whether the interference was necessary in a democratic society and it will examine those matters together below (see, mutatis mutandis , Instytut Ekonomichnykh Reform, TOV v. Ukraine, no. 61561/08 , § 39, 2 June 2016 ). The Court also finds that the interference pursued the legitimate aim of protecting the reputation and rights of others, namely the plaintiff ’ s.

22. As to whether the interference was “necessary in a democratic society”, the Court notes that the main arguments presented by the applicant company in this respect are that the published letter contained information on matters of public concern and that it acted responsibly by redacting the name of the non-existent school director and the non-existent school number from the published version of the letter.

23. The Court is prepared to accept that a letter containing such information could be regarded as concerning matters of public concern. The Court reiterates, however, that Article 10 does not guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern (see Stoll v. Switzerland [GC], no . 69698/01, § 102, ECHR 2007 ‑ V ). Protection afforded by that provision of the Convention to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism (see Pentikäinen v. Finland [GC], no. 11882/10, § 90, ECHR 2015).

24. In the present case, the applicant company ’ s newspaper published a letter by non-existent signatories concerning a school with a non-existing number and managed by a director who bore a fictional name. An elementary verification would have allowed the applicant company ’ s journalists to ascertain that no school with the number and no school director with the name indicated in the letter existed in the small town in question. Moreover, by redacting the fictitious school number and the fictitious name from the letter but by keeping other personal details allowing the subject of the letter to be easily identified with the plaintiff (see paragraphs 5 and 8 above), the publication made the plaintiff ’ s identification as the subject of the letter more rather than less likely. The applicant company ’ s journalists thus displayed what could be qualified as evident lack of concern for the veracity of the information they were publishing (compare, for example, Prager and Oberschlick v. Austria , 26 April 1995, § 37, Series A no. 313, and Weigt v. Poland ( dec. ), no. 74232/01, 11 October 2005).

25. The Court, therefore, sees nothing arbitrary or unreasonable in the domestic courts ’ finding that the requisite element of “intent” was present in the applicant company ’ s actions. Neither does the Court see any reason to doubt the Court of Appeal ’ s findings that the published letter contained untrue factual statements and that, in the context of the factual details found in the letter, the reader would interpret them as statements about the plaintiff (see paragraph 8 above). Accordingly, the domestic courts gave relevant and sufficient reasons for holding the applicant company liable. There is equally no indication that the civil sanction imposed on the applicant company was disproportionate in light of the circumstances (compare, for example, Travaglio v. Italy ( dec. ), no. 64746/14, § 37, 24 January 2017).

26. In the light of the above considerations, the Court considers that there is no appearance of a violation of Article 10 of the Convention in the instant case. It follows that this complaint is manifestly ill-founded and must be rejected 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 21 September 2017 .

Anne-Marie Dougin Nona Tsotsoria              Acting Deputy Registrar President