Communicated on 15 May 2017

FOURTH SECTION

Application no. 34155/08 AGENTSTVO TELEVIDENIYA NOVOSTI, OOO against Ukraine lodged on 10 July 2008

STATEMENT OF FACTS

The applicant company, Agentstvo Televideniya Novosti , is a Ukrainian limited liability company. It is represented before the Court by Mr A.P. Bushchenko , a lawyer practising in Kyiv.

A. The circumstances of the case

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

1. The incident with G. and investigation into its circumstances

On 12 July 2006 Mr Y.G., a police officer, fell out of a moving trolleybus in Kharkiv . He suffered brain trauma and remained in a coma for some time.

On 23 January 2007 the traffic police refused to institute criminal proceedings against the trolleybus driver in connection with that incident. It appears that the decision established that G. had caused the incident himself by opening the trolleybus doors and jumping out.

On 15 May 2007 the Kharkiv Kyivsky District Court quashed that decision. The court held that the pre-investigation enquiries which lead to that decision had been one-sided since they had focused on the statements of interested parties, namely the trolleybus driver and conductor. The only eyewitness with no interest in the outcome had apparently confirmed that G. had opened the door of the moving trolleybus. However, her description of the events contradicted the expert evidence as to the mechanism of G. ’ s fall and trauma.

2. The broadcasts

The applicant company created and broadcast four news stories de dicated to the incident with Mr G. in its program called “ ATN ”. The translation of the relevant parts of the broadcasts, as transcribed by the applicant company, is set out below. The passages which were the subject of the subsequent domestic proceedings are underlined and numbered for future reference. The parts of the programs rephrased and summarized by the Registry are presented in square brackets. Where initials are used, the actual broadcasts contained full names.

a) Broadcast 1: 18 July 2006 at 11.41 a.m.

“ Presenter : A police officer fell out of a trolleybus. This is the sixth day that a lieutenant of the Kyivsky District Police Department has been lying unconscious in a neurosurgery ward. Having fallen out of a trolleybus, the 27-year old suffered brain trauma and skull base fracture... According to eyewitnesses, the man tried to get out of the trolleybus while it was in motion. [1.1]

Mr L., head of the municipal traffic safety service : While we were waiting for the traffic police, a woman came up to us and said that the victim was trying to open the trolleybus doors while the trolleybus was in motion... so that other passengers even started shouting “What are you doing?” But he didn ’ t listen”.

[ Mr K., a doctor , then stated that the victim was in a grave condition in the intensive care unit.]

Presenter : The law enforcement officers refuse to comment for now, referring to the s ecrecy of the investigation. Mr L. said that the trolleybus had been immediately sent to the depot – the checks there revealed no technical anomaly. Also according to him, the driver acted in accordance with regulations: as soon as the indicator showing that a door has been opened, he stopped the vehicle...”

b ) Broadcast 2: 18 July 2006 at 6.35 p.m.

“ Presenter : Why did the policeman fall out of the trolleybus? The policeman who fell from the moving trolleybus was on active duty, he was on his way to work at the Kyivsky District Police Department–ATN was informed today by the public relations department of the Kharkiv police...

According to the information obtained by ATN, two versions of events are under examination. First: the policeman could have been under the influence of alcohol or drugs. [2.1] Second, more noble : he saw a suspect and was trying to arrest him. ATN news has already covered this incident. To recall, it happened at 7.30 a.m. on 12 July... a police officer fell out of a moving trolleybus... and hit his head on a curb... Eyewitnesses said that other passengers were trying to persuade the policeman not to open the doors without permission. But the young man did not listen to anyone and, for the reasons still unknown, grabbed the handles on the trolleybus doors, pried them open and jumped out of the moving trolleybus. [2.2] According to Mr L. the driver acted professionally and stopped the vehicle. The trolleybus has been checked, it turned out to be in order, and is now back in operation.”

c ) Broadcast 3: 19 July 2006

“ Presenter : The law enforcement officers deny the version that the policeman who fell out of the trolleybus on 12 July was under the influence of alcohol or drugs. [3.1] They have not yet made public their official version of events. However, they say that the doctors have found neither alcohol nor drugs in the policeman ’ s blood... Eyewitnesses said that other passengers were trying to persuade the policeman not to open the doors without permission. But the young man, for the reasons still unknown, grabbed the handles on the trolleybus doors, pried them open and jumped out of the moving trolleybus. [3.2] According to Mr M., deputy head of the Kyivsky District Police Department ’ s criminal investigation unit, investigation into the facts is ongoing.

Mr M. : It has been definitively established that he was not under the influence of alcohol, let alone drugs. He was riding on a route 24 trolleybus and fell out of the doors [between two stops].”

d ) Broadcast 4: 18 August 2006

“ Presenter : The policeman who fell out of the trolleybus has amnesia...

[There followed a description of an incident with a certain Mr I., a police officer, who had shot himself in the head due to an accident in handling his service weapon and who did not wish to talk about it.]

Another policeman, G., may wish to talk about the accident which happened with him but he cannot... ATN previously reported that on 12 July G. fell out of the trolleybus... He was in a coma for two weeks.

[ Mr S., a neurosurgeon , then described the medical care Mr G. had received.]

Presenter : the doctors say that the health of G., the trolleybus paratrooper [4.1] , is now satisfactory. The only consequence of the fall is “the trauma amnesia”. In simpler language this means that he remembers everything except what happened on the trolleybus... It is still a mystery what really happened to the policeman that day and why he decided to jump out of the moving trolleybus [4.2] . The police refuse to comment citing the secrecy of the investigation.”

3. Defamation proceedings

Ms G., Mr G. ’ s mother, lodged a claim against the applicant company seeking retraction as untrue of the information broadcast about her son to the effect that he intentionally jumped out of the bus and that he was under the influence of alcohol and drugs. She also sought compensation for non ‑ pecuniary damage.

In the course of the trial the District Court examined a number of witnesses, including the trolleybus driver and a trolleybus passenger who had witnessed the incident and said that she had seen G. prying open the trolleybus doors but had not seen him jumping out. The court also examined Mr L., the head of the traffic safety service of the municipal transport company whose interview was part of Broadcast 1, and a number of employees of the applicant company who worked on the broadcasts.

On 15 June 2007 the first-instance court allowed the claim. It ordered the applicant company to retract the following information:

a ) that Mr G. had intentionally jumped out of the trolleybus, namely that he grabbed the handles on the trolleybus doors, pried them open and jumped out of the moving trolleybus (referring to Statements 1.1, 2.2 and 4.2), and

b ) that “he was under the influence of alcohol or drugs” (referring to Statement 2.1) (hereinafter “Retraction A” and “Retraction B” respectively).

The court awarded Ms G. UAH 5,000 (about EUR 730 at the time) for non-pecunia ry damage and UAH 83 (about EUR 12) for court costs.

By way of reasoning, the court referred to the decision of the District Court of 15 May 2007 which had overruled the decision not to institute criminal proceedings concerning the incident. The court also rejected the applicant company ’ s argument that the statements in issue had been entirely based on information received from public officials and thus protected by Article 67 of the Television and Radio Broadcasting Act (see below). They also held that the State Support of Mass Media Act did not protect the applicant company from liability because in a dispute between a mass media outlet and a private individual the defendant was only protected from liability for spreading false information if he or she acted in good faith and checked the information. The higher standard of “intent” to spread false information set out in the State Support Act did not apply.

Concerning specifically Retraction A the court reasoned as follows:

- L. ’ s statement quoted in Broadcast 1 could not be seen as an official statement of a public official. Moreover, that statement had been preceded by the presenter ’ s Statement 1.1 referring to “eyewitnesses” of Mr G. jumping but the applicant company had not been able to identify the “eyewitnesses”. Moreover, none of the witnesses examined by the court saw G. jumping. For the same reasons L. ’ s statement could not justify the reference to “eyewitnesses” in Statement 2.2.

- The trial court held that the applicant company had been unable to point to any “eyewitnesses” of G. jumping, referred to in Statements 1.1 and 2.2, and no such eyewitness has been identified in the course of the trial. The court concluded that the applicant company ’ s journalists failed in their obligation to verify the information they broadcast.

- In Statement 4.4 the presenter asked what caused G. to jump, implying that G. had indeed jumped.

Concerning Retraction B the court reasoned as follows:

- A forensic expert report of 14 July 2006 had established that G. had not been intoxicated at the time of the incident.

- Even accepting the applicant company ’ s argument that the basis for Statement 1.1 was in the fact that G. ’ s blood was drawn for tests, this was not sufficient for disseminating this information because G. was a police officer and because there could be reasons for blood tests other than intoxication testing. For instance, it was possible that blood was tested because G. needed a transfusion.

- The court could not consider, based on Statement 3.1, that the applicant company had already retracted the statement concerning G. ’ s intoxication because Statement 3.1 referred to “law enforcement officers” denying this version, and not the applicant company doing so. The court, therefore, still considered it to be justified to require the applicant company itself to retract this information.

On 24 September 2007 the Kharkiv Regional Court of Appeal upheld the judgment in so far as it concerned Retraction A and the monetary awards. It modified the judgment in so far as it concerned Retraction B ordering that the entire Statement 2.1, as opposed to its part, be retracted as follows: “two versions of events are under examination. First: the policeman could have been in the influence of alcohol or drugs.”

The Court of Appeal endorsed the reasoning of the first-instance court and added that the media had no right to collect and report rumours presenting them as corroborated by witnesses.

On 9 November 2007 a judge of the Supreme Court refused the applicant company leave to appeal on points of law. On 16 January 2008 this decision was served on the applicant company.

B. Relevant domestic law

1. State Support of Mass Media Act of 1997

Article 17 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, intent of the defendant to disseminate false information must be proven to hold the journalist or media professional liable.

2. Television and Radio Broadcasting Act of 1993

Article 60 of the Act imposes a number of duties on the staff performing creative functions at the television and radio organisations, including: ( i ) to check the veracity of the information they receive and (ii) to prevent broadcasting of defamatory information.

Article 67 protects television and radio organisations from liability for disseminating of untrue information in a number of situations: ( i ) broadcasting of official written communications of public authorities; (ii) literal citations of public officials; (iii) statements of third parties on live broadcasts; (iv) literal quotes from information disseminated by another media outlet or an information agency.

COMPLAINT

The applicant company complains under Article 10 of the Convention of a violation of its freedom of expression .

QUESTION TO THE PARTIES

Has there been a violation of the applicant company ’ s right to freedom of e xpression guaranteed by Article 10 of the Convention?