Communicated on 23 September 2016

THIRD SECTION

Application no. 13466/12 MAC TV S.R.O. against Slovakia lodged on 27 February 2012

STATEMENT OF FACTS

1. The applicant, MAC TV s.r.o ., is a limited liability company established under the laws of Slovakia, with its registered office in Bratislava. The applicant is represented before the Court by a law firm, Advokátska kancelária Bugala-Ďurček , s.r.o ., with its registered office in Bratislava.

A. The circumstances of the case

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

1. Background

3. The applicant company is the operator of two private television channels and the broadcaster of a television programme, JOJ PLUS. The present case concerns a commentary ( glosa ) made in a television programme broadcast on 12 April 2010 after the crash of the plane, in which the late President of Poland, Lech Kaczy Å„ ski , was travelling.

4 . The commentary ’ s title was “Compassion in Accordance with Protocol”; the commentary contained the following:

“The crash of a Polish plane carrying the presidential couple on board is a true human tragedy. The whole of Poland is in mourning and politicians are more or less expressing their condolences. That is required by diplomatic protocol. Moreover, Slovak Russophile politicians are shedding a tear, even a fake one, over the death of the Russophobe, Lech Kaczynski. Even ordinary citizens, not bound by any protocol, are expressing their sorrow. Jews, homosexuals, liberals, feminists and left-oriented intellectuals are bitterly sorry for the death of a man who represented an extreme Polish conservativism, and who was a symbol of a country where people who are not white heterosexual Catholic Poles were born as a punishment. I am sorry, but I do not pity the Poles. I envy them.”

2. Administrative proceedings

5. Following the broadcast of the above-mentioned commentary, the Broadcasting Council ( Rada pre vysielanie a retransmisiu ) commenced administrative proceedings against the applicant company, pursuant to section 19(1)(a) of Act no. 308/2000 Coll. on broadcasting and retransmission (“The Broadcasting Act”) on 25 May 2010.

6. On 14 September 2010 the Broadcasting Council found that the applicant company had breached its obligation under the Broadcasting Act in that the manner of processing and presenting the content of the commentary had interfered with the dignity of the late Polish President, Lech Kaczynski. It fined the applicant company 5,000 euros (EUR).

7. The Broadcasting Council assessed the conflict between the applicant company ’ s freedom of expression and the pro tection of the human dignity of the late President. On one hand, it acknowledged the aim of the commentator to express his opinion and his subjective stance on the social and political event through criticism, sarcasm and irony. On the other hand, where the Broadcasting Council found difficulties was in particular the content of the last two sentences of the commentary (“I am sorry, but I do not pity the Poles. I envy them”).

The Broadcasting Council concluded that the manner in which the commentator had presented his opinion – that is his lack of regret for the Polish President ’ s death – had contravened the duty to respect his human dignity. According to the Broadcasting Council, the degree of sarcasm and irony in the broadcast commentary had been so high that its content and the manner in which the author ’ s opinion had been presented had been sub ‑ standard and had dishonoured the late President.

8. The Broadcasting Council concluded that the applicant company had committed an administrative offence ( sprá vny delikt ) by contravening section 19(1)(a) of the Broadcasting Act, that is by broadcasting the aforesaid defamatory commentary regarding the late President. Therefore, it was necessary to interfere with its freedom of expression by imposing a fine on it. It considered such a measure to be necessary in a democratic society, as it served a legitimate aim – that is the protection of the right to human dignity.

9. On 10 March 2011 the Supreme Court upheld the Broadcasting Council ’ s decision. It rejected the applicant company ’ s argument that the Broadcasting Council had sanctioned it for voicing its political opinion. Rather, the Supreme Court confirmed the Broadcasting Council ’ s conclusion about the defamatory character of the commentary in question and the interference with the late President ’ s human dignity.

4. Constitutional complaint

10. The applicant lodged a complaint before the Constitutional Court challenging the decisions of the Broadcasting Council and the Supreme Court under Article 6 § 1 and 10 of the Convention and Articles 26 (freedom of expression) and 46 (right to judicial protection) of the Constitution .

The applicant alleged that the decisions of the domestic authorities had been arbitrary, unfair and insufficiently reasoned and that the domestic authorities had breached its freedom of e xpression by sanctioning it for voicing its opinion regarding the late President as a politician.

11. On 27 July 2011 t he Constitutional Court rejected the applicant ’ s complaint. It considered, inter alia , that the above authorities had duly explained their conclusions, without having overly strayed from a reasonable interpretation of applicable rules and established practice. The Constitutional Court noted that the impugned commentary had expressed not only sarcasm and criticism of the late President ’ s policy but also a positive attitude towards his death. This very fact interfered with the late President ’ s right to human dignity, which had led the Constitutional Court to conclude that the domestic authorities ’ decisions had not been arbitrary.

As to the applicant company ’ s complaint under Article 10 of the Convention (and Article 26 of the Constitution), the Constitutional Court held that a general court could not bear “secondary liability” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a violation of procedural rules. Given that it rejected the complaint concerning the alleged violation of procedural rules, it also had to reject the complaint relating to an alleged violation of a substantive provision.

B. Relevant domestic law

Act no. 308/2000 Coll. on broadcasting and retransmission

12. The Broadcasting Act regulates the rights and obligations of, inter alia , broadcasting companies and network operators. It also defines the competencies of the Broadcasting Council.

13. Section 3(b) defines an on-demand audio-visual media service ( audiovizuálna mediálna služba na požiadanie ) as a service of an economic nature offering a catalogue of programmes through electronic communications intended for viewing. The aim of such a service is to inform, enterta in or educate the general public.

14. Section 19(1)(a), in particular, stipulates the protection of human dignity and humanity. Under this provision, an on-demand audio-visual media service, and a programme and its components, shall not broadcast anything which, by virtue of its content and the means by which it is processed, interferes with human dignity and the fundamental rights and freedoms of others.

15. Under section 64(2) and (3), the Broadcasting Council imposes a fine, without any prior warning, in the eve nt (for example) of a breach of section 19 of the Broadcasting Act. The level of such a fine depends on the gravity, manner, duration, consequences and extent of the impugned broadcast, as well as the level of any unjust enrichment gained in that regard.

16. Pursuant to section 67(5)(e), the Broa dcasting Council shall impose a fine of between EUR 3,319 and EUR 165,969 on a broadcasting company or a television channel for breaching the obligation stipulated under Section 19.

COMPLAINT

The applicant complains under Article 10 of the Convention about the Broadcasting Council ’ s decision, later upheld by the Supreme Court, which sanctioned its political opinion of the late Polish President ’ s alleged extreme conservativism. To this end, the applicant argues that the domestic authorities ’ conclusion that the impugned extract of the commentary had praised or welcomed the death of the Polish President was wrong and arbitrary. It asserts that the commentary presented merely a sarcastic opinion about the political activity of the late President and that the Slovak authorities ’ interference with its freedom of expression was unnecessary and disproportionate in a democratic society.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to freedom of expression, in particular its right to impart ideas, contrary to Article 10 of the Convention?

In particular, to what extent are the duties and responsibilities inherent in the applicant ’ s activities relevant to its claim and the State ’ s marg in of appreciation in this field?

2. Also, if and where the statements contained in the applicant company ’ s commentary amounted to an opinion, was the measure taken against the applicant company proportionate to the legitimate aim pursued?