Communicated on 13 October 2015

THIRD SECTION

Application no. 46695/13 Bogdan GHEORGHIU and S.C. BG MEDIA S.R.L . against Romania lodged on 16 July 2013

STATEMENT OF FACTS

The first applicant, Mr Bogdan Gheorghiu , is a Romanian national, who was born in 1975 and lives in Suceava . The second applicant S.C. BG Media S.R.L. is a Romanian legal person with its main office located in Suceava .

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

The first applicant, Mr Gheorghiu , is the sole administrator of the second applicant, the company S.C. BG Media S.R.L. He is also the editor of a television program broadcasted by a local television owned by the applicant company.

On 31 August 2008 E.V., who was the manager of the “ Ciprian Porumbescu ” dancing group, a local music group financed by public funds, opened civil proceedings for non-pecuniary damages against the applicants as a result of several allegedly defamatory statements made by the first applicant about him on his television program.

On 3 July 2012 the Suceava District Court allowed E.V. ’ s action for non ‑ pecuniary damages and ordered the applicants to pay him jointly 15,000 Romanian lei (RON) (approximately 3,500 euros (EUR)). It held that even though the applicants had already been sentenced in 2012 to pay non-pecuniary damages to E.V. for other unproved defamatory statements made against him, they had repeated their behavior. They had accused E.V. of cigarette contraband and of being involved in several sexual scandals that happened in the organization that he was managing without any supporting proof. The fact that E.V. had managerial disagreements with some of his employees could not entitle the applicants to make the impugned statements which tarnished E.V. ’ s reputation of honorary citizen of the city of Suceava . The parties appealed against the judgment.

On 22 January 2013 the Suceava County Court allowed E.V. ’ s appeal and ordered the applicants to pay him jointly 30,000 Romanian lei (approximately EUR 7,100). It held that according to the transcripts and recording of the television program the first applicant had repeatedly accused E.V. of involvement in cigarette contraband by using the buses belonging to the folk group he was managing and of involvement in several sexual scandals. The applicants had not contested the content of the television program nor argued that they had not made the impugned statements and had only contended that they had not committed an unlawful act. The impugned statements amounted to serious accusations that could breach E.V. ’ s right to reputation, honor and personal dignity.

The court further held that according to the European Court of Human Right ’ s case-law the press held a privileged position in a democratic society and was free to bring to the public ’ s attention matters of public concern. Also the margin of acceptable criticism in respect of E.V. was wider given that he was a public figure. However, the media had a duty not to overstep certain limits concerning a person ’ s honor, dignity or reputation. While journalists could express value judgments which might not be regarded as offensive, it was important to establish the nature of the first applicant ’ s statements, as this determined the limits of acceptable criticism that could have been applied in balancing the parties ’ rights.

The court considered that the impugned statements clearly amounted to factual statements and were evidently defamatory for E.V. as they could have engaged his criminal or disciplinary liability and could have subjected him to public contempt. Therefore the first applicant had a duty to provide a sufficient factual basis for them and to check the veracity of his allegations in advance. However, the first applicant had not proven that his statements had a solid factual basis or that he had undertaken reasonable steps to check their veracity. According to the journalistic deontology code he had a duty to verify the veracity of his allegations from at least two sources before he could make them public. In spite of the first applicant ’ s submissions the veracity of the information could not be verified a posteriori . Consequently, given the nature of the statements and the lack of a minimal factual basis for the impugned statements the first applicant had overstepped the limits of his right to freedom of expression.

The court further held that the conditions for the applicants ’ civil liability had been met. Moreover, it dismissed the applicants ’ argument that E.V. had failed to indicate the exact damage he had suffered given that E.V. had claimed that his reputation had been tarnished. The damage existed since the statements were made during a televised program and had attracted the public ’ s contempt. Given that E.V. had claimed non-pecuniary damages, their quantum could not be proven, but could only be justified. The court considered that establishing the amount of non-pecuniary damages implied a subjective assessment which had to rely on some objective criteria flowing from the circumstances of the case such as the level of damage caused to the protected social value, the victim ’ s personality, the level of public exposure and so on. Also the applicants had already been sentenced in 2012 to pay non-pecuniary damages to the same person for other defamatory statements made against him.

The court dismissed the applicants ’ argument that E.V. had a right to rebuttal and that the awarding of non-pecuniary damages was not required. It considered that the right to rebuttal was optional and could not have impeded the award of non-pecuniary compensation. The court added that the fact that the media could publish retractions did not prevent the victims from asking and receiving compensation for the non-pecuniary damage incurred. The court also held that the transcripts of the subsequent shows submitted by the first applicant that allegedly proved his statements had not concerned the facts at hand but other aspects such as the activity of the folk group or some staff members ’ discontent. The court finally held that the second applicant was responsible for the acts committed by its employees while exercising their professional duties and therefore its civil liability was also engaged.

The applicants appealed on points of law ( recurs ) against the judgment and argued inter alia that the amount of compensation awarded to E.V. was disproportionately high and that the second-instance court had wrongfully concluded that there was no factual basis for the impugned statements or that the first applicant had not reasonably verified them.

By a final judgment of 26 March 2013 the Suceava Court of Appeal dismissed the applicants ’ appeal on points of law as ill-founded. It held that following the amendment of the relevant domestic civil procedure rules the applicants ’ arguments no longer fell within the lawfully allowed reasons for an appeal on points of law.

COMPLAINT

Relying on Article 10 of the Convention the applicants complain of a breach of their right to freedom of expression. They argue that the domestic courts ’ decision to order them to pay a large amount of money in non ‑ pecuniary damages following their television program concerning matters of public interest was disproportionate and had a chilling effect on their journalistic activity.

QUESTION TO THE PARTIES

Has there been a violation of the applicants ’ right to freedom of expression, in particular their right to impart information, contrary to Article 10 of the Convention?