THIRD SECTION

Application no. 37986/09 RINGIER AXEL SPRINGER SLOVAKIA, A.S. against Slovakia lodged on 8 July 2009

STATEMENT OF FACTS

1. The applicant, Ringier Axel Springer Slovakia, a. s. (“the applicant company”), is a joint-stock company established under the laws of Slovakia in 1999 with its head office in Bratislava . At the time of the introduction of the application, the applicant company was called RINGIER SLOVAKIA a.s .

The applicant company is represented by Mr J. Havlát , a lawyer practising in Bratislava .

A. The circumstances of the case

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

1. Applicant company

2. The applicant company is a multimedia publishing house. Its legal predecessor in respect of the events giving rise to the present application was a limited-liability company established under the laws of Slovakia in 1994 and had its seat in Bratislava . The latter company was the publisher of a popular national daily newspaper.

3. Prior to the proceedings described below, in 2004, the applicant company ’ s legal predecessor was merged with the applicant company.

For ease of reference, henceforth in this report, “the applicant company” includes the applicant company ’ s legal predecessor.

2. Factual background

4. The present case revolves around the participation by an individual, A., in a “Who Wants to Be a Millionaire?” type of knowledge quiz in March and April 2004, which was broadcast by a popular national TV channel.

5. For the assessment of certain aspects of this case, it may be of relevance that A. has been the owner of a share in and the statutory representative of a limited liability company specialised in, inter alia , purchasing, selling and repairing mobile phones.

6. In the quiz, A. was doing remarkably well in answering thirteen questions correctly, until he failed to answer the fourteenth question right, which was worth the equivalent of some 50,000 euros (EUR). A. was thereby excluded from the quiz with the equivalent of some EUR 2,500 worth of winnings.

7. A. subsequently lodged a protest with the organisers of the quiz arguing that the fourteenth question had been formulated in an ambiguous way and that, in the circumstances, his answer had been correct. The protest was however not accepted.

8. On 19 May 2004 the organiser of the quiz filed a criminal complaint on the basis of a suspicion that, in connection with the quiz, A. or other persons unknown had committed the offence of fraud.

9. On 15 May 2006 the investigation into the criminal complaint was stayed on the ground that it had not been possible to establish any facts justifying the bringing of charges against any specific person.

3. Articles

10. Meanwhile, on 11, 18 and 22 May 2004, the applicant company had published three feature articles in is paper about the incident. The titles and the introductory paragraphs of these articles appeared on the front pages of the issues of the paper on the respective days. They were accompanied by photographs and followed by further text and photographs under separate titles further in the paper.

(a) Article of 11 May 2004

11. On the front page of the paper, the article had the title:

“Was he cheating? An investigation has already begun!”

12. Further headings on the front page read as follows:

“Discharged contender”

and

“Scandal in [the name of the quiz]”

13. The introductory paragraph on the front page read as follows:

“The table has turned! A contender who should have unlawfully been divested of [the equivalent of some EUR 50,000] in a TV quiz is now suspected of fraud! Moreover, the disappointed [A.] has not been allowed by [the TV station] to return to the game!”

14. The article continued on page 20 under the title:

“Suspicion of [the TV station]: A fraud in [the name of the quiz]?”

15. Further headings on page 20 read as follows:

“[He] shall not return to the quiz”

and

“[He] shall litigate”

16. The article comprised inter alia the following passages:

“The scandal in the TV quiz [name of the quiz], in which a contender should have unlawfully been divested of [the equivalent of some EUR 50,000] worth of winnings, is revving up. [Full name of A.], [age of A.] is in vain claiming his right to sit down in the millionaire ’ s armchair. [The name of the TV station] has namely said an unequivocal “NO” to his attempts to compete again in the popular program. [The name of the TV station] moreover came up with a suspicion: the contender may have cheated!

The suspicion came about after several lawyers had carefully viewed the footage of the disputed sequence of the TV quiz. The initial intention – to find out whether an error has indeed been committed – has resulted in unexpected finals! Watching the video recording closely, the lawyers have been petrified with horror: It has not been a fair play! [A.] has seemingly been cheating!

Their suspicion stemmed from unusual behaviour of the player. ‘ When given a question, he was not considering the options offered. As if he was intentionally diverting attention by various reflections, which had nothing to do with the question. And then, all of a sudden, he came up with the correct answer ’ , asserts one of the lawyers who has already conveyed his doubts to the management of the TV station.

‘ A lively discussion has been stirred on the Internet and viewers have come forward who have also noticed the unusual behaviour of the player ’ , added as ‘ damning evidence ’ the spokesperson [name] of [the name of the TV station].

...

The surprising suspicion has however not swept [A.] away. ‘ I was counting on them pulling out something on me. But they are absolutely not right ’ , emphasised [A.].

...

‘ I pointed out the ambiguity of the answer to the [fourteenth] question ’ , submitted [A.]. According to the regulations, [the name of the TV station] had two weeks to reply to this objection, but as early as yesterday did they render a final judgment: [A.] shall not come back to [the name of the quiz]! ‘ Until the present day the contender has not submitted any relevant expert evidence supporting his assertions. All our sources, renowned professional publications, support our position ’ , added [the TV station ’ s spokesperson]. The unsuccessful candidate for a millionaire still wants to negotiate with [the TV station]. ‘ Should that not work, I will litigate ’ , declared A.”

(b) Article of 18 May 2004

17. On the front page of the paper, the article had the title:

“[The name of the TV station] Strikes Back: Instead of millions, you will be jailed!”

18. A further heading on the front page read as follows:

“Scandalous [the name of the quiz]”

19. The introductory paragraph on the front page read as follows:

“[The name of the TV station] prepares an unpleasant surprise for [A.], [the age of A.], who feels cheated because he has been thrown out of the TV quiz [the name of the quiz]. Not only is he not going to be allowed to get back in the game, but there will even be a criminal complaint filled against him! What does the commercial TV station suspect the unsuccessful ‘ millionaire ’ of?”

20. The article continued on page 20 under the title:

“[The name of the TV station] to [A.]: You will be jailed for fraud!”

21. There is a photo of A. in the quiz with the following explanatory text bellow it:

“Enormous viewers ’ response and heated internet discussion about a possible fraud has forced the management of [the name of the TV station] to transmit the footage of the program for an analysis to experts.”

22. The article itself comprised inter alia the following passages:

“There will be no negotiation! So has decided the management of the TV station [the name of the TV station] and it has dismissed the request of [A.] [age of A.]. This man from [a town] feels cheated because has been excluded form a knowledge quiz allegedly wrongfully, and that is why he wants to get back in the game. The commercial television will however not allow him to do that. And it will not be deterred from its decision even by the threats of [A.] that he would submit the whole matter to a court. [The name of the TV station] responds even more vigorously: ‘ We will file a criminal complaint against him ’ , submits the spokesperson for the TV station [name of the spokesperson].

‘ On the basis of an analysis of the video footage by an expert in psychology and on the basis of numerous pieces of indirect evidence we have a suspicion of fraud in the program [name of the quiz], and that is why [the name of the TV station] will file a criminal complaint against the contender”, declares the commercial television in a written statement.

...

‘ I have raised an objection within fourteen days. According to the [applicable rules] I have had the right to that ’ , submits [A.].

...

‘ From the letter [of the TV station ’ s lawyers purportedly notifying A. of the TV station ’ s position] it is unclear whom do they represent. I therefore consider this document worthless and I assert that I still do not have the official position on the part of [the TV station] ’ , [A.] fights for his right to sit down in the millionaire ’ s armchair. Moreover, he has decided ‘ to pay up his debt ’ to [the name of the TV station] and he is suing it. ‘ This time for an insult, defamation and injury to good name ... ’ adds [A.].

The dispute over [the fourteenth] question ... has taken a completely different turn. Will the public ever learn the truth?”

(c) Article of 22 May 2004

23. The title of the article on the front page was:

“An eyewitness on the scandal in [the name of the quiz]

I know how he was cheating!”

24. The introductory paragraph on the front page read as follows:

“[The name of the paper] has obtained the testimony of a woman, who has resolved to speak on strange practices behind the scenes of the shooting of the program [name of the quiz]! ‘ Already then the TV crew suspected [A.] of having a concealed device on him ’ , sais the witness.”

25. The article continued on page 20 under the title and subtitle:

“The contestant [A.] allegedly had on him a device such as are carried by governmental officials

An eyewitness has spoken out”

26. The article comprised, inter alia , the following passages:

“[The eyewitness] claims: ‘ I was there, when the TV crew of [the name of the TV station] uncovered that the contestant [A.] had been cheating! Already during the shooting they discovered that he had a device on him such as are carried by governmental officials ’ .

The viewer gradually reveals also other suspicious elements. The shooting allegedly had to be interrupted several times and the microphone attached on the [A.] ’ s suit had to be shifted from one side to the other. ‘ Seemingly already then they sensed something. I have also overheard a conversation between the director and a technician, which took place backstage. They were saying that their equipment was showing suspicious frequencies and that they had no explanation why ’ , recounts the details a viewer from [a town]. According to her both nervous men were clearly relieved when [A.] left the studio with ‘ only ’ [the equivalent of some EUR 2,500] in his pocket. Their last sentence allegedly was: ‘ Thanks God it ended up this way. Imagine that he would have won [the equivalent of some EUR50,000!] ’ .

...

The program coordinator for [the name of the quiz], [the name], says: ‘ We had suspicions, but they were not as strong as to take any measures. We did not want to make an unjustified accusation. I believe that we acted in the right way ’ .

How could the contestant have cheated? [A.] has a business in the area of mobile phones, so he is well familiar with it. And that is the whole thing. It sufficed to have it well organised and acted out. The contender could have had an accomplice in the audience who would have his mobile phone on during the entire shooting so that a third person at the other end of the line could easily learn the questions. The latter person together with a group of friends could then have immediately looked the right answer up on the Internet or in encyclopaedias. They could then have announced it to [A.] by a micro device, which he could have had attached to his body.

... ”

4. Libel action

27. On 16 July 2004, with reference to the articles cited above, A. contacted the applicant company with a proposal for an out-of-court settlement consisting of the publication of an apology free of charge. His proposal failed.

28. On 22 February 2005 A. sued the applicant company in libel, seeking the equivalent of some EUR 26,300 in damages.

As to the article of 11 May 2004, A. claimed that it made the false impression that he had been charged with a criminal offence and that he was a cheat. Moreover, his photograph, full name and age were disclosed without his consent.

As to the article of 18 May 2004, he contended that it had contained statements that were taken out of context and that this article had negative repercussions in his relations with his family, at work and with his clients.

Finally, as to the article of 22 May 2004, A. argued that it contained untrue, made-up and misleading conclusions.

29. In reply, the applicant company argued that its reporting in the articles concerned a matter of legitimate public interest. In that respect, it pointed out that the quiz had had an extremely high viewer rate and that, by voluntarily having taken part in it, A. had become a “person of public concern” who had to tolerate a higher degree of intensity of an interference with their personal integrity. The choice of the reporting technique was the applicant company ’ s prerogative. As to the impugned articles in particular, it was clear that they concerned suspicions and not proven facts. Although some formulations implied a degree of journalistic exaggeration and provocation, the context and the content of the articles in its entirety left no one in doubt as to the real facts. Moreover, A. had been given opportunity to comment.

30. In a further submission the applicant company filed a detailed analysis of the behaviour of A. which, according to the applicant company, had given rise to a suspicion that he may have been cheating. Further arguments as to the evidence taken were attached.

31. On 18 December 2006 the Bratislava II District Court ( Okresný súd ) granted the action by ordering the applicant company to publish an apology and to pay A. the equivalent of some EUR 1,450 in damages.

32. The District Court ruled on the case after having taken oral evidence from the parties and five witnesses and having examined documentary evidence.

The District Court noted the categorical language of some of the statements, such as “It has not been a fair play!”, “Instead of millions, you will be jailed!” and “You will be jailed for fraud!” and considered that they implied no polemic.

The use of expressions such as “seemingly”, “perhaps”, and “suspicion” did not free the publisher from liability for the truthfulness of the published information and for unjustified interference with a person ’ s personal integrity.

Besides personal opinions of some of those concerned as to the suspiciousness of the behaviour of A. during the quiz, there had been no evidence showing that he had engaged in any wrongdoing. Neither the police, acting on the basis of the criminal complaint by the TV station, had discovered anything to that effect.

Moreover, the District Court found that the criminal complaint by the TV station could have been a certain form of retaliation for the attempts of A. to get back it the game. In the court ’ s view, in the given circumstances, the standing of A. as of a person of public concern was of no consequence.

As to the amount of the damages, the District Court noted that the libellous articles had been published in a daily with a great number of readers and that they had partly been printed on the front page. Although the claimant had failed to show that he had suffered of any loss of esteem among his family and friends, and that he had suffered any loss of business customers, it was accepted that this dignity had suffered in general terms.

33. The applicant company appealed repeating its previous arguments and adding, inter alia , that the impugned articles implied nothing but suspicions for which there had been a solid factual basis.

34. On 5 June 2008 the Bratislava Regional Court ( Krajský súd ) upheld the contested judgment. It concurred with the applicant company that through his participation in the TV quiz A. had become a person of public concern and that, therefore, the level of protection of his personal integrity was reduced. However, the formulation of the titles of the impugned articles was such as to make the reader to conclude that the articles contained statements of fact. The reader had thus been left with no option other than to assume that A. had been cheating.

5. Constitutional proceedings

35. On 17 September 2008 the applicant company challenged the Regional Court ’ s judgment by way of a complaint under Article 127 of the Constitution, alleging a violation of Article 10 of the Convention.

36. On 26 February 2009 the Constitutional Court ( Ústavný súd ) declared the complaint inadmissible as manifestly ill ‑ founded. It found no constitutionally relevant arbitrariness, unlawfulness, deficiency or irregularity in the courts ’ reasoning. Moreover, it reiterated that, pursuant to its established case-law, 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. As no violation of any procedural rule had been established, there could not have been any violation of any substantive right either.

B. Relevant domestic law and practice

37. The relevant domestic law has been summarised in, for example, Ringier Axel Springer Slovakia , a.s . v. Slovakia (no. 41262/05, §§ 53 et seq., 26 July 2011) and Ringier Axel Springer Slovakia , a.s . v. Slovakia (( dec .), no. 35090/07, 4 October 2011).

COMPLAINT

38. The applicant complains that the outcome of the proceedings was contrary to its rights under Article 10 of the Convention. In particular, it submits that the courts arbitrarily focused exclusively on the protection of the privacy of the claimant and that they completely disrespected its right to freedom of expression. In that respect, the applicant company submits that the claimant was a person of public concern and that, as such, the level of protection of his personal integrity was reduced. This protection was to be weighted against the applicant company ’ s freedom of expression. The suspicions published by the applicant company should not have been assessed from the point of view of truthfulness but merely as to whether or not they had an adequate factual basis. By requiring of the applicant company to prove what it had not been claiming, the courts placed an excessive burden on it. The way in which the topic was covered corresponded to the level of sensation caused by the A. and his behaviour.

QUESTIONS TO THE PARTIES

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

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

Have the domestic courts applied standards which were in conformity with the principles embodied in Article 10 of the Convention and have they based themselves on an acceptable assessment of the relevant facts (see Ringier Axel Springer Slovakia, v. Slovakia , no. 41262/05, § 109, 26 July 2011, with further references)?