THIRD SECTION

Application no. 71722/10 S.C. RINGIER ROMANIA S.R.L. against Romania lodged on 1 October 2010

STATEMENT OF FACTS

The applicant, S.C. Ringier Romania S.R.L., is a Romanian company based in Bucharest . It is a multimedia publishing group which owns several publications in Romania . The company is rep resented before the Court by Mr D. Costea, a lawyer practising in Bucharest .

A. The circumstances of the case

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

The applicant company was the publisher of a popular national daily newspaper, E.Z.

On 14 October 2005 E.Z. published an article named “The Baksheesh School Silently Succumbs”, signed by two journalists, M.S. and R.M.O. The article, allegedly covering a quarter of a newspaper page, referred to irregularities in the functioning of a postgraduate medical school, run by a certain M.M. At the end of the article, in a 10 cm x 5 cm square, a few lines of text were inserted concerning I.M., the alleged husband of M.M., the school principal.

The title of this text was “M. – the father of the Romanians ’ starvation”, and it read as follows:

“I.M., the husband of the school principal, was an important communist dignitary, Health Minister before 1989. He was the personal doctor of the Ceauşescu family and the one who devised the National Plan for a Rational Alimentation. After the revolution, more precisely in 1992, he joined the P.D.S.R. (Romanian Social Democratic Party) and he was appointed Health Minister, staying in this function until 1996. He resigned before that year ’ s elections, following a scandal concerning the falsification of that year ’ s examination for resident doctors. In 1997 he joined another party, P.R.M. (Grand Romania Party) and he was a deputy for two terms, until 2004.”

On 18 October 2007, two years after the article was published, I.M. decided to sue the two journalists and their employer, the applicant company, in civil courts for libel. I.M. claimed that the impugned newspaper article had damaged his reputation and professional prestige; he therefore asked as compensation that the judgment allowing his claims be published in full in three consecutive editions of E.Z. , on its first page, with the same format and characters as those used for the publication of the offending article. The same judgment was to be published in similar conditions, at the applicant company ’ s expense, in three other daily national newspapers, A ., G . and R.L . The obligation was to be complied with once the judgment was given, any delay be ing penalised with 500 Romanian lei for every day of delay.

I.M. substantiated his request with several documents, proving that he was not the husband of M.M., their common last name being just a coincidence; that he had not been the personal doctor of the CeauÅŸescu family, another person having been employed and paid for that position, while he was on a very few occasions required by N. CeauÅŸescu to provide his expertise as a specialist in diabetes; he had not been a communist dignitary, nor had he been a Health Minister before 1989. His resignation in 1996 from the position he held as Health Minister, following his entry into political life, occurred before any examination for resident doctors and thus had no connection to any scandal.

In view of his old age (81) and of his long-standing well-founded reputation as a high professional, I.M. alleged that the offending article had severely damaged his dignity and prestige, as also proved by his deteriorated state of health following the publication of the text in question.

A medical certificate issued on 5 June 2008 was attached, indicating that I.M. suffered from several diseases, such as diabetes, metabolic syndrome and vascular complications. Two witnesses confirming the claimant ’ s allegations were heard by the court.

The Bucharest Second District Court of First Instance gave its judgment on 2 October 2008, allowing I.M. ’ s claims and ordering that its nine-page judgment be published as requested by I.M. The claim regarding the pecuniary penalty for non-compliance with the court ’ s order was dismissed as inadmissible.

In its judgment the court referred to the fact that the offending article had had a strong impact on the professional life of the claimant, who was subsequently isolated and avoided by his colleagues; the consequences of this isolation were evident also on the claimant ’ s state of health, which was proved to have deteriorated, his cardiac conditions having worsened.

While accepting that I.M. was a public figure, and thus that his professional activities were subject to criticism, the court considered that in the exercise of their freedom of expression, the journalists should have verified their statements before publishing the article. Upon verification, some information could have been detected as being untrue, such as: the professional activities of I.M. before 1989; the fact that he had not been a Health Minister and therefore not the author of the National Plan for a Rational Alimentation, as the person in charge and responsible for that was the Health Minister of that time, Th.B.; the fact that he was not married to M.M.; and finally, that he had resigned from the position of Health Minister in 1996, before the appearance of any scandal concerning alleged fraud related to the examination for resident doctors.

Having particular regard to the fact that the two journalists, who were summoned before the court to answer the questions proposed by the claimant, failed to appear and to make their position clear, the court considered that the journalists ’ attitude implied a tacit acknowledgment of their respective fault.

Consequently and in so far as the applicant company was the journalists ’ employer and therefore responsible for their actions, the court allowed the action and obliged the applicant company to publish the judgment in its entirety on the first page of three consecutive editions of E.Z. and also in the three other national daily newspapers indicated by I.M.

Both parties lodged an appeal against this judgment. The applicant company mainly stated that there was not enough evidence to prove that I.M. ’ s reputation had been damaged as a consequence of the offending article, as he had continued to publish works even after the events in question. There was also not enough proof to argue that his state of health had deteriorated as a consequence of that article, having regard to his advanced age, but also to the fact that the medical certificate submitted was dated three years after the publication of the impugned article. Therefore, the causality between the article and the alleged harm was not solid enough, having regard also to the fact that I.M. brought the libel action two years after the offending article was published. Moreover, the court had disregarded the fact that the article contained value judgments, and not statements of fact; furthermore, the measure ordered was disproportionate, in view of the principles to be borne in mind according to the European Court of Human Rights ’ case-law on Article 10 of the Convention.

The applicant company ’ s appeal was partly allowed on 6 July 2007; it was still ordered to publish the judgment in its entirety, but only in one edition of E.Z.

In its fifteen-page judgment, the Bucharest County Court pointed out that even if the offending article contained some denigrating assertions vis-à-vis I.M., the damage was not as serious as claimed, as it was “minimal damage”, having regard to the fact that the offending article was mainly referring to another person, with whom I.M. was simply associated; furthermore, it had not been proved that the article had fundamentally affected I.M. ’ s professional prestige, as he continued to be appreciated and acknowledged as a good professional in society. In view, however, of the fact that minimal harm had been proved, the court considered that a proper measure for its repair was the publication of the judgment once only and exclusively in E.Z.

The appeal on points of law lodged by the applicant company reiterated the same arguments contesting the necessity of the measure and its proportionality. It also pointed out that I.M. had failed at the time to ask for any right to reply or to clarify the allegations, which would have been an important and useful tool at his disposal for protecting his reputation.

Further in the proceedings, the applicant company pointed out that in so far as they were no longer the owner of E.Z., the newspaper having been sold on 4 February 2010 to a third party, compliance with the courts ’ order had become even more difficult and thus the measure appeared even more disproportionate.

On 28 May 2010 the Bucharest Court of Appeal dismissed the appeal and upheld the lower court ’ s reasoning. While referring to the principles set out in the European Court ’ s case-law on Article 10 of the Convention (see Boldea v. Romania , no. 19997/02, 15 February 2007; CumpÇŽnÇŽ and MazÇŽre v. Romania [GC], no. 33348/96, ECHR 2004 ‑ XI; and Dalban v. Romania [GC], no. 28114/95, ECHR 1999 ‑ VI), the court stated that the interference with the applicant company ’ s freedom of expression had been prescribed by law, namely by Articles 998-1000 of the Civil Code and by Article 54 of Decree no. 31/1954. The measure was necessary in so far as it was meant to protect the interests of the others, namely the protection of a third party ’ s reputation. The measure was also proportionate. Even though in the article there were also value judgments, the few inserted statements of fact needed prior verification by the journalists, and this had not been done. Moreover, the two journalists ’ behaviour had not demonstrated the necessary degree of good faith in the exercise of their profession. Even though they had relied on other publications or Internet sources when publishing their article, this could not absolve them from their responsibility, but limit it at most. The measure imposed by the lower court was therefore not only necessary, but also proportionate.

B. Relevant domestic law

The relevant legal provisions regulating libel proceedings are to be found in Stângu and Scutelnicu v. Romania , no. 53899/00, §§ 30-31, 31 January 2006.

The relevant provisions of Article 54 of Decree no. 31 of 1954 on natural and legal persons were worded as follows:

Article 54

“(1) Anyone whose right ... to honour, reputation ... or any other non-economic right has been infringed may apply to the courts for an injunction prohibiting the act which is infringing the aforementioned rights.

(2) Similarly, anyone who has been the victim of such an infringement of rights may ask the courts to order the person responsible for the unlawful act to publish at his or her own expense the court ’ s judgment, in the circumstances established by the court, or to carry out any measure regarded as necessary by the court in order to restore his rights.”

The Decree was repealed on 1 October 2011, once the new Romanian Civil Code came into force. The new legislation prescribes similar terms for libel actions, stating in its Section 253 § 3 that anyone who has been the victim of an infringement of his/her right to reputation may ask the courts to order the person responsible to carry out any measure regarded as necessary by the court, among which, to publish at his or her own expense the court ’ s judgment.

COMPLAINTS

The applicant company complains under Article 10 of the Convention that the measures taken by the domestic courts infringed their freedom of expression. The applicant company submits that the courts failed to make a distinction between value judgments and statements of fact and thus wrongfully found them responsible for the publication of the offending newspaper article. It further submits that the courts imposed a disproportionate measure on it, ordering the publication of the judgments in their entirety, each a number of pages long, in spite of the fact that the offending article was only a few lines long.

Under Article 6 of the Convention, the applicant company complains that the courts ’ assessment of the evidence in the file and the consequent application of the relevant law were superficial and led to an unfair outcome.

QUESTIONS TO THE PARTIES

Do the facts of the case disclose a breach of Article 10? In the affirmative, was that breach prescribed by law and nec essary in terms of Article 10 § 2? In particular, does the applicable law meet the requirement of lawfulness within the meaning of Article 10 § 2? Is it sufficiently foreseeable and precise and does it provide adequate and sufficient safeguards against possible abuse?

In this connection, t he respondent State is invited to provide relevant domestic case-law on the interpretation of Article 54 of Decree no. 31 of 1954, so as to depict the various types of measures taken by the national courts in libel cases having as defendant a publishing company.