Published on 12 September 2022

THIRD SECTION

Application no. 23236/22 Maria del Carmen BAENA SALAMANCA against Spain lodged on 29 April 2022 communicated on 25 August 2022

SUBJECT MATTER OF THE CASE

The application concerns an article published on 5 September 2012 by a national internet newspaper and on 6 September 2012 by its paper edition. The article suggested that the applicant, who was at the time a forensic medical doctor working for the Audiencia Nacional , had not complied with a judicial order to examine in person a convicted terrorist before issuing an expert report about his illness (kidney cancer allegedly in a terminal phase), medical prognosis, and adequate place for his treatment. The article alleged that the expert report had been commissioned by a court to determine whether conditional release of the person in question should be granted.

The applicant brought a civil claim against the newspaper and the journalist asking for retraction of the false information since, she submitted, the judicial order had not been addressed to her. The defendants contested that claim, presenting, among other documents, a copy of a document issued by a court ( oficio ) allegedly notifying the applicant of the judicial order. The document did not mention the recipient and contained no signature of a judge. The applicant’s claim was dismissed.

The applicant then brought criminal action against the journalist and the editor of the article for forgery of the mentioned oficio. On 1 April 2015 the Chief prosecutor of Madrid concluded that the oficio appeared to be a copy of a document concerning the case, addressed to the Prison of Alava ( Centro Penitenciario de Alava ) and with some parts deleted. Accordingly, the judicial order to examine the convicted person was not addressed to the applicant, but could concern some other forensic medical doctor in Alava. The criminal proceedings were discontinued for lack of information about who had altered the oficio.

The applicant brought a second civil claim against the newspaper for the damage to her honour and reputation. She sought compensation of 100,000 euros (EUR) and a court order for the newspaper to admit that the news item in the digital and paper versions was inaccurate. She further sought immediate cessation of the article’s dissemination via internet and that all possible measures be taken to deindex the news from search engines and to publish an eventual judgment in her favour in the digital and paper versions. The judgment of the Audiencia Provincial granted the order as sought, but the Supreme Court reversed that judgment on appeal.

The article is still accessible through search engines in the digital edition of the newspaper and received over 100 comments, many of them negative to the applicant.

The applicant complains under Article 8 that the news items and the negative comments harmed her professional reputation and that the domestic courts, dismissing her civil actions, failed to protect her honour and reputation.

QUESTIONS TO THE PARTIES

Has there been a violation of the applicant’s right to respect for her private life, in particular her reputation, within the meaning of Article 8 of the Convention?

In particular, has there been an interference with the applicant’s right to respect for her private life, within the meaning of Article 8 § 1 of the Convention (see Denisov v. Ukraine [GC], no. 76639/11, § 112, 25 September 2018, and Delfi AS v. Estonia [GC], no. 64569/09, §§ 110-17, ECHR 2015)?

If yes, have the domestic courts struck a fair balance between the applicant’s right to respect for her private life under Article 8 and the newspapers’ right to freedom of expression guaranteed by Article 10 of the Convention (see, for example, Axel Springer AG v. Germany [GC], no. 39954/08, §§ 89-95, 7 February 2012 and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 108-13, ECHR 2012)? In this context, did they consider whether the article had sufficient factual basis (see, Polanco Torres and Movilla Polanco v. Spain , no. 34147/06, §§ 49-54, 21 September 2010, and Bladet Tromsø and Stensaas v. Norway (GC), no. 21980/93, § 72, 20 May 1999)?