Published on 25 September 2023

FOURTH SECTION

Application no. 25972/20 RÁDIO E TELEVISÃO DE PORTUGAL, S.A. and Others against Portugal lodged on 23 June 2020 communicated on 4 September 2023

SUBJECT MATTER OF THE CASE

The first applicant is a publicly funded television channel and the second, third, fourth and fifth applicants are journalists working for the first applicant at the time of the events.

By a judgment of 2 May 2018 of the Lisbon District Court, confirmed by the Lisbon Court of Appeal on 9 January 2019, the applicants were ordered to pay jointly compensation of 50,000 euros (EUR) to J.Q., an otolaryngology surgeon practising at Coimbra University Hospital (hereafter the “HUC”), for breach of his right to honour and reputation as a result of a news report broadcast by the first applicant on 13 February 2015. The report concerned an ongoing criminal investigation against doctor J.Q. and another doctor from the HUC for having deliberately and wrongly advised their patients to go to the private clinic where they also practised to have a second cochlear implant, as this would not be covered by the public health insurance. The criminal investigation concerned, as well as the disciplinary proceedings, were eventually dismissed for lack of evidence in respect of J.Q.

In respect of the same news report, the Portuguese Regulatory Entity for the Media (ERC) issued three resolutions and one administrative misdemeanour procedure against the first applicant, ordering it to grant a ‘right of reply’ to J.Q., in an impartial manner.

Relying on Article 10 of the Convention, the applicants alleged that the domestic court’s decision was excessive and disproportionate and infringed their right to freedom of expression. They submit that the report at issue concerned relevant matters of public interest, namely the social health care system, which is publicly funded.

QUESTIONS TO THE PARTIES

1. Does the first applicant has standing to bring an application under Article 34 of the Convention? In particular, is the first applicant a “non ‑ governmental legal entity” within the meaning of Article 34 of the Convention (see Radio France and Others v. France (dec.), no. 53984/00, § 26, ECHR 2003-X (extracts); Österreichischer Rundfunk v. Austria , no. 35841/02, §§ 48-53, 7 December 2006; and MacKay and BBC Scotland v. the United Kingdom , no. 10734/05, §§ 18-19, 7 December 2010)?

2. Has there been an interference with the applicants’ right to freedom of expression, in particular their right to impart information, within the meaning of Article 10 § 1 of the Convention? Was that interference prescribed by law and necessary in terms of Article 10 § 2?

3. In particular:

(a) To what extent are the duties and responsibilities inherent in the applicants’ profession/activity relevant to their claim and the State’s margin of appreciation in this field?

(b) Did the national authorities s

trike a fair balance between the applicants’ right to freedom of expression as guaranteed by Article 10 of the Convention and any competing interest, including the “protection of the reputation or rights of others”, having due regard to the criteria set out and implemented by the Court in cases concerning freedom of expression (see Lopes Gomes da Silva v. Portugal , no. 37698/97, § 30, ECHR 2000 ‑ X; Colaço Mestre and SIC – Sociedade Independente de Comunicação, S.A. v. Portugal , nos. 11182/03 and 11319/03, §§ 22-24, 26 April 2007; and Público - Comunicação Social, S.A. and Others v. Portugal , no. 39324/07, §§ 45-48, 7 December 2010)?

(c) Has there been sufficient consideration by the domestic courts of the potential chilling effect on the freedom of expression and on the press of the sanction imposed on the applicants (see SIC - Sociedade Independente de Comunicação v. Portugal , no. 29856/13, § 69, 27 July 2021)?

List of applicants:

No.

Applicant’s Name

Year of registration

/birth

Nationality

Place of residence

1.RÁDIO E TELEVISÃO DE PORTUGAL, S.A.

2007Portuguese

Lisbon

2.Sandra Maria FELGUEIRAS OLIVEIRA

1977Portuguese

Lisbon

3.José Manuel LAIRES SEQUEIRA PORTUGAL

1963Portuguese

Coimbra

4.Paulo Jorge LIMA DENTINHO

1959Portuguese

Lisbon

5.Soraia MANUEL DE SOUSA RAMOS

1985Portuguese

Lisbon