Freedom of Expression and Defamation: Legal Provisions and Actual Practice
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Freedom of Expression and Defamation: Legal Provisions and Actual Practice This study was published by the Association of Independent Press in partnership with the Independent Journalism Center with the financial support of Soros Foundation–Moldova. The opinions expressed herein are those of the authors and do not represent the views of the funder. 1 Project Coordinator Petru Macovei Authors: Ion Bunduchi In lieu of an Introduction The School of 2009: Lessons from the Events in April Janeta Hanganu The European Convention and Court of Human Rights on the Freedom of Expression and Defamation Iulian Balan The Consistency with European Union Standards of Moldovan Legislation on the Freedom of Expression and Defamation Doina Costin Justice versus Media: Monitoring Cases Related to the Protection of Honor, Dignity and Professional Reputation Initiated against Media Outlets from 2005 to 2009 Other contributions: Editors: Rodica Mahu, Judith G. Goldman Assistants: Rodica Malic, Victor Ursu, Natalia Cocean 2 TABLE OF CONTENTS In lieu of an Introduction ............................................................................................................... Chapter I. The European Convention and Court of Human Rights on the Freedom of Expression and Defamation...................................................................................................... 1. Fundamentals ......................................................................................................................... 2. Restrictions on the freedom of expression ................................................................................ 3. Freedom of expression and defamation ............................................................................ 4. Freedom of expression and private life ................................................................................... 5. Freedom of expression and public order .............................................................................. 6. Freedom of expression and the judiciary .................................................................... 7. The right to receive information.................................................................................................... 8.Conclusions ................................................................................................................................... Chapter II. The Consistency with European Union Standards of Moldovan Legislation on the Freedom of Expression and Defamation................................................................................ 1. Legal provisions on the freedom of expression in Moldova................................................. 2. Freedom of expression in the European Union: standards and tendencies 3. The compliance with European Union standards of Moldova’s legislative framework on the freedom of expression 4. The correlation between freedom of expression and defamation ........................................................ Chapter III. Justice versus Media: Monitoring Cases Related to the Protection of Honor, Dignity and Professional Reputation Initiated against Media Outlets from 2005 to 2009......................................................................................................................................... 1. Documentation and the collection of information 2. General information about the cases...................................................................... 3. Overview of well-known cases........................................................................... 4. Tendencies in national case law regarding settling cases against media outlets........ 5. Regional practices versus practices in the capital........................................................................ Chapter IV. The School of 2009: Lessons from the Events in April .................................. 1. Preliminaries ................................................................................................................................ 2. Media at the school of 2009: lessons not learned................................................................. 3. Media at the school of 2009: lessons learned and lessons to learn...................................... 4. Public authorities at the school of 2009: lessons not learned..................................................... 5. The citizen at the school of 2009: lessons learned?................................................................. 6. In lieu of a conclusion .................................................................................................................. 3 In lieu of an Introduction To achieve a universal right, hereafter we will freely express opinions on how defamation is judged. These opinions do not bear the stamp of ultimate truth; rather, they are views and have just one fundamental purpose: to enter the “free market of ideas” where they can compete with opposing opinions so that anyone entering the market of ideas can have a choice. Humanity has entered the Information Age which is characterized by a significant increase in the number of information channels in both virtual and traditional media. This increase in number and, implicitly, in the flow of information has led to an increase in the number of defamation charges brought against media outlets. In Moldova for instance, from 2005 to 2009, the number of court trials in which a media organization was charged with injuring honor, dignity or professional reputations was 73, and the greatest amount requested for moral damage in those cases was 10 million lei. Of the 165 European Court of Human Rights (ECHR) decisions against the Government of the Republic of Moldova (as of October 1, 2009) nearly 10% were related to violations of the freedom of expression and 7% were related to national proceedings on defamation initiated under Civil Code provisions on the protection of dignity and honor (Article 7 and 7/1 of the old code and Article 16 of the new code). In Russia, the number of court trials involving media in defamation cases has increased five fold in 10 years.1 This shows that on one hand that media is more willing to publish denouncements and on the other hand that plaintiffs tend to increasingly consider their that dignity has been injured. Plaintiffs, including those in Moldova, are usually socially influential people which ensures that their court cases will have a public impact. The involvement of the media in defamation cases causes the loss of three scarce resources: nerves, time and money. In this context, the case of Flux newspaper is eloquent. Five years ago Member of Parliament (MP) Victor Stepaniuc filed a civil action against the newspaper stating that his honor and dignity had been injured by the publication of the article “Four More Communists Came into Possession of Houses with Our Money.” A Chisinau court ordered the newspaper to publish a denial and to pay 30,000 lei in moral damages to the MP. Then the Supreme Court of Justice ordered the amount of damages to be reduced to 5000 lei, asserting at the same time that the lower courts had issued correct judgments in the MP’s case. The case ultimately got to the ECHR that convicted Moldova on November 24, 2005 of having violated the right to freedom of expression and obliged the state to pay Flux approximately €5000 including €3000 in moral damages.2 In November 2009, a Chisinau court ordered Flux to pay MP Ion Plesca (of Moldova Noastra Alliance) 100,000 lei (United States [US] $8620) in moral damages stating that the paper had injured the MP’s honor, dignity and professional reputation by publishing the article “An Inseparable Couple or How Urechean Settled into His Mayoral Seat on July 4, 2008. Flux journalists stated that they would appeal the decision to the ECHR, but there is no guarantee that the court will rule in favor of the publication. It should be recalled that in July 2008, the complaint filed by Flux that it had been unjustly convicted of libel was rejected by the ECHR on the grounds that press freedom is based on “responsible journalism.” The paper had been convicted of publishing a story in which the director of a high school was accused of 1 Potapenko S.V. Problemy sudebnoy zaschity ot diffamatsii v SMI: Avtoreferat dissertatsii na soiskanye ucheonoy stepeni doktora yuridiceskih nauk 2 November 25, 2009 // MONITOR MEDIA #0430(31) 4 misappropriating funds and accepting bribes in exchange for enrolling students in his school. Invoking the right to expression, the paper filed a complaint with the ECHR about the civil action for defamation initiated against it by the high school principal. The Court noted that despite the fact that the accusations published against the director were serious, the paper had not undertaken an investigation nor did it try to get in touch with the schoolmaster. Moreover, it had not granted him the right to reply. According to the ECHR, “The right to freedom of expression cannot be taken to confer on newspapers an absolute right to act in an irresponsible manner by charging individuals with criminal acts in the absence of a basis in fact at the material time.” The Court conceded that, “The newspaper had flagrantly violated the principles of responsible journalism,” and decided there was no violation of press freedom in this case. In July 2003 in Moscow, Russia, the publisher of the newspaper Vremea and journalist Oleg Lurie were ordered to pay 7.5 million rubles ($250,000) to Alfa-Banc and Alfa-Eco Ltd as compensation for injury