Постановление Европейского суда по правам человека от 08.10.2009 "Дело "Романенко и другие (romanenko and others) против Российской Федерации" [рус., англ.]

publishing it. Since the applicants had failed to do so and had also failed to prove before the court that the information had been true, they were at fault for the dissemination of information damaging the reputation of the courts' management department.
18. The court ordered the applicants to publish a refutation and each of them to pay 15,000 Russian roubles to the department and also bear the legal costs and expenses.
19. On 15 January 2003 the Primorskiy Regional Court upheld, on an appeal by the applicants, the judgment of 11 October 2002.
II. Relevant domestic law
A. Constitution of the Russian Federation
20. Article 29 guarantees freedom of thought and expression, together with freedom of the mass media.
B. Civil Code of the Russian Federation
21. Article 152 provides that an individual may apply to a court with a request for the rectification of statements (svedeniya) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements. The same rules are applicable in cases where the plaintiff is a legal entity.
C. Resolution of the Plenary Supreme Court
of the Russian Federation, No. 11 of 18 August 1992
(amended on 25 April 1995)
22. The Resolution (in force at the material time) provided that, in order to be considered damaging, statements had to be untrue and contain allegations of a breach of laws or moral principles (commission of a dishonest act, improper behaviour at the workplace or in everyday life, etc.). Dissemination of statements was understood as the publication of statements or their broadcasting (section 2). The burden of proof was on the defendant to show that the disseminated statements had been true and accurate (section 7).
D. The Mass-Media Act (Federal Law No. 2124-I
of 27 December 1991)
23. The founder (co-founders) of a newspaper is a person or a group of persons who applied for registration of the newspaper (section 7). The founder may not interfere with the functioning of the newspaper unless otherwise provided by law and by the articles of association (section 18). The founders, editors, publishers, journalists, and authors, may be held liable for breaches of Russian legislation on mass-media (section 56).
24. The editor's office and journalists may not be held liable for dissemination of information which is untrue and damaging to the honour or reputation of citizens and organisations if such information originated in press-releases of State bodies, organisations, agencies, companies or public associations (section 57 § 3) or if such information is a verbatim reproduction of official statements by officials of State bodies, organisations or public associations (section 57 § 4).
III. Relevant council of Europe documents
25. A report on the honouring of obligations and commitments by the Russian Federation, presented by co-rapporteurs of the Monitoring Committee to the Parliamentary Assembly of the Council of Europe (doc. 10568, 3 June 2005), noted as follows:
"Libel lawsuits
389. We are concerned by the current defamation legislation and its application by the Russian judiciary and executive powers. Journalists are often prosecuted through libel suits (approximately 8 - 10,000 lawsuits a year)...
392. Also the legislation concerned should not grant any special protection against criticism to public officials... Finally, the possibility of filing lawsuits against media and journalists by public authorities should be abolished as the latter per se cannot possess any dignity, honour, or reputation.
393. Therefore, we urge the Russian authorities to reform its defamation legislation, inter alia: ...to introduce a clear ban on public bodies to institute civil proceedings in order to protect their "reputation" (without hindrance to the right of public officials to litigate in their private capacity), to clearly establish that no one should be liable under defamation law for the expression of an opinion ("value judgements")..."
THE LAW
I. Alleged violation of Article 10 of the Convention
26. The applicants complained about a violation of their right to freedom of expression. This complaint falls to be examined under Article 10 of the Convention, which reads as follows:
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
A. Submissions by the parties
1. The applicants
27. The applicants submitted that the interference with their right to freedom of expression was not "prescribed by law". The wording of section 57 of the Mass-Media Act was not sufficiently clear and foreseeable in its effects to enable journalists to anticipate the distinction drawn by the domestic courts between State officials and municipal employees. At the time the Mass-Media Act was enacted in 1991, Russian constitutional and administrative law classified municipal employees as State officials. Even though the 1993 Constitution drew a distinction between State bodies and bodies of local self-government, there was no evidence that the status of municipal employees had undergone any changes or that the Mass-Media Act needed to be amended in the light of the new legal status of municipal employees. In any event, the open letter had been signed not just by municipal employees, but also by public officials of the tax inspectorate, Federal Security Service and the police. Furthermore, municipal bodies and commercial companies were covered by the notion of "organisation" in paragraph 3 of section 57. The applicants pointed out that no one could reasonably expect that a statute's provision should list for the purposes of regulating public discourse all types and varieties of existing legal entities, organisations, bodies, agencies, etc.
28. The first applicant argued in addition that imposing pecuniary sanctions on the newspaper's founders in their personal capacity for damage caused by publications of which they had not been personally cognisant, should be considered as an unjustified restriction on freedom of the press. It was not appropriate to hold the founder liable for defamation when he had not made any personal attacks on the plaintiffs as a journalist and had taken no part in the editing or publishing process. Nor had he been obliged by law to read all the articles in the newspaper, to review their content or to verify personally the accuracy of the facts.
29. The applicants also claimed that the interference did not pursue any legitimate aim. The main objective of the defamation claim was to prevent the newspaper from criticising State bodies and officials in the future. Had it been otherwise, the litigation should have targeted the panel participants who had signed the open letter and presented it to the public rather than the newspaper that merely reprinted it. The interference could not be said to have pursued the aim of "maintaining the authority of the judiciary" because the courts' management department was in charge of the maintenance of court buildings and the proper organisational functioning of the judicial system; it did not adjudicate any cases. The argument as to the legitimate aim of "protecting the reputation and rights of others" was misconceived because the word "others" should, in the applicants' view, apply only to individuals or legal entities and could not extend to State bodies such as the courts' management department.
30. The applicants further contended that the interference at issue was not "necessary in a democratic society". The libel proceedings against them had had the aim of discouraging open discussion on important matters of public concern in the Primorskiy Region. The disputed statement had been part of an open letter which had not been an attack against the courts' management department or its officials but rather an appeal for a thorough and comprehensive investigation into the activities of companies that cut down timber. Referring to the Court's case-law, the applicants insisted that the press should be able to rely on the content of official reports without having to undertake independent research (see Colombani and Others v. France, No. 51279/99, § 65, ECHR 2002-V). In the context of the letter as a whole, the expression "irregularities have clearly been on the rise" should be regarded as a value judgment, not as an asserted fact. The domestic courts had failed to weigh the rights and interests of the courts' management department and of its head Mr Shulga in relation to the public interest in receiving information of public concern. Moreover, the protection afforded by Article 10 would be undermined if public officials responsible for the operation of a State body were allowed to substitute themselves for that body, as had happened with Mr Shulga's filing of a defamation claim in his personal capacity. Finally, the applicants pointed out that the amounts awarded against them had been so excessive compared to their income - approximately one third of their annual income - that the proceedings had definitely had the aim of preventing future critical coverage.
2. The Government
31. The Government submitted that the interference with the applicants' right to freedom of expression had been prescribed by law, notably Article 152 of the Civil Code which governed the protection of the professional reputation of both citizens and legal entities. The domestic courts found that the facts set out in the publications were not shown to have been true and that there were no grounds to exempt the applicants from responsibility by virtue of section 57 of the Mass-Media Act.
3. The third parties
32. The third parties submitted, firstly, that government agencies were fully equipped, and should be expected, to defend their reputation before the court of public opinion rather than a court of law. The PACE Report urged Russia to introduce a clear ban on the ability of public authorities to institute civil proceedings in order to protect their "reputation" (cited above, § 393). If public authorities were to be included within the meaning of "others" whose reputation or rights Article 10 § 2 was designed to protect, it would subject journalists to a constant risk of harassment through lawsuits and frustrate the media's ability to act as a watchdog of public administration. Mindful of that danger, courts of many jurisdictions barred public authorities from suing in defamation because of the public interest that such authorities must be open to uninhibited public criticism (United Kingdom: Derbyshire County Council v. Times Newspapers Ltd [1993] AC 534; India: Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632; United States: City of Chicago v. Tribune Co., 307 Ill. 595 (1923); South Africa: Die Spoorbond v. South African Railways [1946] AD 999). Some new European democracies have also taken steps to bar government bodies from claiming damages for defamation.
33. Secondly, the third parties indicated that Article 10 would be hollowed out if public officials could substitute themselves for their respective bodies in taking legal action. Here, the relevant test for entertaining a defamation action against the media would be whether the statement at issue was unequivocally "of and concerning" that official. The "group defamation" doctrine has deep roots in the common-law legal tradition (see King v. Alme & Nott, 91 Eng. Rep. 790 (1700) (per curiam); Eastwood v. Holmes, 1 F. & F. 347, 175 Eng. Rep. 758 (1858); New York Times Co. v. Sullivan, 376 U.S. 254 (1964)). Defamation laws in the continental legal system have similar identification requirements; a plaintiff must be identifiable by name or image or otherwise, in order to have standing to sue for defamation.
34. Finally, the third party pointed out that journalists should not be held liable for defamation for accurately publishing statements contained in non-confidential government documents. The Court has constantly held the view that the press "should normally be entitled, when contributing to public debate on matters of legitimate concern, to rely on the content of official reports without having to undertake independent research" (see Colombani and Others v. France, No. 51279/99, § 47, ECHR 2002-V; also {Selisto} v. Finland, No. 56767/00, § 60, 16 November 2004). A similar well-developed legal doctrine known as the "fair report privilege" has long been entrenched in the United States jurisprudence (Restatement (Second) Torts, § 611 (1977)). It followed that journalists had a right under Article 10 to publish statements from a non-confidential document accurately without being liable for the content of such statements.
B. The Court's assessment
35. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress. Subject to paragraph 2 of Article 10, it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no "democratic society" (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A No. 24, and Jersild v. Denmark, 23 September 1994, § 37, Series A No. 298).
36. The Court notes that the three applicants were the co-defendants in a civil defamation case in connection with two publications in the newspaper of which they were the founders. The Russian courts found them liable for the alleged defamation and ordered them to pay damages to the plaintiffs. It follows that the applicants were directly affected by the impugned judgments which constituted an interference with their right to freedom of expression within the meaning of Article 10 § 1 of the Convention. Accordingly, the Court's task is to determine whether the interference was justified.