CEDH · CASELAW;COMMUNICATEDCASES;ENG — 22 novembre 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 22 November 2016   FIRST SECTION Application no. 12890/13 SKIZB MEDIA KENTRON LTD (III) against Armenia lodged on 31 January 2013 STATEMENT OF FACTS The applicant company, Skizb Media Kentron, is a limited liability company with its registered office in Yerevan. It is represented before the Court by Mr N. Baghdasaryan, a lawyer practising in Yerevan. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant company publishes Zhamanak , a daily newspaper. On 26 August 2010 an article was published in issue no. 136 entitled “1,000 [United States dollars (USD)] in Return for Silence” with the following content: “We have discovered from well-informed sources that the representatives of the Glendale Hills company in Gyumri, following the ‘auto-collapse’ [ ինքնափլուզում ] of one of the buildings built by them in the Mush 2 district of Gyumri, have tried at all cost to persuade the residents not to inform the media about what happened. Our source, who wished to remain anonymous, informed us that Glendale Hills offered the residents USD 1,000 in cash and also promised to quickly rebuild the flat so that that subject did not appear in the media, while threatening not to rebuild the flat in the event of a refusal. The affected residents refused, however, the shady deal offered by Glendale Hills.” It appears that this article was based on interviews conducted with the residents of the building in question, after having visited the flat belonging to one of the residents, A.M., where a ceiling had apparently collapsed. On 27 August 2010 Glendale Hills addressed a letter to the applicant company, demanding that it publish a retraction of the inaccurate information contained in the above article. On 1 September 2010 the applicant company reprinted the above-mentioned letter in its issue 140 accompanied by an article entitled “They Still Dare to Speak” which contained the following passage: “... as it turns out, their unruliness has no limits: recently they dared to send a missive to our publication resembling a marasmic delirium or ravings of a mental patient and to demand that we publish it as a so-called retraction. We are naturally publishing that text, not because we are obliged to but in order to show to our readers and the residents of Gyumri the true face of that company.” On 23 September 2010 Glendale Hills instituted civil proceedings against the applicant company, claiming that the article published in issue no. 136 contained defamatory statements and seeking their retraction and payment of damages. The applicant company objected to the claim, arguing that the statements contained in the article were value judgments based on the facts as established by its journalist. On 30 January 2012 the Kentron and Nork-Marash District Court of Yerevan partially granted the claim, ordering the applicant company to publish a retraction and to pay damages and legal costs in the amount of 510,000 Armenian drams (AMD). The District Court found that the statements of fact contained in the article entitled “USD 1,000 in Return for Silence” constituted defamation since they did not correspond to reality and had tarnished the plaintiff’s business reputation. The applicant company had failed to produce any evidence to prove the veracity of those statements. While admittedly there had been certain shortcomings in the construction work, there was no evidence to suggest that the building had “auto-collapsed” as alleged by the applicant company. Nor was there any evidence to show that Glendale Hills had tried to bribe the residents in return for their silence or to threaten them, whereas the applicant company had refused to reveal the “source” mentioned in its article. The plaintiff had been right in claiming that the applicant company had distorted the facts surrounding the financial offer made to A.M., as well as the offer to rebuild the latter’s flat, presenting it as a “shady deal”, which had similarly tarnished the plaintiff’s business reputation. Furthermore, the plaintiff had tried first to settle the issue by seeking a retraction, but the applicant company had instead published another article, which demonstrated that it had had a hostile attitude towards the plaintiff and that it had been pursuing the aim of defaming it. The applicant company had failed to check the information at hand and thereby, without knowledge of the factual circumstances, had publicly imparted inaccurate information defaming the plaintiff. The District Court concluded that the title of the article, the individual statements contained therein, as well as its entire content were defamatory. On 29 February 2012 the applicant company lodged an appeal. On 14 June 2012 the Civil Court of Appeal dismissed the appeal and upheld the judgment of the District Court. On an unspecified date in July 2012 the applicant company lodged an appeal on points of law. On 1 August 2012 the Court of Cassation declared the appeal on points of law inadmissible for lack of merit. B.     Relevant domestic law Article 1087.1 of the Civil Code provides that a person whose honour, dignity or business reputation has been tarnished through insult or defamation can institute court proceedings against the person who made the insulting or defamatory statement. An insult is a public statement made through words, images, sounds, signs or other means with the aim of tarnishing someone’s honour, dignity or business reputation. A public statement may be considered not an insult if it is based on precise facts (except congenital defects) or pursues a paramount public interest. Defamation is a public statement of fact about a person, which does not correspond to reality and tarnishes his or her honour, dignity or business reputation. In cases of defamation, the obligation to prove the existence or absence of the relevant factual circumstances is placed on the defendant. This obligation will be shifted to the claimant if presenting such proof requires the defendant to perform unreasonable actions or efforts, whereas the claimant possesses the necessary evidence. A person shall be absolved of liability for defamation or insult if the statements of fact expressed or presented by him are a verbatim or bona fide reproduction of information disseminated by a media outlet, or of information contained in a public speech, official documents, other mass media or any creative work, and if he or she makes a reference to the source (that is to say the author). COMPLAINT The applicant company complains under Article 10 of the Convention that its right to freedom of expression was breached. QUESTION TO THE PARTIES Has there been a violation of the applicant company’s right to freedom of expression, in particular its right to impart information and ideas, contrary to Article 10 of the Convention?