CEDH · CASELAW;CLIN;ENG — 2 mars 2010

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Romania - 26732/03 Judgment 2.3.2010 [Section III] Article 6 Civil proceedings Article 6-1 Fair hearing Failure to give reasons for holding newspaper photographer and publishing company jointly liable in damages: violation   Article 10 Newspaper publisher held jointly liable in damages with its photo-journalist employee for damage to reputation of third party implicated in high profile case: violation   Facts – The applicants are a photo-journalist and his employer, a newspaper publisher. In January 1999 the newspaper published two articles containing accusations against R.D., the former head of an American company that had gone bankrupt and to which the Romanian State had made financial contributions. The second of these articles was signed by the first applicant and a fellow photo-journalist Cornel   V. In March 1999 R.D. filed a criminal complaint with the prosecutor’s office at the Bucharest District Court for the offences of proffering insults and defamation. In September 2002 the court acquitted the newspaper editor, Cornel   V. and the first applicant of the criminal charges but found the latter civilly liable and ordered him to pay damages to the injured party. The applicant company was found liable, jointly and severally with the first applicant, as his employer. The applicants appealed unsuccessfully against that judgment. Law – Article 6 § 1: The first applicant had been found guilty as the author of an article in the newspaper published by the applicant company that had damaged the reputation of a businessman, R.D. The domestic courts had declared the first applicant alone to be personally liable for that article, which he had signed jointly with his colleague Cornel   V. By so ruling they had accepted Cornel   V.’s defence that, in spite of the fact that his signature appeared next to that of the first applicant at the end of the offending article, all he had done was to take the accompanying photographs. However, the domestic courts had failed to explain why the same defence presented by the first applicant and supported by Cornel   V.’s statement, by the results of the prosecution’s investigation and by the first applicant’s contract of employment showing his position as photo-journalist had not been accepted. It was not for the Court to examine the merits of the argument that the first applicant was not the author of the impugned article. However, without needing to undertake such an examination it was clear that the argument in question was at least pertinent and that if the district court had deemed it well-founded it should necessarily have dismissed the claimant’s action against the applicant. That question therefore required a specific and explicit response, in the absence of which it was impossible to ascertain whether the district court had simply disregarded the argument in question or had deliberately dismissed it, and if so, for what reasons. Lastly, the district court had also found the applicant company liable as the first applicant’s employer. The award against it had thus stemmed from the finding against the first applicant. Even though the publication of the offending article by the newspaper had never been in dispute, the publisher had never been directly implicated by the domestic courts. The award against the applicant company had also lacked reasoning, being simply incidental to the finding against the first applicant. Conclusion : violation (unanimously). Article 10: The parties had agreed that the finding of civil liability against the newspaper publisher had constituted an interference with its right to freedom of expression. The interference had been prescribed by law. It had pursued a legitimate aim, namely the protection of the reputation of another, namely R.D. It remained to be examined whether the interference was necessary in a democratic society. The applicant company had been found liable following an article in the newspaper it published. The article concerned the alleged involvement of the businessman R.D. in the bankruptcy of a company to which the Romanian Government had granted a very significant loan, accusing him of benefiting personally from the situation by using the money for the building of a costly country house that he had subsequently resold for fear of prosecution. It thus concerned a subject of general interest for the community, namely the management of the State’s assets in granting loans directly to companies. The district court had found the applicant company liable as the first applicant’s employer. That finding had therefore stemmed from the liability of the first applicant and had not concerned the applicant company’s own liability as publisher of the newspaper in which the article had appeared. In so finding, the domestic courts had not given sufficient reasons for the judgment in question. Moreover, the amount awarded in damages was particularly high, about thirty times the average monthly salary in Romania at the time, and three times higher than the maximum fine then applicable for the criminal offence of defamation. It had thus upset the fair balance that had to be struck between the applicant company’s right to freedom of expression and the requirement of the general interest of the community. Conclusion : violation (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes