FLUX v. MOLDOVA (No. 6)
No violation of Art. 10
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Päivi Hirvelä
5. On 4 February 2003 the applicant newspaper published an article about the Spiru Haret High School. The article was not based on investigations by the newspaper’s reporters but merely quoted an anonymous letter it had allegedly received from a group of students’ parents. The letter criticised the situation in the school, in particular, overcrowding and a lack of proper facilities for children. It alleged that the school’s principal used the school’s funds for inappropriate purposes, spending money on decorating his office and building a separate bathroom for himself, launching a school newspaper which only published articles related to relationships and sex. It also alleged he had received bribes of 200-500 US dollars for enrolling children in the school and that the authors of the letter had been afraid to sign for fear of reprisal against their children. 6. On an unspecified date the principal and the editorial staff of the school newspaper asked Flux to publish a reply to the article of 4 February 2003; however, their request was rejected. They finally managed to have their reply published in another newspaper called the Jurnal de Chisinău. 7. In their reply they expressed dissatisfaction with the fact that Flux had failed to seek their side of the story before publishing an anonymous letter, and said that the manner in which Flux had acted had been contrary to journalistic ethics. In their view, the fact that Flux had published an anonymous letter without even visiting the school or conducting any form of investigation showed that its aim was purely sensationalism. It was true that the school was overcrowded, but that was a result of its popularity. Had the journalist from Flux visited the school, she would have noted that it was not only the principal’s office that had been renovated, but many other parts of the school. As to the issue of bribes, it was far too serious an accusation to be published without any supporting evidence. The editorial staff of the school newspaper stressed that the anonymous letter had misinformed the readers by only citing certain articles and overlooking many others concerning such matters as sport, cultural events and school events. 8. On 14 February 2003 the applicant newspaper reacted to the reply published in the Jurnal de Chisinău by publishing a new article which stated¸ inter alia: “The first people to visit us, were, to our surprise, not the [principal], but the ‘creation team’ of the school newspaper... headed by the teacher M.C. They had prepared a so called ‘reply’ to the article [of 4 February 2003]. In reality a scrap of paper attacking our editorial staff, full of ironic comments such as ‘Flux, the newspaper which pretends to write the truth’. We have nothing against this school newspaper, which started to give us marks for behaviour. We tried to explain to our as yet too young colleagues, in a friendly way, of course, that since Flux had pledged to publish the [anonymous] letter in full, it could not change its content. We were merely reproducing a point of view which had the right to exist. We simply did not care about other details, such as the quality of the school newspaper or the IQ of its editors. Maybe the ‘reply’ from the editors of the Spiru Haret newspaper, would have been published by Flux if its tone had been measured and shown at least a little respect for a newspaper [Flux] from which their school newspaper still has a lot to learn. Not to mention that the ‘editors’ who came to our office were arrogant and spoke down to us from a great height. We had the impression that these ‘editors’ were from the New York Times or at least from Le Monde. Incidentally, we later found out that the chief of the ‘editors’, M.C. is the partner of the school principal, but we readily overlooked this delicate detail. ... When we agreed to publish the letter from the group of parents, we were not intent on sensationalism, as was insinuated by the principal in his reply. Everybody knows that the situation in our schools is far from satisfactory. Nobody is surprised by this anymore. Spiru Haret is not the first school we have written about, nor will it be the last.... We published the letter in the hope that the principal would descend from his lofty perch and understand that there also are dissatisfied parents. Many people complained to us that the principal was a spiteful person. Just to prove the point, after the publication of our article, he convened a meeting of the parents’ association at which he demanded the names of the persons who had written the letter. He also demanded that the association write a letter critical of our newspaper.... Obviously, the most serious problem is that of the bribes, which, according to the cynics among us, are not causing the principal any loss of sleep. We have been accused of libelling him without any proof. However, it was not we who accused him, but the parents. And we are sure that we will be able to bring witnesses to the court. We will find people willing to overcome their fear... We will now refer to a person who called us [after the publication of the article of 4 February 2003]. His name is V.L. and he is a former university colleague of the principal of Spiru Haret. Before moving to Chişinău, he lived in Ungheni. After coming to Chişinău, he had to find a school for his daughter. He approached his former colleague, who hinted that he had to pay not only with fond memories of their student years but also with cash. V.L. refused and told the principal that he had no money. After a lengthy period in which he was fobbed off with promises, V.L. gave up the idea of enrolling his daughter in Spiru Haret. ‘The official reason given by the principal was that we lived in another part of the city. I was surprised to learn that a friend of my daughter, who lived in the same neighbourhood, had told my daughter that her father had paid the principal three hundred dollars. Now she is a student at Spiru Haret while my daughter is at another school, where no money is required’, said V.L....” 9. On an unspecified date the principal brought civil proceedings for defamation against the applicant newspaper, arguing that many statements in the above article were defamatory of him. 10. During the proceedings the applicant newspaper called three witnesses, including V.L., who testified that bribes were taken for the enrolment of children in Spiru Haret. 11. On 18 September 2003 the Buiucani District Court gave judgment for the principal, after finding the allegations of bribery to be untrue and defamatory. It concluded that the statements of the three witnesses called by the applicant newspaper were not sufficient to overturn the presumption of innocence enjoyed by the principal. It ordered the newspaper to issue an apology within fifteen days and to pay the principal 1,350 Moldovan Lei (MDL) (the equivalent of 88 euros (EUR) at the time). As to the witnesses called by the newspaper, it stated: “The court has no reason not to believe the witnesses V.L., C.G. and M.N. However, in order to be able to declare publicly that someone is accepting bribes, there is a need for a criminal-court decision finding that person guilty of bribery. Since there is no such finding against [the principal], he cannot be accused of bribery.” 12. Both the applicant newspaper and the principal appealed against this judgment. The applicant newspaper contested the finding that the statement concerning bribery was defamatory, arguing that it had not directly accused the principal of bribe-taking, but had brought to the attention of the public the well-known phenomenon of bribe-taking in schools. The principal claimed that the statement concerning bribery was not the only defamatory statement in the article. On 23 December 2003 both appeals were dismissed by the Chişinău Court of Appeal, which found the applicant newspaper’s submissions ill-founded. As to the principal’s appeal, it stated that being a public figure, he had to be more tolerant to criticism. 13. The applicant newspaper lodged an appeal on points of law with the Supreme Court of Justice, arguing again, inter alia, that the purpose of the article was not to accuse the principal of taking bribes but simply to make public the rumours to that effect. It submitted that the circulation of such rumours had been confirmed by witnesses. Penalising the newspaper for the lack of a criminal court judgment against the principal was disproportionate and unnecessary in a democratic society. Moreover, the newspaper had simply disseminated statements made by third parties. 14. On 31 March 2004 the Supreme Court of Justice dismissed its appeal. 15. The relevant provisions of the Civil Code in force at the material time read: “(1) Any natural or legal person shall be entitled to apply to the courts to seek the withdrawal of statements which are damaging to his or her honour and dignity if the person who made such statements cannot prove that they are true. (2) Where such information was made public by a media body, the court shall compel the publishing office of the media body to publish, not later than 15 days after the entry into force of the judicial decision, a withdrawal of the statements in the same column, on the same page or in the same programme or series of broadcasts.” “(1) Damage caused to a person as a result of the dissemination of statements which do not correspond to the truth and are damaging to his or her honour or dignity shall be compensated by the natural of legal person responsible. (2) The amount of the award shall be determined by the court in each case as an amount equal to between 75 and 200 months’ minimum wages if the information was disseminated by a legal person and between 10 and 100 months’ minimum wages if it was disseminated by a natural person.”