CASE OF GOLDSTEIN AND S.C. RING PRESS SRL v. ROMANIA
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
1. The first applicant was born in 1951 and lives in Bucharest. He is a journalist; on the date of the events in issue in this case he was the editorinchief of the daily newspaper Bursa and senior partner and legal representative of the applicant company. The applicant company is the owner and publisher of Bursa and has its headquarters in Bucharest. The applicants are represented by Mrs Gabriela Romanita, a lawyer practising in Bucharest. The Romanian Government (“the Government”) are represented by their Agent, Mrs Irina Cambrea, of the Ministry of Foreign Affaires. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. Starting in 2001, the first applicant wrote a series of over fifty articles in Bursa concerning the difficult financial situation of the media trust M.P. He also expressed his dissatisfaction with the alleged preferential treatment being given to M.P. by the State in the payment of taxes. 4. M.P. lodged a complaint against the applicant company, claiming that the articles written by the first applicant constituted acts of unfair competition. It based its action on Article 4(e) of the Competition Act (Law no. 11/1991), which prohibited denigration as an act of unfair competition. The trust made reference to the following articles: “Minister [V.D.] allows himself to be manipulated by [M.P.]” (“Ministrul V.D. se lasă manipulat de [M.P.]”); “[M.P.] – possible subject of interstate criminal investigation” (“[M.P.] – posibil subiect de cercetare penală interstatală”); “[M.P.] – choked by debts but insolent” (“[M.P.] – înglodat în datorii, dar cu tupeu”); “According to American accounting CME’s profits are showing a loss at [M.P.]” (“Profiturile CME după contabilitatea americană reprezintă pierderi la [M.P.]”); “Naivety? Incompetence? Corruption?” (“Naivitate? Incompetenţă? Corupţie?”); “[M.P.] of Romania is being investigated by the Washington Securities and Exchange Commission” (“[M.P.] din România a intrat sub investigaţiile Securities and Exchange Commission din Washington”); and “[P. TV] – ANTINATO” (“[P. TV] – ANTINATO”). The articles contained references to reports by the Security and Exchange Commission, the European Commission and the White Book of Governance of December 2000. In an article from the same series, published on 7 May 2001 in Bursa, M.P. were invited to present their point of view on the matter. 5. On 14 November 2002 the Bucharest County Court allowed the action and ordered the applicant company “to refrain from spreading, through its publications, defamatory statements about the plaintiff’s activities”. The applicant company was also ordered to pay 800,000,000 Romanian Lei (ROL) in respect of nonpecuniary damage and to publish a copy of the court’s seven-page decision in Bursa. The relevant parts of the court’s reasoning read as follows: “That [the applicant company’s] acts fall within the sphere of competition is proved by the manner in which, in a series of articles in the newspaper Bursa, it presented the activities of the [media trust], activities which ... concern the public at large. Relevant in this respect are the articles concerning the news agency [owned by M.P.] about which [the applicant company] commented, for example, that: ‘... a press review cannot be entrusted to an agency which is part of the media trust with the highest debt in the country – [M.P.]; it is in its interest to eliminate any reference to the corrupt circle which tolerates its debts.’... Most of the articles contain ... open accusations about [M.P.]. They concern, for example, [M.P.]’s financial situation: ‘the group with the highest debt in the country’, ‘an inveterate debtor’, ‘choked by debts but insolent’, ‘incorrect’, ‘... accounting mishmash’; or the group’s business dealings: ‘Romania’s Enron’, ‘possible candidate for an interstate criminal investigation’, promoting ‘incestuous management’. Because of their gravity, these statements, even if proved true, promote a feeling of disapproval, even disgust towards the media group. The phrases indicate that the [applicant company] misunderstood the freedom of the press and the right to hold an opinion and to impart information... The repeated publication, over a long period of time, of negative information concerning a competitor’s activities, in a manner capable of arousing their clients’ disapproval, cannot constitute fair and acceptable competition ... Guilt exists as long as there is unfair competition. Bad faith is no more than an aggravating circumstance ... [negative consequences] may ensue even without intent. [Lack of intent] does not preclude responsibility. Indeed, other newspapers published similar articles, but they did not constitute acts of competition, and were not defamatory or repeated over time. In any case, [the fact that other newspapers published similar articles] does not preclude the defendant’s responsibility.” 6. On 10 June 2003 the decision was upheld by the Bucharest Court of Appeal. It thus became final. The relevant parts of the appeal court’s decision read as follows: “... the impugned articles present a comparative evaluation of the journalistic means used by Bursa and [M.], a comparison unfavourable to [M.P.]... The [applicant company’s] bad faith is proved by its behaviour: extremely serious, biased accusations; length [of the campaign] and the frequency of the articles against the [M.P.]; and also the manner in which the incriminated articles were written and presented ... The first-instance decision has not infringed the [applicant company’s] freedom of expression. [The applicant company] retains the liberty to publish any information, even unfavourable or negative, so long as the information is correct and true and the publication does not become a press campaign aimed at destroying a competitor’s image and reputation ... In the case at hand, the accusations of corruption, fraud, political blackmail and manipulation, as well as manipulation through mass media, undoubtedly affect the public image, prestige and reputation [of M.P.] ...” 7. Several other actions were lodged by M.P. against the applicants: a similar complaint of unfair competition (dismissed on 24 April 2002 by the Bucharest County Court as M.P. failed to pay the court fees), two actions in tort (the first dismissed on 23 November 2003 and the second allowed by the first-instance court, but appealed against by the first applicant), and an action in defamation against the first applicant (dismissed on 24 October 2002 by the Bucharest District Court).