CASE OF RINGIER AXEL SPRINGER SLOVAKIA, A.S. v. SLOVAKIA (No. 3)
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Kristina Pardalos;Luis López Guerra
5. The applicant company is a multimedia publishing house which was established under the laws of Slovakia in 1999. It is constituted as a jointstock company and its head office is in Bratislava. 6. The applicant company’s legal predecessor in respect of the events giving rise to the present application was a limited-liability company established under the laws of Slovakia in 1994 and registered in Bratislava. The latter company was the publisher of a popular daily newspaper, Nový Čas, which has national coverage and was later acknowledged by the courts to be one of the most widely read newspapers in Slovakia. 7. Prior to the proceedings described below, in 2004, the applicant company’s legal predecessor was merged with the applicant company. For ease of reference, henceforth in this judgment “the applicant company” includes the applicant company’s legal predecessor. 8. The present case revolves around the participation by an individual, A., in a “Who Wants To Be A Millionaire?” type of knowledge quiz in March and April 2004. 9. The quiz was broadcast by a popular national TV channel. 10. For the assessment of certain aspects of this case, it may be of relevance that A. was a student of information technology and was also a co-owner and the statutory representative of a limited liability company specialising in, inter alia, the purchase, sale and repair of mobile phones. 11. A. was doing remarkably well in the quiz and had answered thirteen questions correctly, until he failed to answer the fourteenth question right, which was worth the equivalent of some 50,000 euros (EUR). A. was thereby excluded from the quiz with the equivalent of some EUR 2,500 worth of winnings. 12. A. subsequently complained to the organisers of the quiz, arguing that the fourteenth question had been formulated in an ambiguous way and that, in the circumstances, his answer had been correct. The complaint was however dismissed. 13. On 19 May 2004 the organiser of the quiz lodged a criminal complaint on the basis of a suspicion that, in connection with the quiz, A. or other persons unknown had committed the offence of fraud. 14. On 15 May 2006 the investigation of the criminal complaint was stayed, on the ground that it had not been possible to establish any matters of fact justifying the bringing of charges against any specific person. 15. The controversy over the fourteenth question as well as the suspicion against A. received wide media coverage in Nový Čas and other press in Slovakia and abroad, inter alia presenting amply A.’s position. Both topics were also the subject of lively debate on various Internet fora. 16. Meanwhile, in addition to the coverage mentioned above, on 11, 18 and 22 May 2004 the applicant company had published three feature articles in Nový Čas about the incident. The titles and the introductory paragraphs of these articles appeared on the front pages of the issues published on those days. They were accompanied by photographs and followed by further text and photographs under separate titles further in the paper. 17. On the front page of the paper, the article had the title: ‘Was he cheating? An investigation has already begun!’ 18. Further headings on the front page read as follows: ‘Discharged contender’ and ‘Scandal in [the name of the quiz]’ 19. The introductory paragraph on the front page read as follows: “The tables have turned! A contender who it was thought had been unlawfully divested of [the equivalent of some EUR 50,000] in a TV quiz is now suspected of fraud! Moreover, the disappointed [A.] has not been allowed by [the TV station] to return to the game!” 20. The article continued on page 20 under the title: ‘Suspicion of [the TV station]: A fraud in [the name of the quiz]?’ 21. Further bullet-point headings on page 20 read as follows: “[He] will not return to the quiz” and “He’ll sue” 22. The introductory paragraph on that page read as follows: “The scandal in the TV quiz [name of the quiz], in which a contender was apparently unlawfully divested of [the equivalent of some EUR 50,000] worth of winnings, is revving up. [Full name of A.], [age of A.] is in vain claiming his right to sit in the millionaire’s armchair. [The TV station] has on this said an unequivocal ‘NO’ to his attempts to compete again in the popular programme. [The TV station] moreover raised the suspicion that the contender may have cheated!” 23. The text of the article starts as follows: “The suspicion arose after several lawyers had carefully viewed the footage of the disputed sequence of the TV quiz. The initial intention – to find out whether an error has indeed been committed – has resulted in unexpected finals! Watching the video recording closely, the lawyers were petrified with horror: There has not been fair play! [A.] has seemingly been cheating! Their suspicion stemmed from the unusual behaviour of the player. ‘When given a question, he did not appear to consider the options offered, and responded as if he was intentionally diverting attention by making various remarks which had nothing to do with the question. And then, all of a sudden, he came up with the correct answer’, asserts one of the lawyers who has already conveyed his doubts to the management of the TV station. ‘A lively discussion has been stirred up on the Internet, and viewers have come forward who also noticed the unusual behaviour of the player’, added as ‘damning evidence’ the spokesperson [name] of [the TV station]. ‘Our lawyers are examining further evidence and upon its assessment we will consider lodging a criminal complaint against the contender’ she observed. The surprising suspicion has however not swept [A.] away. ‘I was expecting them to pull something on me. But they are absolutely not right’, emphasised [A.]. 24. The article continues with a neutral description of the incident with the ambiguous question, followed by references to the reactions of A. and the TV station, in the following terms: “The disappointed contender has not hesitated for a minute and has made a written complaint, to which he is entitled under the appeal rules of the quiz. ‘I pointed out the ambiguity of the answer to the [fourteenth] question’, submitted [A.]. According to the regulations, [the TV station] had two weeks to reply to this objection, but as early as yesterday they rendered a final judgment: [A.] was not to be readmitted to [the name of the quiz]! ‘So far the contender has not submitted any relevant expert evidence supporting his assertions. All our sources, renowned professional publications, support our position’, added [the TV station’s spokesperson]. The unsuccessful candidate for millionaire still wants to negotiate with [the TV station]. ‘If that does not work, I will litigate’, declared A.” 25. On the front page of the paper, the article had the title: “[The TV station] Strikes Back: Instead of winning millions, you will be jailed!” 26. A further heading on the front page read as follows: “Scandalous [the name of the quiz]” 27. The introductory paragraph on the front page read as follows: “[The TV station] is preparing an unpleasant surprise for [A.], [the age of A.], who feels cheated because he has been thrown out of the TV quiz [the name of the quiz]. Not only is he not going to be allowed to get back into the game, but there will even be a criminal complaint against him! What does the commercial TV station suspect the unsuccessful ‘millionaire’ of?” 28. The article continued on page 20 under the title: “[The TV station] to [A.]: You will be jailed for fraud!” 29. There is a photograph of A. taking part in the quiz with the controversial question in the foreground, with the following explanatory text below it: “An enormous response from viewers and heated Internet discussion about a possible fraud has forced the management of [the TV station] to transmit the footage of the programme to experts for analysis.” 30. The introductory paragraph on that page reads as follows: “There shall be no negotiation! So the management of the TV station [the name of the TV station] has decided, and they have dismissed the request of [A.] [age of A.]. This man from [a town] feels cheated because has been excluded from a general knowledge quiz allegedly wrongfully, and that is why he wants to get back into the game. The commercial television station will however not allow him to do so. And it will not be deterred from its decision even by the threats of [A.] to bring the whole matter to court. [The TV station] responds even more vigorously: ‘We will lodge a criminal complaint against him’, submits the spokesperson for the TV station [name of the spokesperson].” 31. The text of the article starts by referring to the TV station’s suspicion and by quoting the statement and its source as indicated in paragraph 23 above, followed by a quotation from the TV station’s own written statement along the following lines: “On the basis of an analysis of the video footage by an expert in psychology and on the basis of numerous pieces of indirect evidence, we have a suspicion of fraud in the programme [name of the quiz], and that is why [the TV station] will lodge a criminal complaint against the contender.” 32. The article continues by referring to the complaint lodged by A. and by citing his and the TV station’s statements: “I have raised an objection within the fourteen days required. According to the [applicable rules] I have the right to do that.” and “The protest has not been supported by sufficient expert evidence to give the management of [the TV station] a valid reason for readmitting the contender into the game.” 33. The article continues by a neutral reference to the TV station’s decision, which was conveyed to the applicant by way of a letter from the TV station’s lawyers, and by quoting the reaction of A. as follows: “From the letter it is unclear whom they represent. I therefore consider this document worthless and I assert that I still do not have the official position of [the TV station]” 34. The closing part of the article reads as follows: “[A.] fights hard for his right to sit in the millionaire’s armchair. Moreover, he has decided ‘to pay them out’ and he is suing [the TV station]. ‘This time for insult, defamation and injury to his good name be it as an individual or a legal entity’ adds the co-owner of a company based in [a town] trading in mobile phones. The dispute over [the fourteenth] question has thus taken a completely different turn. Will the public ever learn the truth?” 35. The title of the article on the front page was: ‘An eyewitness to the scandal in [the name of the quiz] I know how he cheated!’ 36. The introductory paragraph on the front page read as follows: “Nový Čas has obtained a statement from a woman who resolved to speak on the strange practices going on behind the scenes of the shooting of the programme [name of the quiz]! ‘The TV crew suspected [A.] even then of having a concealed device on him’, says the witness.” 37. The article continued on page 20 under the title and subtitle: ‘The contestant [A.] allegedly had on him a device such as are carried by government officials An eyewitness has spoken out’ 38. The introductory paragraph on that page read as follows: “Nový Čas has obtained a statement from a woman who has taken several weeks to summon up the courage to reveal a big secret from behind the scenes of the shooting of [the name of the quiz]. This woman claims: ‘I was there when the TV crew of [the TV station] uncovered that the contestant [A.] had been cheating! During the shooting they discovered that he had a device on him such as are carried by government officials’.” 39. The text of the article itself reads as follows: “The viewer gradually also recollects other suspicious elements. The shooting allegedly had to be interrupted several times, and the microphone attached to [A.]’s suit had to be shifted from one side to the other. ‘Seemingly they already suspected something. I also overheard a conversation between the director and a technician, which took place backstage. They were saying that their equipment was showing suspicious frequencies and that they had no explanation why’, recounts the details the viewer from [a town]. According to her both nervous men were clearly relieved when [A.] left the studio with ‘only’ [the equivalent of some EUR 2,500] in his pocket. Their last sentence allegedly was: ‘Thank God it ended up this way. Imagine if he had won [the equivalent of some EUR 50,000!]’. Despite it being several weeks later, she remembers the entire conversation very well, even being able to describe the director and the technician in quite some detail. The programme coordinator for [the name of the quiz], [the name], says: ‘We had suspicions, but they were not strong enough to warrant taking any action. We did not want to make an unjustified accusation. I believe that we acted correctly.’ The eyewitness to these events does not wish to have her identity disclosed, because she is apprehensive about the consequences of an open confession. (Her name is however at the disposal of Nový Čas). How could the contestant have cheated? [A.] has a business in the area of mobile phones, so he is very familiar with that technology. And that is the whole thing. It sufficed to have it well organised and acted out. The contestant could have had an accomplice in the audience who had his mobile phone on during the entire shooting, so that a third person at the other end of the line could easily learn the questions. The latter person, together with a group of friends, could then have immediately looked the right answer up on the Internet or in encyclopaedias. They could then have announced it to [A.] by a micro device, which he could have had attached to his body. The fact that members of the TV crew discovered incongruities during the shooting but took no action is, according to the eyewitness, striking. ‘Perhaps they wanted to cover it up. They did not expect [A.] to sue them over unclear wording of the question’ she speculates.” 40. The article concluded by with a neutral summary of the key elements of the story. 41. On 16 July 2004, with reference to the articles cited above, A. contacted the applicant company with a proposal for an out-of-court settlement consisting of the publication of an apology free of charge and the payment of compensation in an amount equivalent to some EUR 26,300. His proposal failed. 42. On 22 February 2005 A. sued the applicant company for libel, relying on the rules on the protection of personal integrity under Articles 11 et seq. of the Civil Code (Law no. 40/1964 Coll., as amended), and seeking the same redress as in its proposal of 16 July 2004 (see the preceding paragraph). 43. As regards the article of 11 May 2004, A. claimed that it gave the false impression that he had been charged with a criminal offence and that he was a cheat. Moreover, his photograph, full name and age were disclosed without his consent. As regards the article of 18 May 2004, he contended that it had contained statements that were taken out of context and that this article had had negative repercussions on his relations with his family, at work and with his clients. Finally, as regards the article of 22 May 2004, A. argued that it contained untrue, made-up and misleading conclusions. 44. The applicant company defended the action through the intermediary of a lawyer, who is the same lawyer as the one representing it before the Court (see paragraph 2 above), and who represented it throughout the domestic proceedings. In its defence, the applicant company argued that its reporting in the articles concerned a matter of legitimate public interest. In that respect, it pointed out that the quiz had an extremely large audience and that, by having voluntarily taken part in it, A. had become a “public figure” who had to tolerate a higher degree of interference with their personal integrity. The choice of the reporting technique was the applicant company’s prerogative. As regards the impugned articles in particular, it was clear that they concerned suspicions and not proven facts. Although some turns of phrase indicated a degree of journalistic exaggeration and provocation, the context and the content of the articles in its entirety left no one in doubt as to the real facts. Moreover, A. had been given the opportunity to comment. 45. In a further submission the applicant company produced a detailed analysis of the behaviour of A. which, according to the applicant company, had given rise to a suspicion that he had been cheating. The submission is based on detailed references to Convention case-law and also includes arguments contesting the claim for damages. 46. The case was examined at first instance by the Bratislava II District Court (Okresný súd), which held six hearings, took oral evidence from the parties and five witnesses, and assessed documentary evidence. 47. The person identified in the article of 22 May 2006 as the eyewitness was questioned at a hearing on 10 May 2006. She denied making a statement with the specific wording suggested by the citation in the introductory paragraph on page 20 of that day’s issue (see paragraph 38 above), but confirmed everything else attributed to her in the article of that day. 48. On 18 December 2006 the District Court allowed the action by ordering the applicant company to publish an apology and to pay A. the equivalent of some EUR 1,450 in damages. 49. The District Court held that the applicant company had interfered with the claimant’s personal integrity without an acceptable justification. It noted the categorical language of some of the statements, such as “There has not been fair play!”, “Instead of winning millions, you will be jailed!” and “You will be jailed for fraud!” and considered that they implied no polemic. 50. In the view of the District Court, the use of expressions such as “seemingly”, “perhaps”, and “suspicion” did not free the publisher from “accountability for the truthfulness of the published material” and it made no difference whether the applicant company was quoting statements made by others or expressing its own opinions, just as it did not matter whether it intentionally published untruths or negligently relayed the findings of someone else. And neither was it of any consequence for the accountability of the publisher whether the published allegations and information had already been or would later be published elsewhere. 51. The applicant company had failed to discharge its burden of proof with regard to the truthfulness of the suggestion that A. had been cheating in the quiz, since none of the witnesses had been able to confirm that he had, and they had all referred only to suspicious behaviour by A. Moreover, the suspicion had not even been confirmed by the police (see paragraph 14 above). 52. In addition, the District Court found that the criminal complaint by the TV station could have been a certain form of retaliation for the attempts by A. to get back into the game. In the court’s view, in the given circumstances, the standing of A. as a public figure was of no consequence. 53. The District Court held specifically that “it [was] irrelevant whether [A.] was a public figure or not, since ...even if the articles could be considered as polemic and containing value judgments, as long as they were based on matters about which untruths were being published, they constituted a palpable unjustified interference with the claimant’s right to protection of his personal integrity”. 54. As to the amount of the damages, the District Court noted that the libellous articles had been published in a daily with a large readership and that some of them had been printed on the front page. Although the claimant had failed to show that he had suffered any loss of esteem among his family and friends, or that he had suffered any loss of business customers, it was accepted that his dignity had suffered in general terms. 55. The applicant company appealed, repeating its previous arguments and adding, inter alia, that the impugned articles implied nothing but suspicions, for which in any case there was a solid factual basis. 56. On 5 June 2008 the Bratislava Regional Court (Krajský súd) upheld the contested judgment. It concurred with the applicant company that through his participation in the TV quiz A. had become a public figure and that the level of protection of personal integrity he merited was thereby reduced. However, this reduced standard of protection only applied as long as the published material was truthful and any value judgments had a basis in reality. 57. The Regional Court also concurred with the applicant company that the articles were polemical in nature and related to suspicions. Nevertheless, in terms of the Regional Court’s judgment, the impugned articles were “objectively capable of interfering with the plaintiff’s rights, because they did not have a truthful basis, and that is why they did not enjoy protection. The firstinstance court rightly concluded that the evidence taken did not show that the claimant had cheated at the game ...” 58. As regards the statement of the eyewitness cited in the article of 22 May 2006, the Regional Court held that it was presented as a statement of fact, which left the reader with no option of reaching another conclusion than that A. had been cheating. It was irrelevant that that article followed and was based on the previous articles because merely by citing a source the applicant company could not rid itself of its liability for the unjustified interference. 59. On 17 September 2008 the applicant company challenged the Regional Court’s judgment by way of a complaint under Article 127 of the Constitution, alleging a violation of Article 10 of the Convention, recapitulating all its previous arguments with detailed references to Convention case-law, and claiming that the ordinary courts had failed to give any answer to a significant number of its substantive arguments.. 60. On 26 February 2009 the Constitutional Court (Ústavný súd) declared the complaint inadmissible as manifestly-ill founded. It found no constitutionally relevant arbitrariness, unlawfulness, deficiency or irregularity in the courts’ reasoning. Moreover, it reiterated that, pursuant to its established case-law, a general court could not bear “secondary liability” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a violation of procedural rules. As no violation of any procedural rule had been established, there could not have been any violation of any substantive right either.