CASE OF ZAO INFORMATSIONNOYE AGENTSTVO ROSBALT v. RUSSIA (European Court of Human Rights) 16503/14

THIRD SECTION
CASE OF ZAO INFORMATSIONNOYE AGENTSTVO ROSBALT v. RUSSIA
(Application no. 16503/14)
JUDGMENT
STRASBOURG
24 May 2022

This judgment is final but it may be subject to editorial revision.

In the case of ZAO Informatsionnoye Agentstvo Rosbalt v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Darian Pavli, President,
Andreas Zünd,
Mikhail Lobov, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 16503/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18 February 2014 by ZAO Informatsionnoye Agentstvo Rosbalt, a legal entity under Russian law operating in St Petersburg (“the applicant company”) that was represented by Mr D. Firsov, a lawyer practising in Moscow;

the decision to give notice of the application to the Russian Government (“the Government”), initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov;

the parties’ observations;

the decision to reject the Government’s objection to examination of the application by a Committee;

Having deliberated in private on 3 May 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. The applicant company is an independent information agency that runs Rosbalt, an online media outlet at www.rosbalt.ru (“the website”).

2. On 18 February 2013 Ilya Ponomaryov, then a member of the Russian State Duma, sent a “request by the member of the State Duma” to the Prosecutor General of Russia concerning Mr Vladimir Zhirinovskiy, the leader of the LDPR party and of its parliamentary group in the State Duma. Referring to the circumstances under which Mr Zhirinovskiy had obtained a higher doctoral degree, Mr Ponomaryov alleged that a half of the members of the academic council competent to award such degrees had left the deliberations in protest and the remaining members had been bribed.

3. On 20 February 2013 the Moskovskiy Komsomolets newspaper published an article entitled “A ‘two-times academician’ Zhirinovskiy could have written ‘hundreds of [doctoral] theses”.

4. On 20 February 2013 Mr Ponomaryov held a press conference and observed that there were reasons to believe that “bribes [had been] given” in connection with the award of the degree to Mr Zhirinovskiy.

5. On 27 February 2013 Mr Ponomaryov requested in writing the Prosecutor General of Russia to check on which grounds Mr Zhirinovskiy had been promoted to the rank of colonel.

6. On 28 February 2012 a news item was published on the website. It was entitled “Ponomaryov has decided to check on what grounds Zhirinovskiy was promoted to the rank of colonel” and included the following passage:

“We shall remind [the reader] that earlier Ilya Ponomaryov sent to the Prosecutor General of Russia, Yu. Chayka, a request to lift the parliamentary immunity of the leader of LDPR. This was connected to the machinations that, according to the information in the possession of [Mr Ponomaryov], had taken place when Zhirinovskiy had received a [higher] doctoral degree.”

7. Mr Zhirinovskiy brought two sets of civil defamation proceedings: one against Mr Ponomaryov, the editorial board of Moskovskiy Komsomolets and its journalist, and another one against the applicant company.

8. The Presnenskiy District Court joined the two sets of proceedings. By judgment of 17 June 2013 it dismissed the claims concerning Mr Ponomaryov. In the District Court’s view, the latter had exercised his right to petition the authorities when making the impugned statements and thus could not be held liable for defamation, as well as the claims concerning Moskovskiy Komsomolets and its journalist because they had reproduced the words of Mr Ponomaryov verbatim and thus had reported on his value statements. The District Court also noted that the newspaper had performed an important social function when reporting on the activities of a high-level public office holder. At the same time the District Court dismissed the applicant company’s argument that they had reported on Mr Ponomaryov’s position using a value judgment to rephrase it, and found that the phrase “[t]his [had been] connected to the machinations that, according to the information in the possession of [Mr Ponomaryov], had taken place when Zhirinovskiy had received a [higher] doctoral degree” was untruthful because the word “machinations” had not been used in Mr Ponomaryov’s written and oral statements and because the applicant company had failed to prove that such machinations had taken place. The District Court also noted that it had not been shown that the phrase in question had contained a value judgment not susceptible of proof. It ordered a retraction of the article published on the website and awarded Mr Zhirinovskiy 100,000 Russian roubles (RUB) (approximately 2,360 euros (EUR) at the time) in compensation of non‑pecuniary damage to be paid by the applicant company.

9. On 20 August 2013 the Moscow City Court upheld the judgment on appeal.

10. The applicant company paid RUB 100,000 in execution of the judgment.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

11. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

12. It is not in dispute between the parties that the civil defamation proceedings complained of amounted to an interference with the applicant company’s right to freedom of expression, as well as that it was “prescribed by law” and pursued a legitimate aim of “the protection of the reputation … of others”. It remains to be established whether they were “necessary in a democratic society” (see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 160, 27 June 2017).

13. The general principles of the Court’s case-law for assessing the necessity of an interference with the exercise of freedom of expression have been summarised in Bédat v. Switzerland ([GC], no. 56925/08, §§ 48-54, 29 March 2016).

14. The Court observes at the outset that in the judgment of 17 June 2013 the District Court not only expressly accepted that Mr Ponomaryov had exercised his right to petition when writing to the Prosecutor General, it also found that the newspaper and the journalist reporting on the exercise of this right had performed an important social function. While considering this line of reasoning convincing in the light of the Convention, the Court notes that the first‑instance court failed to apply the same logic to the news item published on the website on the sole ground that the word “machinations” had not been attributed to Mr Ponomaryov (see paragraph 8 above). The City Court endorsed the reasoning.

15. The Court has long held that punishing a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so (see, with further references, Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 142, ECHR 2015 (extracts)). It remains unconvinced that the domestic courts supplied “particularly strong reasons” when holding the applicant company liable merely because of substituting the word “machinations” for the expression “bribes [had been] given”.

16. Having carefully examined the case materials and the parties’ submissions before it, the Court concludes that the domestic courts did not give due consideration to the principles and criteria as laid down by the Court’s case‑law for balancing the right to respect for private life and the right to freedom of expression. They thus exceeded the margin of appreciation afforded to them and failed to demonstrate that there was a reasonable relationship of proportionality between the interference in question and the legitimate aim pursued (see, with further references, Tolmachev v. Russia, no. 42182/11, § 56, 2 June 2020, and Timakov and OOO ID Rubezh v. Russia, nos. 46232/10 et 74770/10, § 71, 8 September 2020). The Court finds nothing in the Government’s submissions to alter the above conclusion. It thus has not been shown that the interference with the applicant company’s right to freedom of expression was “necessary in a democratic society”.

17. There has accordingly been a violation of Article 10 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

18. The applicant company did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 10 of the Convention.

Done in English, and notified in writing on 24 May 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                         Darian Pavli
Deputy Registrar                            President

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