Last Updated on May 7, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no. 32638/11
Rayna Ivanova TOSHEVA
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 4 December 2018 as a Committee composed of:
Gabriele Kucsko-Stadlmayer, President,
Yonko Grozev,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 5 May 2011,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Rayna Ivanova Tosheva, is a Bulgarian national, who was born in 1951 and lives in Vratsa. She was represented before the Court by Mr A. Kashamov and Mr S. Terziyski, lawyers practising in Sofia.
2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant is a journalist in Vratsa and editor-in-chief of the local newspaper Shans Express.
1. The applicant’s article
5. On 7 November 2006 the newspaper published an article entitled “Doctor freaks out patient with a fatal diagnosis” and with a subtitle “A specialist takes a mole for cancer”. It was published as the front page article and was signed by the applicant.
6. The article told the story of a 73-year-old patient who had been examined by Dr M.S., the head of a pulmonary disease hospital in Vratsa, between November 2005 and March 2006. The patient had visited the doctor after an X-ray of his chest, carried out in the context of routine check-up, had shown a dark spot. The article claimed that the doctor had “confused a most common mole with cancer” (it had turned out eventually that the “spot” in the patient’s lungs had just been the X-ray reflection of a mole on his chest) and that the “fatal” diagnosis had “shocked” the patient, who had “started counting his days”, had lived a “nightmare” and had considered himself “doomed”. During this time he underwent “heaps of unnecessary procedures, including with radioactive substances and X-ray imaging”. After the tests showed no cancer, the doctor prescribed treatment for tuberculosis, which “totally shocked” the patient. The doctor “at least comforted him” that he was not a pathogen carrier. Two days later the “disturbed” patient visited another doctor, who cleared him off, “bursting into laughter” when discovering the truth. When the patient complained to the health authorities, they were of the opinion that the doctor had acted competently. The article suggested that Dr M.S. had had “at least to apologise for the worries” caused to the patient, but she had not done it. It concluded as follows:
“The case has officially been closed. There is no spot on the white overall of [Dr M.S.] because, according to the inspections, she is competent. Nor is there any spot on [the patient’s] lungs, even though the ‘competent’ doctor saw it. She saw it and was so frightened of it that she freaked out her patient as well.”
2. Proceedings brought by Dr M.S.
7. On 4 December 2006 Dr M.S. brought a tort action against the applicant and the company publishing Shans Express, claiming that the article contained untrue statements and that it encroached upon her professional reputation and personal dignity. She claimed jointly from the two defendants 11,000 Bulgarian levs (BGN, the equivalent of 5,600 euros – EUR) in non-pecuniary damage.
8. In the ensuing proceedings the newspaper’s publisher was represented by its manager at several hearings, but did not take any active steps.
9. In the context of those proceedings a court-appointed expert testified that Dr M.S had acted competently and in accordance with good medical practice. She had acted on the basis of evidence suggesting possible cancer, namely prior medical condition and the X-ray, and had prescribed the tests necessary to confirm or reject the suspicion of cancer. Suspecting after that latent tuberculosis, she had prescribed the appropriate treatment. The expert explained that moles were very rarely reflected on X-ray images.
10. The first-instance Vratsa Regional Court heard a witness, another doctor, to whom the applicant had shown the patient’s medical documents prior to publishing the article. He described the first diagnosis given by Dr M.S. in those documents as “chronic obstructive bronchitis” and “suspected metastasis in the right lung” and the second diagnosis, after the additional tests had been carried out, as “chronic obstructive bronchitis” only. He was of the view that Dr M.S. could have appointed further examinations, such as fluoroscopy, to verify the suspicion of cancer. The witness explained that at the time he had not known that the applicant intended to write an article, but had interpreted her consulting him as a request for a second medical opinion. He had told her “not to worry” for the patient, whom he had taken for a friend of hers. Afterwards he had read the article and considered that it presented correctly the patient’s story.
11. The patient was also heard as witness, and stated that he had been “shocked” by Dr M.S.’s initial diagnosis, and that her subsequent “evasiveness” had made him doubt whether she knew what the problem was. Another witness, a friend of Dr M.S.’s, explained that the latter had been upset after reading the article, and worried that it might discredit her as a doctor.
12. In a judgment of 25 February 2008 the Vratsa Regional Court rejected Dr M.S.’s claims. It found that in publishing the article at issue the applicant had not acted unlawfully, but in exercise of her right to freedom of expression. Prior to writing the article she had done everything which had been necessary, examining diligently the case and consulting another doctor. She had been convinced of the veracity of the facts to publish. Moreover, she had not made particularly defaming or insulting comments. Lastly, Dr M.S. had not shown that she had indeed suffered the damage claimed.
13. Upon an appeal by the doctor, in a judgment of 21 January 2010 the Sofia Court of Appeal allowed the claims. It pointed out that, according to the expert heard by the lower court, Dr M.S. had prescribed adequate treatment and had acted professionally, which had also been confirmed by the health authorities after the patient had complained to them. The article’s tone, on the other hand, was “ridiculing, offensive and defamatory”. This could not be altered by the fact that prior to writing the article the applicant had consulted another doctor, as she had done her own “insulting and slanderous interpretation of the facts”. Her right to freedom of expression could not be used to attack the reputation of others.
14. The Sofia Court of Appeal awarded in full the damages claimed by Dr M.S., namely BGN 11,000 (see paragraph 8 above), considering that amount just. It pointed out that the applicant’s article had reached a large audience and as a result Dr M.S. had felt “insulted” and “upset” and had “suffered seriously”. It ordered the two defendants (the applicant and the newspaper’s publisher) to pay in addition default interest and to reimburse Dr M.S.’s expenses.
15. In a final decision of 5 November 2010 the Supreme Court of Cassation refused to accept for examination the appeal on points of law lodged by the applicant.
16. In 2011 the applicant paid the damages awarded to Dr M.S. The total amount due by that time, including interest and the additional expenses for the enforcement proceedings, was BGN 22,835 (the equivalent of EUR 11,675).
B. Relevant domestic law
17. The relevant domestic law has been summarised in Yordanova and Toshev v. Bulgaria (no. 5126/05, § 23-24, 2 October 2012).
COMPLAINT
18. The applicant complained under Article 10 and Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that she had been found liable for defaming Dr M.S. and ordered to pay damages.
THE LAW
19. The Court is of the view that the complaint falls to be examined under Article 10 of the Convention alone, which reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
A. Arguments of the parties
20. The Government agreed that there had been an interference with the applicant’s right to freedom of expression, but considered it justified under Article 10 § 2 of the Convention. They pointed out that the applicant had made an offensive and ridiculing interpretation of the facts of the case, and had only presented the patient’s point of view, without seeking Dr M.S.’s position. They noted that the right to freedom of expression could not be used to attack someone else’s reputation, and journalists in particular had a special obligation to verify the accuracy and credibility of information. The purpose of the applicant’s article had not been to contribute to a public debate, but only to defame another person. Lastly, the damages ordered against the applicant represented a proportionate sanction, seeing in particular that the applicant had been liable to pay them jointly with the newspaper’s publisher.
21. The applicant argued that she had acted in good faith, reporting on the case on the basis of the patient’s explanations and the documents he had shown to her, and consulting beforehand another doctor. There was no doubt as to the facts she had exposed. She had not purposed to denigrate Dr M.S.’s medical competence, but only to report on a particular case. Her article had presented the patient’s point of view, focusing on the effect the wrong cancer diagnosis had had on him. Lastly, the sanction imposed had been clearly excessive and could have a “chilling effect” on any discussion on such matters in the future.
B. The Court’s assessment
22. The order against the applicant to pay damages to Dr M.S. in connection with the article published by her on 7 November 2006 amounted to an interference with her right to freedom of expression. This interference was lawful, as it was based on sections 45 and 49 of the Obligations and Contracts Act. Furthermore, the interference pursued the legitimate aim of protecting the rights and the reputation of Dr M.S. The Court has thus to determine whether the interference was “necessary in a democratic society”, that is to say whether it corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities were relevant and sufficient.
23. In that regard, the Court observes that the applicant, a newspaper journalist, was sanctioned in connection with an article she had written. The case concerns therefore the freedom of the press. The Court has emphasised on numerous occasions the essential role played by the press in a democratic society, stating that its duty is to impart information and ideas on all matters of public interest. Nevertheless, the press must not overstep certain bounds, in particular in respect of the reputation and rights of others (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999‑III; Couderc and Hachette Filipacchi Associésv. France [GC], no. 40454/07, § 89, ECHR 2015 (extracts), and Rumyana Ivanovav. Bulgaria, no. 36207/03, § 58, 14 February 2008).
24. The Court observes furthermore that the applicant’s article reported on a single medical case and the patient’s anguish due to Dr M.S.’s suspicions of cancer and latent tuberculosis, and did not allege widespread medical malpractice on the part of the doctor or the hospital the latter was heading. While even a single case of medical negligence may have more general implications for the quality of public health, in the circumstances of the present case the Court is not convinced that the article concerned a matter of public interest, such as the standards of health services (contrast Bergens Tidende and Others v. Norway, no. 26132/95, § 51, ECHR 2000‑IV, where the impugned article alleged unacceptable health care in a clinic and thus, according to the Court, “raised matters of consumer protection of direct concern to the local and national public”).
25. The present case concerns numerous statements made by the applicant and her interpretation of the facts reported on. In the particular circumstances, the Court does not find it necessary to distinguish between statements of fact and value judgments in the impugned article. It has on many occasions held that the existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof, but such judgments must nevertheless have some factual basis to support them, failing which they will be excessive (see, among others, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 98-9, ECHR 2004‑XI, and Morice v. France [GC], no. 29369/10, § 126, ECHR 2015).
26. The applicant suggested in her article that in the particular case Dr M.S. had acted incompetently in diagnosing the patient and obliging him to undergo unnecessary and possibly harmful examinations, thus causing him significant stress. However, according to the expert report commissioned by the Vratsa Regional Court, the doctor’s actions had been competent and in compliance with good medical practice (see paragraph 9 above). The health authorities to whom the patient complained reached the same conclusion (see paragraph 6 above). The doctor whom the applicant consulted prior to writing her article considered that even further examinations could have been made and did not criticise Dr M.S. or imply that she had acted incompetently (see paragraph 10 above). The Court also finds it important to note that the applicant did not seek the opinion of Dr M.S., giving her the opportunity to comment for the purpose of the impugned publication.
27. Thus, the Court is of the view that the statements made by the applicant in her impugned article and considered at the domestic level to be slanderous have not been shown to be true or to have the required sufficient factual basis and were thus excessive. It finds that the domestic authorities were entitled to impose a restriction on the applicant’s right to freedom of expression, which accordingly met a “pressing social need”. The Court is in addition satisfied that the reasons adduced by the Sofia Court of Appeal for finding the applicant liable to pay damages to Dr M.S. (see paragraph 13 above), while albeit brief, addressed the key elements of the case and can be considered relevant and sufficient.
28. The Court must still verify whether the sanction to which the applicant was subjected was such as to upset the balance between her freedom of expression and the need to protect Dr M.S.’s professional reputation (see Cumpǎnǎ and Mazǎre, § 111, and Rumyana Ivanova, § 69, both cited above).
29. The applicant was found liable for defamation in civil proceedings brought by Dr M.S. and was ordered by the Sofia Court of Appeal, jointly with the newspaper’s publisher, to pay in damage the equivalent of EUR 5,600 (see paragraph 14 above). In practice, when default interest and the relevant costs and expenses were added, the actual sum paid by the applicant was equivalent of EUR 11,675 (see paragraph 16 above).
30. The Court notes that, taking into account the standard of living in Bulgaria and the fact that the applicant’s newspaper appears to be a relatively small local publication, the financial burden imposed on the applicant seems substantial. However, as already noted, the applicant was liable to pay that sum jointly with the newspaper’s publisher, and has not explained why she paid all of it alone. Nor has she provided any information on her financial situation, or on the publisher and its financial, legal and administrative status.
31. In these circumstances the Court cannot conduct a balancing between the different interests involved and is unable to conclude that the damages awarded against the applicant, combined with the interest and the costs and expenses due, amounted to a disproportionate sanction for her and the company publishing the newspaper, and that the national authorities overstepped their margin of appreciation.
32. In the light of all the materials in its possession, the Court finds thus that they do not disclose any appearance of a violation of the applicant’s rights and freedoms set out in the Convention or its Protocols.
33. Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 10 January 2019.
Milan Blaško Gabriele Kucsko-Stadlmayer
Deputy Registrar President
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