FIFTH SECTION
\nDECISION<\/p>\n
Application no. 32638\/11
\nRayna Ivanova TOSHEVA
\nagainst Bulgaria<\/p>\n
The European Court of Human Rights (Fifth Section), sitting on 4\u00a0December 2018 as a Committee composed of:<\/p>\n
Gabriele Kucsko-Stadlmayer, President,
\nYonko Grozev,
\nL\u04d9tif H\u00fcseynov, judges,
\nand Milan Bla\u0161ko, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 5 May 2011,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The 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.<\/p>\n 2.\u00a0\u00a0The Bulgarian Government (\u201cthe Government\u201d) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 4.\u00a0\u00a0The applicant is a journalist in Vratsa and editor-in-chief of the local newspaper Shans Express.<\/p>\n 1.\u00a0\u00a0The applicant\u2019s article<\/em><\/p>\n 5.\u00a0\u00a0On 7 November 2006 the newspaper published an article entitled \u201cDoctor freaks out patient with a fatal diagnosis\u201d and with a subtitle \u201cA specialist takes a mole for cancer\u201d. It was published as the front page article and was signed by the applicant.<\/p>\n 6.\u00a0\u00a0The 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 \u201cconfused a most common mole with cancer\u201d (it had turned out eventually that the \u201cspot\u201d in the patient\u2019s lungs had just been the X-ray reflection of a mole on his chest) and that the \u201cfatal\u201d diagnosis had \u201cshocked\u201d the patient, who had \u201cstarted counting his days\u201d, had lived a \u201cnightmare\u201d and had considered himself \u201cdoomed\u201d. During this time he underwent \u201cheaps of unnecessary procedures, including with radioactive substances and X-ray imaging\u201d. After the tests showed no cancer, the doctor prescribed treatment for tuberculosis, which \u201ctotally shocked\u201d the patient. The doctor \u201cat least comforted him\u201d that he was not a pathogen carrier. Two days later the \u201cdisturbed\u201d patient visited another doctor, who cleared him off, \u201cbursting into laughter\u201d 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 \u201cat least to apologise for the worries\u201d caused to the patient, but she had not done it. It concluded as follows:<\/p>\n \u201cThe case has officially been closed. There is no spot on the white overall of [Dr\u00a0M.S.] because, according to the inspections, she is competent. Nor is there any spot on [the patient\u2019s] lungs, even though the \u2018competent\u2019 doctor saw it. She saw it and was so frightened of it that she freaked out her patient as well.\u201d<\/p>\n 2.\u00a0\u00a0Proceedings brought by Dr M.S.<\/em><\/p>\n 7.\u00a0\u00a0On 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 \u2013 EUR) in non-pecuniary damage.<\/p>\n 8.\u00a0\u00a0In the ensuing proceedings the newspaper\u2019s publisher was represented by its manager at several hearings, but did not take any active steps.<\/p>\n 9.\u00a0\u00a0In 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.<\/p>\n 10.\u00a0\u00a0The first-instance Vratsa Regional Court heard a witness, another doctor, to whom the applicant had shown the patient\u2019s medical documents prior to publishing the article. He described the first diagnosis given by Dr\u00a0M.S. in those documents as \u201cchronic obstructive bronchitis\u201d and \u201csuspected metastasis in the right lung\u201d and the second diagnosis, after the additional tests had been carried out, as \u201cchronic obstructive bronchitis\u201d 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 \u201cnot to worry\u201d 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\u2019s story.<\/p>\n 11.\u00a0\u00a0The patient was also heard as witness, and stated that he had been \u201cshocked\u201d by Dr M.S.\u2019s initial diagnosis, and that her subsequent \u201cevasiveness\u201d had made him doubt whether she knew what the problem was. Another witness, a friend of Dr M.S.\u2019s, explained that the latter had been upset after reading the article, and worried that it might discredit her as a doctor.<\/p>\n 12.\u00a0\u00a0In a judgment of 25 February 2008 the Vratsa Regional Court rejected Dr M.S.\u2019s 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.<\/p>\n 13.\u00a0\u00a0Upon 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\u2019s tone, on the other hand, was \u201cridiculing, offensive and defamatory\u201d. 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 \u201cinsulting and slanderous interpretation of the facts\u201d. Her right to freedom of expression could not be used to attack the reputation of others.<\/p>\n 14.\u00a0\u00a0The 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\u2019s article had reached a large audience and as a result Dr M.S. had felt \u201cinsulted\u201d and \u201cupset\u201d and had \u201csuffered seriously\u201d. It ordered the two defendants (the applicant and the newspaper\u2019s publisher) to pay in addition default interest and to reimburse Dr M.S.\u2019s expenses.<\/p>\n 15.\u00a0\u00a0In 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.<\/p>\n 16.\u00a0\u00a0In 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\u00a011,675).<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 17.\u00a0\u00a0The relevant domestic law has been summarised in Yordanova and Toshev v. Bulgaria (no. 5126\/05, \u00a7 23-24, 2 October 2012).<\/p>\n COMPLAINT<\/strong><\/p>\n 18.\u00a0\u00a0The applicant complained under Article 10 and Article 6 \u00a7 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.<\/p>\n THE LAW<\/strong><\/p>\n 19.\u00a0\u00a0The Court is of the view that the complaint falls to be examined under Article 10 of the Convention alone, which reads as follows:<\/p>\n \u201c1.\u00a0\u00a0Everyone 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.<\/p>\n 2.\u00a0\u00a0The 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.\u201d<\/p>\n A.\u00a0\u00a0Arguments of the parties<\/strong><\/p>\n 20.\u00a0\u00a0The Government agreed that there had been an interference with the applicant\u2019s right to freedom of expression, but considered it justified under Article 10 \u00a7 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\u2019s point of view, without seeking Dr M.S.\u2019s position. They noted that the right to freedom of expression could not be used to attack someone else\u2019s reputation, and journalists in particular had a special obligation to verify the accuracy and credibility of information. The purpose of the applicant\u2019s 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\u2019s publisher.<\/p>\n 21.\u00a0\u00a0The applicant argued that she had acted in good faith, reporting on the case on the basis of the patient\u2019s 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\u00a0M.S.\u2019s medical competence, but only to report on a particular case. Her article had presented the patient\u2019s 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 \u201cchilling effect\u201d on any discussion on such matters in the future.<\/p>\n B.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 22.\u00a0\u00a0The 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 \u201cnecessary in a democratic society\u201d, 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.<\/p>\n 23.\u00a0\u00a0In 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 Troms\u00f8 and Stensaas v. Norway [GC], no. 21980\/93, \u00a7\u00a7 59 and 62, ECHR\u00a01999\u2011III; Couderc and Hachette Filipacchi Associ\u00e9sv. France [GC], no.\u00a040454\/07, \u00a7 89, ECHR 2015 (extracts), and Rumyana Ivanovav.\u00a0Bulgaria, no. 36207\/03, \u00a7 58, 14 February 2008).<\/p>\n 24.\u00a0\u00a0The Court observes furthermore that the applicant\u2019s article reported on a single medical case and the patient\u2019s anguish due to Dr M.S.\u2019s 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, \u00a7 51, ECHR\u00a02000\u2011IV, where the impugned article alleged unacceptable health care in a clinic and thus, according to the Court, \u201craised matters of consumer protection of direct concern to the local and national public\u201d).<\/p>\n 25.\u00a0\u00a0The 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, Cump\u01cen\u01ce and Maz\u01cere v. Romania [GC], no. 33348\/96, \u00a7 98-9, ECHR 2004\u2011XI, and Morice v. France [GC], no. 29369\/10, \u00a7 126, ECHR\u00a02015).<\/p>\n 26.\u00a0\u00a0The applicant suggested in her article that in the particular case Dr\u00a0M.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\u2019s actions had been competent and in compliance with good medical practice (see paragraph\u00a09 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\u00a0M.S., giving her the opportunity to comment for the purpose of the impugned publication.<\/p>\n 27.\u00a0\u00a0Thus, 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\u2019s right to freedom of expression, which accordingly met a \u201cpressing social need\u201d. 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\u00a013 above), while albeit brief, addressed the key elements of the case and can be considered relevant and sufficient.<\/p>\n 28.\u00a0\u00a0The 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.\u2019s professional reputation (see Cump\u01cen\u01ce and Maz\u01cere, \u00a7 111, and Rumyana Ivanova, \u00a7\u00a069, both cited above).<\/p>\n 29.\u00a0\u00a0The 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\u2019s publisher, to pay in damage the equivalent of EUR\u00a05,600 (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).<\/p>\n 30.\u00a0\u00a0The Court notes that, taking into account the standard of living in Bulgaria and the fact that the applicant\u2019s 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\u2019s 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.<\/p>\n 31.\u00a0\u00a0In 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.<\/p>\n 32.\u00a0\u00a0In 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\u2019s rights and freedoms set out in the Convention or its Protocols.<\/p>\n 33.\u00a0\u00a0Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article\u00a035 \u00a7\u00a7\u00a03\u00a0(a) and 4 of the Convention.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 10 January 2019.<\/p>\n Milan Bla\u0161ko\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Gabriele Kucsko-Stadlmayer
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n