5.  The applicant was born in 1945 and lives in Cluj-Napoca. He is a university professor and contributor to various magazines and newspapers, mainly of an economic and financial nature. At the time of the relevant events he had already published more than 180 articles in various local or national publications.
6.  Prior to parliamentary elections held at the end of November 2008, the applicant wrote an article about M.I.-I., who was standing as a candidate for one of the national parties. The article, headlined “Attention! He also wants [to be] in Parliament”, was published on the front page of F., a newspaper, on 6 November 2008. It read as follows:
“After five rounds of free parliamentary elections, ordinary people, who are politically active only when they vote, have come to an uncontroversial conclusion: there is something wrong with people who become candidates for various political functions. Without even knowing exactly what [is wrong], most people of good moral and professional character often choose not to vote any more. They make that choice especially when they learn that the person appearing on the electoral poster asking for votes has never done anything remarkable in his or her profession. ...
It is therefore no longer surprising that the Romanian Parliament is the institution that enjoys the least public confidence.
Time has consolidated the public’s belief that most candidates want to become parliamentarians so that they can for a couple of years take advantage of the privileges they grant themselves or of those informal benefits which come through the development of the system of relationships associated with their functions. There are candidates who do everything to become parliamentarians in order to shield their criminal record from the [criminal] acts they committed before becoming senators or deputies.
Among the many cases of that type, I today present you one. And if I do this it is not to help the voters, because imposture by an individual reveals itself without reserve to the perceptive masses, whereas one by a group or party does not, especially when one can use all the presidential and municipal logistical powers, impressive amounts of funds and an unsuspected power to persuade individuals with little training.
One such case is that of Mr M.I.-I. This gentleman is in good physical condition, especially after living a comfortable life as a manager at R. Cluj [a public company], and now wants to use his skills in Parliament. And he does not intend to reach such a position only based on his well-known lucidity, but also with the help of some financial support for the intellectual efforts he wishes to make for the benefit of the many. For that purpose, he borrowed 15 billion Romanian lei for a period of 12 months, namely until 31 October 2008 – to invest on the stock market and earn a bit more than the creditor would request as interest, based on perfectly legal documents.
It is just that at one point the moral profile of this representative of the Democratic Party of Cluj showed itself clearly. Not having made as much [profit] as he hoped, the candidate M.I.-I. decided not to repay the loan thus contracted, after imploring the creditor to have mercy, to postpone and not enforce the contract. Even though he knows that the contract weighs against him, he is relying on that defect of Romanian justice of postponing the adjudication of cases. In fact, Mr M.I.-I. brought a case before a court which had no jurisdiction to assess the case. But he hopes in the near future to be able to invoke his immunity as a member elected by the nation, just like his spiritual guardian, who left us without a maritime fleet.
That is why I say that we must be careful about what Mr M.I.-I. signs and promises! For the following day he might no longer admit to anything, he may switch to another political party, if he is given more, he may even sell part of the electoral district where he ran and if nobody wants it, he can go to Smirnov because it is warmer in Tiraspol than in Huedin.”
7.  On 9 April 2009 M.I.-I. brought a civil action against the applicant: he sought 25,000 euros (EUR) for non-pecuniary damage as the article had allegedly seriously affected his reputation and made him lose the election by approximately one hundred votes. M.I.-I. also complained about the publication by the applicant of another defamatory article on 21 January 2009, which was in a similar vein. He also complained about the distribution of leaflets before the election, which had reproduced the contents of the article of 6 November. He alleged that all the material had been meant to discredit him as a candidate.
8.  The applicant confirmed that he was the author of the article in question and that everything he had written had been true, as proved by documents from the Arbitration Tribunal of the Cluj Chamber of Commerce, which would become available to the court. He further denied contributing in any way to the publication or distribution of other articles and leaflets concerning M.I.-I.
9.  On 20 July 2009 the Cluj-Napoca Court of First Instance allowed the claims lodged by M.I.-I. and held that the article of 6 November 2008 had contained defamatory statements about him. It further held the applicant liable to pay EUR 20,000 for non-pecuniary damage and 3,291 Romanian lei (RON) in legal costs.
10.  The court held that the applicant had not proved that his statements were true. The procedure before the Arbitration Tribunal, invoked by the applicant in his defence, had concerned a commercial dispute between M.I.-I. and the applicant’s brokerage company, in which the claims of M.I.-I. had been partially granted on 7 April 2009, as the repayment deadline had been set for 30 April 2010. The court considered that even if true, the applicant’s statements had been defamatory and should not have been made public in the media, especially since they concerned matters of a private, commercial nature.
11.  The court further noted that the applicant’s statements had been reproduced in electoral leaflets, which had been distributed in several public places, in bus stations and private mailboxes. The court held that even if it was not the applicant who had produced or distributed the leaflets, there was a causal link between the publication of the article and the harm caused to M.I.-I.’s reputation because if he had not produced his article in the first place, there would have been no leaflets and no amplification of the negative effects on M.I.-I.’s image.
12.  The court then focused on the terms used by the applicant in his article, in particular calling the defendant an impostor, which was found to be insulting and lacking factual justification as there existed no criminal complaints of fraud against M.I.-I. It concluded that the language used, conveying the idea that M.I.-I. would accept any compromise for money and would therefore betray the electorate, his party and his country, had exceeded the limits of admissible criticism and had disparaged him.
13.  The applicant appealed, arguing before the Cluj County Court that the publication of the article in question during a parliamentary election campaign had had the role of informing the public, in good faith, about a political figure. In such a situation, the limits of admissible criticism were wider. He argued that during election campaigns the press had the essential role of informing the public about future members of the Romanian Parliament. He argued that the amount of damages awarded by the first-instance court had been disproportionate and had had an obvious punitive purpose.
14.  In a final judgment of 21 January 2010 the County Court essentially upheld the reasoning of the lower court. It considered that the manner in which the applicant had acted proved that he had not complied with the duties and responsibilities inherent in the exercise of the freedom of expression:
“The seriousness of his allegations and of the acts imputed to M.I.-I. hold him [the applicant] responsible for showing the highest rigour and a special caution, the lack of which would breach the rights of others.”
15.  The County Court confirmed that the lower court had correctly estimated that it had been necessary to balance the right to private life on the one hand and freedom of expression which contributed to a debate of public interest on the other, holding that:
“To insult, to defame a person cannot be justified and legitimate when one party aims to unilaterally expose in the press private litigation of a commercial nature involving two private parties.
In assessing the existing conflict between the exercise of freedom of expression in the press and the necessity to protect the reputation and the rights of others, the court estimates that even though the applicant’s allegations made in a press article during an electoral campaign, concerned a potential member of the Romanian Parliament, thus were of public interest, there are limitations to freedom of expression, the applicant having been bound to act within the limits given by the public interest in protecting the reputation and the rights of another person, including his or her right to be presumed innocent.
Undoubtedly, when the article was published in the newspaper F., the applicant did not comply with the minimum requirements of diligence prescribed by Article 10 § 2 of the Convention, in the sense of acting in good faith and in accordance with the journalistic ethics so as [to ensure that] the provided information be trustworthy, notwithstanding the dose of exaggeration or provocation allowed in such situations.”
16.  Nevertheless, the County Court allowed the applicant’s appeal in part and reduced the damages to EUR 5,000, considered to be more proportionate to the damage sustained by M.I.-I.