FIFTH SECTIONCASE OF AGENTSTVO TELEVIDENIYA NOVOSTI, OOO v. UKRAINE(Application no. 34155/08)      JUDGMENT STRASBOURG16 January 2020 This judgment is final but it may be subject to editorial revision.In the case of Agentstvo televideniya Novosti, OOO v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Síofra O’Leary, President, Ganna Yudkivska, Lado Chanturia, judges,and Milan Blaško, Deputy Section Registrar,Having deliberated in private on 10 December 2019,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 34155/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian broadcasting company, Agentstvo televideniya Novosti, OOO (“the applicant company”), on 10 July 2008.2. The applicant company was represented first by Mr A. Buschenko, a lawyer practising in Kharkiv, and then by Ms O.Y. Sapozhnikova, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna of the Ministry of Justice.3. The applicant company complained under Article 10 of the Convention of a violation of its freedom of expression.4. On 15 May 2017 notice of the application was given to the Government.THE FACTSTHE CIRCUMSTANCES OF THE CASE5. The applicant company is a Ukrainian limited liability company which has its registered office in Kharkiv.Incident concerning Officer G. and investigation into the incident’s circumstances6. On 12 July 2006 Officer G., a police officer, fell out of a moving trolleybus in Kharkiv while on his way to work. He suffered brain trauma and remained in a coma for some time.7. On 23 January 2007 the traffic police refused to institute criminal proceedings against the trolleybus driver in connection with that incident. It appears that their decision established that Officer G. had caused the incident himself by opening the trolleybus doors and jumping out.8. On 15 May 2007 the Kyivsky District Court of Kharkiv quashed that decision. The court held that the pre-investigation inquiries which had led to that decision had been one-sided, since they had focused on the statements of interested parties, namely the trolleybus driver and the conductor. The only eyewitness with no interest in the outcome had apparently confirmed that Officer G. had opened the door of the moving trolleybus. However, her description of the events contradicted the expert evidence as to how Officer G. had fallen and suffered trauma.Broadcasts9. The applicant company broadcast four news stories covering Officer G.’s incident in a programme called ATN. The translation of the relevant parts of the broadcasts, as transcribed by the applicant company, is set out below. The passages which were the subject of subsequent domestic proceedings are underlined and numbered for future reference. Where initials are used, the actual broadcasts contained full names.Broadcast 110. The first report (“Broadcast 1”) was broadcast on 18 July 2006 at 11.41 a.m. and went as follows:“Presenter: A police officer fell out of a trolleybus. This is the sixth day that a lieutenant of the Kyivsky District Police Department has been lying unconscious in a neurosurgery ward. Having fallen out of a trolleybus, the 27-year-old suffered brain trauma and a skull base fracture ... According to eyewitnesses, the man tried to get out of the trolleybus while it was in motion [Statement 1.1].L., head of the traffic safety service of the municipal transport company which operated the trolleybus lines: While we were waiting for the traffic police, a woman came up to us and said that the victim had been trying to open the trolleybus doors while the trolleybus had been in motion ... so other passengers had even started shouting ‘What are you doing?’ But he hadn’t listened.[Dr K. then stated that the victim was in a serious condition in the intensive care unit.]Presenter: The law-enforcement officers refuse to comment for now, referring to the secrecy of the investigation. L. said that the trolleybus had immediately been sent to the depot – the checks there had revealed no technical anomaly. Also, according to him, the driver had acted in accordance with [the relevant] regulations: as soon as [he had become aware of] an indicator showing that a door had been opened, he had stopped the vehicle ...”Broadcast 211. The second report was broadcast on 18 July 2006 at 6.35 p.m. and went as follows:“Presenter: Why did the policeman fall out of the trolleybus? The policeman who fell from the moving trolleybus was on duty, he was on his way to work at the Kyivsky District Police Department – ATN was informed today by the public relations department of the Kharkiv police ...According to information obtained by ATN, two versions of events are under examination: firstly, the policeman could have been under the influence of alcohol or drugs [Statement 2.1]; secondly, [a] more noble [version of events], he saw a suspect and was trying to arrest him. ATN news has already covered this incident. To reiterate, it happened at 7.30 a.m. on 12 July ... a police officer fell out of a moving trolleybus ... and hit his head on a kerb ... Eyewitnesses said that other passengers had been trying to persuade the policeman not to open the doors without permission. But the young man had not listened to anyone and, for reasons still unknown, had grabbed the handles on the trolleybus doors, pried them open and jumped out of the moving trolleybus [Statement 2.2]. According to L., the driver acted professionally and stopped the vehicle. The trolleybus has been checked, it turned out to be in order, and is now back in operation.”Broadcast 312. The third report was broadcast on 19 July 2006 and went as follows:“Presenter: The law-enforcement officers deny the version [of events whereby] the policeman who fell out of the trolleybus on 12 July was under the influence of alcohol or drugs [Statement 3.1]. They have not yet made public their official version of events. However, they say that doctors have found neither alcohol nor drugs in the policeman’s blood ... Eyewitnesses said that other passengers had been trying to persuade the policeman not to open the doors without permission. But the young man, for the reasons still unknown, had grabbed the handles on the trolleybus doors, pried them open and jumped out of the moving trolleybus [Statement 3.2]. According to Officer M., deputy head of the Kyivsky District Police Department’s criminal investigation unit, an investigation into the facts is ongoing.Officer M.: It has been definitively established that he was not under the influence of alcohol, let alone drugs. He was travelling on a route 24 trolleybus and fell out of the doors [between two stops].”Broadcast 413. The fourth report was broadcast on 18 August 2006 and went as follows:“Presenter: The policeman who fell out of the trolleybus has amnesia ...[There followed a description of an incident with a certain Officer I., a police officer who had shot himself in the head due to an accident in handling his service weapon and did not wish to talk about it.]Another policeman, Officer G., may wish to talk about an accident which he had, but he cannot ... ATN previously reported that on 12 July Officer G. had fallen out of a trolleybus ... He was in a coma for two weeks.[Mr S., a neurosurgeon, then described the medical care Officer G. had received.]Presenter: doctors say that the health of Officer G., the trolleybus paratrooper (тролейбусний десантник) [Statement 4.1], is now satisfactory. The only consequence of the fall is ‘trauma amnesia’. In simpler language, this means that he remembers everything except what happened on the trolleybus ... What really happened to the policeman that day and why he decided to jump out of the moving trolleybus is still a mystery [Statement 4.2]. The police refuse to comment, referring to the secrecy of the investigation.”Defamation proceedings14. Officer G.’s mother lodged a claim against the applicant company, seeking that the information disseminated about her son – to the effect that he had intentionally jumped out of the trolleybus and had been under the influence of alcohol and drugs – be retracted as untrue. She also sought compensation for non‑pecuniary damage. In her claim before the domestic courts, Ms G. stated that the above information had damaged her son’s honour, dignity and professional reputation.15. In the course of the trial the Kyivsky District Court of Kharkiv examined a number of witnesses, including the trolleybus driver and a trolleybus passenger, K., who had witnessed the incident and said that she had seen Officer G. prying open the trolleybus doors, but had not seen him jumping out. The court also examined L., the head of the traffic safety service of the municipal transport company whose interview had been part of Broadcast 1 (see paragraph 10 above), and a number of employees of the applicant company who had worked on the broadcasts.16. In particular, L. stated that he had not witnessed the incident himself and that he did not remember with precision whether he had spoken to the journalists about any eyewitnesses who may have observed Officer G. opening the door and jumping. He did not remember speaking to anyone about that.17. On 15 June 2007 the Kyivsky District Court of Kharkiv allowed the claim. It ordered the applicant company to retract the following information:(a)  that Officer G. had intentionally jumped out of the trolleybus, namely that he had grabbed the handles on the trolleybus doors, pried them open and jumped out of the moving trolleybus (referring to Statements 1.1, 2.2 and 4.2, hereinafter “Retraction A”); and(b)  that “he [had been] under the influence of alcohol or drugs” (referring to Statement 2.1, hereinafter “Retraction B”).18. The court awarded Ms G. 5,000 Ukrainian hryvnias (UAH – about 730 euros (EUR) at the material time) for non-pecuniary damage, and UAH 83 (about EUR 12 at the material time) for court costs.19. By way of reasoning, the court referred to its decision of 15 May 2007 which had overruled the decision not to institute criminal proceedings concerning the incident (paragraph 8 above). It rejected the applicant company’s argument that the statements in issue had been entirely based on information received from public officials and thus protected by section 67 of the Television and Radio Broadcasting Act (see paragraph 28 below). It also held that the State Support of Mass Media Act did not protect the applicant company from liability, because in a dispute between a mass media outlet and a private individual, the defendant was only protected from liability for spreading false information if he or she acted in good faith and checked the information in question.20. As regards Retraction A specifically, the court reasoned as follows:(i)  L.’s statement quoted in Broadcast 1 could not be seen as an official statement of a public official. Moreover, that statement had been preceded by Statement 1.1 of the presenter referring to “eyewitnesses” who had supposedly seen Officer G. jumping out of the trolleybus, but the applicant company had not been able to identify the “eyewitnesses”. Moreover, none of the witnesses examined by the court had seen Officer G. jumping out of the trolleybus. For the same reasons, L.’s statement could not justify the reference to “eyewitnesses” in Statement 2.2;(ii)  the applicant company’s journalists had failed in their obligation to verify the information they had broadcast because the applicant company had been unable to point to any “eyewitnesses” who had seen Officer G. jumping out of the trolleybus, as referred to in Statements 1.1 and 2.2, and no such eyewitness had been identified in the course of the trial. It emerged in the course of the trial that the reference to “eyewitnesses” in Broadcast 1 had been based entirely on L.’s statement and that the applicant company’s journalists never attempted to verify that statement;(iii)  in Statement 4.2 the presenter had asked what had caused Officer G. to jump out of the trolleybus, implying that he had indeed jumped.21. As regards Retraction B, the court reasoned as follows:(i)  a forensic expert report of 14 July 2006 had established that Officer G. had not been intoxicated at the time of the incident;(ii)  even accepting the applicant company’s argument that the basis for Statement 2.1 was the fact that Officer G.’s blood had been taken for tests, this was not sufficient for disseminating this information, because Officer G. was a police officer and there could be reasons for blood tests other than drug and alcohol testing. For instance, it was possible that the blood had been tested because Officer G. had needed a transfusion;(iii)  based on Statement 3.1, it could not be considered that the applicant company had already retracted the statement concerning Officer G.’s intoxication, because Statement 3.1 referred to “law-enforcement officers” denying this version, and not to the applicant company doing so. It was therefore still justified to require that the applicant company itself retract this information.22. The court lastly concluded that the applicant company had failed to prove that the information which it had disseminated had been sufficiently verified and factually accurate.23. On 24 September 2007 the Kharkiv Regional Court of Appeal upheld the judgment in so far as it concerned Retraction A and the monetary awards. It modified the judgment in so far as it concerned Retraction B, ordering that all of Statement 2.1, as opposed to just part of it, should be retracted, and so the retraction should include the statement “two versions of events are under examination: firstly, the policeman could have been under the influence of alcohol or drugs”.24. The Court of Appeal endorsed the reasoning of the first-instance court, and added that the media had no right to collect and report rumours, presenting them as corroborated by witnesses.25. On 9 November 2007 the Supreme Court refused the applicant company leave to appeal on points of law. On 16 January 2008 that decision was served on the applicant company.RELEVANT DOMESTIC LAWThe State Support of Mass Media Act of 199726. Section 17 provides that a journalist and/or mass media professional shall be released from liability for disseminating untrue information if the court establishes that he or she acted in good faith and checked the information. In claims brought against journalists and mass media professionals by public officials, the defendant’s intent to disseminate false information must be proved in order to hold the journalist or media professional liable.The Television and Radio Broadcasting Act of 199327. Section 60 of the Act imposes a number of duties on staff performing creative functions at television and radio organisations, including: (i) the duty to check the veracity of the information they receive, and (ii) the duty to prevent the broadcasting of defamatory information.28. Section 67 protects television and radio organisations from liability for disseminating untrue information in a number of situations, in the broadcasting of: (i) official written communications from public authorities; (ii) literal quotes of public officials; (iii) statements of third parties on live broadcasts; (iv) literal quotes from information disseminated by another media outlet or information agency.The Civil Code of Ukraine (wording applicable at the material time)29. The relevant extracts from the Civil Code read as follows:Article 23Compensation for non-pecuniary damage“1. A person shall have the right to compensation for non-pecuniary damage in the event of an infringement of his/her rights ...2. Non-pecuniary damage implies:...4) a violation of an individual’s honor, dignity or business reputation or a violation of business reputation of a legal entity.Article 277Rectification of untruthful information“1. An individual whose non-pecuniary rights have been infringed as a result of the dissemination of untrue information about him or her and (or) members of his or her family shall have the right to reply and [the right to] the retraction of that information ......3. Negative information disseminated about a person shall be considered untrue if the person who disseminated it does not prove the contrary.4. Untrue information shall be retracted by the person who disseminated the information ...5. If the untrue information is contained in a document which has been accepted (issued) by a legal entity, that document shall be recalled.6. An individual whose non-pecuniary rights have been infringed in printed or other mass media shall have the right to reply and also [the right to] the retraction of the untrue information in the same mass media, in the manner envisaged by law ...Untrue information shall be retracted, irrespective of the guilt of the person who disseminated it.7. Untrue information shall be retracted in the same manner in which it was disseminated.”Article 280The right of an individual whose non-pecuniary rights have been violated to obtain compensation for damage“1. If there has been pecuniary and/or non-pecuniary damage caused to an individual as a result of a violation of his personal non-pecuniary rights, the damage shall be compensated for.”THE LAWALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION30. The applicant company complained that the decisions of the domestic courts ordering it to retract the information in question and awarding compensation to Ms G. had violated its freedom of expression under Article 10 of the Convention, 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.”Admissibility31. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.MeritsSubmissions before the Court(a)   The applicant company32. The applicant company denounced the lack of clear criteria in Article 277 § 3 of the Civil Code and in judicial practice that would have allowed “negative information” to be differentiated from “information” in general. In its opinion, the very concept of “negative information” referred to personal perceptions; it introduced an element of subjectivity into the legal system, which made it impossible for individuals to foresee what fell within the limits of permissibility, and impossible for the courts to assess whether these limits had been exceeded. According to the applicant company, Article 277 § 3 of the Civil Code of Ukraine, which had established a presumption that “negative information” was unreliable, had not satisfied the “prescribed by law” requirement of Article 10 of the Convention. The applicant company added that that provision had been repealed on 27 March 2014 precisely because the notion of “negative information” had not been legally defined and had created a presumption that any negative information was unreliable, which was nonsense, legally speaking.33. The applicant company stated that, in the present case, it could not reasonably have foreseen that the information imparted by it would be interpreted as negative information. It considered in particular that the statement concerning Officer G.’s intoxication had not contained any allegation about his personality or reputation, or about his acts or conduct, and that the phrase about his intentionally jumping out of the trolleybus had not damaged his reputation. According to the applicant company, it had made a factual statement which had not amounted to defamation, either by itself or in the context in which it had been made. In its opinion, the assertion that a person had acted intentionally, meaningfully and purposefully did not cast a shadow on his or her reputation, since meaningful activity was one of the basic characteristics of any human being.34. In response to the Government’s arguments that the relevant domestic legislation applicable at the material time had been found by the Court to be compatible with the requirements of “foreseeability” and “accessibility” in the case of Ukrainian Media Group v. Ukraine (no. 72713/01, 29 March 2005), the applicant company observed that that case was not currently relevant, as it concerned other aspects of Article 10 of the Convention (mainly, the difference between statements of facts and value judgments).35. The applicant company also maintained that the interference had not been necessary in a democratic society.36. The applicant company submitted that the broadcasts in question had concerned a subject of significant public interest. As the broadcasts had been reporting on the inexplicable conduct of a police officer on duty, they had been about two important issues: the physical and mental health of police officers, and the ability of law-enforcement agencies to investigate incidents involving police officers in a comprehensive and unbiased manner. Adding that shortly before the incident in question there had been two other incidents involving police officers (a shooting in a metro station and careless handling of a service weapon), the applicant company underlined that the broadcasts in question had pursued the aim of informing the community about whom it had entrusted with the protection of public order and to whom it had handed over deadly weapons.37. The applicant company considered that the obligation to act in good faith that Article 10 of the Convention imposed on journalists did not imply that, before reporting on an issue, they had to ascertain the accuracy of their information beyond reasonable doubt. It underlined that its journalists had carried out preliminary checks on the information that had been broadcast. The statement that Officer G. had opened the doors had been based on the declarations of L. The statement that the question of Officer G.’s possible intoxication had been investigated had been based on evidence received from the hospital that his blood had been taken for tests, and on knowledge about common practice as regards the investigation of accidents. Furthermore, the journalists had clarified that the investigating authorities had denied the version of events referring to intoxication as soon as they had known about it.38. The applicant company also considered that, by asking it to prove that Officer G. had been under the influence of drugs or alcohol, the domestic courts had distorted the essence of the statements that had been broadcast, and had charged it with proving facts that had not been stated.39. The applicant company then underlined that the deputy head of the Kyivsky District Police Department’s criminal investigation unit had declared in the report of 19 July 2006 that it had been established that Officer G. had not been under the influence of alcohol or narcotics, which showed that that matter had been part of the investigation. As for the factual basis of the second statement, the applicant company maintained that, in the circumstances of the case, it could rightly rely on the declarations of the head of the municipal transport company’s traffic safety service. It submitted that since the incident had occurred on public transport and on a road, conducting a full‑scale search for all eyewitnesses would have put an unbearable burden on it; moreover, the statement had been broadcast in the format of news, which meant that the applicant company had been required to strike a reasonable balance between the need to verify the information and the need to avoid procrastination as regards informing the public. The applicant company also declared that the judgment of the Kyivsky District Court indicated that a witness had declared in the course of the proceedings that on 12 July 2006, while she had been in the trolleybus, she had seen a man holding onto a railing in the trolleybus and opening the door.40. The applicant company also submitted that the allegations that had been broadcast had been formulated in rather cautious terms and had not contained categorical statements of fact; they had reported on the possible versions of events, stressing that the investigation had not yet been completed.41. Lastly, the applicant company indicated that it had not been able to comply with the judgment, since it was not clear to it how it could retract the relevant statements without broadcasting “negative” information again and risking a new defamation action.(b)   The Government42. The Government agreed that the facts of the case disclosed an interference with the applicant company’s freedom of expression. According to them, the interference had been justified under Article 10 § 2 of the Convention.43. Firstly, the Government submitted that the impugned interference had been “formally prescribed by law”, adding that the quality of the domestic legislation applicable at the material time had been acknowledged by the Court in the Ukrainian Media Group case, cited above.44. The Government further maintained that the decisions of the domestic courts delivered in the present case had pursued the legitimate aim of protecting Officer G.’s honour and dignity and his right to reputation, as protected by Article 8 of the Convention.45. As to the necessity of the interference, the Government observed that the protection afforded to journalists by Article 10 was subject to the proviso that they acted in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism. They underlined that, as statements of fact rather than value judgments, the statements in question in the present case could rightly be verified as to their veracity, as provided for by domestic law. The Government underlined that, according to section 67 of the Television and Radio Broadcasting Act, television broadcasters were exempt from liability if they broadcast the official written communications of public authorities, but in the present case the domestic courts had found that that exception was not applicable, since L. could not be regarded as a public official.46. More generally, the Government submitted that the domestic courts, after careful examination of the case-file material, had found that the applicant company had failed to prove the impugned allegations, which had not been based on either statements of public officials or declarations of eyewitnesses. They reiterated that the Contracting States had a certain margin of appreciation in assessing the necessity and the scope of an interference with the freedom of expression, particularly where a balance had to be struck between conflicting private interests, and that where the interests at stake had been weighed up at domestic level in compliance with the criteria laid down in the case-law of the Court, strong reasons were required if the Court were to substitute its view for that of the domestic courts.47. In the Government’s opinion, the impugned interference had been proportionate to the aim of protecting Officer G.’s honour and dignity; all the more so because the statements in question had aimed to show that such incidents often happened with regard to law-enforcement officers, and consequently those statements had damaged the reputation of the Ukrainian law-enforcement authorities and overstepped the limits of freedom of expression in a democratic society. Referring to Janowski v. Poland [GC] (no. 25716/94, § 33, ECHR 1999‑I) and Lešník v. Slovakia (no. 35640/97, § 53, ECHR 2003‑IV), the Government also reiterated that the Court had recognised that it might prove necessary to protect civil servants from offensive and abusive attacks when on duty.48. The Government added that the amount of compensation that the applicant company had been ordered to pay was modest in view of its share capital (UAH 399,750, about EUR 54,208 at the time). They also noted that the applicant company had indicated that it had not complied with the judgment.49. The Government concluded by stating that, in the present case, the domestic courts had struck a fair balance between the interests of the parties, particularly in view of their careful consideration of the circumstances, the nature of the defamatory statements in question and the insignificant amount of compensation awarded.The Court’s assessment(a)   Existence of an interference50. It is common ground between the parties, and the Court agrees, that the decisions of the domestic courts and the award of damages made against the applicant company amounted to an interference with the applicant company’s right to freedom of expression under the first paragraph of Article 10. Such an interference will entail a violation of Article 10 if it fails to satisfy the criteria set out in its second paragraph.

Outcome for Article 10: violation