Romania

European Court of Human Rights: Pretorian v. Romania

IRIS 2022-7:1/19

Dirk Voorhoof

Human Rights Centre, Ghent University and Legal Human Academy

The European Court of Human Rights (ECtHR) has found no violation of Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR) in a case concerning a civil judgment against an editor-in chief, for publishing articles, in both the printed version and the online edition of a weekly magazine, in which he defamed a politician. The ECtHR found that the domestic courts had correctly applied the criteria in balancing the rights of privacy and reputation under Article 8 and the right to freedom of expression under Article 10 ECHR. In particular, the ECtHR referred to the fact that the two articles at issue had contained serious allegations damaging the right of privacy and the reputation of the politician, without a factual basis. Further, some of the insulting and denigrating statements about the politician had been based solely on rumours, while the impact of the groundless allegations had been amplified due to the online availability of the articles, accessible by search engines.

The applicant in the case was Cosmin-Adrian Pretorian, the editor-in-chief of the regional weekly newspaper, Indiscret în Oltenia. In 2014, the newspaper published an article about H.B., a former member of Parliament and the former chairman of the local branch of the Liberal Party. In a subsequent edition, the regional magazine published H.B.'s letter of reply, accompanied by a second article written by Mr. Pretorian. The article had a satirical character and contained a series of insulting statements about the politician, including some sexual insinuations and allegations of H.B.’s supposed alcohol abuse. H.B. brought civil defamation proceedings in the Craiova District Court. The court partly upheld H.B.’s action and ordered Mr Pretorian to pay him RON 15,000 (approximately EUR 3,200) in compensation for non-pecuniary damage. It also ordered the publication of the decision in the weekly newspaper concerned. Mr Pretorian’s appeal was dismissed.

Relying on Article 10 ECHR, Mr Pretorian lodged an application with the ECtHR, alleging that that, in finding against him, the domestic courts had violated his right to freedom of expression. The ECtHR observed that, having regard to the virulent criticisms levelled against H.B., the attack on him had reached the threshold of severity triggering the application of Article 8 ECHR. It considered that the District Court had weighed up the competing interests at stake, referring to the Court’s case-law. On that basis the District Court had found in favour of H.B. on the grounds that some of the remarks contained in the articles had been insulting and excessive and had interfered with H.B.’s private life, and damaged his honour and reputation. Those findings had been upheld by the Appeal Court.

The ECtHR noted that the two articles concerned a matter of general interest, namely the exercise of public office by H.B., who was a well-known public figure in local politics. The nature of the remarks in both articles were value judgments formulated in vulgar language, and did not amount to opinions expressed in good faith on H.B.’s moral and professional qualities. The ECtHR acknowledged that some of the language used in the articles could claim to be satirical in style, but it saw no reason to disagree with the decisions of the domestic courts finding that some of the remarks, and in particular the sexual references and comments, had been insulting and excessive. Furthermore, the ECtHR noted that Mr Pretorian had spread a rumour concerning H.B.’s supposed fondness for alcohol, without verifying the facts. The ECtHR held that a rumour of that kind could not constitute a factual basis for the serious and stigmatising accusations made against H.B. The ECtHR also held that the penalty imposed was relatively mild and did not have a genuinely chilling effect on the exercise of Mr Pretorian’s freedom. The ECtHR found that the domestic courts had weighed up the competing rights and had referred to the criteria established in the Court’s case-law. The ECtHR observed in particular the serious impact of the insulting allegations on the private and professional life of H.B. because the articles were also accessible on the Internet. The ECtHR referred to its Grand Chamber judgment in Delfi AS v. Estonia in which it stated that “the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press” (see also IRIS 2015-7/1) and to its judgment in M.L. and W.W. v. Germany in which it considered the amplifying impact on the right of privacy “on account of the important role of search engines” (IRIS 2018-8/1). Therefore the ECtHR accepted that the penalty imposed on Mr Pretorian had been necessary in a democratic society and that there was a reasonable relationship of proportionality between that penalty and the legitimate aim pursued. The ECtHR unanimously reached the conclusion that there has been no violation of Article 10 ECHR.