Comments to the Law of the Republic of Moldova on the Freedom of Expression



Download 465.53 Kb.
Page1/6
Date conversion16.05.2016
Size465.53 Kb.
  1   2   3   4   5   6
Comments

to the Law of the Republic of Moldova

on the Freedom of Expression
Vladislav GRIBINCEA, Anastasia PASCARI, Olivia PÎRŢAC
General issues

The need to develop and adopt the Law on freedom of expression (hereinafter the "Law") was dictated, in particular by too general and, sometimes, obsolete legislation on defamation and respect for private and family life and legal complexity of these legal relationships. Until the entry into force of the law, these relations were governed by the Constitution (art. art. 28, 32, 34 etc.) Civil Code (art. art. 16, 1422 to 1424), Code of Administrative Offences (Article 47 / 2 and 47 / 3), the Broadcasting Code (art. art. 14, 16, 52 etc.) Law on press (art. art. 4 and 27) and other laws. The general regulation of defamation and respect for private and family life have led to a legal practice granting, in particular, priority to honor, dignity, professional reputation and privacy, whereas freedom of expression was interpreted excessively formalistic and limited. As a result, by 2010, the European Court of Human Rights (hereinafter "ECtHR") found in more than 10 resolutions that defamation cases have been settled by Moldovan courts with violation of freedom of expression guaranteed by Art. 10 of the European Convention on Human Rights (hereinafter "ECHR"). According to the informative note to the draft law, adoption of the law "will significantly reduce the possibility of infringement of free speech in cases of defamation and violation of private life."

The law contains, on the one hand, provisions that relate to the scope of freedom of speech (content and principles of freedom of expression under the Council of Europe standards (which are not clearly defined in the legislation of the Republic of Moldova) (Article 3), specific aspects of mass media freedom of expression (art. 4), prohibition of censorship (Article 5), freedom to criticize the state and public authorities (Article 9), the right to privacy, including privacy of public persons (art. Article , 10 and 11), the effects of the presumption of innocence in relation to freedom of expression (Article 12), protection of sources (Article 13) etc..), and on the other hand, contains specific provisions of procedure, which requires to be observed in considering cases on defamation and respect for private and family life.

The law introduced the pre–trial settlement of defamation cases. Establishing this procedure aims to contribute to pre trial settlement of these disputes and ordering the parties involved. The Law also introduced additional requirements in relation to the form of the law suit, which will facilitate the examination of requests on defamation. The law explains the procedure of succession of the claimant in the defamation proceedings, limits action guarantee measures that can be applied in cases related to defamation, clarifies the burden of proof and presumptions to be applied in such cases, explains the procedure of publication of retraction and reply, the assessment of moral damage caused by natural and legal persons and circumstances which exclude liability for defamation. The law provides the procedure for examination of cases concerning the protection of private life while exercising freedom of expression.

Law on freedom of expression is an organic law. By means of this law, some provisions of the Law on Press, such as the provisions of art. 27, fell into disuse. Since the law was approved after adoption of the Civil Code, the contents of art.16 of the Civil Code should be interpreted in through the provisions of this law.

The law does not refer to the licensing of broadcasters.

This law will be interpreted in terms of the ECHR and ECtHR jurisprudence.

Art. 1 The purpose and scope of the law


  1. This law has the purpose to guarantee the right to free expression as well as to provide an appropriate balance between the right to free expression and protection of honour, dignity, professional reputation and the right to respect for private and family life.

  2. This law does not regulate the legal rapport referring to access to information, granting reply to electoral competitors in electoral campaigns and protection of copyrights and neighbouring rights.

1. Freedom of expression and respect for private and family life are rights guaranteed by the Constitution (Article 32 and, respectively, art. 28) and the ECHR (Art. 10 and Art. 8 respectively). According to ECHR case law, individual reputation is part of the right to respect for private life (Petrenco v. Moldova, 30 March 2010).

Freedom of expression constitutes one of the essential foundations of a democratic society, one of the primary conditions of its progress. However, neither freedom of expression nor honor, dignity and professional reputation and private and family life are absolute and have no priority before the other.

When disseminating information aimed at a person, there is a risk that the person concerned will claim that his/her privacy was affected. Such a reaction should not lead automatically to limiting freedom of expression, which also applies to information that frustrates, shocks or disturbs (Lingens v. Austria, 8 July 1986, § 41). The correct solution in this case is a balanced decision taken thorough the analysis of all relevant elements on freedom of expression and privacy. This law tries to ease that decision.

2. The law does not regulate some similar categories of relations. Thus, in general, freedom of expression does not entail the obligation of authorities to grant access to information held. For this reason, the Law does not apply to the process of forced collection of information from public authorities, a procedure which is regulated by the Law on Access to Information.

Given the peculiarity of the electoral campaign, it was decided that the procedure for granting the right to reply to the candidates in the campaign will be regulated by the Electoral Code (Art. 64 para. 6). However, the Law will apply where the right of reply was requested after the completion of the campaign.

In case of an alleged violation of copyright, Law provisions are inapplicable. These disputes will be resolved under the laws on copyright and neighboring rights.

Although the regulations of the law are applicable to disseminating information through the Internet, the law provides no specific rules in this regard, largely because there are not yet well codified rules in this area.



In art.8 the law provides three situations where the safeguards against defamation cases are not applicable, and persons who disseminated the information enjoy immunity. These immunities have been introduced to ensure proper functioning of state mechanisms. However, the immunity from letter a) is a privilege of the function and not of the person holding the function. For this reason, immunity will not cover the statements made by the President and Members of Parliament outside their job.

Art. 2 Terms and expressions


The terms and expressions used in this law shall have the following meanings:

defamation – dissemination of false and harming information about a person;

dissemination – the process whereby information passes from a person to third parties (at least to one person, except the defamed one);

information – any expression of facts, opinions or ideas in the form of text, sound and/or picture;

fact – an event, process, phenomenon which took place in the past or takes place in the present in a specific place and time, whose truthfulness can be proved;

value judgement – an opinion, comment, theory, idea which reflects an attitude towards a fact, whose truthfulness cannot be proved;

value judgement without sufficient factual basis – a value judgement based on facts that didn’t take place or facts that took place but were distorted to falsehood;

insult – a verbal or non-verbal expression which intentionally offences a person and is not in line with the generally-accepted moral norms in a democratic society;

censorship – the unjustified distortion of journalistic material by the management of a media outlet; the unjustified ban on disseminating certain information, imposed by the management of a media outlet; orders given to the media outlet or its staff as to their editorial activity, or any form of barring the printing or dissemination of information, effected by the public authorities or persons occupying public functions.

information concerning private and family life – any information, including pictures, concerning the family life, life at home, correspondence and its content, health and physiological deficiencies, sexual orientation and sexual life, as well as the behaviour of a person in circumstances when such a person has reasonable expectations of privacy;

public concern – the interest of society (and not the sheer curiosity of individuals) in events related to the exercise of public power in a democratic state, or in other matters which normally arouse the interest of society or parts of it;

public authority – an institution, agency or other legal person which is the exponent of the public power or provides services of public utility;

person exercising public functions – a person exercising the functions of public power (executive, legislative or judicial), or administering the legal person which provides services of public utility;

public figure – a person exercising public functions or functions of public concern, or any other person, the information about whom arouses the public concern due to his/her status or position in society or due to other circumstances;

document of a public authority – a document issued by a public authority or by a person exercising the functions of public power;

communication by a public authority – a statement made in public by a public authority or by a person exercising the functions of public power on behalf of a public authority;

mass media – the means of mass communication, whether printed or electronic, and the journalist;

journalistic investigation – a reasonable study of facts, conducted by the mass media, in order to produce a journalistic story;

retraction – the refutation of defamatory statements about facts which are not true;

correction – the volunteer presentation, of oneself or on demand, of the correct version of the facts which earlier have been presented erroneously;

reply – the opinion of the person injured presented as a reply to the opinions included in a story disseminated by the mass media;

apology – a statement by which a person expresses his/her regret for having disseminated an insult or information about a person’s private life;

hate speech – any kind of expression that propagate, incite, promote or justify racial hate, xenophobia, anti-Semitism or other kind of hate based on intolerance;
Terms used in this Law have an autonomous sense and in art. 2 the Parliament has defined some terms of the law.

1. It is defamation when false information harmful to the honor, dignity and / or professional reputation of the person is disseminated. There are three forms of defamation, disseminating reports about the facts, disseminating value judgments and insults. Elements of these three forms are listed in art. 7 of the Law.

The goal of establishing defamation is to allow protection of the "good name" of the person. The law does not protect the negative aspect of the honor or dignity. For this reason, in case of protecting a person's reputation in the criminal world it is not defamation.

There can be no defamation where third parties could not create a false impression about the person, such as when the information disseminated by third parties does not identify the person concerned. Article 7 of the Law expressly mentions this.

State and public authorities cannot start an investigation in a case of defamation (see art. 9 para. 2 of the Law).

2. Dissemination of information is the process of information transmitted to at least another person than the person affected by the dissemination. The way of disseminating information is less relevant, as long as the third party understands the information transmitted to him. Dissemination is not the transmission of information only to the injured person.

3. Information is any statement of fact, opinion or idea in a form that allows its understanding by other people. At the moment, information is transmitted as text, sound and / or image. The word "text form" means any written message, regardless of the message carrier.

4. A fact is an event, process or phenomenon that had or is taking place in concrete conditions of place and time and whose veracity can be proven. This term and the term value judgments were defined to distinguish forms of defamation and therefore the object of probation in a possible litigation (see art. 7 of the Law). One has to make a clear distinction between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not likely to be found. The requirement to prove the truth of value judgments is impossible to fulfill and is a violation of freedom of expression (Lingens v. Austria, 8 July 1986, § 46). However, in case of opinions, the defendant may be required to demonstrate that his opinions are based on a sufficient factual basis, ie on certain facts. Sometimes it is difficult to determine whether a passage is an account of facts or opinions. The decision in this regard will be taken in the context of the passage used. Thus, the term "idiot" can mean in a certain context, a medical diagnosis of the person. In another context this word can be used against a person who, although is mentally healthy, proves lack of intelligence. In the first case it is actually an account of facts, and in the second case is the assessment of individual skills, i.e. an opinion. Article 25 para. 3 of the Act provide that any reasonable doubt in this regard is to be interpreted in favor of assigning the status of value judgments.

5. Value judgment is any opinion, comment, theory or idea that reflects the attitude towards a fact, whose veracity is impossible to prove. For more details on this see previous paragraph.

6. He who has disseminated his views may be held materially accountable if the value judgement is without sufficient factual basis ie if the value judgment is based on facts which did not occur or facts that have occurred, but whose exposure is distorted to falsehood.

7. Insult is the verbal, written or nonverbal expression that offends a person intentionally and is contrary to generally accepted standards of conduct in a democratic society. Insult refers to indecent language. It can only be committed with the intent to offend. In case of insult, it is contrary to "generally accepted norms of conduct in a democratic society". Once finding that the expression is contrary to these rules of conduct, the decision will be detrimental to the one who disseminated the information, because such language cannot be justified in a democratic society under any circumstances. The phrase "generally accepted rules of conduct in a democratic society" will be interpreted restrictively.

The term insult is used in the same sense as in art. 69 of the Contraventions Code. However, art. 69 does not explicitly define the concept. For this reason, Art. 69 of the Contraventions Code will be interpreted in terms defined in the Law.

8. Although the Constitution, in art. article 34. para. 5, prohibits censorship in mass media, the definition of "censorship" was given only in the law, after more than 16 years after the adoption of the Constitution. In the Law, censorship is "– the unjustified distortion of journalistic material by the management of a media outlet; the unjustified ban on disseminating certain information, imposed by the management of a media outlet; orders given to the media outlet or its staff as to their editorial activity, or any form of barring the printing or dissemination of information, effected by the public authorities or persons occupying public posts Censorship can take two forms: a) the prohibition of disseminating or distortion of information by the management of the media institution, and b) interference with the editorial work of the media institution or its employees or preventing the distribution or disseminating information by public authorities or persons exercising public functions.

In case of the first form, one does not mean any interference in journalistic work, but only those which cannot be justified in terms of journalistic ethics or technique. The phrase "mass media management" refers both to the administrator of the media institution and other people in the media institution who can intervene, by virtue of their duties in the contents of journalistic material or prohibit the dissemination of this material.

Interference by public authorities or persons exercising public functions cannot be justified under any circumstances. Public authority is any organizational structure or body established by law or by a legislative act, acting as a public power in order to achieve public concern. The term "person holding public office" has an autonomous meaning and is defined below.

The law contains a special article on the prohibition of censorship (Article 5). For more comments on censorship see comments on this article.

9. Disseminating information about an individual can affect his private life or family. Legal entities cannot have "private" or "family" life. Neither the Civil Code nor any other legislation define what should we mean by 'information on private and family life". The law defines the information about private and family life as any information, including images, on family life, home life, correspondence and its contents, health and physical defects, sexual orientation and life of the person, while the person counts reasonably, on privacy.

The law defines comprehensively information items falling under the term 'information about private and family life ".A state employee may not invoke privacy in the sense of this law to prohibit being filmed while in a public place.

Private and family life does not end at the door of the home. The person is entitled to the right to privacy when being in public places when one takes measures to protect privacy. If the person intentionally isolated in an area with limited visibility in a public place this will be interference in his private life. However, the fact that there has been an interference with private or family life it should not automatically mean that the interference is unjustified. In each concrete case it should be determined whether the public concern in knowing this information outweighs the interest of the person concerned not to disseminate information (see art. 33 para. 1 of the Law).

Application of legal sanctions or dismissal on dishonorable grounds is not included in the category of private information whose dissemination is sanctioned. Although it's unpleasant information, knowing it may be important in defending the interests of other individuals.

The right to respect private and family life does not extend to information about private and family life disseminated with the consent or acquiescence of the person or obtained in public places when one cannot rely reasonably on privacy (see art. Article 10. 2 of the Law). Thus, this right shall not extend to information in the CV of the person placed with its consent or acquiescence on a web page with unrestricted access.

10. Freedom of expression aims to inform the public about matters of public concern. Public concern in the sense of the present law, is the concern of the society (and not mere curiosity of individuals) into the events related to exercising public power in a democratic state or to other matters that normally arise the interest of society or a part of it. The exercise of public power is always a matter of public concern. On the other hand, certain situations, which usually do not raise any public concern could due to certain events become public. Thus, certain data about private life, such as, for example revenues of the individual, could become public after the person decides to run for public office, even if until then there was no public concern in knowing this information. The greater the public concern the more justified is the interference with the right to respect private and family life.

The phrase "public concern" should be interpreted broadly. This interest can come from the whole society or a part thereof. However, public concern is not a mere curiosity of individuals. According to art. 25 para. 2 of the Law, any reasonable doubt about the status of public concern or curiosity shall be construed in favor of granting the status of public concern.

11. As reflected in art. 11 of the Law, persons exercising public functions should show greater tolerance towards the press in the interest of their work, and sometimes even private life. On the other hand, according to art. 28 of the Law, the press will not be held responsible for reporting statements made by persons exercising public functions at meetings of public authorities. A person exercising public function is the natural person who exercises public functions (executive, legislative or judicial) or natural person who administers the legal person that provides public services or to its subdivisions.

12. In addition to the phrase "person who performs public functions", the Law uses the phrase "public person". Public person is the person exercising public functions or another person who by virtue of status, social position or other circumstances raises public concern. Public bodies must show greater tolerance towards the media in terms of interest about their work and their private life. However, this does not mean that public persons have no right to respect their private and family life (for more details on this see Von Hannover v. Germany, 24 June 2004).

The element that raises public concern may be the status of the person (position held), social position (belonging to a notorious family or the notoriety of the person itself) or any other circumstances. Depending on the item that raises public concern, public figures can be "perfect", ie the public concern always remains on them, and "imperfect", to which the public concern vanishes with the change of status or social position of the person. An example of "perfect" public persons could be the royal family. Public officials or celebrities fashionable figures are examples of "imperfect" public figures.

Unlike the "person holding public office", which can be only one person, "other persons who because of status, social position or other circumstances arouse public concern" can be both individuals and businesses. In the case of Timpul and Anghel v. Moldova, ECtHR has applied the concept of public figure as well to a private company that decided to participate in transactions involving significant public funds (Timpul and Anghel v. Moldova, 27 November 2007, § § 33 and 34).

13. Society must have confidence in public administration. For this reason, it can assume as true any information received from the public authorities. Public authorities can disseminate this information through documents or communications. The press will not be liable for simply taking over the information from this document or communication, even if it is found later that false information was disseminated (see art. 28 para. 1 letter. a) of the Law).



A public authority document is the document issued by a public authority or a person exercising functions of public power. Communication of the public authority is a statement made by a public authority or on its behalf by a person exercising public functions. While the document is written, the communication is made orally.

The fact that subsequently it was found that the document was issued by another person from the public authority than the one who had the right to issue does not remove the immunity of the press. The guarantee of art. 28 para. 1 letter. a) of the Law extends only to the communications made on behalf of public authority. It does not apply to communications made by the person exercising public functions of its own, a situation which falls under Art. 28 para. 2 letter. a) of the Law.

14. Mass media as defined under the law is the means of mass information, printed or electronic, as well as the journalist. To this end, the legal form or the accreditation of the person is irrelevant, as long as it proves that he/she is performing journalism.

15. According to journalistic ethics, mass media must reasonably investigate the information prior to dissemination, ie to carry out an investigation (see art. 4. 2 of the Law). Journalistic investigation is a reasonable investigation of the facts by the media institution to prepare a journalistic material. The journalist should not become a second prosecutor and clarify all the facts. Before dissemination, in order to investigate the information to be disseminated, he must only take measures considered reasonable. Reasonable does not mean all possible measures, but only those that can be dictated by technical and journalistic ethics, given the limited possibilities and limited time available to journalists. In each concrete case, one will examine whether the measures were reasonable. If the measures were not reasonable, it shall be deemed that the journalist has not honored its professional obligations and is not entitled to the guarantees provided by Art. 29 para. 5 of the Law.

16. After finding that a person has been defamed or his privacy was violated, the affected person can be compensated by monetary compensation and non-proprietary remedies. Thus, if the media institution sees before the judge identifies that that the facts have been presented previously in wrong light; it can make a correction, voluntarily, on its own initiative or upon request. Opinions cannot be corrected.

The person who is considered adversely affected by dissemination of reports about the facts may request retraction of facts. Unlike correction, which requires clarification of inaccuracies, retraction is infirming of false facts prior disseminated. Retraction can be ordered in case of disseminating value judgments, when the value judgment was not based on a sufficient factual basis (see art. 7 para. 5 of the Law). In this case, the facts on which the value judgments was based will be retracted, and not the value judgment. The text of the retraction will be indicated in the law suit (see art. 18 para. 3 of the Law). The retraction procedure is provided for by art. 26 of the Law.

In case of disseminating value judgments without a sufficient factual basis by the media, the person may request the right to reply. The reply is the answer of the affected to the views expressed in a disseminated material. The right of reply shall not be granted in case of reports regarding the facts, and if the judgment value was not disseminated by the media. The procedure of making a reply is provided by art.27 of the Law.

In case of an insult or dissemination of information about private and family life, the person affected may request apologies. Apology is a statement by the person who expresses regret for the insult or disseminating information about private and family life. The procedure of expressing apologies is not provided by the law.

17. Hate speech is any form of expression that causes, propagates, promotes or justifies racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance. This phrase will be interpreted through the recommendation of the Committee of Ministers of the Council of Europe (97) 20 Member States on "hate speech". Guarantees of freedom of expression do not extend to this speech (see art. 3. 5 of the Act). This speech is prohibited by the Broadcasting Code as well (art. 6 para. 1).
Art. 3 Freedom of expression

(1) Any person has the right to freedom of expression. This right shall include freedom to seek, receive and impart facts and ideas.

(2) Freedom of expression protects the content of the information expressed, as well as the form in which it is expressed, including the information that offends shocks or disturbs.

(3) The exercise of freedom of expression may be subject to restrictions 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.

(4) Freedom of expression may not be limited unless this is necessary to protect a legitimate interest as per para. 3 and only when such limitation is proportional to the situation requiring it, with observance of the just balance between the protected interest and freedom of expression, as well as the public’s right to know.

(5) The guarantees regarding freedom of expression do not cover the hate speech or that inciting to violence.
1. Freedom of expression is one of the foundations of a democratic society, ensuring its development and self-realization of each person (Handyside v. United Kingdom, 7 December 1976, § 49). A special role in this respect is that of the press, which is “a public watchdog" of democracy. For this reason, freedom of expression of the media enjoys additional guarantees (see art. 11 Para. 3, art. 13 Para. 1 or art. 28 Para. 2 of the Law). Not only does the press have the task to communicate information of public concern but the public is entitled to receive it (see art. 6 of the Law, Observer and Guardian v. the United Kingdom, 26 November 1991, § 59). The term "person" in Para. 1 refers to both individuals and the legal entities.

Freedom of speech includes freedom to seek, receive and communicate information. Since it is a "freedom", it does not oblige the state to provide information. However, if the State creates public broadcasting institutions, it is obliged to enact legislation to ensure its editorial independence (Manole and others v. Moldova, 17 September 2009).

When a person disseminates the information, freedom of expression is applicable even if the disseminated statements belong to a third party. Freedom of expression is even applied when the person is punished for having submitted limited access information to an unauthorized person (Guja v. Moldova, 12 February 2008, § § 50-53). It covers the artistic or commercial expression. Freedom of expression is applicable in case of obliging journalists to disclose their sources (Goodwin v. the United Kingdom, March 27, 1996) or searching the journalist's home for that purpose (Roemer and C. Schmidt Luxembourg, 25 February 2003).

Not only preventing the dissemination of information, but subsequent punishment for dissemination of information or jeopardizing future journalistic work is an interference with freedom of expression. In this respect, it is not relevant to what extent the person was discouraged to disseminate information or severity of sanctions. Thus, in the case of Thoma v. Luxembourg (decision of 29 March 2001) ECtHR found that there has been an interference with freedom of expression, when the defendant was obliged to pay compensation for defamation in the amount of one Luxembourg franc. In extreme cases, freedom of expression may require the state's obligation to protect journalists from violent acts or threats of violence.


It is not freedom of expression when the person seeks or receives information without the aim to disseminate it further.

2. Freedom of expression does not refer only to a certain category of information or forms of expression (Hadjianastassiou v. Greece, 16 December 1992, § 39). It refers not only to reports of facts and opinions that are favorably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb the State or any part of the community (De Haes and Gijsels v. Belgium, 24 February 1997, § 47). When a person wants to disseminate information, the State cannot dictate or criticize the form in which this information is disseminated.

3. The state should not intervene in the process of searching and receiving information for the purpose of disseminating, or the communication of information such as provided in par. 3 and 4 of this article. Par. 3 provides three conditions to restrict freedom of expression: the restriction should be "prescribed by law", pursue one or more of the purposes specified in this paragraph and be "necessary in a democratic society". The phrase "prescribed by law" has the meaning of that phrase in Art. Article 10. 2 ECHR, ie to be interpreted broadly, refers to both legislation and other normative acts. Legitimate aims listed in par. 3 are the same as those of art. Article 10. Para. 2 ECHR and have the same meaning.

4. Para. 4 depicts the phrase "necessary in a democratic society". This is to be interpreted in the light of ECtHR case law.

5. Guarantees of freedom of expression do not extend to hate speech or hatred or violence. The term "hate speech" is defined in art. 2 of the Law. The phrase "speech that incites to violence" defines the speech that calls for violence, followed by actions of the person aimed to generate violence. The call to change through nonviolent methods of governance is not "speech that incites violence".
Art. 4 Mass media freedom of expression

(1) The state shall guarantee the freedom of expression of mass media. None can prohibit or prevent mass media from disseminating information on matters of public concern, unless so prescribed by law.

(2) Mass media has the task to inform the public on matters of public concern and carry out, in a manner corresponding to its responsibilities, journalistic investigations on matters of public concern.

(3) In addition to the guarantees provided in para.3, mass media freedom of expression also covers possible recourse to a degree of exaggeration, or even provocation, provided that the exaggeration or provocation do not distort the substance of facts.
1. Freedom of expression is guaranteed both in art. 4 of the Act, as well as in art. 32 of the Constitution. Mass media may be prohibited to disseminate information only in the manner provided by law. The law, in art. 22, provides as an action guarantee measures the ban on dissemination of disputed information. Even after the journalistic material has been prepared, the law allows, as an action guarantee measures, the seizure of the print run that contains the disputed information. Article 6 Para. 3 of the Law also allows for the confiscation and liquidation of the media in question. All these prohibitions are necessary in the process of execution of justice. Executive power alone cannot prevent the dissemination of information, this represents censorship.

2. The task of mass media is to inform the public about public information. In the process of accumulation and dissemination of information, it must comply with professional obligations. These are set out in the Code of Ethics for Journalists in Moldova, signed in the new version on 7 June 2011 (the "Code of Conduct"). This refers to the accuracy and verification of the facts, separating facts from opinions and commercial communication, the obligation to correct errors and granting the right of reply, denouncing censorship, protection of journalistic sources and journalists’ relationship with sources of information, privacy, the presumption of innocence and rights of minors, vulnerable persons and discrimination. In the process of gathering information to ensure its accuracy, journalists make use of journalistic investigation. The phrases "investigative journalism" and "public concern" are defined in art. 2 of the Law.

3. The media is the "watchdog of democracy". This task cannot be performed effectively without some degree of flexibility granted to the freedom of expression of the media. Information disseminated by the media may contain exaggerations and even challenges, but must be sufficiently precise so as not to misinform. The inaccuracy that does not misinform and if it does not change the essence of facts (e.g. journalist reported a theft. The person concerned in the article does not dispute that theft, but claimed that the alleged theft size was shown incorrectly).

Art. 5 Prohibition of censorship in mass media

(1) The editorial independence of mass media is provided and guaranteed by law. Censorship is prohibited.

(2) Any interference in the editorial operation of mass media is prohibited unless so prescribed by law. Where such a prohibition is provided by law it shall be interpreted restrictively.

(3) It is prohibited to establish bodies of public authority with the purpose of exercising prior control over the information to be disseminated by the mass media.

(4) Shall not be considered censorship the obligation imposed by a court final decision to disseminate or withhold dissemination of certain information, as well as the obligation imposed by law to disseminate certain information.

(5) Censorship or any other way of constraining mass media to disseminate, to not to disseminate or partly disseminate certain information shall incur administrative liability.

(6) Intentional hindrance of the mass media activity, intimidation or illegal prosecution of mass media shall incur criminal liability.
1. According to Article 34, Para 4 of the Constitution, public and private mass media is obliged to provide correct information to the public. The term "correct" refers to ethics compliance. Article 5. Para. 1 of the Law guarantees the editorial independence of public and private media and prohibits censorship within those. Editorial independence refers to the process of search and communication of facts or ideas, i.e preliminary control of information. It does not exclude consequent sanctioning of the media for dissemination of information. The term "censorship" was defined in art. 2 of the Law. Censorship can be applied to both public and private media. However, Para. 5 refers to criminal liability only in the public media censorship.

2. Para. 2 limit the interference in media activities only to situations provided by law. The term "law" in this sense, is synonymous with the term "legislation". However, this legislation must be sufficiently clear to exclude arbitrary. Para. 2 allows only narrow interpretation of these provisions.

3. Para. 3 prohibits the creation of public authorities for prior control of information to be disseminated by the media. But it does not prohibit the creation in the media of units responsible for compliance with journalistic ethics and technique.

4. The obligation to disseminate information imposed by court order shall not constitute censorship (e.g. publication of retractions) or not to disseminate information (e.g. prohibition under art. 22 para. 3 letter. a) of the Law).

The obligation imposed by law requiring disseminating certain information shall not be considered censorship (e.g. broadcasting announcements provided by art. 17 of the Broadcasting Code). However, the law should provide for such an obligation only for emergency situations and for general interest.

5. Para. 5 suggests that censorship in the public media and illegal deliberate hindrance of media activity should constitute a crime. The draft law was accompanied by a draft to supplement the Criminal Code. However, that draft was submitted in a separate legislative initiative, which has not yet been considered by Parliament.



  1   2   3   4   5   6


The database is protected by copyright ©essaydocs.org 2016
send message

    Main page