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

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Art. 6 Public` s freedom to be informed

(1) Any person has the freedom to receive information of public concern via mass-media.

(2) Protection of honour, dignity or professional reputation shall not prevail over the freedom of the public to receive information of public concern.

(3) Seizure of the print run or liquidation of mass media may only be ordered by court in a final decision if it is necessary in a democratic society in the interests of national security, territorial integrity or public safety, for preventing the disclosure of state secret information.
1. Para.1 establishes a person's right to receive information disseminated by the media. However, this right cannot be interpreted as an obligation of the media to transmit information to the public or a specific person or a certain type of information requested by the person.

2. Honor, dignity and reputation of the person are values ​​protected by law. However, this does not mean that they prevail over freedom of the public to receive information of public concern. Although Art. 32 Para. 2 of the Constitution is not very explicit in this respect, this norm must be interpreted in terms of international treaties to which Moldova is party, including art. 10 of ECHR. In each case, the solution is to be taken as prescribed by art. 3. 4 of the Law.

3. Seizure of the print run or liquidation of the media in question can be as extreme measures, ordered by a court. However, these measures should be dictated by national security, territorial integrity or public safety or to prevent disclosure of information constituting state secret. Approval of these measures to protect other legitimate aims listed in Art. 3. Para 3 of the law are not allowed. The fact that national security is affected does not mean that confiscation of the print run or liquidation of the media can be ordered automatically. The measure must be strictly "necessary in a democratic society", i.e. convincing justification that the danger could not be removed reasonably, by other measures. In the case of Kommersant Moldova vs. Moldova (Decision 9 January 2007), the ECtHR found that while articles published in the newspaper were not liked by the Executive, the liquidation of the newspaper was contrary to art. 10 of ECHR on the grounds that "the courts did not specify which elements from the articles of the claimant were problematic and how they endangered national security and territorial integrity of the state or defamed the President and the State. In fact, courts have avoided any discussion of the need for interference. "

Art. 7 The right of an individual to protection of honour, dignity and professional reputation

  1. Any person is entitled to the protection of his/her honour, dignity and professional reputation injured by the dissemination of information based on false facts or value judgements without sufficient factual basis, or by slander.

  2. Any person injured by dissemination of factual information may have his/her rights re-established if the following conditions are met cumulatively:

  1. the information is false;

  2. the information is defamatory;

  3. the person to whom the information refers can be generally identified.

(3) The person injured by the dissemination of information concerning false facts may require the retraction or correction of the information disseminated and the compensation of moral and material damages caused.

(4) Any person injured by the dissemination of value judgements may have their rights re-established if the following conditions are met cumulatively:

  1. the value judgements are not based on sufficient factual basis;

  2. the value judgements are defamatory;

  3. the person to whom the information refers can be generally identified.

(5) In the case of value judgements lacking sufficient factual basis, the person injured may require the retraction or correction of the information, or the publication of a reply, and the compensation of moral and material damages thus caused.

(6) An insult is when the following conditions are met cumulatively:

  1. the verbal, written or non-verbal expression does not correspond to generally accepted norms of civilised behaviour in society;

  2. the expression concerns a generally identifiable person.

(7) In the case of insult, the person thus injured may require apologies and the compensation of moral and material damages caused.

(8) Nobody shall be held liable for the use of humour and satire unless such styles mislead the public as to the facts.
Article 7 of the Law on freedom of expression has a name similar to that of art. 16 of the Civil Code and seeks to crystallize and detail its provisions. The name of the article can be considered as excessive in relation to the limited scope, but was preserved by the authors under the existing legal traditions of Moldova.

1. Para. (1) clarifies the scope of the article. Thus, the article distinguishes three types of injury to the honor, dignity or professional reputation it covers: a) disseminating false reports about the facts, b) distribution of value judgments without sufficient factual basis, and c) insult. Each type has different rules for the defense of the person harmed by this information. Even if these conditions are met, the state and public authorities can not start defamation actions (see art. 9 Para. 2 of the Law).

2. The first category of information is referred to in Para. (2) and (3). The meaning of "fact" was given in art. 2 of the Law. The account of the facts, i.e. communication about an event, process, phenomenon that occurred in the past or currently occurs in concrete circumstances of place and time can be both true and false. If that does not correspond to reality and violates the honor, dignity and professional reputation of any person, the person disseminating the information is liable legally.

Restoring the rights of a person will only be done if it was found that the information was false. Verification must be made in relation to the time of dissemination and not in relation to when the court decision was issued. If public information is disseminated by the media in good faith and respect for other professional obligations, material liability will not be ordered (see art. 29 Para. 5 of the Law).

Defamatory nature of the information is not presumed. This must be proved by the claimant (see art. 24 Para. 1 letter. B) of the Law). Usually information that tells about violations of the laws and rules of coexistence (morality), and thus makes a person be condemned morally by public opinion or some individuals in particular is considered defamatory. The legislator did not specify which the defamatory information is. Such a list would not be welcome, because it would unduly restrict the protection of honor, dignity and professional reputation of the person. On the other hand, determining the nature of the defamatory information is, in many cases, a difficult task to judge. Some information can be described both as defamatory and deprived of this feature, according to the perception, the subjective assessment of the actual situation, the context, and people among whom the information is disseminated. And since "defamation" is a relative phenomenon, setting it requires a thorough examination, detailed analysis of the parties' arguments. In case of reasonable doubt as to whether the information is defamatory, the situation will play against restricting freedom of expression (see art. 25 para. 6 of the Law).

The request of the person to defend his right will be rejected if the information disseminated does not allow reasonably identifying it by an objective and well informed observer. To talk about a "specific person" does not require naming him/her; it is enough that it can be identified without fail in the context of communication. However, one cannot start a legal action to defend honor, dignity or professional reputation of a general number of people, such as people, the population of the administrative unit, or a social group.

If the source or author of information dissemination is not known, there will be filed a request under the procedure on finding facts that have a legal value (see art. 14 par. 2 of the Law). In this case, neither compensation will be sought, nor retraction will be claimed. A court decision will ascertain that information disseminated is false or value judgments are not based on a sufficient factual basis.

3. Legal liability for false reports about the facts may be exercised by two means: 1) correction or retraction with regard to the information, 2) moral and material damage caused. Legal liability will be imposed only if all three conditions listed in Para. 2 have been met.

Both correction and retraction are defined in art. 2 of the Law. Since the correction can be done only voluntarily and only until the admission of the action, it cannot be ordered by the judge through a decision the decision will only order the retraction of information.

In determining the material damage, the provisions of the Civil Code will be applied. In case of moral damage compensation art. 29 of the Law will be applied. If, after completing the examination of the case by the first instance, there will still be a reasonable doubt about the existence and volume of moral damages, the court will award compensation in the amount of 1 leu (see art. 25 Para. 4 of Law).

Injured person can seek compensation for moral damage without seeking a retraction or correction. However, even in this case in the law suit one should indicate the injuring information, and the court must determine if it meets all three conditions listed in Para. 2.

4. Par. (4) and (5) refers to the dissemination of "value judgments without sufficient factual basis". This phrase is defined in art. 2. The ECtHR case law calls them «excessive opinions". Value judgments can be precious or worthless, negative, founded or unfounded, compelling or questionable, progressive or reactionary, etc. They cannot be retracted by the decision of the court. They can be discussed by controversy, i.e. answer (reply, comment).

According to ECtHR case law, where a value judgment is based on facts, it should not be considered defamatory as long as the facts are reasonably accurate and provided in good faith and as long as the value judgment is not intended to lead to a false conclusion, even if this is possible. Legal liability will be employed only if all three conditions are met as listed in par. (4). For more details see this comment in Para. 2.

5. The legal regime for the restoration of rights injured in case of excessive opinion is similar in case of reports of false facts (see comments in Para. (3), except that in this case one adds the option of publishing a reply option, for the case when the injured person will consider that it is not the correction, retraction, but rather a reply will restore the proper rights violated. If the right to reply is granted the retraction will not be granted. The rules on the performance of a reply are set out in art. 27 of Law.

6. Par (6) provides conditions that can held liable for any personal insult. The term "insult" was defined in art. 2 of the Law. Before adopting the law, the liability for insult was not expressly provided for in the civil law, but was mentioned by the Code on contraventions.

7. Insults cannot be "repaired" by retraction, correction or reply, as this would be either immoral (in case of reply) or absurd (in case of retraction). Therefore the only way to restore the right violated is expressing an apology. The term "apology" is defined in art. 2 of the Law par. (7) and art. 33 Para. (2) are the only cases where an apology may be required under a legal standard, or, in other cases of defamation - the false information or excessive opinions - the legally required and apologies cannot be granted. Sure, they can be made voluntarily, but this relates to the moral dimension of the person.

8. Par. (8) provides that "no one shall be held liable for humorous and satirical style if its usage does not mislead the public about the facts". Humorous and satirical genre allows a higher degree of exaggeration and even provocation. Moreover, to provoke and cause agitation is the very essence of satire. Thus the authors and disseminators of the parody and caricature are protected. However protection exists as long as it does not misled the public about the facts. In other words, in context, from the notes clearly visible from the newspaper or Internet sites one should make it clear that the facts presented is a satire, a parody, not a scenario that actually took place. There are cartoons, satire that are not acceptable in a democratic state not because they are defamatory or misleading, but because their message is destructive and reprehensible and is found in other legal actions. For example, in Leroy v. France (decision of 2 October 2008), the ECtHR examined a drawing that refers to the events of September 11, 2001 in the United States of America, when there were terrorist attacks directed against the WTC. Thus, two days after the attack, drawings were published symbolizing the attack (four high-rise buildings which collapsed in a cloud of dust after being pierced by two planes). The drawing was accompanied by a text that was a paraphrase an advertising slogan of a famous trademark, "We have all dreamed of this ... Hamas has done it" In France, the cartoonist has been punished for complicity in condoning terrorism, and the ECtHR found the penalty were relevant because the intentions of the claimant were alien to persecution and terms used show that the claimant judged favorably of violence directed against thousands of simple people.
Article 8. Immunity in defamation cases

A defamation law suit cannot be started for statements made by:

a) the President of the Republic and Members of Parliament in exercise of their mandate;

b) by participants in the trial, including witnesses, criminal investigation body or the court in a criminal investigation or a trial;

c) in requests, letters or complaints regarding the violation of rights and legitimate interests, filed with public authorities for examination.
There is a category of relationships that have immunity against defamation processes. This is explained by the need that in certain circumstances, some people mast have an absolute free speech. Similar immunities are provided by art. 71 and 82 of the Constitution. Article 8 lists exhaustively these types of relationships.

a. The President and MPs of the Parliament of Moldova are granted immunity in cases of defamation. However, immunity refers only to statements pertaining to the mandate. "Exercising the mandate" should be understood as a functional exercise, and not the term of office for which they were elected. This was emphasized in the Constitutional Court decision no. 8, 16 February 1999. Although it is sometimes difficult to distinguish when the defamation is made during the mandate, the context, content, purpose and time of the declaration will ease this task. Thus, a statement made in a Parliament session or in a formal speech will be one in the exercise of the mandate. But if it's a celebration or a private interview relating to matters that are not related to job descriptions, we cannot speak of "mandate". Such immunity does not contravene the right of access to justice guaranteed by art. 6 ECHR (see for more details dec. Kart v. Turkey, December 3, 2009).

Sure that the President, and members, as political actors, are in a constant struggle for power, and during the mandate may commit abuses by their statements. If they occur, they are regrettable. In a democratic society they can be controlled by other means, usually through the media. Sanctions that will follow can only be political.

b. Let. b) refers to statements made in legal proceedings. This immunity was established to facilitate the examination of criminal, civil or administrative cases. Immunity extends to statements made by persons involved in the prosecution or court proceedings. That does not mean that the parties or witnesses have the right to mislead the authorities without being punished. Crimes against justice (Chapter XIV of the Criminal Code of 18.04.2002) such as false denouncing, false declaration, etc.., remain applicable to exclude causing excessive damage in this highly sensitive area. But offense is only that action which is intended to mislead the criminal prosecution body or court. If this intention does not exist, the person will not be liable to any civil liability for defamation or criminal liability for committing crimes against justice. In the case Mariapori v. Finland (decision of 6 July 2010), the ECtHR ruled on the sanctions for alleged defamation made by a witness in court. The Court hinted that limiting freedom of expression of a representative of one party (the defendant in this case) may be considered necessary in a democratic society only in exceptional cases. Although the parties' freedom of expression should not be unlimited, from considerations of finding the "equal footing" and the like, you can opt for the free exchange of views between the parties. Moreover, contradictory nature of procedures gives the other party the opportunity to discredit the accusations coming from a party.

Let. b) reflects on the alleged defamation by the information contained in judicial decisions in the minutes of the hearing, the ordinances of the prosecution and those empowered to resolve cases of administrative offenses. For their challenge one may exercised remedies against the act in question.

Immunity conferred by letter. b) is a privilege of procedures, not of the people who appear in these proceedings. For this reason, it extends only to the defamation made in legal proceedings. Any statements made outside the court or criminal measures will not benefit from this immunity.

C. Let. c) refers to all types of addresses (calls, letters, complaints, etc.). the authority to examine and solve various issues related to the violation of rights and legitimate interests. To this end, it is irrelevant whether the letter was satisfied or not. It is important that a letter be addressed to public authorities, even if it is not competent to solve it.

These letters may refer to individual aspects (complaints against authority / person who have violated petitioner's right) or more general (e.g., notification that someone was bribed in a particular institution or someone committed a crime). In the case Siryk v. Ukraine (decision of 31 March 2011), ECtHR examined the situation in which the claimant sent to the State Tax Administration of Ukraine a letter complaining about the management of the State Tax Service Academy, in the subordination of State Tax Administration in which her son was a student before being expelled, accusing the management that it would be involved in illegal activities and corruption. The claimant filed the complaint with superiors through private correspondence and did not make public her displeasure. A lady, who at that time was senior vice president of the Academy, initiated defamation against the claimant and won. ECtHR reiterated that a citizen can notify the competent state authorities officials whose conduct they find to be illegal and irregular conditions is one of elements of a state of law. A slightly different situation was examined by the ECtHR in the case Şofranchi v. Moldova (21 December 2010).

Publication in the press of such letters, at the petitioner's initiative, together with addressing them to authorities changes the situation radically. In this case, it is clear that petitioner's purpose is not to simply ask the competent authorities to do their duty however one wishes the coverage of one’s own position. Thus, immunity does not apply and the case will be examined in general, like any other disseminated statements.

When receiving a law suit from which it is clear that the statements were made in the circumstances mentioned in art. 8, the law suit will be refused under Art. 169 par. 1) of the Civil Procedure Code. If the judge is not sure whether defamation has been made "in the mandate" or during "legal proceedings", the judge will start the case, will clarify this further and if it finds that the immunities will be applied, will stop by closing the process under art. 265 a) of the of the Civil Procedure Code.

Art. 9 The freedom to criticise the state and the public authorities and persons holding public positions

(1) Any person shall have the right to criticise the state and the public authorities.

(2) The state and the executive, legislative and judicial authorities may not file law suits on matters of defamation.

(3) The state and the executive or legislative authorities shall not be protected by either criminal or administrative law against defamatory statements.

(4) The persons exercising public functions may be subject to criticism, and their actions verified by the mass media concerning the way in which they exercise or have exercised their functions, if this is necessary in order to ensure the transparency and responsible discharge of their functions.
1. Article 9 clearly underlines the general right to criticize the state, public authorities and persons exercising public functions. This article must be viewed in the context of art. 4 and 6, which refer to the role of the media in a democratic society and the public's right to be informed on all matters of public concern - both positive and negative. It is assumed that any criticism that aims at the state and public authorities is of public concern, that prevails in all circumstances, motivating a general prohibition of civil actions for defamation and partial protection in criminal and minor offense (the exception is the body of justice, which may be protected by criminal law and contravention).

2. Par. 2 provides that the State as a legal entity, and public authorities as legal entities, cannot start civil defamation actions. It is considered that the State or public authorities may not have the legal sense, professional reputation. This does not refer to persons exercising public functions (see Para. 4).

3. Par. 3 refers to the kind of defamation of public authority which may result in contravention or criminal liability. It is assumed that only the judicial authorities could be protected by criminal law against defamatory or minor offense, not the executive, legislative or the state as a legal entity. Therefore, damage to the image of the state cannot be considered as a circumstance that would affect qualification or punishment by public law.

4. Par. 4 deals with the criticism of persons exercising public functions. The term "person holding public office" is defined in art. 2 of the Law. They are protected against defamation. However they have to bear criticism, as long as it is about exercising their powers responsibly. Where criticism is directed against the government, politicians and public authorities there is a likelihood of enunciation of violent expressions of harsh criticism that will be tolerated by the ECtHR to a greater extent. Even if people holding public positions are not politicians, their level of tolerance is not as high, in terms of their professional activity, the media has a right to comment at large, including in a very critical manner.

For example, the decision Thorgeirson v. Ireland (25 June 1992), , it was ascertained that, although the article contained very violent terms - police officers were characterized as "beasts in uniform", "individuals reduced to a mental age of a newborn as a result of immobilization methods learned and used by police brutality spontaneous and those employed to guard restaurants "and police references to" intimidation, forgery, unlawful actions, superstitions, arrogance and stupidity "-the language used could not be considered excessive, considering the fact that the articles in question related to police reform.

There are people who, while exercising "private" functions shall be treated as persons exercising public functions, if the institutional dimension and the importance of functions performed is high. Thus, for example, the European Court in Chalabi v. France (decision from 18 September 2008) recognized that the statutory manager of the Grand Mosque in Lyons was such a person and therefore falls under the standards applicable to public figures.

Although the limits of acceptable criticism against political figures and public officials holding public functions are wider than for individuals, the level of tolerance is lower in relation to judges (see dec. ECHR Nikula v. Finland, 21 March 2002). They can be criticized, but free criticism is not tolerable due to the special role that justice holds in society and the confidence it must enjoy in the public eyes in order to successfully carry out their obligations. That is why, in order to protect this confidence against destructive attacks that would be unfounded, art. 9 provides the possibility of applying criminal sanctions for defamation of judges. That does not mean that journalists should be afraid to criticize judges, as long as they are intended to inform the public about topics of general concern, are in good faith and properly investigate the facts. Excessive terms enjoy greater protection in cases when they come in response to the provocation launched by related subjects.

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