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



Download 465.53 Kb.
Page4/6
Date conversion16.05.2016
Size465.53 Kb.
1   2   3   4   5   6

Article 14. The review procedure for defamation cases


(1) Defamation cases shall be reviewed by a process applied to litigations as per procedures set forth in this chapter and the Civil Procedure Code.

(2) Defamation cases, when the source that has disseminated the defamatory information or the author of the statement are not known, or if the legal entity which has disseminated the information has been dissolved and the author of the article or of the defamatory statement are not known or have died, shall be reviewed in accordance with the procedure of finding the facts carrying legal value.
Chapter 2 of the Law only refers only to civil defamation.

1. Civil procedural legislation of the Republic of Moldova distinguishes five kinds of civil procedures: administrative litigation, administrative litigation procedure, ordinance procedure, the special procedure and the procedure for declaration of insolvency. According to para. 1, defamation cases are examined in an administrative litigation. In cases of defamation, civil action is brought by the injured person or other interested person vested with that right under the law and is about starting a court action against the person guilty of disseminating false information. Accordingly, the person about whom information was disseminated that denigrate the honor, dignity and professional reputation is called the claimant and the person allegedly guilty of defamation is called the defendant.

While considering cases on defamation the court is guided by the Civil Procedure Code, to the extent that the Law on defamation does not provide for special procedural rules.

When referring to the form and content of the law suit on defamation, the Law provides, in addition to general conditions imposed by the Civil Procedure legislation (Articles 166 and 167 of the Procedure Code) some additional requirements (Article 18 of Law on freedom of expression).

The Law under comment establishes other special rules on state tax, the category of participants in the trial, the court vested with material jurisdiction, peculiarities of guaranteeing the action, the procedure for succession of rights, etc. distributing the probation load.

2. When the source of defamatory information dissemination or the author of the information is not known, or when the legal person disseminating the information has been liquidated and the author of the article or of the defamatory information died, the cases on defamation shall be examined according to the procedure on finding the facts that have legal value.

Publication of information without giving the author in the mass media does not require anonymous dissemination of information, because in these cases the disseminator is known. Therefore the means of mass information are responsible for disseminating information that violates honor, dignity or professional reputation.

According to this paragraph, where the author or person responsible for disseminating the defamation information can not be identified (eg, information was disseminated through the Internet or anonymous letters were sent the same way, it is impossible to identify the source) or it does not exist because of liquidation or death, the reason of defamation is to be considered in a special procedure.

Special procedure differs from procedure of administrative litigation in that there is no legal dispute between two parties, since the defendant cannot be identified. For this reason, defamation cases will be examined by the court with the participation of the petitioner and interested parties (third parties).

Under this paragraph, the person injured in his rights, called the petitioner, will call upon the court with a request ascertaining the fact on the damage of honor, dignity and professional reputation, having the right to invoke only the finding of insult, not invoking claims of certain material or moral damage.

Since the author is not known or there is no disseminator or author of information, in this case the preliminary procedure provided for in art. 15 of the Law will not be followed. In this case, although not expressly provided, the request is submitted directly to the court in the deadline set in Art. 17 para. 1 of Law.

Another aspect of examination of reason of defamation in the special procedure relates to determining the jurisdiction. Thus, under Art. 283 of the Civil Procedure Code, the request on identifying defamation in the special procedure will be filed with the court from the domicile or premises of the petitioner.

In the same vein, the content of the request of identifying the defamation will be governed by the requirements set out in art. 284 of the the Civil Procedure Code. Thus, the request will indicate the elements described in Article 18 para. 2 of the Law, except for data on the defendant and the prior proceedings.

a) the fact requiring finding and goal of request;

b) the reason for the impossibility to reconstruct the fact;

c) evidence that confirms the fact and the impossibility of achieving fact finding.

The task of identifying the person who disseminated the information that harms the honor, dignity and professional reputation lays with the defamed person, who, if necessary, may request the involvement of the court. Thus, if the application was filed in a special procedure but during the examination of the cause the person responsible was identified, pursuant to art. 280 par. 3 of the Civil Procedure Code the court will remove the pending request by a final decision which cannot be appealed, explaining also the right of the petitioner and interested parties to resolve the dispute in litigation by submitting a law suit to court at the defendant premises.

In the event of such a procedural situation, one will take into account the provisions of art. 280 par. 4 of the Civil Procedure Code according to which the tax have already been paid by the petitioner in the special procedure and one shall take into account at the collection of the state tax and distribution of the expenditures to resolve the dispute in a litigation procedure.



Article 15. Preliminary request


    1. The person who considers that he/she has been defamed shall require the author of the information and/or the legal entity which has disseminated the information to correct or retract the defamatory information, grant to the person concerned the right to reply or apologise and compensate the damages caused.

    2. A preliminary request shall be submitted within 20 days from the day when the person concerned learned or should have learned about the defamatory statement. This shall be the term of limitation. After the expiry of one year from the day of defamation no request shall be made to reactivate the preliminary-request period.

    3. The person who believes that he/she has been defamed shall indicate in the request the information he/she considers to be defamatory and describe the circumstances showing that the information is essentially false or lacks sufficient factual grounds.

The procedure in actions related to defamation where the defendant is known comprises two phases: preliminary non litigation procedure and litigation procedure before a competent court.

1. According to para. 1 the person who is considered defamed may, by preliminary request, demand the author and / or legal person who disseminated the defamatory information, to correct or retract it, to grant the right to reply or express an apology and compensation for damage caused. Preliminary phase is mandatory. If that was not respected, the court will return the law suit under Art. 170 par. (1).let a) of the Civil Procedure Code. The word "may" in par. (1) refers to the remedies which the claimant may request, and not at the discretion to use the preliminary procedure.

To file a court action, the claimant must prove that he followed the preliminary procedure, ie, by non-litigation procedure, requested the author of information and / or legal person who disseminated it remedies against defamation. If the information was disseminated by several persons, the preliminary procedure will be used on each of them. If the author of information produces for media and information was disseminated by the latter, preliminary request to the mass media institution concerned will remove the need for a separate preliminary request on the author's name.

Retraction, apology and expressing the right of reply will be requested subject to the form of defamation (see art. 7 of the Law). Correction may be requested but cannot be ordered by court, because it is made voluntarily by the mass media. Injured person can seek compensation for moral damage without requiring publication of a retraction or correction. However, even in this case, the preliminary request must indicate the injuring information and it must be verified if all the conditions listed in Art. 7 are met.

Requesting moral compensation through a request is not mandatory. If the application which required only publication of the retraction, granting the right to a reply or expressing apology was rejected, moral damages may be claimed for the first time by law suit. However, if the preliminary request was accepted, the person may not claim moral damages in court, because the demand was satisfied prior and the full satisfaction of prior request is an impediment to filing the lawsuit.


The rule contained in para. 1 also provides that in case of death of the defamed person before the preliminary request, preliminary request may be submitted by the person concerned. 'Interested party' means any person who could prove a particularly close connection with the deceased. Although their relationship is important in this respect, it is not critical. It can be, for example, the deceased concubine. Interested person may request correction or retraction of defamatory information, expressing apologies and compensation for material damage, but not the moral one. Inadmissibility of compensation for moral damage results from art. 20 para. 1 letter. a) and Art. 23 para. 1 of the Law.

2. According to para. 2, preliminary request shall be filed within 20 days from the date on which the person making the request has learned or should have learnt about the defamatory information. This is the period of limitations, and the person is entitled within one year to apply for reinstatement. If the person defamed within one year from the date of defamation has not requested reactivation, that it is deprived of its right to request reactivation.

3. Through para. 3, the legislator imposes certain conditions for the preliminary request. Although this is not expressly mentioned, para. 3 shows that the request must be made in writing. Article 18 para. 4 of the Law requires that the law suit should have attached the copy of the preliminary request as well as the proof of dispatch or delivery. Therefore, the Law does not preclude the preliminary request to be sent by e-mail, provided that the fact of delivery and address where the shipment is sent belongs to the author or legal person who disseminated the information.

The request must necessarily indicate the person, the information it considers defamatory. Additionally, there should be given the circumstances that demonstrate that the defamatory information is essentially false or, as appropriate, the circumstances showing that they are not based on a sufficient factual basis.

The circumstances that prove that defamatory information is essentially false should be indicated in the preliminary request when they were disseminated reports on the facts.

It will also indicate the circumstances that prove that the defamatory information is not based on a sufficient factual basis. This can be done both by attaching the documents, and without it, but the detailed description of the facts that refute the alleged defamatory reports.


Art. 16 Procedure for preliminary request review

      1. The preliminary request shall be reviewed by the author of the information or, as the case may be, also by the legal entity which has disseminated it, within 5 days from the day when the preliminary request was received.

      2. If it is found that the information complained of in the preliminary request is false or is not supported by sufficient facts, the legal entity which has disseminated the information or its author shall admit the preliminary request and shall be compelled, as the case may be, either to correct or retract the defamatory information, grant a reply or apologise and decide upon the request to establish damages to be paid to the injured person.

      3. The correction or retraction of the information, the reply or apology shall be made within 15 days from the day when the preliminary request was reviewed, but if the information was disseminated by the mass media and the issue (program) in which it was disseminated appear less frequently than every 15 days, then the correction, retraction, reply, or apology shall be made in the next issue or program.

      4. The damages requested in the preliminary request shall be paid within 15 days from the day when the preliminary request was reviewed or within a different period of time, as agreed by the parties.

      5. In case of integral or partial rejecting of the preliminary request, the injured person may file a law suit.

      6. In case of rejecting the preliminary request due to the non-observance of the time limits, the injured person, concomitantly with the law suit, may request the reactivation of the preliminary-request period.

The law establishes the procedure for examining the preliminary request by the author of the information and, where appropriate, the legal person who disseminated this information. The purpose of the preliminary procedure in litigation on defamation results from the wish that the person who disseminated the defamatory information or the author of information can be wrong. The mandatory nature of observing the preliminary procedure provides the opportunity to correct this error in an out of court procedure

1. According to para. 1, the preliminary request is examined by the author of the information and, where appropriate, by the legal person who disseminated this information within five days after filing. The running of the five days referred to in this paragraph, will be calculated according to art. 111 and art. 112 of the Civil Procedure Code. The term starts to flow from the day following the day prior to receipt of preliminary request, but if the closing date will be non-working, the term will expire in the next day.

We consider necessary to specify what the legislature had in mind by the phrase "where appropriate". When the author of the information is its disseminator, the preliminary request will be examined individually by the author, but when the information was not disseminated by the author but by a legal person, the preliminary request will be submitted to both people.

2. If it is found that the information referred in the preliminary request is false or is not based on a sufficient factual basis, the legal person who disseminated the information or author of information satisfies the preliminary request, carrying out, where appropriate, correction or retraction of defamatory information, extending the right to reply or apology and compensation upon request of the damage caused.

If at the examination of the application, we will see that it is founded, it will be satisfied both in terms of intangible redress and compensation on damages. Under art. 24 para. 1 letter. e) the claimant must prove the existence and amount of damage caused. The decision to accept the preliminary request will be confirmed in writing.

3. According to para. 3, in case of admission of preliminary request and requesting this fact, correction or retraction of information, granting the right to reply or expressing an apology is made within 15 days from the date of examining the preliminary request and if the information was disseminated by the media and the publication or the broadcast that disseminated this information appears less often than once in 15 days in the next issue or broadcast.

Thus, in the context of meeting the requirements of preliminary requests the law establishes a general term of 15 days within which the information would be adjusted or retracted, and granting the right of reply or expressing an apology, and a special term that comes to establish an exception to the general rule.

4. Para. 4 provides the same term within 15 days from the satisfaction of the preliminary request for payment of compensation. However, through an agreement of parties one may set another deadline, even longer.

5. If the author of information or the legal person who disseminated the information refuses to satisfy the requirements from the preliminary request, the injured person may file a law suit with the competent court within the period provided for in Article 17 para. 1. Refusal may refer to all the claims raised in the preliminary request (full rejection), or only to some claims, others being recognized (partial refusal). Action may be brought in the case of full acceptance of the claims from the preliminary request if the immaterial recovery or payout of compensations was not made on time.

Regardless of whether some claims have been recognized and some not, the person defamed, if he insists in unrecognized claims may apply to the court asking for the satisfaction of remaining claims. In this case, the law suit will not be referring to the information not mentioned in the preliminary request.

6. Under par. 6, if the defamed person was returned the preliminary request because the status of limitations provided for in Article 15. 2 was omitted, the injured person may request reactivation within the timeframe of filing the preliminary request along with the law suit, indicating this requirement in the content of the application. Reactivation within 15 days does not lead to a repeat preliminary request but it is a mere acknowledgment of the justified omission of the period of limitations made by the court.


Art. 17 The time period prescribed for filing a law suit

(1) The law suit on matters of defamation can be filed within 30 days. This time period starts:

      1. on the date when the answer to the preliminary request has been received;

      2. on the date when the rejection of the preliminary request has been received;

      3. on the date when the time period for preliminary request review expires.

(2) The time periods defined in para. 1 shall be the terms of limitation.

(3) A person’s term of limitation can be reactivated when the person concerned has missed the term of limitation for valid reasons and filed a law suit within 30 days from the day when the reasons justifying the reactivation of the term of limitation have disappeared.

(4) When no claims are made regarding damages concomitantly with filing the law suit, the court of law shall reject any request for damages submitted at a later time.
According to this article, the natural or legal person who believes that his honor, dignity was injured and / or professional reputation through defamation by another known person may submit law suit to the competent court in a litigation procedure on defaimation after the exhaustion of preliminary procedure. When no author or person disseminating the information is known, the request is filed in the court within 30 days.

1. Para.1 specifically provides that the law suit on defamation may be filed within 30 days and that period runs from the date of receipt of the request to the preliminary request or from the expiry date for the examination of this preliminary request (5 days).

In calculating this period one must take into account the provisions of this paragraph and art. 111-112 of the Civil Procedure Code, according to which the period of 30 days shall begin on the day following the day of communicating the answer to the preliminary request. As for setting the date of expiry of the period of 30 days, one will consider whether the last day of the term is a working day or not. Thus, if the closing date is the weekend, it will expire the next working day, respectively, the action will be filed in court until this day inclusively. And if the closing date is a working day, the action in court will be filed not later than the next working day.

2. Para. 2 states that the period of 30 days is one of limitation, and not of lapse. In other words, this period may be reactivated by the court while presenting convincing and sufficient grounds that the request could not be physically tabled in the last days of the term.

The 30-day deadline applies to every request. Thus, after the expiry of this period the law suit will not be filled with complaints about other information.

3. According to para. 3, the person may be reactivated into the term of limitations if he omitted this term for justified reasons and submitted the law suit within 30 days after the disappearance of the reasons justifying reactivation. Reactivation is done by a competent court, one analyzes the case based on a application for reactivation accompanied by evidence proving the impossibility of fulfilling the law. Law suit on defamation must be as a separate request or one can request reactivation through a law suit.

The question of whether the reasons are justified is settled by the courts subject to circumstances invoked and the evidence submitted by the claimant by issuing a decision on reactivation or rejecting the request on reactivation. The conclusion of the court rejecting the request for reactivation may be appealed, and the conclusion by means of which the reactivation was done may not be appealed.

Reactivation will not take place if the law suit were filed 30 days after the disappearance of reasons justifying reactivation.

4. Para. 4 sets the obligation of the claimant to make all its claims on payment of losses in the request to the court. After filing the request new claims will not be formulated for material or moral damage compensation. Thus, if the claimant requested through the compensation only moral damage he could not claim compensation for material damage after request. However, if these claims were formulated in the law suit they can be reduced or increased. The rule does not apply to expenses related to trial, which oftentimes is not fully known at the time of filing the law suit.

If, while submitting the main request there were not submitted claims on damages, the court shall reject the request for damages referring to it as being late art. Article 14. Para4.

This rule was introduced to exclude the media harassment.
Art. 18 The form and content of the law suit


      1. The law suit shall be drafted in accordance with the requirements stipulated under art.art. 166 and 167 of the Civil Procedure Code.

      2. The claimant shall indicate the following, when describing the factual and legal circumstances supporting his/her case:

    1. whether the information concerns him/her;

    2. whether the information has been disseminated by the defendant;

    3. whether the information is of a defamatory nature;

    4. whether the information is based on essentially false facts;

    5. whether the claimant is a public figure under this law and whether the information concerns his/her capacity of a public figure;

    6. whether the information concerns a matter of public concern;

  1. whether the preliminary procedure has been observed;

  2. whether the defamatory information has caused material and moral damages and what is the real scope of such damages;

  3. other circumstances relevant for the case review.

(3) The claimant must indicate in the law suit the exact stories containing the facts to be retracted and the text of the retraction, or the value judgements which do not have a sufficient factual foundation.

(4) The law suit shall be accompanied by:

a) the publication carrying the information complained of, and when the information has been disseminated by broadcast media — a recording of the relevant program or, if this is not possible, an indication of the station, program, date and time of the broadcast;

b) a copy of the preliminary request with proof showing that it has been sent or handed to the defendant;

c) the answer to the preliminary request.
The law suit on defamation is the main procedural act of the claimant by means of which he brings a civil action. Compliance with the requirements related to the law suit form and content in defamation cases presents essential practical importance. If the claimant does not meet these requirements, the judge will not follow the action, but will give the claimant an opportunity to remove deficiencies, according to art. 171 of the Civil Procedure Code. If the claimant removes the deficiencies within the time allowed by the court, the request is considered filed on the date of initial presentation and the judge will issue a ruling for the preparation of judicial debates and prepare appropriate procedure acts for this dispute, provided by art. 185 of the Civil Procedure Code.

1. According to para.1 law suit is prepared in compliance with the conditions specified in art. 166 and 167 of the Civil Procedure Code. A prerequisite for the law suit is that is has to be signed by the claimant or his authorized representative as provided.

2. In addition to procedural requirements imposed by general civil legislation, the law requires the claimant to mention the following in the law suit:

a) if the information aims at him;

b) if the information was disseminated by the defendant;

c) if the information involves defamatory nature;

d) if the information is based on facts which are essentially false;

e) whether or not he is a public person under this Law and if the information aims at him as a public person;

f) if the information relates to a matter of public concern;

g) if the preliminary procedure was followed;

h) if the defamatory information caused moral and material damage and which is the real cost of such damage;

i) other circumstances relevant to the case.

While indicating this information, the claimant must submit appropriate evidence, using in this sense art. 24 of the law which differentiate between the circumstances that the claimant must prove and the information whose proof will remain on the defendant.

3. In the law suit the claimant must indicate the exact reports about the facts for which retraction is required or value judgments without sufficient factual basis and the text of retraction. Thus, in addition to presenting the source of defamatory information, eg copy of the newspaper article, picture displayed in public places in the Internet, etc.., The claimants hall demonstrate the exact passage or image that is defaming him. Simultaneously, the claimant shall indicate in his application the solution or concrete proposal clearly formulated that would retract the information, and the way it will be done having regard to art.26 of the Law. Where one will require the right of reply or apology, their text will also be attached. Retraction, the right of reply or apology are complainant’s rights. Although the items mentioned in the article. 7 of the Law are met, the claimant may not ask them. In this case, the text of retraction, the right of reply and an apology will not be annexed to the law suit.

Given art. Article 17. Para 4 of the Law, the law suit will also contain material and moral damage claimed. One can not request these through a further law suit or by filling in this law suit. The claimant may request compensation for the damage even if he did not actually requested it in the preliminary request.

4. According to para. 4, the law suit shall be accompanied by:

a) the publication carrying the information complained of, and when the information has been disseminated by broadcast media — a recording of the relevant program or, if this is not possible, an indication of the station, program, date and time of the broadcast;

b) a copy of the preliminary request with proof showing that it has been sent or handed to the defendant;

c) the answer to the preliminary request if such exist

If the claimant does not have the records of the broadcast this will be indicated in the law suit and the court will be required to compel the defendant to present it. In order to guarantee the action, the claimant may request the court to prohibit the defendant, pursuant to art. 22 par. 3 letter. c) of the law, to destroy this material.

To the law suit on defamation one also attaches other documents referred to in art.167 of the Civil Procedure Code, among which are:

- Copies of law suit and of documents, certified appropriately in a number equal to the number of defendants and interveners, if they do not have these documents, plus a row of copies for the court. If documents are made in a foreign language, the court may order the their translation as provided by law;

- Proof of payment of state tax;

- Documents certifying the circumstances on which the claimant bases his claims and copies of these documents for the defendants and interveners, if they do not have them;

- Power of attorney or other document that certify the credentials of the representative;

- Other documents and actions.



Art. 19 State tax

  1. For the law suit where retraction, apology or the right to reply are requested following the defamation shall be paid a state tax in the amount of 5 conventional units.

  2. A state tax in the amount stipulated in art.3 para.1 letter (a) of the Law on the State Tax shall be paid for the claims concerning the compensation of the material and moral damages caused by the defamation.

In property cases state tax is determined subject to the nature and value of the action, and in non-property cases and other cases provided by law, in fixed proportions according to state tax Law. When submitting a law suit containing property and non property claims, state taxes are charged in the amount specified by law, both for property claims and for non-property, calculated separately.

State tax for the requests to the court is charged before submission. As proof of payment of state tax is receipt of tax statement or a statement from transfer from the payer to the bank, which is presented in the original. Failure to comply with the payment obligation of the state tax means first of all not following the request through (see art. 171 of the Civil Procedure Code), then if in time allowed the claimant does not pay the tax, comes the return of law suit.

1. The civil action requesting the retraction, granting the right of reply or an apology is a non property action. According to state tax law for such actions there shall be paid a state tax in the amount of 5 conventional units. According to art. 3. Para.1 letter. b) of the state tax Law, a conventional unit is equal to 20 lei. Therefore, to lodge a request with regard to an action on retraction, granting the right to reply or expressing apology there shall be paid a state tax in the amount of 100 lei, regardless of the number of disputed passages.

2. According to para. 2, for claims on moral and material damage caused by defamation a state tax is payable in the amount provided for in Article 3 para. 1. letter. a) of the state tax law. According to art. 3. Para. 1 letter. a) of the state tax law for such a law suit the state tax is calculated at a rate of 3% of the action or from the amount received, but not less than 150 lei and no more than 25,000 lei from the individuals and not less than 270 lei and no more than 50,000 lei from legal persons. In this context, while paying the state tax one shall calculate the tax for the main proceedings in the amount of 100 lei, and tax for the accessory action in the amount of 3% of the claims submitted.

According to art. 85 para.4 and article 86 para. 1 of the Civil Procedure Code, the court has the right, at the request of the claimant, taking account the material situation and evidence presented, to partially or totally exempt from paying state tax and postpone or reschedule the payment of the state tax.

Exemption, postponement or rescheduling the payment of taxes will take place only upon a written request and only if the request was acted upon. In the absence of a written application, one can not comply with the request because the conditions related to the form of the law suit are not met.

One should also take into account the fact that the period of deferment or rescheduling the payment of state tax may not exceed the time of retirement for deliberation of the court decision. If the claimant has not paid taxes within the deadline set by the court, the request will be struck out and returned under art.267 letter. k) of the Civil Procedure Code.


Art. 20 The parties and participants in the suit

(1) Any person whose honour, dignity and professional reputation have been damaged by the dissemination of information can be a claimant in a defamation law suit.

(2) The person who has disseminated the information, the author of the information and, when appropriate, the person from whom the information has been obtained can be a defendant in a defamation law suit.

(3) When the law suit is filed against a person who took the information from a third party whose identity is known, the latter can become involved in the suit as per the provisions of the Code of Civil Procedure.
Civil defamation action, is usually examined in the litigation procedure, except as provided by art. Article 14. Para.2 of the Law when the application shall be examined according to the procedure on finding of facts with legal value. In civil defamation case examined in litigation, the parties are called claimant and defendant, and in the special procedure - petitioner and interested person.

1. In para. 1 the legislator makes a categorization of people who may be claimants in defamation cases. These are natural or legal persons or the interested person on behalf of the deceased. It is not allowed to institute defamation proceedings in the name of a liquidated legal person or institution on behalf of the state or the state (see art. 9 para. 2 of the Law).

According to the letter. a), the application may be filed by any person whose honor, dignity or professional reputation has been damaged by the dissemination of an information. For the purposes of these legal provisions, natural persons are deemed any person alive, irrespective of race, nationality, ethnic origin, language, religion, sex, political affiliation, wealth or social origin and of age. Any child, which is the person from the moment of birth until the age of 18, is entitled to protection of honor and dignity and if he has a professional reputation before coming of age, he is entitled to defend his professional reputation.

In accordance with art. 79 of the Civil Procedure Code, in case of dissemination of defamatory information that does not correspond to reality, with regard to children (minors) or incapable persons, actions on protection of honor and dignity may be submitted by parents, adoptive parents, guardians. Law on the Rights of the Child through art. Article 8.para. 3 gives the child the opportunity to be heard during the judicial proceedings, either directly, if the child is able to formulate opinions, or through a representative or appropriate body.

In case of minors aged between 14 and 18, the court is obliged to introduce in such causes minors with regard to whom honor and dignity must be protected and minors alleged to have violated the honor and dignity of others (Article . 58 para. 4 of the Civil Procedure Code).

According to the letter. b), the request may be filed on behalf of the deceased, if it has not filed a defamation action, by the interested person, but without the right to demand compensation for moral damage. By 'interested party' we mean any person who may be in a particularly close connection with the deceased. Although their relationship is important in this respect, it is not critical. It can be, for example, the deceased concubine. The law excludes in such a case moral damage compensation. The purpose of the moral damage is to compensate in cash the physical and psychological suffering of the person, this legal provision has its logical argument. Sufferings of the deceased can not be succeeded to request such compensation.

If the person died during the examination of the case on defamation, the succession occurs in the procedural rights referred to in art. 23 of the Law. Law maintains the ban on requesting compensation of moral damages. This prohibition does not apply only if the person died after delivery of the first court decision that ordered the collection of moral compensation.

According to the letter. c) the request may be filed by any person whose professional reputation was harmed by the dissemination of information. The legal person is entitled to ask in the court for retraction of information, publication of reply, expressing apologies and compensation for material and moral damage. The method of compensation for moral damage to the legal entity is explained in the commentary to art. 29 para. 3 of the Law.

2. According to para. 2, the defendant in defamation cases can be the person who disseminate the information, author of information and, where applicable, the person from whom information was taken.

Supreme Court of Justice Plenum, through its decision on the application of legislation on protection of honor, dignity and professional reputation of individuals and legal entities no. 8 of 9 October 2006 (p. 17) distinguishes the following categories of defendants:

"1. Natural or legal person who disseminated information that denigrate the claimant is considered defendant in disputes over honor, dignity and professional reputation.

2. Author and media body (editor, publisher, agency, another body, which carries the limitation of information) appears as a defendant in an action containing claims for retraction of information disseminated in the mass media.

3. The employer will appear as a defendant if the information was disseminated by an employee in connection with the performance of service obligations on behalf of the employer where he works (eg in the work assessment), and the individual will be drawn into the process as an accessory intervener.

4. The mass media, as a legal person under art. 2 in the Press Law acts as a defendant after publication of false information without signing them, without giving the name of the author (eg in the editorial). For reproduction of information denigrating the honor, dignity or professional reputation of the defendant by mass media, at the requirement of the applicant, they may be attracted to participate in question as co-defendants"

In considering requests filed against mass media, formed as legal entities under the law, as single or jointly with the authors of articles that injured the honor, dignity and professional reputation, it will consider whether the mass media where the information has been published stopped its activity during the examination of the case, the court will force the other defendant to retract the information in a different mass media body with a similar range or distribution (see art. 26 para. 3 of the Law).

3. If the action is brought against a person who took the information from a third party whose identity is revealed, the latter can interfere with the process under Civil Procedure Code. However, in this case guarantees may arise established by art. 28 of the Law.

By the third party one envisages both the author of the information, and any other person who held this information, even if the information leakage occurred without his will. Intervention under this paragraph shall be interpreted as the introduction into the process with the defendant of the people mentioned above as co-defendants if this is requested by the applicant, or as an accessory intervener for the defendant at his request, of a party or ex officio by the court (see art. 67 para. 2 and 3 of the Civil Procedure Code).
Art. 21 Jurisdiction

Defamation litigations shall be reviewed at first instance by the law courts, as common law courts.
When adopting the law, there existed specialized economic and military courts. The practice of economic courts was to examine the defamation actions involving protecting professional reputation brought by a legal entity to another legal entity, although the action was an alleged crime, not an economic activity. Through art. 21 it is provided that the common law courts are courts that will examine all defamation actions, ie the honor, dignity and professional reputation.

In terms of territorial jurisdiction according to Art. 38 of the Civil Procedure Code, the action will be brought to the court from home or location of the individual defendant or the court in whose jurisdiction is the registered person or defendant ot its administration body. However, art. 39 of the Civil Procedure Code gives the claimant the right to choose in which court to sue in the following cases:

"(1) The case against the defendant whose residence is unknown or has no domicile in the Republic of Moldova can be brought into court at the location of its assets or to the court where his last residence was in Moldova.

(2) An appeal against a legal person or other organizations may be brought in court at the location of their property.

(3) Action stemming from the activities of branches or representative offices of legal persons or other organization may be brought to the court at the place where the branch or representative office is located."

When no information is known the author and disseminator of information according to Art. 283 of the Civil Procedure Code, the request will be submitted to the court at the residence or headquarters of the petitioner.

The claimant bears the burden of determining the proper court which shall have jurisdiction to judge the civil case that will be put before it and if the claimant is addressing to a court that has no jurisdiction to judge the case under Art. 170 par. 1 b) of the Civil Procedure Code, the judge returns the application with a decision that may be subject to appeal. However, if the court received the law suit for review in breach of rules on jurisdiction, the judge, pursuant to art. Article 45. 2 letter. b) of the Civil Procedure Code, through a decision likely to be appealed will request the case to be tried in a different court.
Art. 22 Guaranteeing the action


  1. When a claimant files the preliminary request with the media outlet, in order to prevent an imminent damage, he/she may request concomitantly the court to guarantee the action.

  2. The action guarantee request provided for in para. (1) shall be reviewed when confirmation is made available of the fact that the preliminary request has been sent or handed.

  3. Upon the claimant’s request the court of law may undertake the following action guarantee measures:

  1. impose a ban on the dissemination of the information complained of;

  2. seize the print run whereby the information complained of is being disseminated.

  3. ban to destroy audio and video recordings

  1. The court of law may apply the action guarantee measures provided in para. (3), if the claimant is able to prove that irreparable damages may ensue to him/her, which could not be compensated by subsequent damages awarded by the court, and that there is no public concern in knowing the information.

  2. The defendant’s assets, including his/her bank account, shall not be seized for the purpose of guaranteeing the payment of moral damages.

  3. If the person din not submit a law suit within the deadline provided under art. 17 para.(1), action guarantee measure shall lose its effects.

The general rules on action guarantee are provided in art.art. 174-182 of the Civil Procedure Code. Guaranteeing the action is an effective means of protection of subjective rights of the claimant which are the subject of the civil defamation action, which is decided by the court where there are grounds to believe that there may be difficulties in solving the case or enforcement of the decision would become impossible. Guaranteeing the action will only be requested at the request of the trial participants and only if the one requesting the action guarantee proves that there is a risk of being difficult to settle the case or impossibility to settle the case. According to art. 1, this risk must be imminent. Par. 4 suggests that the action guarantee measures referred to in paragraph 3 letter. a) and b) will be requested only if the possible insult caused will not be compensated by subsequent remedies and the action guarantee measure exceeds the public concern to know the information

1. According to para. 1, in order to prevent risks described in the previous paragraph, only the claimant may request the court to apply action guarantee measures provided for in par. 3.

Action guarantee request may be formulated immediately after submitting the law suit or any time thereafter.

2. Action guarantee request filed prior to the submission of the law suit shall precede the preliminary request. According to para. 2, the action guarantee request shall be accompanied by the proof of handing in or sending the preliminary request. Para. 2 implicitly provide that a preliminary request copy must be attached to action guarantee request. Moreover, without the text of the preliminary request, the judge shall not be able to determine the subject of dispute and request the action guarantee. Action guarantee measure filed based on the preliminary request will lose its effect after the period prescribed by art. Article 17. para. 1 of the Law (see art. 22 para. 6 of the Law).

If, upon filing the action guarantee request the court will deem that there is no evidence found to institute the preliminary procedure, it will issue a decision to return the action guarantee request explaining the right to file a preliminary request. After removing the legal impediment the claimant may appeal again with an action guarantee request.

According to art. 177 of the Civil Procedure Code, the court will examine the guarantee request on the day of its submission, without notice to the defendant, by issuing a conclusion of applying the action guarantee or if I is unfounded, to issue a ruling rejecting the request.

3. If the court considers that there are sufficient and justified grounds to guarantee the action at the request of the applicant the court of law may undertake the following action guarantee measures:

a) impose a ban on the dissemination of the information complained of;

b) seize the print run whereby the information complained of is being disseminated.

c) ban to destroy audio and video recordings

The first action guarantee measure aims to protect information that has not been disseminated yet. Therefore, it will not be ordered if the disputed information was already disseminated before and one just wants to stop the dissemination. This action guarantee measure can be ordered both for the author of information and to the disseminator of information.

The seizure of the print run follows the same purpose, but after the information has already been printed by a third party. There should be a distinction between printing only the disputed information and where the disputed information is part of a newspaper, which also contains other information. In the latter case, the courts will not seize the print run, but they apply the action guarantee from paragraph. 3 letter. a). In this situation, the disseminator could make it impossible to read the disputed information, but could disseminate other information from the print run.

The ban to destroy records aims to prevent difficulties in examining the case, which is impossible for him to prove the exact content of the audio or video broadcast. This action guarantee measure will not be ordered if the claimant already has audio or video recording.

The list of action guarantee measures from par. 3 is not exhaustive. In defamation litigation one applies other action guarantee measures provided for in art. 175 of the Civil Procedure Code. This conclusion results from the provision contained in para. 5 of this Article, according to which action guarantee measure can be the seizure of the defendant's assets, including bank account, but they may not have the intention to provide compensation for material damage claims.

4. Action guarantee measure by means of establishing the ban to disseminate disputed information and the seizure of the print run circulation that contains the disputed information can be applied by the court only if the claimant demonstrates that he could incur damages which could be offset by future compensation and that the action guarantee measure exceeds the public concern to know this information. Although the judge must consider the public concern to know the information he will not harm the case. He will only rule on appearances existing at the time of submitting the action guarantee request which stems from the action guarantee request.

5. According to para. 5, one shall not allow the seizure of the defendant's assets, including bank, account to guarantee the claims for compensation for moral damage. This rule was introduced on the basis that the amount requested by the complainant for moral damages is rarely met in full by the courts and seizure will be applied to the amount requested. On the other hand, the existing practice by 2010 confirms that such seizures were requested, rather, to put the defendant in a difficult situation than to ensure the execution of a likely judgment.

6. Par. 6 establishes rule according to which the measure to guarantee the action loses its effect if a person has not filed a law suit within 30 days of receipt or response to a preliminary request or from the date of deadline expiry for examining the preliminary request. In these cases, the judge or court that ordered the guarantee measure will order, ex officio or at the request of the defendant the cancellation of the action guarantee measure.

According to art. 108 par. 2 of the Civil Procedure Code, the court shall order cancellation of the action guarantee measure during the trial communicating about it to people involved, but their failure to be present does not hamper the cancellation of the measure. This procedure, in cases of defamation, may be considered a way of verifying the applicant's intention with regard to the litigation because in this proceedings, he may submit the law suit, request the reactivation and seek for the maintenance of the action guarantee measure if he provided ungrounded reasons that it was unable to file the lawsuit.
Art. 23 Succession of rights

(1) If the claimant dies after the law suit has been filed, but before the court ruling has been issued, the individuals entitled to succession may request, within three months from the death of the claimant, that the suit continue on behalf of the deceased. In this case there shall be no succession of rights concerning the claims on moral damages.

(2) If the claimant dies after the court of first instance has issued its ruling, and the ruling awards moral damages, the succession of rights to the moral damages awarded by the first-instance court shall be recognised.
Succession in procedural rights is an institution of right that allows continuation of the rights of the injured deceased by its successor. Article 23 does not restrict succession rights in respect of pecuniary damage caused by defamation and non material recovery (retraction publication, granting the right to reply, expressing apologies), but limits the right to succeed claims with regard to moral damages.

The law distinguishes the effects of succession depending on the time of death in relation to the court decision on the merits of the law suit. If the claimant died pending the decision, the successor to the deceased cannot succeed the suffering caused by defamation and therefore may not request moral damage. If the death of the claimant occurs after the decision the succession of rights is carried out only with regard to the moral damage compensation claims accepted in the first instance, even though the claims about moral damages were only allowed in part

The moment when judgment is made by the judge, is the moment when judgment is made regardless whether the full written decision is available or not at that time. Therefore, the moment of pronouncing the decision, regardless whether the deceased claimant managed or not to get acquainted with the written decision.

The analysis of this article is to be performed in conjunction with Art. 20 para. 1 letter. b) according to which the defamation action may be filed on behalf of the deceased by the person concerned, but without the right to demand compensation for moral damage.



Art. 24 Burden of proof


(1) The claimant must prove that:

  1. the defendant has disseminated the information;

  2. the information concerns the claimant and is defamatory;

  3. the information reports a fact;

  4. damage has been done and the amount of such damage.

(2) The defendant must prove that:

    1. the information is not defamatory;

    2. the information is a value judgement;

    3. the facts reported are true;

    4. that at the moment when the information was disseminated the defendant did not have sufficient reasons to believe, in spite of all due diligence, that by his/her actions he/she disseminated reports containing untrue facts;

    5. the information disseminated is of public concern.

(3) The refusal of the defendant to disclose, in circumstances requiring limitations of the freedom of expression, a professional secret or the source of information shall not be regarded as sufficient grounds for admitting the case.

When examining the action on the retraction of information that harms the honor, dignity or professional reputation, the burden of proof lies with both the claimant and defendant. A norm governing the burden of proof in defamation cases is provided in Article 16 para. 2 of the Civil Code. The norm of art.16. para. 2 of the Civil Code is a general one and sometimes contrary to Art. 24 of the Law. For example, art. 16 provides in absolute terms the veracity of information that should be proven by the defendant, and failure to do so leads to action admission. Article 24, in par. 1 and 2 provides a different burden of proof. The law is an organic one, as the Civil Code is. However, it is special and adopted after the entry into force of the Civil Code. For this reason, the burden of proof in defamation cases is governed by art. 24 of the Law and Article 16. Para. 2 of the Civil Code will be treated as an obsolete rule.

1. According to para. 1, the claimant must prove that the defendant disseminated information on which the action is based. The claimant must bring proofs that disseminated information aims at him and is defamatory. In other words, it is the responsibility of the claimant to prove defamatory nature of information on him (see art. 7 para. 2 letter. B) and Article 7.4 points. b) of the Law).

The claimant must demonstrate as well that the information is an account of facts, and not value judgments, and the defendant should do the contrary (see paragraph 24. 2 b) of the Law). In case when adopting the decision there is a reasonable doubt that the information is an account of fact or law or a value judgment, one will consider that it is about a value judgment (see art. 25 para. 3 of the Law).

Both the claimant and defendant must prove that the false nature of reporting on facts or as value judgments is not based on a sufficient factual basis. In other words, both claimant and defendant must provide evidence in this regard. In case when adopting the decision there is reasonable doubt in this respect, it will be interpreted against restricting freedom of expression (see art. 25 para. 6 of the Law), and the claim must be dismissed.

Existence of damages in defamation cases cannot be presumed. The claimant is to prove the existence and amount of material and moral damage caused. If there has not been proven damages, claims on compensation for damage will be rejected. If, however the existence of moral damage was proven, but its scope was not reasonably proven a compensation will be paid in the amount of 1leu (see art. 25 para. 4 of the Law).

2. The defendant must prove that the information disseminated is not defamatory and / or that it does not aim at the claimant. If the defendant claims that the information disseminated is a value judgment, he must prove this fact. If the defendant accepts that the reports refer to facts, he will not be required to prove this. The defendant also must provide evidence to confirm that its reports on facts are bases on reality, or the value judgments are based on a sufficient factual basis.

Once proven that what he disseminated is defamatory and false (in the case of reports on facts) and not based on a sufficient factual basis (in case of value judgments), the defendant must prove that when disseminating information, in spite of all measures of care he could not know that by its actions he contributes to the dissemination of false reports on facts or value judgments without sufficient factual basis. If he can prove this, he may demand guarantees provided for in art. 29 para. 2 and 5 of the Law. Also, the defendant must present evidence or reasons why the disseminated information is of public concern. The phrase "public concern" is defined in art. 2 of the Law.

3. According to para. 3, in cases aimed at restricting freedom of expression, the defendant's refusal to disclose a trade secret or the information source has no sufficient grounds for admission of action. This rule refers mainly to journalistic sources or anonymous author's article or pseudonym use. For more details on non disclosure of sources, see art. 13 of the Law. According to art. 18 of the Law on press, if information were published under the pseudonym of the author or without indicating the source of information, periodicals and news agencies are not entitled to disclose the source of information or pseudonym of the author without their consent. If such consent was not received, the liability for disseminating defamatory information lies with the mass media that published it.

Par. 3 shows that, if he refused to reveal sources or professional secrecy, the defendant is responsible for the information disseminated. Thus, he may present evidence to prove the truth of information disseminated as if it were his information.



1   2   3   4   5   6


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

    Main page