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

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Art. 25 Presumptions in defamation law suits

(1) Any reasonable doubt concerning the fact whether a person is a private individual or public figure shall be interpreted in favour of considering the person in question a public figure.

(2) Any reasonable doubt concerning the fact whether the information is of public concern or represents sheer curiosity shall be decided in favour of regarding it as of public concern.

(3) Any reasonable doubt concerning the fact whether the information is a value judgement or a rendition of facts shall be decided in favour of regarding it as a value judgement.

(4) Any reasonable doubt concerning the defamatory nature of the information shall be decided in favour of regarding the information as defamatory.

(5) Any reasonable doubt concerning the fact whether there have been damages and their amount shall be decided in favour of awarding a compensation of 1 leu.

(6) Any reasonable doubt concerning the good faith of the person who has conducted a journalistic investigation shall be decided in favour of good faith.

(7) Any other doubt which is not proven under the rules prescribed by law shall be decided against the restriction of the freedom of expression.
Presumption is recognition of a fact as genuine from the legal point until proven otherwise. The introduction of assumptions is particularly important in practical terms, given the burden of proof in the art. 24 of the Law.

In civil proceedings the judge must determine with certainty the facts that will be later invoked in the decision. Sometimes it is difficult to ascertain a fact, when the parties version of the facts is contradictory. For this reason, the legislator introduced assumptions on which the judge should proceed when there is reasonable doubt about the important facts to solve a defamation case. Article 25 does not refer to any doubt, but only to the one that is reasonable when taking the decision. It is for the judge to decide, when adopting the decision, whether or not it was reasonable doubt. If it was not reasonable doubt, the judge will expose the facts and his arguments in favor of this version of facts. If the doubt was reasonable, the judge will note this fact in the decision and apply the presumption.

The texts from par. 1-5 are clear and require no additional comments. Alin. 6 covers any other doubt than those referred to in paragraph . 1-5. These could be doubts about the truth of the facts reported, defamatory character of the information, the possibility to identify the claimant . These doubts are construed against restricting freedom of expression.

Art. 26 Retraction

(1) Any individual or legal entity may request in a court of law that reports of untrue facts and reports which are defamatory of facts be retracted.

(2) If the court of law establishes that the dissemination of the facts was a legitimate action, and if the claimant requests a retraction, the court shall rule the retraction of the untrue reports and shall indicate in its ruling the text of the retraction.

(3) The court of law shall rule that the retraction be effected by the most appropriate method leading to the recovery of the claimant’s rights. If the false and defamatory information has been disseminated through the mass media, the court shall compel the outlet which has published the information to publish and/or disseminate the retraction within the same section, page, program, hour or series of programs. If the defamatory information has been disseminated by methods other than the mass media, the court shall rule the same method of retraction or, as appropriate, another method fitting the circumstances.

(4) If the mass media outlet or, as the case may be, the author of the information is unable to publish the retraction, the court of law shall compel the outlet or, as the case may be, the author of the information to publish the retraction in a different outlet with a similar disseminate or coverage area. If the latter refuses to publish the retraction, the person that is obliged to publish the retraction shall pay the claimant a compensation in the amount from 50 to 5,000 conventional units.

(5) When the ruling concerns the retraction of information disseminated in print media, the retraction shall be published under the heading “Retraction”. The text of the retraction shall be printed in the same typeface as the original information.

(6) The media outlet shall publish the retraction within the time period set by the court of law. If the publication or the program is issued or broadcast later than the deadline set by the court, the retraction shall be made in the first issue or program.
1. Article 26 refers to "retraction" as to the traditional and most important way to restore the rights injured by defamation. This term was defined in art. 2 of the Law. One should distinguish between retraction, reply, correction and apology. See article 2 of the Law in this regard. Retraction is not positioned as a penalty, but as a form of restoration of violated rights.

As provided by art. Article 7 par. 3 of the Law, one can retract reports on false facts. Article 7 par. 5 provides that the retraction may be ordered in case of value judgments not based on a sufficient factual basis. In this case, the fact on which the value judgments were based and not value judgments themselves will be retracted. Retraction of some views is illogical and looks absurd.

Even if the defendant has acted in good faith and with care, as long as there was disseminated false information, on request, the court will order their retraction. Exceptions are only the cases stipulated in art. 28 para. 1 of the Law.

2. Retraction can be ordered by the court only if the elements listed in Article 7 of the Law are met and the law suit is admitted. Only information that led to the action will be retracted, and no other information, but only insofar as it is established that they are not true.

Retraction cannot be ordered by the court on its own, but only if the claimant so requests. The text of the retraction will be annexed to the law suit (see art. 18 para. 3 of the Law). The text of the retraction will be indicated in the judgment. The text of the retraction will be indicated in the decision subject to the fact that the action is allowed in whole or in part, the text shown in the retraction could reproduce all or in part the retraction presented by the claimant. Judge could also adjust the text of the retraction presented by the claimant but not exceeding the limit of the action.

3. For proper rehabilitation of the applicant, it is necessary to reach to the circle of people who had access to defamatory information. The court will order the performance of retraction in the best way to restore the claimant’s rights. If false and defamatory information was disseminated by the media, the court will force the media institution that has disseminated this information to publish and / or disseminate retraction in the same column, page, the same program at the same time or in the same series of programs. If false and defamatory information was disseminated by means other than the media, the court will order retraction in the way information was disseminated. If this is impossible because of objective circumstances, the court will require the claimant to show how retraction is to be made.

If the defamatory information was disseminated in a narrower circle, not involving the media, there is great freedom to seek appropriate methods of retraction: for example, in an enterprise or in an apartment building the retraction method would be granted the floor at a collective meeting, shareholders or tenants meeting. If the means of dissemination have been sent letters or applications in organizations, it is logical to use the same means for retraction of defamatory organization.

If a document issued by an organization that provides information violates honor, dignity and professional reputation, the court obliges it to replace the document (Article 16. 5 of the Civil Code).

Although the mass media published the retraction, the person concerned in this information may claim that it was not made accordingly. Retraction will be made again if initially it was not proper in form and content.

4. Paragraph 4 deals with the situation when the institution that disseminated the media does not appear, regardless whether it is legal. In this case, the court will require the institution concerned or the media, as appropriate, to publish retraction in another mass media with a similar range or dissemination on behalf of defendants. In this case the provisions of paragraph 3 will be respected.

If the defendant cannot ensure the publication of the retraction in other media outlets, he will pay the claimant compensation in the amount of 50 to 5,000 conventional units. With such a compensatory amount on may presume that the injured person could buy the space to write, broadcast or publish the retraction. The cost of commercial space in the media (1 cm2 written press, 1 min. broadcast in the electronic media) should serve as an important criterion to judge when determining the exact amount of compensation.

Converting retraction can occur during the examination of the case or the execution phase. During the examination phase of the case, compensation may be granted only if the claimant agrees to do so. In the enforcement stage, this can occur by changing the execution of the decision under art. 252 of the Civil Procedure Code. The request to change the method of enforcement may be filed both by the claimant and by the defendant, and the bailiff (see art. 77 para. 1 of the Enforcement Code).

5. Par. 5 deals with how to make a retraction to the media. The defendant will insert the retraction under the title "Retraction". Text of retraction will be written with the same characters as information that led to the decision.

One should not allow the editing and commenting on the text of the retraction in the section where retraction is written. If this happens, and comments distort retraction, the court decision is considered none executed.

6. Article 16 par.4 of the Civil Code provides that retraction will be made within at most 15 days from the date of entry into force of the decision. Par. 6 shows that this term is not imperative for the judge, which may provide another term for carrying out retraction. However, if the term of retraction is not indicated in the court decision, it will be made within 15 days after the court decision becomes final. If the publication or broadcast exceeds the court deadline, or if a deadline was not set, exceeding the limit laid down in art. 16 paragraph 4 of the Civil Code, retraction will be made in the next issue or broadcast.

As reflected in art. 435 of the Civil Procedure Code, an appeal against such a court does not suspend the obligation to publish refutation. However, the defendant may ask the Supreme Court to suspended its performance.

Art. 27 Right to reply

(1) Any individual or legal entity whose rights or interests have been damaged by the dissemination of value judgements without sufficient factual grounds shall be entitled to a reply.

(2) The reply shall refer only to the defamatory information which is being complained of, shall be expressed within the bounds of decency and shall not contain threats or marginal comments.

(3) The publication or broadcasting of the reply shall be made in accordance with the provisions for the publication or broadcasting of retractions.
1. The right of reply is the possibility to offer its own opinion in response to views expressed in a material from a means of mass information. Unlike retraction, reply will be given only for the dissemination of value judgments without sufficient factual basis and only if the defamation occurred through the media.

The right of reply will be given only on request. It will not be granted with regard to the information for which retraction was ordered. However, this does not preclude the claimant to request in the same action retraction of some passages and the right of reply in the other passages of the same material or article.

2. Reply will only refer to defamatory disputed information. It will be displayed in decent terms and will not contain threats or marginal comments. The text of the reply will be annexed to the law suit and indicated in the court judgment. The goal of the reply is to come up with explanations to opinions, and not to offend or hurt the defendant. The judge will not allow that the reply indicated in the decision to be presented in indecent terms or contain threats, or marginal comments.

3. Publication or broadcast of reply is done in the manner and conditions for publication or broadcast of retraction, ie in terms of art. 26 of the Law. Any provision on retraction shall apply by analogy to reply, if it is objectively possible and not contrary to the nature of reply in comparison with the retraction.

4. The right of reply should be understood as two separate aspects: the right of reply as it is assured by the court and the right of reply as an aspect of professional self-regulation. Professional journalism requires information from at least two sources, presenting all sides of controversial positions. For views, the reply is the only way to restore the rights of victims. Public is offered an alternative source of information. But under the law on freedom of expression, the judge may order the publication of the reply in any case where it would be desirable in the idea that it would be useful or even necessary for an objective assessment of the situation, but only if it allowed an action to defend the honor, dignity and professional reputation since value judgments did not have a sufficient factual basis. Thus, where value judgments that are challenged in court have sufficient factual basis, but the article / broadcast is biased because of unilateralism, and of the fact that a different view is not presented, although it exists, based on the Law on freedom of expression the judge will dismiss the action and will not publish a reply. The claimant could still have a chance to have his reply published under other special laws regulating the activity of media outlets - especially, as a rule, stricter rules are imposed by the law on broadcasting, under the concept that radio frequencies resources are scarce, so all broadcasters must respect the pluralism of opinion. Thus, the claimant will check if there is a special law regulating the activity of the media outlet that injured him and if there is none (for example to date there is no law regulating the Internet media), he could turn to bodies of journalistic self-regulation (Press Council) as a way of extra-judicial pressure.
Art. 27 Waiver of material liability

(1) There shall be no liability for republishing untrue facts and/or value judgements not based on sufficient facts when such information was disseminated:

a) in the documents or communications of public authorities;

b) in meetings of public authorities, by individuals in public positions or individuals invited to such meetings;

c) in a law suit, by the participants in the suit, including witnesses, by the prosecution or by the court of law;

d) in requests, letters or complaints regarding violations of rights and interests protected by law, which have been submitted to public authorities for their review.

(2) The mass media shall not be held materially liable for the republication in good faith of untrue facts and/or value judgements not based on sufficient facts, concerning matters of public concern, if such information:

  1. has been disseminated before by other mass media outlets;

  2. is contained in press releases of entities other than public authorities;

  3. is contained in works representing genres of an author’s personal expression, which may not be edited, or in live programs;

  4. is contained in written or verbal statements made by other individuals;

  5. other circumstances as established by law.

(3) The media outlet’s responsibility shall not be waived under para. 2 if the outlet subscribes to the information in question.

(4) When an outlet’s responsibility is waived under para. 2, the outlet shall retract the reports of untrue facts or grant the right to reply.
Article 28 refers to the waiver from liability of mass media when it disseminates false information taken from other people, this being the only situation where media responsibility may be removed by law. The term "mass media" is defined in art. 2 of the Law. Article 28 para. 1 refers to situations in which responsibility is removed and para. 2 refers only to situations where any material liability is removed. Par. 4 provides that the guarantees of par. 1 and par. 2 shall not apply if the mass media agrees to the information. By adopting this article, art.27 of the Law on press falls into disuse.

Given that information proved to be false, material liability will be borne only by primary disseminator of information. If the disseminator from par. 1 had sent the information to the press or should have known that it can be taken by the press and so disseminated, so when he will take the decision, the judge will consider these circumstances. In case of par. 1, the judge will require primary disseminator to retract and express apologies and create conditions for retraction or expression of apology to be taken by at least the same mass media. In case of par. 2, media institution will appear as co defendant and will be forced to disseminate the retraction, reply or apology (see para. 3).

To invoke art. 28, it is important to determine whether the information was taken from the media. To confirm the takeover acquisition one should know the author from whom information was taken. Therefore, art. 28 does not apply to non-disclosure of sources or author of information (where information was not disseminated by someone prior). Article 28 does not apply either where it cannot be confirmed if the information taken was, in fact, disseminated. This is the situation when the media mislead that the information was disseminated, where this did not take place or when this distorts the message until falsehood. It is for the defendant to prove that the information was previously disseminated by a third party.

1. According to para.1 the responsibility of the media to take over defamatory information does not occur if this information was disseminated: in the documents or communications from public authorities, in speeches at meetings of public authorities, by persons exercising public functions or persons invited to participate in these meetings, the testimony and speeches from the prosecution or a trial by trial participants, including witnesses, by the criminal investigation body or court, in the applications, letters and complaints on the infringement of rights and legitimate interests sent to public authorities for examination.

a. The phrases "document" and "communication" of public authority are defined in art. 2 of the Law.

b. By "speech" we mean any speeches made verbally and with agreement of the organizer of the event, regardless of the text of the speech was coordinated in advance with the management of public authorities. The phrase "meeting of public authorities" means any meeting of authorities that are part of the executive, legislative or judicial, including private legal entities that provide public services. The guarantee extends only to the speeches "persons exercising public functions" and persons "invited to participate in these meetings," if the latter are not "persons exercising public functions". The invitation can be any shape, but must be addressed to specific person or organization they represent. It is the task of the media to establish before publishing if the person was invited. This could be detached from the event agenda and list of speeches.

c. Let. c) was introduced as a result of the immunity provision in art. 8 b) of the Law For more details see the comment to that rule.

d. As with the letter. c), let. d) was introduced as a result of the immunity provision in art. 8 c) of the Law. For more details see the comment to this norm. If these complaints end up being broadcast in the media and the information is false, one must determine who is guilty of this information reaching the media. If this is the petitioner, he will be liable, the immunity from art. 8 letter. c) is not applicable in case of addressing the press. If the authorities were the ones that sent the media contents of the complaint, and petitioner did not have any role in this process, for the damages caused to the person because of the coverage of unverified facts or excessive opinions authorities who disseminated the complaint will be liable. If the information was not disseminated by the document author, but was obtained from public authorities unauthorized and subsequently disseminated by the media, art. 28 para 1 lit. d) will be inapplicable because the injured person would not have its right addressed, a fact which cannot be accepted in such a situation.

2. The principle at the basis of par. 2 is the same one underlying par. 1. The initial disseminator is responsible for the material damage. Although para. 1 refers to cases of total waiver from liability of the mass media, in case of par.2, the waiver from liability refers only to compensation for moral and material damage. However, the media institution will be obliged to disseminate the retraction, reply or apology, because the initial disseminator may not be able to disseminate the text of the court decision, as it was taken as defamatory information.

Par. 2 will apply only if the acquisition was made in good faith and if public information is disseminated. By good faith of the media one envisages that all professional obligations and impartiality in presentation of information is respected. One of these professional obligations is the detachment from third party statements. Good faith is presumed until proven otherwise (see art. 25 para. 5 of the Law), which the applicant must combat. Par.4 expressly states that if it is using the disseminated information the media institution will be materially liable on equal footing as the initial disseminator. The phrase "public concern" was defined in art. 2 of the Law.

Par. 2 refers to the statements contained in the press releases of persons other than public authorities, the author's creations, which cannot be written, or live broadcasts, in statements, written or oral of other persons, who were previously distributed to other media outlets, or is subject to other cases established by law.

a. Paragraph. 2 letter. a) shall apply to press releases other than those covered by paragraph. 1 letter. a).

b. Press will not be held responsible for the dissemination of statements from the creations of the author, that cannot be edited, or in live broadcasts. No declarations may be made edited which after editing lose its meaning or informative value. In case of life broadcast the moderator can not know what the interlocutor would say and therefore cannot be held accountable for his statements. If however the show was broadcast in replay, then let. b) becomes inapplicable in terms of the replay but the defendant could invoke the guarantee of par. 2 letter. c).

c. Mass media can take over and disseminate in good faith the statements of third parties on matters of public concern without fear of being obliged to pay compensation (see dec. ECHR Jersild v. Denmark, 23 September 1994). Let. c) enact this rule. For the letter. c) to become applicable, the way the declaration was made is irrelevant as long as it can be proved that the statement was made. If the press cannot prove that the statement was made, it will be held accountable as disseminator of information.

d. As with the letter. c) in let. d) respective media institution will not be held liable for the previous statements made by another media institution, provided that all conditions are met to take over the information. To invoke the letter. d) media institution must prove that the information was disseminated by another mass media and that the dissemination was done before and that it took over this information.

e. By letter. e) the legislature did not exclude that the legislation may permit other situations in which the media is waived of liability for defamation. An example is provided by art. 64 / 1 par. 6 of the Election Code, which states that "The electoral candidate is liable for the content of the electoral advertising, broadcast or publication.". By "law" we mean legislation and other regulations.

3. Art. 28 para. 3 shows that in case of situations covered by paragraph 2, media institution would be obliged to make the retraction or grant the right of reply. Although expression of apologies is not mentioned in paragraph 3, media institution may be required to disseminate according to general rules (in case of insult it is the dissemination of private information).

4. One must establish whether the media institution endorsed the information. The journalistic technique requires that from the context of journalistic material it is clear to the recipient that what is being reproduced is information that was taken over. Par. 4 shows that even if the information is taken over, but from the context of journalistic material one can conclude that the institution endorsed the statements of third party than the guarantees in par. 1 and par.2 shall not apply. Endorsement can take different forms. This is where the institution does not indicate in its material that it has taken over the information, even if it indicates this fact, his comments show that it agrees with the original disseminator (see for more details dec of. ECHR in Radio France and others v France, March 30, 2004).

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