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

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Art. 28 Moral damages

(1) When setting the amount of moral damages awarded to an individual, the court of law shall take into account the nature and severity of physical and psychological suffering caused to the claimant, the nature of the information disseminated, scope of the information’s dissemination, personality of the claimant, reputation of the defendant, the defendant’s degree of guilt, consequences brought about by the dissemination of the defamatory information, wealth of defendant and claimant, publication of correction, whether the right to reply was granted or a retraction was published before the law suit was filed, as well as other relevant circumstances. The court shall award such damages as to bring satisfaction to the complainant.

(2) A person may be compelled to compensate moral damages caused by defaming a public figure only when the public figure has been defamed in bad faith.

(3) Moral damages shall be granted to legal entities only when the dissemination of the information in question disrupted its management.

(4) No moral damages shall be awarded to a legal entity which has been liquidated.

(5) A mass media outlet shall be held liable for the compensation of the material and moral damages caused by the dissemination of public information that turned out to be false or not based on sufficient facts only when the outlet has acted in bad faith or in disregard of its professional obligations.
Moral damages in defamation cases is governed by Art. 29 of the Law and art. Article 16. 8, art. 1422 and art.1423 of the Civil Code. Civil Code, art. 1422, states that moral damages is the monetary equivalent of repair for "physical or mental suffering". Therefore, moral damages aim to repair, not to punish.

In the case of defamation, physical and mental suffering may represent negative emotions generated by any unpleasant aspect in terms of the psychological aspect, such as mental disorder, spiritual balance, humility, irritation, anger, shame, despair, discomfort, etc.. Granting moral damages is particularly important in case of injuring non-property rights, because there is really no other equivalent, similar to that we can achieve when a property right is violated.

In a defamation case the defendant should prove the existence and the amount of moral damages (see Art. 24 para. 1 letter. E) of the Law). However, we must consider that these sufferings and disorders occur in the human soul and it is difficult to document and quantify. It is reasonable to accept that, if the defamatory nature is proved, moral damage was caused. It seems impossible to quantify exactly the moral damage. However, the court based on specific characteristics of each action, based on criteria set by law, determines the amount of compensation. However, quantification is at the sole discretion of the judge. The amount of compensation shall be such as to bring satisfaction to the injured party, be rational and fair. In the case of Avram and others v. Moldova (Decision 5 July 2011) ECtHR found that the amount of moral damages awarded by national courts for defamation has been weak. If there was a reasonable doubt when the decision was spelled with regard to the amount of moral damages there should be paid a compensation in the amount of 1 leu (art. 25 para. 4 of the Law).

Moral compensation will only cover physical and mental suffering caused to the defendant and, not his family, though suffering may be intensified by the sufferings of his relatives.

1. Article 16. 8 of the Civil Code provides eight criteria under which the judge will determine the amount of moral compensation awarded. This list is not exhaustive. Article 29. 1 of the Law indicates three criteria and does not exclude that other criteria could be considered.

The nature and severity of physical and psychological suffering are essential to establish the size of moral compensation. Thus, the defendant has the burden to prove that the suffering endured and their intensity. Although this can not be quantified precisely, the judge will take into account other factors indicated in art. 29 para. 1 to determine precisely the nature and severity of physical and psychological suffering.

The court will consider the nature of disseminated information, ie how offensive can this be. Another element to be considered is the extent of dissemination of information. The same information disseminated about a person of good reputation could cause more damage than in relation to a person with a less good reputation, in this regard the reputation of the applicant is important. Defendant's reputation is a matter to be considered. Thus, defamation by means of mass information with a reputation for credible source could cause more damage than the same defamation of the boulevard press. On the other hand, defamation may be missing when the disseminator of false information occurs before a small audience, which knows very well the true state of affairs. Completely denying the journalistic ethics should be a criterion likely to increase non-pecuniary damage. If the defamation had noticeable consequences, such as illness of the person, they also could increase the amount of moral compensation. However, in this case, the defendant must prove the causal link between defamation and consequences. Claimant’s financial situation is also important. Thus, the suffering could be valued differently in relation to a wealthy and poor person. However, in quantifying the damage to be taken into account, one should take into account the welfare of the defendant. Claimant damage claims by means of intangible damage (retraction, reply) before addressing the court will be an element that could justify lowering the amount of damage initially identified. The court could take into account other criteria such as the refusal to publish the retraction citing art. 26 para. 4 of Law, delays by the defendant of the case review, repeat dissemination of defamatory information in order to discourage the claimant after the preliminary request.

2. According to para. 2, the defendant may be required to compensate a public non-pecuniary damage only if defamed in bad faith. Therefore, para. 2 applies only if: a) it is a public defamation, b) defamation is made in bad faith, the defendant knew at the time of broadcasting false information and disseminating that information intentionally. The fact that the defendant is not an institution or media is irrelevant in this respect.

3. Although businesses can not have "physical and mental suffering", they can claim damages, but, as required by para. 3, only if dissemination endangered the management. Unlike individual, damage the professional reputation of the legal person is felt in lower income, which is a damage. However, following the dissemination of false information, the management of a company might find itself in a state of uncertainty regarding the company's business decisions or planning, there may be problems in the company's management and anxiety among members of company management, repercussions that can not be measured accurately and reported as material damage. These aspects are to be offset by non-pecuniary damage. For more details about the moral damage caused to the legal person see ECHR Judgement in the case Comingersoll SA c. Portugal (6 April 2000).

4. Moral damage brought to the legal entity is closely related to his professional reputation. The key to identifying the professional reputation of the legal entity is its name. For this reason, par. 4 provides that "no compensation shall be granted for damage caused by defamation of the legal entity that does not have the same name at the time of defamation." Similarly, it is not possible to pay moral damages to the successor of the defamed person (see art. 20 para 1 lit. B) of the Act).

5. According to para. 5, moral damages caused by the media through public dissemination of information which proved to be false or without a sufficient factual basis shall be made only if the media acted in bad faith or in violation of other professional obligations. Unlike paragraph. 2, which refers to the claimant, para. 5 refers to the defendant. It is applicable only to the mass media, if common information is public and only if it is established that the defendant acted in bad faith or breach of other professional obligations. Professional obligations of journalists are established by the Code of Ethics for Journalists in Moldova, signed in the new version on 7 June 2011. Bad faith is manifested through the intention to defame, i.e the defendant knew that he was disseminating false information and intentionally did Both granting the compensation and the partial or total refusal to recover moral damages should be motivated in the decision.

ECtHR pointed out that excessive amount of moral compensation for defamation may be itself a problem, even if the defamation occurred. Courts should be extremely careful when examining the professional conduct of journalists, since excessive sanctions could prevent them from perform the function of informing the public. The courts must take into account the likely impact of their decisions not only on individual situations but also on the media in general. In determining the compensation one must take into account the minimum wage, and salary of the defendant. The decision Kasabova v. Bulgaria (April 19, 2011) a moral compensation, which amounted to 70 minimum monthly wages and 35 monthly salaries that the person would pay, was considered excessive and disproportionate compared to the harm caused, as well as had a deterrent effect on other journalists who would like to inform about issues of public concern (in this case, corruption).

Section 2

Procedure for examining cases on protection of private and family life

This section covers the examination of civil actions with regard to the interference with family life and the dissemination of personal information or collection of those for the purposes of dissemination. The phrase "information about private and family life" is defined in art. 2 of the Law.

Unlike defamation, when the defendant relies on falseness of disseminated information in case of information about private and family life these are true, but the claimant believes that respect for his private and family life exceeds the public concern to know this information. Therefore, the object of proof is different. For this reason, the examination procedure of civil cases on defending family privacy was placed in a separate section. Other legislation does not provide the way of defending family privacy and civil procedure.

This chapter does not refer to the procedure of reviewing the procedures aimed at criminal or violation of privacy and family life, such as those mentioned in art. 177 of the Criminal Code.

Given that legal persons cannot have "private and family life", they cannot be claimants in such cases.

Art. 30 The procedure of case review on matters of privacy and family life

The cases concerning the protection of privacy and family life shall be reviewed as prescribed by Section 1, with the exceptions defined in this section.
Civil case on protection of private and family life are examined according to the rules set out in Section 1 of Chapter2, including preliminary proceedings, state tax, guaranteeing the action waiver from liability of mass media etc. except as provided by this section. This section states what non material damage the claimant may request, what must a law suit contain and what is the object of probation.

Unlike defamation, cases concerning protection of privacy and family may no be brought in the circumstances mentioned in art. Article 14. 2, or examined in the procedure of finding the facts which have a legal value, because in cases concerning protection of privacy and family one does not want false official statements of untrue facts and neither bringing these issues for public scrutiny. As long as there is no defendant, these actions lose their meaning.

Art. 31 Preliminary request

The preliminary request shall indicate the information damaging the right to privacy and family life, as well as the circumstances proving the violation of this right, and shall require an apology and, if appropriate, damages.
The procedure of submitting and review a preliminary request on protection of privacy and family life is the one provided by 15 and 16 of the Law. However, the contents of the preliminary request will be different, to answer the questions to be examined in court (see art. 32 of the Law). Preliminary request shall be limited to the object of proof in such cases - lack of sufficient public concern to disseminate information.

The preliminary request is used for expressing an apology, but not retraction, the right of reply or correction. Retraction or correction may not be requested because it is true information. The right of reply also cannot be granted because it is illogical in the context of the intention of the person concerned - not to disclose this information. The reply only would increase attention to the information concerned.

Injured person may seek material and moral damage caused by dissemination of information about private and family life. In determining the amount of moral damage one will take account of most of the elements listed in art. 29 para. 1 of Law.
Art.32 Form and contents of the Law suit

The claimant shall indicate the following in the law suit:

    1. the information causing damage to his/her right to privacy and family life;

    2. whether the information concerns him/her;

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

    4. whether he/she is a public figure;

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

    6. the circumstances proving the violation of the right to privacy and family life;

    7. the amount of the damage caused.

(2) The law suit on matters of privacy and family life is subject to payment of the state tax in the amount prescribed in art.19.
1. Important issues to be examined by the judge are indicated in par. 1. As with preliminary request, the law suit must indicate exactly what information violates the right to protect private and family life. It is for the claimant to demonstrate that the information aims at him and that the defendant disseminated it. The law suit may also relate to information that has not been disseminated, but in respect of which there are data showing that it will soon be disseminated by the defendant. In this case, after filing the preliminary request, the claimant may request as a measure guarantee, specified in art. 22 sec. 3 letter. a) or b) of the law. Given the presumption of art. Article 25. Para. 1 of the Law, if he claims so, the claimant should provide evidence that he is not a public figure. Also, given the presumption of art. Article 25 para. 2, the claimant must provide arguments if there is public concern and that public concern is not enough to disseminate information. If one requires moral damages, the claimant must indicate the amount claimed. Given the presumption of art. Article 25 para. 4, a simple indication of the amount will be insufficient for full admission of the action. The amount requested will be justified in terms of elements of art 29 para. 1.

2. To consider the law suit the state tax should be paid. This is 5 conventional units to request apologies and for compensation of damage of 3% of the size of moral and material claims.

Art. 33 Reviewing the complaint regarding the protection of privacy and family life

  1. When the court reviews a law suit regarding the protection of privacy and family life, it shall determine whether the public concern in knowing the information exceeds the interest of the individual in preventing the information from becoming public.

(2) If it is found that the claims included in the law suit are grounded, the court may rule, if the claimant so requests, that the defendant apologise and compensate the damages caused, as appropriate.

  1. Para. 1 defines the object of proof in cases concerning protection of privacy and family. The phrase "public concern" is defined in art. 2 of the Law. Whether it is a public concern, the court shall consider the natural interest of society or a part thereof, having regard to the value system of a democratic society. If the public concern has not been established, interference may not be justified.

The existence of public concern does not automatically justify any interference with privacy or family. The court shall weigh all the pros and cons of restricting freedom of expression. Thus, the court will determine what is the public concern of disseminating this information, whether it could really be satisfied in another way, whether actions were taken not to disseminate personal data that were not strictly necessary to meet public concern Is the defendant a public figure whether the presumption of innocence was violated. If there is a reasonable doubt when taking the decision, one will apply the presumption of public concern (see art. 25 para. 2).

2. If the law suit is accepted and claimant so requests, the defendant will be forced to apologize. The text of apology will be submitted by the claimant. If it exceeds the information unduly disseminated or it is presented indecently or offensively, the court will edit the text and it will show in the judgment. Apologies cannot be ordered by the court ex officio.

If the claimant seeks moral damages and the court considers that it is justified, he will be granted. The size of moral damage in this case will compensate for the suffering caused by the gap established by the court between the right to respect of privacy and public concern to know the information.
Chapter III

Final and transitory provisions
Art. 34

  1. The present Law shall enter into force as after the expiration of 3 months period after its publication in the Official Monitor.

  2. The cases which are reviewed by the courts of law at the date of entering into force of the present Law, shall be reviewed by the courts according to the rules established in this Law, excepting the provisions set forth in articles 14 (preliminary request) – 17 (the form and content of the law suit) and art. art. 30 (preliminary request) – 31 (law suit) from this Law.

  3. If the person has not notified the court of law before entrance into force of the present Law, he/she may file a law suit as stipulated in the present Law. The terms of limitation start as from the date of entrance into force of the present Law.

  4. The acting legislative and other normative deeds regulating the relationships directly linked to the relationships regulated by the provisions of the present Law shall be applied to the extent to which they do not contravene the present code.

  5. The Government shall:

  1. elaborate and present suggestions in order to render the provisions of acting legislation in conformity with the present Law stipulations;

  2. shall amend its normative deeds as to be in line with the provisions of the present Law.

1. The law was adopted on 23 April 2010. It was published in the Official Gazette on 9 July 2010, as required by para. 1, entered into force three months later, ie on 10 October 2010.

2. Para. 2 refers to the examination of cases pending on 10 October 2010. Although the law entered into force on that date, claimants who by then had filed a law suit could not be forced to follow the pre –court procedure. Par. 2 clarified this.

3. Through art. Article 15 para 2 it was provided a status of limitation for starting pre-court proceedings . Such a term did not exist previously. Par. 3 aimed to address the situation of people who consider themselves defamed by information disseminated prior to 10 October 2010. Par. 3 has given these people 20 days to institute pre-trial proceedings.

4. Para. 4 provides for the the rule according to which ) normative acts regulating relations and those in conflict with the Law will not be applicable (fall into disuse. It is about inter alia, art. 27 of the Law on Press, which is contrary to art. 28 of the Law, or art. Article 16. 2 of the Civil Code, which contradicts 24 and 25 of the Law.

5. Par. 5 tasks the Government to ensure compliance or propose to Parliament to ensure compliance with provisions of the law within six months of the existing legislation upon entry into force of the Law. Although the Law requires modification to several laws and even though the prescribed period has expired, legislation has not yet been complied with. For example, censorship and deliberate illegal activity of the mass media was not criminalized.
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