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

Art. 10 The right to privacy and family life

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Art. 10 The right to privacy and family life

(1) Any person shall have the right to privacy and family life.

(2) The right to privacy and family life shall not concern the information, including pictures, regarding the private and family life of a person, disseminated upon the approval of the person concerned, as well as the information gathered with the awareness of the person concerned or in public places where the person concerned did not have a reasonable expectation of privacy.

(3) Nobody shall be held liable for making public the information about the private and family life of a person if the public concern to know prevails over the interest of the person concerned not to have such information disseminated.

(4) If information on the private and family life of a person has been disseminated unjustifiably, in breach of Para. 3 the person concerned may claim apologies and compensation for the moral and material damages caused
1. Article 28 of the Constitution is extremely general. Article 10 of Law aims to detail the right to respect for private and family life, stating clearly its limits in relation to the right to freedom of expression. The phrase "information about private and family life" is defined in art. 2 of the Law. Unlike the rules on defamation, in case of information about privacy and family, they are true, may not be defamatory, but their confidentiality may be dictated by the interests of the person concerned.

2. Although it is information about private or family life, the person may not claim their protection if they were disseminate with consent. Consent of the person may be express as well as tacit. If the information appears in a public place and the person ought to reasonably know this, but did not react, its consent is presumed.

The right to respect private and family life does not extend to information about private and family life achieved in public places when a person can not rely reasonably on privacy. For more details in this regard, see ECHR judgment in the case of Von Hannover v. Germany (June 24, 2004).

Privacy goes beyond the home and covers situations where the person can reasonably count on privacy. A restaurant, a hotel, a pension, even a public discreet park are places where person may reasonably rely on privacy, if the desire for intimacy can emerge reasonably to third parties. If the park is intensely circulated or there is a concert or any other place where there is a massive agglomeration of people, the person cannot reasonably count on privacy and it is reasonable to expect that one can be captured by cameras.

3. When examining a case about the dissemination of information, the court will consider if the information falls under the concept 'information about private and family life", if the situation described in Para. 2 is not presented, which was the public concern to disseminate the information and whether the public concern in knowing the information outweighs the interest of not disseminating the information. For more details about the procedure of judging these requests see Section 2 of the Act.

Any private information may be disclosed if in a certain context it is of public concern and the public knows it is clearly more important than private interest of confidentiality of that information. For example, even if AIDS is dangerous, information about the owners of this syndrome will be confidential. However, if the owner of this syndrome will perform active and deliberate action to contaminate others, such information may be made public to prevent the population of a persistent danger.

4. If it is noted that the person's interest not to disseminate information prevails, the person sharing the information may be forced to apologize and compensate material and moral damage. Because the information is true, one cannot request its retraction, even if in some cases one might like this. Provisions of art. 7 of the Act are not applicable to this situation.

Disclosure of private facts about sex life, health, family behavior, etc. constitutes a violation of the right to privacy, family and intimate life, provided that it is true information. Dissemination of information which is the kind that is related to private and family life, but that does not correspond to reality, is examined in the articles governing defamation.

Art. 11 The right to privacy and family life of public figures and persons occupying public functions

(1) Public figures and persons occupying public functions shall have the right to privacy and family life.

(2) The information about the private life of public figures and persons occupying public functions may be disclosed if it represents an issue of public concern. The dissemination of such information should not cause unnecessary harm to third persons.

(3) When public figures and persons occupying public functions draw attention to elements of their private and family life by their sheer actions, the mass media shall have the right to look into such elements.
1. As with defamation, there is a different standard of protecting private and family life of public figures in relation to private individuals. Privacy will not be how the person exercising public functions fulfills his duties. The phrases "public person" and "person exercising public functions" is defined in art. 2 of the Law.

2. People have high expectations with regard to persons holding elective office functions not only in terms of their professional conduct, but also with regard to their behavior outside the office. Thus, a head of state should be a standard of integrity both in professional life and in private. Public figures must accept interference in their private life to a greater extent than ordinary people and accessible level of scrutiny should be higher, as the person concerned and publish information that is revealed is more important. Lack of consent of the person to publish information relating to privacy does not automatically lead to finding illegal behavior. The provisions of the law are in line with EU recommendations. P. VII of the Declaration on freedom of political debate in the media, adopted by the Committee of Ministers of the Council of Europe on 12 December 2004, states: "private and family life of political figures and officials should be protected against media reporting under Article 8 of the Convention. However, it may disclose information about their private lives if they are a matter of public concern directly related to how they have exercised or exercise their duties, taking into account the need to avoid unnecessary harm to third parties. When political figures and public officials draw attention to parts of their private life, the media is entitled to exercise the right to explore these elements. «The key factor in this case is the public concern”.

Usually, stories about private and family life of public persons refer to persons who are private: for example, a politician is a public figure, but his relatives may be private individuals. In principle, the notion of "third party" used in para.2 refers to individuals who appear in any story about family privacy and public persons. These people will be protected in all forms possible. Only an overriding public concern can justify identifying these people, and certainly not mere curiosity, which is a source of increased audience for tabloids.

3. Para. (3) of Art. 11 stipulates that if public figures and individuals exercising public functions themselves draw the attention to aspects from their private and family life, the media has the right to investigate these issues. That is the media has the right to check what a politician says, even if the subject is related to his private life and therefore has the right to provide further details on the issues investigated.

ECHR has sanctioned several times the press that has gone too far in revealing the private lives of celebrities. Thus, in MGN Limited v. the United Kingdom (UK) (decision of January 18, 2011) the issue was the newspaper "The Daily Mirror" which published on its front page an article entitled "Naomi: I am a drug addict" and in the newspaper there was an article detailing Ms. Campbell treatment against drug addiction. The articles were accompanied by photographs taken in secret near the center of Narcotics Anonymous a center that Mrs. Campbell was visiting at that time. Despite the fact that the publisher was asked specifically to cease publishing information of a private nature, "The Daily Mirror" responded by publishing two other stories about Ms. Campbell: Articles containing additional details about her participation in the meetings of Narcotics Anonymous, as well as new photos captured when she went to a subsequent meeting. ECtHR noted that should there be a balance between public concern in publishing articles and photos with Mrs. Campbell and the need to protect her private life. Bearing in mind that the publication of photos and articles was only to satisfy the curiosity of a category of readers about the privacy of public figures, published materials have not contributed to the debate over a matters of general interest in the society.
Article 12. The right to the presumption of innocence

(1) Any person accused of committing a crime or administrative contravention shall be presumed innocent until his/her guilt shall be proved by legal means by an irrevocable court decision.

(2) The public authorities and the persons representing them are under the obligation to observe the right to the presumption of innocence and abstain in all circumstances from any comments that could suggest the contrary.

(3) Criminal investigation bodies shall not make public statements concerning the guilt of a person under investigation, unless such guilt is pleaded in a court of law.

(4) Persons who do not represent public authorities and cannot influence in any way the trial started against a person, including media outlets, have the right to express their opinion concerning the guilt of a person, provided that:

    1. such statements should indicate clearly that to that point no final court sentence has been issued regarding the person in question;

    2. such statements should indicate clearly that they express an opinion rather than confirmed facts;

    3. the facts supporting the comments concerning the guilt of a person and his/her role in the trial shall be stated with accuracy.

This article was introduced to guide individuals. Breach of the presumption of innocence is not something that would lead to defamation, as long as the indictment of the person or the offense occurred.

1. Presumption of innocence is a right guaranteed by art. 21 of the Constitution. Presumption of innocence, mainly requires the prosecution to prove the guilt of the accused. However, it also requires public authorities to refrain, until the conviction becomes final from statements that would suggest that the person is guilty of the crime. Article 12 nuanced the way this right is exercised in relation to various subjects who approach through various statements alleged crimes committed by holders of the right to presumption of innocence.

2. The article differentiates between the way the representatives of public power and all other persons, including the media should behave. Thus, the presumption of innocence works primarily in relation to state bodies According to para. 2, no state body may imply through statements that the person is guilty of crime or offense, as long as his guilt was not proven by an irrevocable court decision. For other categories, paragraph 4 shall apply.

Para. 2 does not prohibit reporting on allegations of a person. However, in this case there should not be suggestions that the person is already guilty, but that it was only accused.

Para. 2 imposes certain obligations on judges as well. Thus, while authorizing preventive measures, they will not rule even in the procedural act about the guilt of the person (see. ECtHR decision in the case Garicki v. Poland, February 6, 2007).

3. Para. 3 provides an exception to the rule laid down in para. 2. The criminal investigation body, including the prosecutor and the identification body, can make statements about the guilt of the person when they sustain the accusation in court, that is during the court hearings. This warranty does not apply to statements made outside the court hearing.

Alleged acts of defamation by the criminal investigation or identification body shall not be reviewed under paragraph 3 according to criminal, and administrative procedure, by challenging those acts.

4. Unlike public authorities and persons representing them, other people, including the media, have the right to express an opinion about the guilt and the person until the guilt is confirmed by a final decision. However, in this case, three conditions must be observed, that is from the context of the expression it should be clear that: a) there is no irrevocable court decision condemning the person, b) it is about opinions, not facts confirmed, and c) the facts on which comments on the guilt of a person are based and its standing are clearly detailed.

If the media disseminates truthful facts about a felony or offenses until the person is proven guilty by a final decision, it will not serve as grounds for admission of a defamation action because the condition of art. Article 7 para. 2 letter. a) of the Act is not met (see also. ECHR decision in cases Flux no. 6 v. Moldova, 29 July 2008, § 31, and Şofranschii v. Moldova, December 21, 2010 § 30).

Presumption of innocence does not prevent journalistic investigation and the journalist's right to express an opinion on identified illegal actions. If the journalist has documents that allow him, while using his legal conscience, to conclude that there are obvious signs of crime, and these documents were presented in a court of law, then even in the absence of a sentence, in case of an action of defamation, the court should dismiss the action and recognize that, in this case, disseminated information is real (see dec. ECHR in the case Dyundin v. Russia, dec. of 14 October 2008). Subsequently, it is a matter for the law enforcement bodies to perform the necessary research based on published facts. On the other hand, when the person appears to be only suspected or accused, there should not be any inaccuracies in his procedural qualities.
Article 13. Protection of information sources

(1) The mass media and any person carrying out journalistic activities of collecting, receiving and disseminating information to the public, or collaborating with the media, and who has obtained information from a source shall have the right not to disclose the identity of the source or any information that could lead to the identification of the source.

(2) The person who has disseminated to the public information obtained from confidential sources shall not be compelled to disclose the identity of the sources in a civil or administrative law suit.

(3) The refusal of a person to disclose the information source shall not deprive him/her of all the other guarantees to which a defendant is entitled in judicial proceedings.

(4) In a criminal trial the investigative body or the court may order the disclosure of the source, within the limits of the law, if:

a) the disclosure of the source is essential to the conduct or review of the criminal prosecution; and

b) all the possibilities to identify the source by other means have been exhausted.
1. The media should be effective. The right to protection of sources is a very important right for the media to be effective. If the media would be obliged to disclose, then it might not have or forever lose these sources, which would make it unable to exercise its duties of watchdog of democracy until the end.

This protection extends not only to the media but also to the person who is not a journalist in daily life, but performing journalistic activity and the person collaborating with the media or persons performing journalistic activity (such as, for example, those involved in collecting information for writing an investigative article). Journalistic activity is any periodic activity of data collection and processing public information, the purpose of this activity is to disseminate information to the public.

People who enjoy such protection may refuse to disclose sources. Thus, art. 133 let. d) of the Civil Procedure Code provides that the persons listed in par. 1 can not be heard as witnesses on the information received in connection with their work. Article 90 para. 1 p. 5 of the Criminal Procedure Code contains a similar guarantee. This is an obligation of the journalist (see p. 3.1 of the Code of Conduct). Protection of sources is given to the journalist only in those cases when disclosure of their identity endangers the life, safety or work (p. 3.2 of the Code of Conduct). However, in this case, the one who disseminates information assumes responsibility for the accuracy of information received from the source of information.

Persons listed in par. 1 cannot be compelled to give statements as witnesses only with regard to the information that could lead to identifying the source. They can be heard on other issues, however, can refuse to answer certain questions if they think the answer could lead to identifying the source.

2. Protection afforded by paragraph. 1 applies in all civil, administrative and criminal cases on the minor, less serious and serious offenses. Therefore, the person will not be forced to disclose sources in any civil or administrative case.

3. As stated in para. 3 of art. 13, a person refusing to disclose source of information does not deprive the defendant of other guarantees it can receive in a judicial proceeding, that is the person will prove its position by other evidence available, and this evidence must be taken into account.

4. The only exception where a person may be required to disclose the source of information is provided by paragraph. 4 and can be held in criminal proceedings if the following conditions are met: a) the criminal offenses relates very serious or extremely serious crimes (see also art. 90 para. 1 p. 5 of the Code of Criminal Procedure); b) disclosure of the source is absolutely necessary for the prosecution, c) have been exhausted all possibilities to identify the source of information by other means. Therefore, the prosecuting authority should check whether these conditions were met to start the interrogation and inform on it. After gathering information about conditions, the individual will be obliged to give witness statements, if no other exceptions occur provided for in art. 90 of the Criminal Procedure Code. If the interrogation took place in violation of art. 13 para. 4 of the Act, it will lead to the nullity of the procedural act.

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