08 Aug Serbia violated freedom of expression of media broadcaster: ECtHR rules

The European Court of Human Rights has ruled that there was a violation of Article 10 (freedom of expression) of the European Convention on Human Rights in the case of Radio Broadcasting Company B92 AD v. Serbia (Application no. 67369/16, 5.9.2023.).

In 2011, the applicant company reported that 12 persons, including Z.P., an assistant health minister at the time, had been removed from a police list of suspects regarding the procurement of swine flu vaccines. This reporting was based on an investigation by a team of B92 journalists, including a note obtained from two police officers. Subsequently, Z.P. initiated civil proceedings against the applicant company in April 2012 for violation of her honor and reputation because of inaccurate information broadcast by the applicant. 

The domestic courts determined that the company’s broadcasts and online articles had harmed the assistant minister’s reputation. They ordered the company to pay non-pecuniary damages and to remove the article from its website, as well as to publish the judgment against it. Ultimately, the Constitutional Court in 2016 concluded that the applicant company had failed to verify the facts adequately.

Therefore, the applicant company argued before ECtHR (the Court) that the State had violated its freedom of expression as guaranteed under Article 10 of the Convention. 

The Court stated that “the interference with the applicant company’s freedom of expression pursued one of the legitimate aims envisaged under Article 10 § 2 of the Convention, namely the protection of the reputation or rights of others”. However, it remains to be examined “whether the interference was necessary in a democratic society”.

The Court emphasized that States have a margin of appreciation in assessing the necessity and scope of any interference in freedom of expression. However, it emphasized that a narrow margin of appreciation is accorded where the comments concern a matter of public interest.

In its assessment, the Court considered several elements important for the balancing exercise between the rights protected under Article 8 (respect for private life) and Article 10 (freedom of expression) of the Convention: 

(a) the contribution made by the article or broadcast in question to a debate of public interest;

(b) how well known the person concerned is and what the subject of the report is;

(c) the conduct of the person concerned prior to the publication of the article;

(d) the method of obtaining the information and its veracity;

(e) the content, form and consequences of the information; and

(f) the severity of the sanction imposed 

The Court concluded that the domestic courts failed to adequately consider important elements of the case and did not properly balance Z.P.’s right to reputation against the applicant company’s freedom of expression. By exceeding the narrow margin of appreciation, the domestic courts rendered the interference disproportionate and unwarranted in a democratic society.

Furthermore, the Court found that “the applicant company cannot be criticised for not having taken further steps to ascertain the truth of the disputed allegations and is satisfied that it acted in good faith and with the diligence expected of a responsible journalist reporting on a matter of public interest”.

Consequently, the Court concluded that Article 10 of the Convention was violated.