Freedom of expression is limited in Romania due to the high moral damages demanded from journalists in courts. Romania is condemned by the ECHR for this reason, and the Association for the Defense of Human Rights in Romania – Helsinki Committee (APADOR-CH) has proposed a modification of the Civil Code to limit the moral damages sought for defamation. However, the Ministry of Justice and the CSM did not agree.
In at least 20 cases opened in Romania in recent years (2022-2023), journalists accused of defamation have been asked for moral damages ranging from 50,000 to 2 million euros.
During the trials, the amounts were reduced by judges or the cases were dismissed as unfounded, but their effect was discouraging for journalists and led to self-censorship, as stated by APADOR-CH in a press release sent on Tuesday to spotmedia.ro.
Romania already has several ECHR convictions for restricting freedom of expression guaranteed by Article 10 of the Convention, on grounds of defamation. The Committee of Ministers of the Council of Europe still does not consider closed the Ghiulfer Predescu v. Romania case (2017), as the Romanian state has not taken the necessary measures to ensure that such cases will not be repeated.
The Romanian state is criticized for the lack of predictability in regulations regarding the determination of the amount of moral damages awarded in defamation cases.
From 2017 until now, nine other similar cases from Romania have reached the ECHR, the association mentions.
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Journalists harassed in court
APADOR-CH presents some examples of the risks generated by the current regulatory system that restricts press freedom in Romania:
- the Context editorial office case, where a businessman requested damages amounting to 3.4 million euros, including 100,000 euros for "stress caused by journalistic investigations." Journalists pointed out that the Romanian state invested two million euros, European funds, in a golf course that was never built. Following the publication of the Context investigation, the National Anticorruption Directorate (DNA) opened a criminal case to investigate the matter. Moreover, the Romanian state recently won a lawsuit in which it sought to recover the money paid for the construction of the golf course.
- the case of journalists from "Reporter de Iași", sued by the owner of the publication "Bună ziua Iași" for a series of investigations revealing business ties between him and the city hall, investigations that also led to a DIICOT investigation being opened. In this case, moral damages of 100,000 euros were requested for defamation.
Of course, journalists will eventually find justice, if not in the country, at least at the ECHR, but until then, they will have to manage the stress of years of lawsuits where they are asked for huge damages just because they did their job.
Furthermore, if journalists happen to make a mistake, using information in good faith that later proves to be false, such a situation can be fatal for them, as making a mistake once and being condemned to pay material damages that lead to bankruptcy is enough.
If a journalist can be liable for moral damages of 100,000 euros for a mistake, it is clear that they will have to choose between self-preservation and practicing their profession at normal standards, emphasizes APADOR-CH.
What the Committee of Ministers of the Council of Europe recommends
In April 2024, the Committee of Ministers of the Council of Europe made a recommendation to EU states, aimed at countering the use of such intimidating processes, generically termed "against public participation":
"Capping damages for the plaintiff
Member states should, within the limits of their national legal systems, provide for capping compensations to prevent abusive or disproportionate financial sanctions for defendants, which would have a discouraging effect on their public participation and to avoid creating financial incentives for initiating legal action."
Romanian justice does not accept capping damages
Internally, in January 2024, APADOR-CH made a proposal to amend the Civil Code, so that in defamation cases, moral damages are capped at a number of average salaries in the economy, a predictable cap, as requested by the Committee of Ministers.
Both the Ministry of Justice and the CSM, the two institutions to which the organization addressed the proposal, rejected the idea, arguing that it would restrict the judges' freedom to decide the amount of compensation.
In these conditions, the judges' freedom of assessment reduces the freedom of expression of the press, because when you know that you could be condemned to pay material damages of tens of thousands of euros, it is natural to self-censor when writing on certain controversial subjects, as highlighted by the association.
Since it was unsuccessful with the Romanian authorities, APADOR-CH sent a report to the Committee of Ministers of the Council of Europe on Tuesday - the body responsible for monitoring the execution of ECHR judgments - informing about the steps taken in Romania and requested the CM not to close the Ghiulfer Predescu vs. Romania case, as there is still a danger for journalists to be silenced by an exorbitant pecuniary condemnation for defamation.
APADOR-CH's requests to the Committee of Ministers:
- To ask the Romanian authorities to publish an action plan in the Ghiulfer Predescu vs. Romania group of cases;
- To request the Romanian authorities to reconsider the proposal to amend the Civil Code, to limit moral damages in defamation cases;
- To ask the National Institute of Magistracy to update the courses for judges, focusing on defamation cases and the violation of Article 10 on freedom of expression.