Case Summary and Outcome

The European Court of Human Rights (ECtHR) held that the Russian courts  violated the right to freedom of expression under the European Convention on Human Rights (ECHR) by penalizing a news agency for publishing official reports about a public health scare. The case concerned an online media outlet that was found liable for defamation after reporting on mercury contamination in a branded juice product, based on information from state officials. The ECtHR found that the domestic courts failed to consider whether the news items contributed to a matter of public interest and whether the journalists adhered to responsible reporting standards. It held that the articles were factual, timely, and relied on official sources, and that the agency had fulfilled its role in informing the public about a potential health risk. The national courts did not demonstrate a pressing social need to restrict the publication and did not assess the proportionality of the large damages award. The Court concluded that the interference was excessive and not necessary in a democratic society.

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Facts

OOO Regnum, is a company based in Moscow. It is the founder of the REGNUM Information Agency (“Regnum”), an electronic news outlet registered under Russian law. Regnum operates the website www.regnum.ru, which publishes political, economic, and social news.

On 19 November 2005, an investigator from the Ukhta district department of the interior (UVD) received information from a local hospital that a woman had been hospitalized with mercury poisoning after consuming a juice-based drink sold under the “Lyubimyy Sad” brand. This information was distributed to various local media outlets.

A Regnum correspondent contacted the Ministry of Catastrophes and Emergencies of the Komi Republic (the Komi MCE). The Ministry confirmed that a woman had been admitted to the hospital with mercury poisoning after drinking “Lyubimyy Sad” juice and that an inquiry had been opened.

On 21 November 2005, Regnum published a news item titled “Mercury found in ‘Lyubimyy Sad’ juice.” It stated that a 37-year-old woman had contacted emergency services after discovering mercury globules in a juice carton, and that law enforcement and emergency services had visited the scene. It also reported that cartons of the drink had been seized by the UVD and Komi branch of the Federal Consumer Protection Service (FCPS) for expert analysis, and that mercury had previously been found in the same brand in 2004.

On 22 November 2005, Regnum published a second news item under the headline “Prosecutor’s office of Komi [Republic] opens a criminal case into the ‘Lyubimyy Sad’ juice poisoning.” It reported that, according to the Komi MCE, the prosecutor’s office had opened a criminal case and that efforts to seize cartons from the same production batch were ongoing.

That same day, a Regnum journalist sought updated information from the Komi branch of the FCPS. The head of the branch, Ms G., orally confirmed to the journalist that mercury had been detected in a “Lyubimyy Sad” drink. The deputy head, Mr K., sent Regnum a faxed letter dated 22 November 2005 that contained technical details about the contaminated juice batch, identified the producers as JSC Ramenskiy Molochnyy Zavod and JSC Vladivostokskiy Molochnyy Kombinat, and advised other agencies to implement appropriate safety measures.

On 23 November 2005, Regnum published a third news item based entirely on the FCPS’s letter. The article reiterated that mercury had been found in a juice product of the specified batch and listed the names and addresses of the producers. It also reported that cartons had been seized from retail outlets in Ukhta, including 21 cartons from a wholesaler.

In addition to these three articles, Regnum published several related reports, including statements 1. that the prosecutor’s office had not confirmed the opening of a criminal case (22 November 2005), 2. that the possibility of natural mercury contamination was excluded (22 November 2005), 3. that “Vimm-Bill-Dann” denied the presence of mercury (23 November 2005), and 4. that no mercury was found in seized cartons (8 December 2005).

On 29 March 2006, one of the producers of “Lyubimyy Sad” drinks, Joint-Stock Company Ramenskiy Molochnyy Kombinat (JSC RMK), filed a civil defamation claim against Regnum in the Commercial Court of Moscow. JSC RMK sought the full retraction and removal of the three news items and RUB 1,000,000 in non-pecuniary damages.

On 7 July 2006, the Commercial Court of Moscow dismissed the claim in full. It held that the news items did not specifically name JSC RMK, as the brand “Lyubimyy Sad” was not exclusively theirs, and another company also produced the same drink. The court considered the FCPS faxed letter a legitimate information source under section 57(3) of the Media Act. It noted that Regnum published a later item stating no mercury was found in the seized drinks, and found no legal basis for ordering a retraction, removal, or apology.

JSC RMK appealed. On 12 September 2006, the Ninth Commercial Appellate Court annulled the first-instance judgment due to a procedural irregularity (a missing transcript of a hearing) and decided to re-hear the case as a first-instance court.

On 30 November 2006, the appellate court again dismissed the defamation claim. It acknowledged the news items had been published, but considered that they did not specifically concern JSC RMK. It held that the articles simply reported on the detection of mercury and subsequent actions by the authorities. The court held that the FCPS letter had been confirmed as authentic and that the applicant had not acted in bad faith. It found the reporting aimed to inform the public about a socially relevant matter and thus fell under the protections of responsible journalism.

JSC RMK filed a cassation appeal. On 28 February 2007, the Federal Commercial Court of the Moscow Circuit quashed the judgment. It held that Article 152 of the Civil Code allows for a defamation claim regardless of whether media laws were breached and remitted the case to the appellate court for reconsideration.

On 25 June 2007, JSC RMK was replaced in the proceedings by JSC Vimm-Bill-Dann Napitki (JSC VBDN).

On 2 July 2007, the appellate court again dismissed the claim. It held that JSC VBDN had not sufficiently proven that the impugned statements referred specifically to it. The court noted that the company name in the article (“Ramenskiy Molochnyy Zavod”) was not registered in the official company registry and that the burden of proof for establishing identification lay with the claimant.

JSC VBDN submitted a cassation appeal. On 10 October 2007, the Federal Commercial Court of the Moscow Circuit reversed the judgment and ruled in favour of the claimant. The court held that the company was identifiable from the articles based on production batch codes, addresses, and associated company names. It ruled that Regnum did not prove that the articles referred to another entity. The court ordered the publication of a retraction, removal of the three news items, and payment of RUB 1,000,000 in compensation for non-pecuniary damage and RUB 1,000 in court fees.

A request for supervisory review was rejected on 19 December 2007. On 27 December 2007, Regnum paid RUB 1,001,000 in compliance with the judgment. The news outlet subsequently brought a case before the European Court of Human Rights (ECtHR), alleging that the final judgment violated its right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR).

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Decision Overview

The European Court of Human Rights delivered its judgment in the case of OOO Regnum v. Russia on 8 September 2020. The main issue before the Court was whether the interference with the applicant company’s Article 10 rights resulting from the domestic judgment—in which it was held liable for publishing news items regarding mercury poisoning—was “necessary in a democratic society.”

To the Court, it was common ground that the interference was “prescribed by law”—Article 152 of the Russian Civil Code—and pursued the legitimate aim of protecting the reputation of others. The central question was whether the domestic courts had struck a fair balance between the electronic media outlet’s right to freedom of expression and the commercial company’s right to reputation.

Regnum submitted that it published the news items in good faith, relying on official statements from public authorities about a matter of public concern. It argued that the reports were factual, objective, and devoid of personal commentary. It emphasised that the information had been obtained from the police and the FCPS, and that it had acted responsibly by updating its reporting once it learned that mercury had not been found in the seized juice samples.

The Government accepted that there had been an interference with the applicant’s rights, but argued that it was justified under Article 10 of the ECHR. It contended that Regnum disseminated unverified and untrue factual statements, and that the domestic courts acted within their margin of appreciation in awarding damages.

At the outset of its analysis, the Court recalled that freedom of expression is one of the “essential foundations of a democratic society,” [para. 58] and that its protection is especially important where the media act as public watchdogs. While freedom of expression carries duties and responsibilities, any interference must meet a strict test of proportionality. The ECtHR reiterated that “there is little scope under Article 10 § 2 of the Convention for restrictions on freedom of expression, in particular, in matters of public interest” [para. 59] and that “the press – and hence the electronic media – would be unable to play their vital role as ‘public watchdog’” [para. 61] if those protections were weakened.

The Court observed that Regnum was a media outlet registered under Russian law and thus enjoyed the protections afforded to the press under Article 10 of the ECHR. The claimant in the domestic proceedings was a commercial company. While a company’s business reputation is protected under Article 8 of the ECHR, the ECtHR underscored that “there is a difference between the reputational interests of a legal entity and the reputation of an individual as a member of society,” [para. 69] and that reputational harm to a company lacks the “moral dimension” present in cases involving individuals.

Turning to the nature and context of the impugned publications, the Court argued that the articles reported on “an instance of mercury poisoning following the consumption of a shop-bought branded soft drink,” which “clearly pertains to an important aspect of human health and raises a serious issue in terms of consumer protection.” As such, the “impugned news items conveyed information of considerable public interest.” However, “nowhere in the judgment of 10 October 2007 did the Circuit Court consider whether the information disseminated by an electronic media outlet had been topical to the public.” The ECtHR concluded that the domestic court “failed to see the defamation dispute in the context of the general interest in receiving reports on the discovery of a potential health hazard.” [paras. 68 and 69]

Regarding the form and content of the articles, the Court found that the three contested news items were “short and purely informational,” “phrased as statements of facts,” and did not include “any subjective appraisal of the situation reported on by a journalist that could be regarded as a value judgment.” [para. 70]

Regarding the issue of sources and veracity, the ECtHR observed that Regnum relied on official information, including “the communiqué by the State consumer protection service,” and that its reporting was not intended “to accuse a commercial company of committing offences or morally reprehensible acts, but to pass on the authorities’ message on a public health issue.” It noted that “the applicant company relied on the information gathered from official sources” and that this “may not be held against it, as members of the media should be entitled to do so without having to undertake independent research.” [para. 72]

As the ECtHR noted, domestic courts, however, rejected the applicant’s reliance on section 57(3) of the Russian Media Act, which exempts media outlets from liability for publishing information obtained from official sources. The Circuit Court refused to treat the FCPS letter as “official” because it had not been issued in response to a formal request, despite the fact that the document’s authenticity was confirmed by its author in domestic proceedings. Considering this, the Court held that this approach was incompatible with Article 10 of the ECHR: “To require the applicant company to prove the truthfulness of statements copied from the FCPS’s letter, while at the same time disregarding… the evidence presented by the applicant company to establish the authenticity of their source of information, is not consistent with the requirements of Article 10 of the Convention.” [para. 74]

The ECtHR mentioned that the Circuit Court also referred to the decision taken by law enforcement authorities on 19 December 2005 not to initiate criminal proceedings. This was used to argue that the original statements about mercury poisoning were untrue. The European Court rejected this logic: “Such reasoning defies temporal logic, as at the time of the publication of the news items the applicant company had no means of envisaging the events that would occur almost a month later.” [para. 75]

Assessing Regnum’s overall conduct, the Court concluded that it was “satisfied that, when publishing on the website, the applicant company acted in discharge of their duty as purveyors of accurate and reliable information and in full compliance with the tenets of responsible journalism.” [para. 76]

The ECtHR also examined the severity of the penalty imposed. The domestic judgment awarded the claimant company one million roubles in non-pecuniary damages. The Court held that this was a “sizeable award” and noted the applicant company’s submission that it had a “chilling effect.” It recalled that “the most careful scrutiny… is called for when the measures taken or sanctions imposed by the national authority are capable of discouraging the participation of the media in debates over matters of legitimate public concern.” [para. 77]

The ECtHR found that the domestic courts provided no analysis of the claimant company’s actual reputational damage and did not attempt to assess whether the amount of the award bore a reasonable relationship to the harm suffered: “The Circuit Court… did not advance any arguments as to why it had accorded more weight to the reputational interests of a commercial company than to the interest of the general public… Nor did the Circuit Court make any assessment… of the proportionality of the sizeable amount claimed… thus disregarding the requirement under the Convention that an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered.” [para. 79]

Ultimately, the Court concluded that “the Circuit Court failed to establish convincingly and in conformity with the principles embodied in Article 10 of the Convention that there had been a pressing social need for the interference complained of.” It held that the domestic judgment “amounted to a disproportionate interference with the applicant company’s right to freedom of expression that was not ‘necessary in a democratic society’ within the meaning of Article 10 § 2 of the Convention.” [para. 80]

Therefore, the Court unanimously found a violation of Article 10 of the ECHR and awarded the applicant company EUR 26,996 in pecuniary damages and EUR 10,000 in non-pecuniary damages.

Concurring Opinion of Judge Serghides

Judge Georgios A. Serghides agreed with the majority that there had been a violation of Article 10 of the Convention in the case of OOO Regnum v. Russia. However, he delivered a separate concurring opinion to propose a different methodological approach to resolving the core legal issue—namely, the conflict between freedom of expression and the right to protection of reputation.

While the main judgment relied on established case-law criteria for balancing competing rights under Articles 10 and 8—such as the public interest value of the information, the way it was obtained, and the severity of the sanctions—Judge Serghides argued that this framework, though valid, lacked a coherent structure. He proposed instead a victim-centred and damage-based methodology rooted in the principle of effectiveness and the principle of proportionality.

According to Judge Serghides, the ECtHR should begin by identifying the potential harm to each of the competing rights—here, the right to freedom of expression of the media outlet, and the right of the company to respect for its business reputation. After assessing the damage each right would suffer if restricted, the Court should determine which right would be more impaired and whether that impairment would affect its “core or very essence.” The right that would suffer greater core impairment should be accorded priority.

Applying this method to the facts of the case, Judge Serghides concluded that the core of the right to freedom of expression would have been significantly harmed if the domestic court’s decision was upheld, whereas the right to protection of reputation—belonging to a commercial entity, not an individual—would not suffer comparable damage. He observed that the reputational harm alleged had not been clearly substantiated and did not rise to a level that would outweigh the public interest in the media’s role in disseminating information about potential health risks.

Although Judge Serghides concurred in finding a violation of Article 10 and agreed with the remedy awarded, he concluded by suggesting that the ECtHR adopt his methodology as a more structured, coherent, and principle-driven approach to balancing competing rights in future cases.

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