The violated right to honor and good name in conflict with the free dissemination of opinion

Protection of the violated right to honor, dignity and good name in the event of the wrongful exercise of the right to freely express and disseminate opinion – The Decision of 11.08.2020 of the Supreme Court of Cassation (VKS)

The subject of the case, decided by the Supreme Court of Cassation (SCC), is a claim for the amount of BGN 25,000 - compensation for non-pecuniary damage suffered as a result of sent offensive qualifications, humiliating insults, mockery and comparisons with negative connotations, incorporated into a series of a total of 16 editions of a television program produced by the first defendant and broadcast by the second defendant.

The plaintiff in the case is the singer Desislava Tenekidzhieva, and the defendants in the case, in solidarity, are the producer of the program "Seven-Eight" and the provider of the media service ("BTV Media Group"), in its capacity as the principal of the work of the relevant employees who allowed the broadcast of the programs in question.

In order to engage the warranty and security liability of the client of the work, the existence of unlawful behavior – action or inaction of those performing the assigned work during or in connection with its performance, damages suffered, fault and causal relationship between this behavior and the damages incurred, with fault being presumed until proven otherwise.

What are the factual grounds for filing the claim?

The plaintiff claims that she suffered non-pecuniary damage harm, as a result of insults and mockery of her personality in 16 broadcasts of the television show in the period from 2013 to 2015. The unlawful act is expressed in comparing the plaintiff to a vampire, a crocodile, a pterodactyl, a wolf, death, a witch, a cross between a snake and a hedgehog, etc.

In 2015, the plaintiff filed a claim for the amount of BGN 25,000 for non-pecuniary damages and BGN 10,000 for pecuniary damages, given that she is an actress, model, singer, advertising personality, and producer by profession, and the humiliating insults inflicted on her are fundamental changes and losses both personally and professionally.

What are the legal grounds for filing the claim?

Freedom of expression does not include the possibility of mocking the appearance of a person, even if he is a public figure and regardless of what that appearance actually is. Such behavior is unlawful, as it is in contradiction with Art. 32, para. 1 of the Constitution of the Republic of Bulgaria.

The plaintiff claims that the actions of the two defendants also violated European law, namely Article 10, paragraph 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as the balance between freedom of expression and the plaintiff's right to honor and dignity was violated.

The defense of the defendants and the clash between the right to honor, dignity and good name and the right to freely express and disseminate opinion

The defendants refer to Article 10 of the Radio and Television Act, which provides for the basic principles for the provision of media services, including the guarantee of the right to free expression of opinion.

The defendants argued that the threshold of tolerance for criticism by a public figure should be significantly higher than usual. The Court credited this reasoning with the clarification that the limits of permissible criticism for public figures are wider, but only to the extent that the statements concern a matter of public interest.

Arguments are presented that the freedom of artistic creation is recognized by the Constitution and Article 9 of the Art and Culture Act, and in her assessment the plaintiff did not take into account that: „"not only beauty is a subject of creative freedom"“.

What do the Sofia City Court and the Sofia Court of Appeal decide?

By Decision No. 4679/12.07.2018 in civil case No. 10756/2015 of the Sofia City Court, the claim was upheld and the defendants were sentenced to pay compensation for non-pecuniary damages in the amount of BGN 25,000. However, the court's decision was appealed and the case is being considered in second instance before the Sofia Court of Appeal.

By Decision No. 791/08.04.2019 on Civil Case No. 5064/2018 of the Sofia Court of Appeal, the latter accepted that there was no unlawful conduct. It considered that the negative assessments of the plaintiff's appearance made in the trial editions of the program express a subjective assessment - the artistic means used are not direct insults to the plaintiff, „"and carry humorous content through the techniques of irony, paradox, hyperbole, allegory, sarcasm, and interpretation that surprises the viewer"“.

It is accepted that, according to the case law of the European Court of Human Rights, restrictions on freedom of expression must be interpreted restrictively. The Court annuls the first-instance decision in so far as it upholds the claim.

This gives the plaintiff grounds to appeal the appellate decision before the Supreme Court of Cassation (SCC).

The decision of the Supreme Court of Cassation

By a ruling in the case, a cassation appeal was admitted under Art. 280, para. 1, item 2 of the Code of Civil Procedure on the legal issue regarding the limits in exercising the right to freely express an opinion within the meaning of Art. 39 of the Constitution of the Republic of Bulgaria and Art. 10 of the ECHR and whether these limits have been exceeded in the case of expressed negative evaluative judgments concerning a specific person.

Medical documents were presented in the case and a comprehensive psychological and psychiatric examination was conducted, certifying the physical and mental harm suffered by the victim.

• In 2014, the plaintiff was diagnosed with "severe insomnia" and prescribed medication therapy.
• In 2015, the plaintiff was diagnosed with "acute stress reaction with a history of history", with complaints of headache, dizziness and vertigo, pain and stiffness in the jaw area.
• According to the results of a psychological examination of the victim from 2015, elevated values were found on the "depression" and "psychasthenia" scales. It was reflected that „"such an increase is directly related to a traumatic event and is a sign of situational depression, which can be expressed in depressed mood, tension, and anxiety.".
• According to the complex psychological and psychiatric expertise in the case, over the past two years the victim has had symptoms of acute and chronic stress, including mental and vegetative complaints. The caricature of the personality in the media space, lasting almost two years, has a high stressogenic potential.

The court takes into account the results of the expert reports, the manner in which the damage was caused - 16 shows were broadcast over two years through a media outlet with national coverage, as well as on the Internet, the fact that the shows became known to a wide circle of people, the social status of the plaintiff as a public figure, the socio-economic conditions in the country at the time of the tort and the standard of living.

It should be noted that all of the above-mentioned effects on the personality of the plaintiff are serious non-pecuniary damages. As negative experiences from the spiritual world, they are subject to fair material compensation. In such cases, all material damages, such as the costs of medicines, treatments, lost profits, to the extent that they can be proven, are also subject to compensation.

The restriction of constitutionally recognized and guaranteed rights is permissible only in order to protect other rights proclaimed by the Constitution. When a person exercises his right and thus unlawfully infringes on the legal sphere of another person, we are faced with an abuse of law. In this case, the injured party may receive fair compensation for the damage suffered, meeting current standards for society.