CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 septembre 2023

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page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .sB6A7F5BF { width:17.54pt; display:inline-block } .s7E447BAE { width:130.42pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     SECOND SECTION CASE OF EIGIRDAS AND VĮ “DEMOKRATIJOS PLĖTROS FONDAS” v.   LITHUANIA (Applications nos. 84048/17 and 84051/17)     JUDGMENT   Art 10 • Freedom of expression • Unjustified obligation to publish decisions of the media self-regulatory body, which disciplined the applicants for breaching requirements of journalists’ and publishers’ ethics in relation to two articles on matters of public interest • Interferences not “necessary in a democratic society”   STRASBOURG 12 September 2023   FINAL   12/12/2023     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Eigirdas and VĮ “Demokratijos plėtros fondas” v.   Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen , President ,   Jovan Ilievski,   Egidijus Kūris,   Pauliine Koskelo,   Saadet Yüksel,   Diana Sârcu,   Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the applications (nos.   84048/17 and 84051/17) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr   Eduardas Eigirdas (“the first applicant”), and VĮ “Demokratijos plėtros fondas” (“the second applicant”), on 11   December 2017; the decision to give notice to the Lithuanian Government (“the Government”) of the applications; the parties’ observations; Having deliberated in private on 11 July 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicants complained that the requirement to publish decisions of the media self-regulatory body, which had disciplined them for having breached requirements of journalists’ and publishers’ ethics, had been in breach of their right to freedom of expression. THE FACTS 2 .     The first applicant, Mr Eduardas Eigirdas, is a Lithuanian national who was born in 1970 and lives in Vilnius. He is a journalist, a member of the second applicant’s editorial board, and the second applicant’s founder. He is also a regular opinion writer in the magazine Valstybė (meaning “the State”). The second applicant, VĮ   “Demokratijos plėtros fondas”, is a non-profit organisation ( viešoji įstaiga ) registered in Vilnius. The second applicant publishes a magazine, Valstybė . Both applicants were represented by Ms   V.   Eigirdienė, a lawyer practising in Vilnius. 3.     The Government were represented by their Acting Agent, Ms   L.   Urbaitė. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. The first article 5 .     In February   2015 an article written by the first applicant was published in the magazine Valstybė . The article was entitled “The ten richest and most dangerous oligarchs of Lithuania” ( Įtakingiausių ir pavojingiausių Lietuvos oligarchų dešimtukas ). One of the persons described in the article was the owner of a large business and a politician, V.M., who would later become the mayor of Kaunas. The article described V.M. as follows: “V.M. only stands out in this context, I think, by throwing in the most money of all the entrepreneurs in Lithuania, and in the [upcoming] elections he will also make use of the fact that the business managed by him is one of the biggest advertisers. This is why almost all media publishes only good news about V.M. before these elections. It could be another sign indicating what influence the money received from advertising has on the media today ... We have given V.M. sixth place for [his] great efforts to become one of the representatives of the large capital, who have influence on politics, and for strengthening the positions of the large capital before the upcoming municipal and Seimas elections.” ( V.M. šiame kontekste išsiskiria tik tuo, kad, manau, metė daugiausia pinigų iš visų Lietuvos verslininkų, o rinkimuose pasinaudos ir tuo, kad jo valdomas koncernas – vienas didesnių reklamdavių. Todėl beveik visoje žiniasklaidoje apie V.M. prieš šiuos rinkimus sklinda tik geros žinios. Tai gali būti dar vienas ženklas, demonstruojantis, kokia šiandien reklamos pinigų įtaka   žiniasklaidai...V.M. šeštą vietą skyrėme už dideles pastangas įsiliejant į stambiojo kapitalo atstovų, darančių įtaką politikai, gretas ir stiprinant stambiojo kapitalo pozicijas prieš artėjančius savivaldos ir Seimo rinkimus ). The complaint to the Public Information Ethics Commission 6 .     V.M. submitted a complaint to the Public Information Ethics Commission ( Visuomenės informavimo etikos komisija , hereinafter “the   Commission”, see Articles 46 and 46 1 in paragraph   38 below) stating that the assertions made in the article had no basis and thus damaged his good name and professional reputation ( dalykinė reputacija ), and that no other opinions had been provided in that publication. V.M. noted that for the last four years he had been a member of the Kaunas city municipal council and that he had regularly financially supported various public events and was engaged in philanthropic activity. On 17   August 2015 the Commission found that the accusations in the publication had no basis and that no specific facts had been provided to substantiate them. The article had therefore breached domestic law, namely Article   3 of the Code of Ethics for Lithuanian Journalists and Publishers (hereinafter “the Code”, see paragraph   39 below), pursuant to which a journalist or producer of public information was under an obligation to provide accurate and precise information and different opinions, and should not disseminate opinions which would be in breach of the law or ethics. The Commission obliged the second applicant to publish its decision in Valstybė magazine. The complaint to the Inspector of Journalistic Ethics 7 .     V.M. also complained to the Inspector of Journalistic Ethics ( Žurnalistų etikos inspektorius , hereinafter “the Inspector”, see Articles 49 and 50 in paragraph   38 below), who on 20   August 2015 dismissed V.M.’s complaint as unfounded, concluding that the article had not overstepped the margins of freedom of expression and had not damaged V.M.’s honour and reputation. The Inspector considered that, based on the vocabulary used – the terms “I think” ( manau ) and “could be” ( gali būti ) – the assertions had been presented as speculation about the future ( spėjimai apie ateitį ) and commentary, and not facts ( žinia ). Accordingly, the truthfulness of such statements could not be verified. In the Inspector’s view, the opinion that V.M. had spent the most money on the election campaign out of all the entrepreneurs also had a factual basis in the data collected by the Central Electoral Commission, which showed that he had spent more money than two other businessmen. Moreover, the information about the money spent on the election campaign could not damage V.M.’s honour and reputation, because that information had not suggested that V.M. had committed an offence or some other dishonourable act, or that he had acted inappropriately in his private or public life. The administrative court proceedings against the Commission’s decision The Vilnius Regional Administrative Court 8 .     The second applicant lodged a claim with the Vilnius Regional Administrative Court against the decision of the Commission of 17   August 2015 (see paragraph 6 above). The first applicant and V.M. participated in the proceedings as interested parties. The first applicant submitted that the connection between two statements in the article – that V.M. was a big advertiser, and that therefore the media in which his companies were advertising were not publishing negative news about him – had been the first applicant’s personal opinion, based on his logical thinking and on his life experience as a journalist. At the court hearing, the Commission’s representative pointed out that in accordance with Articles   46, 46 1 , 49 and 50 of the Law on the Provision of Information to the Public (see paragraph   38 below), the Commission and the Inspector had examined the disputed article from different angles: the Commission had verified whether the journalist’s actions had complied with the requirements of the Code, whereas the Inspector had examined whether the publication had possibly damaged the honour and dignity of V.M. Accordingly, the fact that no damage to honour and dignity had been established did not mean, in itself, that there had been no breaches of journalists’ professional ethics or the Code. The Commission’s representative also stated that the statements in the disputed publication had been “flaunting generalised, unfounded and unethical accusations against all other media which held different views” ( mesti apibendrinti, nepagrįsti ir neetiški kaltinimai visai kitokią nuomonę turinčiai žiniasklaidai ). It followed that the Commission’s decision to find a breach of Article 3 of the Code had been reasonable. 9 .     On 29   February 2016 the Vilnius Regional Administrative Court allowed the second applicant’s claim. As regards the merits of the claim, the court held that the first applicant had expressed his opinion because he had used the words “I think”, and this was also confirmed by both the words which he had used with regard to the future elections – “in the [upcoming] elections he will make use” – and his supposition – ­ “[i]t could be another sign indicating what influence the money received from advertising has on the media today”. Moreover, during the court proceedings he had confirmed that the publication had expressed his opinion. Furthermore, there was no doubt that V.M. owned companies which produced a large range of food products, and these products were widely advertised in the media. Also, it was not disputed that the companies owned by V.M. had a right to decide on the media outlets with which to conclude advertising agreements. It logically followed that a profit-seeking business entity, in order not to lose a source of income, had an interest in maintaining a big advertiser’s orders, and that therefore in such a case, it would not be useful for that entity to disseminate information that did not please the client (the big advertiser). The statement in the article that V.M. was a big advertiser and that the media did not dare to publish negative information about him was not based on false information or information that did not correspond to reality. It was not intended to offend or humiliate V.M., but was instead a logical conclusion drawn by the author of the article. The court thus decided that a balance between the public’s interest in receiving information and a person’s right to privacy, honour and reputation had been struck. At the same time, the court dismissed as not relevant the second applicant’s complaint regarding the fact that the Commission’s decision was contrary to the Inspector’s decision. Because those two authorities were independent bodies, they had a right to adopt independent decisions; the legal bases on which they functioned were different, and they had different functions. Lastly, the court held that there was no basis to hold that the Commission had lacked impartiality when making its decision. The Supreme Administrative Court 10 .     V.M. appealed, and on 26   June 2017 the Supreme Administrative Court overturned the first-instance court’s decision. The Supreme Administrative Court also found that there was no basis to quash the Commission’s decision on procedural grounds. As to the merits of the case, the court held that the Commission had correctly found that the publication had breached Article   3 of the Code, which set out the requirement that correct and precise information be provided to the public. The Supreme Administrative Court further held that the mere use of the words “I think” was not enough for a conclusion that the arguments presented in the article were value judgments. The court considered that the Commission had had reason to believe that the statements in the article were news ( žinios ), which meant that the criteria of truth and accuracy had to be applied. Moreover, the accuracy of information had to be proved by the person who had published it. Circumstances whereby information was made public in the context of a political election campaign had no bearing on the evaluation of the accuracy of such information, since such circumstances (the campaign) were not an obstacle to verifying the truthfulness and accuracy of news about real events. However, the second applicant “had not sought to prove” ( niekaip neįrodinėjo ) the accuracy and fairness of the published information, and had simply based its position on the decision of the Inspector. The Supreme Administrative Court held that the fact that V.M. was an entrepreneur and an owner of a company who advertised his brand and products had not been a sufficient basis for the information which had been published. The court pointed out that no sources of information had been included in the publication to support the author’s statements. Furthermore, he had not provided the court with any concrete data either. The Supreme Administrative Court further noted that a criticism, opinion or perception ( vertinimas ) which was unfair and did not have an objective basis could not be disseminated. Moreover, pursuant to the Court’s case-law, even if evaluative statements (opinions), unlike statements of fact, could not be proved, they should not also lack a factual basis (the court relied on Steel and Morris v.   the United Kingdom , no.   68416/01, §   87 in fine , ECHR 2005 ‑ II). Likewise, when statements were of an evaluative nature ( teiginiai vertinamojo pobūdžio ), the proportionality of an interference could depend on whether there was a sufficient factual basis to support the challenged statement, since even an evaluative statement could exceed the permissible limits when it had no factual basis whatsoever (the court relied on a/s Diena and Ozoliņš v.   Latvia , no. 16657/03, §   82, 12   July 2007). The Supreme Administrative Court also held that it was important to assess not only whether the information published was accurate and correct, but also whether other, alternative, opinions existed. Accordingly, even if one agreed with the journalist’s argument that he had expressed his opinion, the publication had not contained alternative opinions, thus it had not ensured plurality of opinion. The parties concerned had not been given the right of reply. In any case, this aspect – the lack of alternative opinions – was only supplementary, since, as the Supreme Administrative Court had already established, the statements in the publication fell into the category of facts (news). 11 .     The Supreme Administrative Court also held that the first-instance court had incorrectly drawn a line between opinions and facts. In particular, the fact that V.M. was involved in politics and was a public figure who was therefore obliged to be tolerant towards critics did not mean that he should also tolerate the publication of information which was not precise and truthful. The mere use of the words “I think” in a phrase, as some sort of cover, was not determinative. Furthermore, the following phrases were declaratory statements ( teiginiai yra konstatuojamojo pobūdžio ), and therefore had to be based on factual data: “throwing in the most money”; “in the [upcoming] elections he will make use of the fact that the business managed by him is one of the biggest advertisers”; “[t]his is why almost all media publishes only good news about V.M. before these elections”; and “[a] sign indicating what influence the money received from advertising has on the media today”. Responsibility for the accuracy and precision of those statements lay with the person who published them. Furthermore, even if public figures had to be more impervious ( atsparesni ) to opinions and criticism, when information was published to which news and fact criteria ( žinios ir fakto kriterijai ) applied, the level of protection offered to such persons should not be lowered. Lastly, publishing information that had no factual basis was contrary to the principles of a democratic society, since when such information was presented as accurate and true, it distorted the facts and formed opinions (within society) which had no basis. This was also in breach of the requirements of pluralism, tolerance and liberalism, without which a “democratic society” could not exist. Freedom of expression was not an opportunity to publish information by bypassing the legal and ethical restrictions which aimed to protect society’s interest in obtaining information, an interest which also had to be balanced against a person’s right to respect for his private life and honour and dignity. The second article 12.     In March   2015 the magazine Valstybė published another article, one written by the journalist M.B. The article was entitled “In political marketing – the duel between Paksaitė and Matijošaitukas” ( Politinėje rinkodaroje – Paksaitės ir Matijošaituko dvikova ; Paksaitė is the daughter of the former President of the Republic, Rolandas Paksas, and Matijošaitukas, which is a diminutive for Matijošaitis, is the son of V.M.). The article started in the following manner: “‘His daily life – unlimited possibilities, extreme hobbies, expensive interests and ... loneliness’ – this is how romantically and upliftingly, like a would-be Lithuanian Leonardo Di Caprio, the magazine Žmonės [“People”] presents Dainius, the son of the businessman V.M., who is a mayoral candidate for Kaunas. When one opens the Offspring section of Žmonės magazine, a well-built young man who is looking at us seriously catches our eye, who could be every middle-aged woman’s dream. The title of the article – “I am still searching for the ideal woman” – also gives [us] hope. On another page, a photograph with [his] dad, creating the myth of a serious businessman who is following in his father’s footsteps. Without analysing the context, and making a brief assessment, we would call such an article another piece of literary trash [produced] by a tabloid; however, after dwelling on political processes, it is possible to draw other conclusions. If one looks at this interview from the perspective of marketing, if we include the municipal council elections and if we also try to assess how much advertising by V.M. has recently been in the public domain, the conclusions will certainly be different ...” “”Jo kasdienybė – neribotos galimybės, ekstremalūs pomėgiai, brangiai kainuojančios aistros ir ... vienatvė”, - taip romantiškai ir pakylėtai, it lietuvių Leonardo DiCaprio, žurnalas “Žmonės” pristato į Kauno miesto merus kandidatuojančio verslininko V.M. sūnų Dainių. Atsivertus žurmalo skiltį “Atžalos”, į akis krenta stuomeningas, rimtai į mus žvelgiantis vyriškis, galintis būti kiekvienos vidutinio amžiaus moters svajone. Vilčių teikia ir straipsnio pavadinimas – “Aš vis dar ieškau idealios moters”. Kitame puslapyje – nuotrauka su tėčiu, kurianti rimto verslininko, sėkmingai sekančio tėvo pėdomis, mitą. Neanalizuodami kontekso ir vertindami ūkiškai, tokį straipsnį pavadintume dar viena bulvarinio leidinio rašliava, tačiau šiek tiek pasigilinus į politinius procesus, galima pasidaryti ir kitokias išvadas. Jeigu į šį interviu žvelgsime per rinkodaros prizmę, jeigu pridėsime ir savivaldybių tarybų rinkimus, o jeigu dar ir pabandysime įvertinti, kiek V.M. reklamos pastaruoju metu buvo galima rasti viešojoje erdvėje, išvados tikrai bus kitokios”. The article then continued to discuss various techniques in political advertising, including the technique of the “successful child story” ( klestinčio vaiko istorija ). The complaint to the Commission 13 .     ŽLG, the company which owned the magazine Žmonės , lodged a complaint with the Commission, arguing, among other things, that the article in question had been unethical. The company ŽLG also complained that it had not been given the right of reply prior to the publication of that article. On 17   August 2015 the Commission referred to the parts of the article which had accused the magazine Žmonės of hidden political advertising and had called it a tabloid ( įvardijamas bulvariniu leidiniu ) and its articles literary trash ( rašliava ). The Commission also established that the company ŽLG had not been given an opportunity to respond to the criticism levelled against it, and that the disputed article in Valstybė magazine had also failed to state why such an opportunity had not been provided. It followed that there had been a breach of Article 22 §   2 of the Code, which provided that a person who had been criticised “always” had a right of reply (see paragraph   39 below), that is, the right to explain himself or herself, or to refute misleading information. If no such opportunity had been provided, society should be informed about this. The Commission ordered the second applicant to publish its decision in Valstybė magazine. The complaint to the Inspector 14.     V.M.’s son D.M. then lodged a complaint with the Inspector, arguing that certain statements in the article had been misleading and had harmed his professional reputation and good name. He stated, among other things, that he had never pursued any political marketing, and that the article had pejoratively referred to him as “Matijošaitukas”. 15 .     By decision no.   SPR-71 of 20   August 2015 the Inspector found that the article in question had not damaged D.M.’s honour or dignity or overstepped the boundaries of freedom of speech. Having examined the statements in the article and the context (the municipal elections of February 2015), the Inspector acknowledged that the published information indicating that D.M.’s positive portrayal in the media had been a political marketing technique aimed at promoting his father – who had been a mayoral candidate for Kaunas at the time – had had a negative connotation, although it had not been demeaning ( nėra žeminanti ). That being so, the published information had been related to public interest – hidden political advertising and techniques employed during elections. Moreover, V.M.’s son was a well-known figure in Lithuania; he had been a candidate in the municipal council elections, and therefore he had to withstand a certain level of criticism. It could not therefore be concluded that the second applicant had overstepped the margins of freedom of expression. 16 .     The Inspector acknowledged that it was “hard to directly prove” that the published information presenting the positive portrayal of D.M. was part of his and his father’s political marketing and was aimed at promoting V.M., since in order to do that one would need to evaluate the aims of the interview given to the magazine Žmonės . However, according to the Inspector, the disputed article in the magazine Valstybė did not make categorical statements. Instead, it suggested that these had been the publisher’s insights when it had observed and analysed the factual circumstances. The Inspector also considered that a person’s visibility or that of his entire family made them more well known, and that information about a family – such as their hobbies, interests or character – could be classed as political advertising. It followed that the information published in Valstybė magazine did not lack a proper factual basis. Furthermore, according to the Inspector, the information in the relevant article in the magazine had not only been based on real events, but had also been reasonably argued in the text of that publication. A person reading the publication could independently assess the relevance of the arguments presented in it. In other words, the reader might also disagree with the publisher’s insights. 17.     As to the right of reply, the Inspector referred to Articles   15 and 44 of the Law on the Provision of Information to the Public, which stipulated that a person who was dissatisfied with information which had been made public about him or her had to address the publisher of such information. Accordingly, the fact that the person about whom the publication had been written had not been asked to provide an opinion in response, or the fact that that person had not been informed about the publication beforehand, could not be seen as a breach of the right of reply. 18 .     As to plurality of opinion, the Inspector referred to Article   16 §   1 and Article 22 §   8 of the Law on the Provision of Information to the Public, which set out the principles of plurality of opinion and tolerance, principles without which a democratic society was not possible (the Inspector also referred to the Supreme Administrative Court’s ruling of 11   December 2014 in case no.   A 502 -2021/2014). However, those provisions of the law did not establish an obligation that each publication should contain different opinions (the Inspector referred to the Supreme Administrative Court’s ruling of 18   June 2015 in case no.   A 1435 -624/2015). It also had to be underlined that the producers or disseminators of public information could choose which style of publication they wished to use, how they wished to express their thoughts, and what the aim and content of the publication would be. According to the Inspector, the disputed article in Valstybė magazine had not aimed to examine different independent opinions regarding the questions discussed, or provide a platform for the parties involved in a conflict to state their positions. Likewise, the disputed article had not examined situations involving conflict in society or complex issues. Instead, the author of the publication had presented only her own “perceptions” ( įžvalgas ) and conclusions about events, public figures and processes related to the public interest. Many of those perceptions had been presented during a particularly important period, at the time of the municipal elections, when one could expect sharper statements and stricter assessments. In the light of the above factors, one could not hold that there should have been plurality of opinion in the Valstybė magazine article and that such plurality had not been ensured. The opinion of the Public Information Ethics Association 19 .     On 24   August 2015 the Public Information Ethics Association (the parent body of the Commission, see Articles 46 and 46 1 in paragraph   38 below) wrote a letter to the second applicant, expressing its concern that the publication at issue contained disrespectful and derogatory reviews about the work of other media outlets. It was noted in the letter that when writing about one’s colleagues, it was necessary to be careful with one’s language and avoid derogatory and offensive expressions. The administrative court proceedings 20.     The second applicant lodged a complaint against the decision of the Commission (see paragraph 13 above) with the domestic courts. The Vilnius Regional Administrative Court 21 .     On 29   March 2016 the Vilnius Regional Administrative Court allowed the second applicant’s complaint and quashed the Commission’s decision. The court considered that the publication at issue raised questions and sought to draw society’s attention to a pertinent problem – hidden political advertising. The author of the publication had expressed “concern about an important issue, [and had] expressed her understanding and thoughts, [and] evaluation of facts and data”. Accordingly, the Commission had been wrong to class the journalist’s statements as news ( žinia ). The court considered that the journalist’s statements were her opinion instead. In the court’s view, opinion could rely on facts and reasoned arguments, but usually it was subjective. The court also pointed out that in analytical articles about political and economic processes, as usual, opinions in reply ( atsakomosios nuomonės ) were not being provided. On the contrary, such articles gave the subjective view of their author. The Supreme Administrative Court 22 .     The interested third party – the company ŽLR – appealed against the first-instance court’s decision. ŽLR pointed out that the Valstybė journalist M.B. had not denied that that magazine had been critical ( atsiliepė kritiškai ) of the magazine Žmonės . ŽLR also argued that since Article   22 §   2 of the Code made no distinction about what “information” was disseminated (see paragraph   38 below), a person who was criticised always had a right of reply, irrespective of whether the information related to an opinion or news. ŽLR also submitted that in the disputed publication in Valstybė magazine, the company had essentially been accused of not meeting the requirements of Articles   30 and 31 of the Code (see paragraph   39 above), which demanded that political advertising should be clearly distinguishable from journalists’ articles. 23 .     The Public Information Ethics Association also appealed. The association agreed that the journalist’s statements were her opinion. However, it categorically disagreed with the first-instance court’s conclusion that the right of reply did not apply to opinion. On the basis of the definitions of the terms “personal criticism”, “opinion” and “news” ( žinia ) as set out in Article 2 of the Law on the Provision of Information to the Public (see paragraph   38 below), the association was of the view that “criticism was not considered news, but rather a certain type of opinion” ( kritika laikytina ne žinia, bet tam tikra nuomonės rūšimi ). The association considered that since the publication in the magazine Valstybė had expressed the author’s critical opinion about the activities of an interested third party (ŽLG), that third party should have been entitled to a right of reply. The Public Information Ethics Association also specified that whilst a Council of Europe Recommendation (see paragraph   43 below) interpreted the right of reply only as a person’s right to refute or specify ( paneigti ar patikslinti ) facts breaching his or her rights, Article   22 of the Code established a journalist’s obligation to contact the person who was being criticised before the publication of an article and provide him or her with an opportunity not only to refute news which was possibly incorrect ( galbūt neteisingas žinias ), but also to explain himself or herself as regards the criticism being expressed in relation to him or her. 24.     In proceedings on appeal, the second applicant argued that the right of reply was understood in the same manner in Lithuania and in Europe. It submitted that a person who was the subject of a publication had to address the publisher of the information in order to exercise the right of reply, and not the other way around. The second applicant also argued that Article 22 of the Code did not provide that a journalist or another person had to evaluate himself whether the information prepared was erroneous and address in advance the person whom the journalist was about to criticise. It argued that should the right of reply be interpreted in such a manner, this would make journalists’ right to freedom of expression nearly impossible, because in reality they would have to act differently from their colleagues working in a democratic world: firstly, a journalist would have to evaluate himself whether the information he was preparing was erroneous, and then he would have to seek out the persons being criticised. 25 .     On 31   August 2017 the Supreme Administrative Court held that the first-instance court had not properly examined the Commission’s decision, in particular as regards the accusations against ŽLG, and it remitted the case to the lower court for a fresh examination. The Supreme Administrative Court disagreed with the first-instance court’s position that the disputed publication had contained no criticism of the company ŽLG, that the journalist’s article had merely expressed her concern about an important issue, and that the publication had contained the journalist’s opinion. In the Supreme Administrative Court’s view, the first-instance court had reached that conclusion without analysing the specific statements referred to by the Commission in its decision, and without analysing the accusations which had alleged hidden political advertising, called the magazine Žmonės a tabloid, and called the articles in that magazine literary trash. The first-instance court’s finding – that the publication in Valstybė magazine had contained no criticism of the company ŽLG and merely the author’s opinion – was not justified, especially taking into account that the accusation about hidden political advertising could be verified on the basis of objective criteria. In this context, the Supreme Administrative Court also referred to the Court’s case-law which provided that the right to freedom of expression was not absolute, and that journalists had to act honestly and seek to provide accurate and reliable information. Similarly, even if evaluative statements (opinions), unlike statements of fact, could not be proved, they should not also lack a factual basis ( skirtingai nei faktiniai teiginiai, vertinamieji (nuomonės) negali būti įrodomi, tačiau jiems taip pat neturi trūkti faktinio pagrindo ). 26 .     As to the right of reply, the Supreme Administrative Court pointed out that the media had a duty to publish objective and correct information. Accordingly, it was a journalist’s responsibility to contact the person who was being criticised in order to find out whether that person wished to make use of the right of reply. The Vilnius Regional Administrative Court 27 .     On 16   November 2017 the Vilnius Regional Administrative Court dismissed the second applicant’s complaint against the Commission’s decision. The court pointed out that the publication in question had expressly mentioned the magazine Žmonės which was owned by the company ŽLG, and it had explored matters of political advertising by stating that the magazine Žmonės was publishing articles about electoral candidates’ children in a manner which was possibly covertly advertising those candidates. The court also pointed out that the disputed publication had examined and assessed the activities of Žmonės magazine, and the second applicant had to offer it a right of reply, pursuant to Article 22 of the Code. The right of reply in relation to criticism was provided for in Article 2 §   7 and Article 15 of the Law on the Provision of Information to the Public. On 14   December 2017 the Vilnius Regional Administrative Court awarded the company ŽLG the sum of 1,681 euros (EUR), to be paid by the second applicant, in respect of the legal costs the company had incurred during the court proceedings at first instance. The Supreme Administrative Court’s final decision 28.     The first and the second applicants appealed, as did the journalist M.B. 29 .     By a final decision of 13   February 2018, the Supreme Administrative Court upheld the first-instance decision (see paragraph   27 above). 30 .     The Supreme Administrative Court pointed out that the notion of personal criticism had been defined in Article   2 §   7 of the Law on the Provision of Information to the Public. As regards the case at hand, and without taking a position as to the nature of criticism ( nevertinant kritikos pobūdžio ), the Supreme Administrative Court considered that the information provided in the article in Valstybė magazine had contained an aspect of criticism (critical opinion) ( turėjo kritikos (kritiškos nuomonės) aspektą ) in relation to the company ŽLG. Firstly, the publication had examined and assessed the article printed in Žmonės , as well as that magazine’s activity, calling it a tabloid, which, according to the Dictionary of Contemporary Lithuanian, meant low-quality literature or press ( prasta literatūra, spauda ). Secondly, the information published in Žmonės magazine had been characterised as literary trash, which, according to the same dictionary, also had a demeaning connotation. Thirdly, the disputed article in Valstybė magazine had scrutinised the aim and content of the article in Žmonės magazine, linking the latter article exclusively to the hidden political advertising of D.M.’s father, and this should also be indirectly evaluated as definite criticism of Žmonės magazine. 31 .     In the light of the above factors, the Supreme Administrative Court upheld the first-instance court’s finding that the company ŽLG should have been given an opportunity to make use of the right of reply, in order to give an explanation or refute possibly erroneous information. Article 22 §   2 of the Code provided for this, establishing that a person who was being criticised should always retain the right of reply. If such an opportunity had not been made available ( jei tokios galimybės nėra ), or if the person had refused to exercise the right of reply ( asmuo atsisako pasinaudoti atsakymo teise ), it was necessary to inform society about that fact. However, the publication in Valstybė magazine had not explained why that had not been done (why the relevant persons had not been given the right of reply). 32 .     As to the right of reply, the Supreme Administrative Court also referred to its earlier case-law (ruling of 6   November 2017 in case no.   eA-995-1062/2017) which provided that the Code established that the right of reply arose prior to the publication of critical information, and representatives of media outlets had to contact the person who was being criticised and ask whether he or she would like to exercise the right of reply. Conversely, the Code did not place an obligation on the person who was being criticised to contact the media outlet to ask to make use of the right of reply. This meant that once it had been established that a certain publication would contain critical information, the person who was about to be criticised had the right of reply. Moreover, the Supreme Administrative Court’s case-law (ruling of 6   November 2017 in case no.   eA-1123-1062/2017) also refuted the second applicant’s argument that the right of reply could be understood in “only one” way ( yra viena ) and was only set out in the Law on the Provision of Information to the Public, and that the Code did not provide for a person having the right of reply before information was published. 33 .     The Supreme Administrative Court also pointed out that although the second applicant relied on the Inspector’s decision of 20   August 2015 (see paragraphs   15-18 above), the situation in the case which was being examined – the complaint against the decision of the Commission – was different from that in the case which had been examined by the Inspector. Accordingly, the Inspector’s decision was not pertinent. 34.     Lastly, the Supreme Administrative Court also stated that the second applicant’s reliance on the Committee of Minister’s Recommendation of 15   December 2004 on the right of reply (see paragraph 43 below) was irrelevant, since the Recommendation applied to a different situation, namely a situation where erroneous facts were refuted after certain information had already been made public by media outlets. Furthermore, in the Supreme Administrative Court’s view, from the provisions of that Recommendation, it could not be concluded that the right of reply arose only after information had been made public. 35 .     Having upheld the Commission’s decision, the Supreme Administrative Court did not deal with the company ŽLG’s claim for legal costs at that time, since it had not provided a sufficiently detai