Atingerea adusă reputaţiei. Condiţii şi măsuri dispuse de instanţe în contextul jurisprudenţei CtEDO
Damage to the reputation. Conditions and measures ordered by courts in the context of ECHR case-law

Summary/Abstract: This paper analyses the protection of reputation in the context of Romanian case-law and the influence of the European Court of Human Rights (ECHR). The evolution of the digital sphere brings with it new issues of debate regarding the balance between the protection of the right to reputation and the protection of freedom of expression. The Internet has significantly expanded both public access to information and access to a platform for the general public. The downside, however, is the emergence of major threats to the right to reputation and privacy.In this respect, we have identified three key trends within Romanian court practice: 1) the principles developed by the ECHR to ensure a fair balance between the right to privacy and the right to freedom of expression are usually analysed and applied by Romanian courts. Although the case-law of the ECHR is generally respected, the National Audiovisual Council (NAC) remains less receptive to integrating these principles into its decisions; 2) decision no. 1/2023 of the High Court of Cassation and Justice has not yet been implemented in the practice of the courts; 3) online defamation poses some new challenges, particularly in terms of removing old defamatory content and balancing the applicable remedies and the protection of freedom of expression. By analysing more than 150 court rulings and 160 NAC decisions rendered in recent years, this paper emphasizes the importance of proportionality of the measures ordered by the courts. In the context of the Internet, keeping defamatory content publicly available creates a particular problem: published information is not only essentially accessible to anyone, but this accessibility is no longer limited in time.Under these circumstances, in particular, questions arise as to the existence of measures (especially preventative measures) that sufficiently stifle the danger posed to non-pecuniary rights. While freedom of expression seems to be afforded greater protection than is the norm in ECHR case-law (for example, by making it impossible to prohibit the imminent publication of defamatory material), the question is whether this protection does not excessively attenuate the guarantees afforded to (for example) the right to privacy.

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