The Court of Human Rights has considered the balance between Articles 8 and 10 of the Convention in a number of defamation cases over the past year. We draw attention to three of these cases. This case law is important for media lawyers in England as it shows the way in which the domestic courts should be approaching these issues in accordance with their duty under section 6 of the Human Rights Act 1998.
The first case is A v Norway (Judgment of 9 April 2009). The applicant was a convicted murderer who was questioned about the rape and murder of two young girls. A newspaper carried an article referring to the questioning of “a 42-year-old convicted murderer from Kristiansand” without naming him and including a photograph of the applicant, although not showing his face. The applicant’s defamation claim was dismissed by the Norwegian Supreme Court. The applicant complained that this was a breach of the positive obligation under Article 8 to protect his reputation.
The Court first considered the general principles applicable in this area. It said:
“The case raises essentially an issue of protection of honour and reputation as part of the right to respect for private life under Article 8 of the Convention. This provision, unlike Article 12 of the 1948 Universal Declaration of Human Rights and Article 17 of the 1966 International Covenant on Civil and Political Rights of the United Nations, does not expressly provide for a right to protection against attacks on a person’s “honour and reputation”. … the Court has recognised reputation … and also honour … as part of the right to respect for private life. In Pfeifer [Judgment of 15 November 2007, para 35 ], the Court held that a person’s reputation, even if that person was criticised in the context of a public debate, formed part of his or her personal identity and psychological integrity and therefore also fell within the scope of his or her “private life”. The same considerations must also apply to personal honour. In order for Article 8 to come into play, the attack on personal honour and reputation must attain a certain level of gravity and in a manner causing prejudice to personal enjoyment of the right to respect for private life … The question is whether the State has achieved a fair balance between the applicant’s “right to respect for his private life” under Article 8 and the newspaper’s right to freedom of expression guaranteed by Article 10 of the Convention” (paras 63-65).
The Court held that the coverage was defamatory of the applicant: although he had not been mentioned by name, “the photographs and details of his places of work and residence had made it possible for persons who already knew him to identify him as a possible suspect of aggravated crimes of a particularly reprehensible and also sensitive … character” (para 70). The publication “entailed a particularly grievous prejudice to the applicant’s honour and reputation that was especially harmful to his moral and psychological integrity and to his private life” (para 73). The serious public interest in the subject matter of the article was not sufficient to justify the defamatory allegation against the applicant with the consequent harm done to him. As a result, a fair balance had not been struck between Articles 8 and 10 there was a breach of Norway’s positive obligation under Article 8.
The second case is Makarenko v Russia (Judgment of 22 December 2009). The applicant was the victim of a shooting which, at a press conference, he blamed on Mr M who he accused of attempted murder. The applicant was subsequently convicted of aggravated libel and sentenced to one year’s probation. The question for the Court was whether this conviction was justified under Article 10(2) as being “necessary in a democratic society”. It held that
“the statement that Mr M. had organised an attempt to murder the applicant was clearly an allegation of fact and as such susceptible to proof … Having made the offending allegations, the applicant was liable for their truthfulness” (para 152).
The fact that the applicant subsequently admitted that his allegation against Mr M was incorrect and apologised “did not fully wipe out the damage inflicted on Mr M.’s reputation” (para 154). The Court went on to hold that the penalty to which the applicant was subjected did not upset the balance between his freedom of expression and the need to protect Mr M.’s reputation (para 157).
The third case is the admissibility decision in Rukaj v Greece (Decision of 21 January 2010) – available only in French. The applicant had been involved in litigation against his employer following an accident at work. He later alleged that EF, the lawyer who had represented him in those proceedings, had acted to his in order to help his opponent and had included incorrect facts in his claim and evidence favouring his opponent. He complained to the International Human Rights Federation and to the Athens Bar. EF brought successful defamation proceedings and the applicant was sentence to 5 months imprisonment, suspended for 3 years. The Court held that the applicant had knowingly presented false facts in support of his complaint against EF.
In considering whether this penalty was justified under Article 10(2) the Court set out the following general principles
“In the context of proceedings for defamation or insult, the Court must determine whether the domestic authorities have struck a fair balance between, on one hand, protection of freedom of expression, enshrined in Article 10, and, secondly, that the right to reputation of the defendants, which, as part of privacy, is protected by Article 8 of the Convention (see Pfeifer v. Austria, Judgment of 15 November 2007, § 35). This latter provision may require the adoption of positive measures to ensure effective respect for private life even in relations between individuals”.
The Court considered that, in all the circumstances, the applicant’s conviction and sentence were not disproportionate and the interference with the applicant’s right to freedom of expression was necessary in a democratic society to protect the reputation and rights of others. As a result, the application was held to be inadmissible.
These cases demonstrate that, when defamation proceedings are being considered, the court must consider the balance between “reputation” and “expression” – with neither being given priority. This is consistent with the approach taken by Mr Justice Tugendhat in the recent case of Gary Flood v Times Newspapers ( EWHC 2375 (QB)). The exercise is fact sensitive but, in an appropriate case, severe sanctions will be justified. It is important to note that, in an appropriate case, the State is required to take positive measures to protection the “reputation and honour”.