Strasbourg on Privacy and Reputation: Part 2 “A right to reputation?”

In the second of this three part post Hugh Tomlinson QC looks at the development of the “right to reputation” in the case law of the European Court of Human Rights.  Part One of the post is here

INTRODUCTION

In contrast to many other international human rights instruments the Convention provides no express “right to reputation.”   Article 8 was modelled on Article 12 of the Universal Declaration on Human Rights which provides “No one shall be subject to … attacks upon his honour and reputation”.  It had been decided to leave these words out of the Convention (see the Report on the Travaux Preparatoires) – it is not clear why this was done.

THE INITIAL CASES

Despite the lack of expression provision, the right to reputation has recently been recognised in the case law as being an aspect of the right to respect for private life in Article 8.  It was mentioned, in passing, as a “right which is protected by Article 8” in the Article 10 cases of  Chauvy v France ((2005) 41 EHRR 610 at [70]), Radio France v France ((2005) 40 EHRR 29, [31]) and Cumpănă and Mazăre v Romania ((2005) 41 EHRR 200, [91]), in each case without any analysis of the point.

In White v Sweden ((2008) 46 EHRR 3) the Article 8 “right to protection of reputation” was combined with the positive obligations of the state in the application.   The applicant had brought criminal proceedings against newspapers which alleged that he had murdered the Swedish Prime Minister in 1986. The press were acquitted on the basis that the newspapers had had a reasonable basis for the published information. The applicant complained that his Article 8 rights had been breached, since the Swedish courts had failed to provide due protection for his name and reputation. The ECtHR accepted, without analysis, that Article 8 was engaged and that as a result at:

“The Court must therefore assess whether the domestic courts struck a fair balance between the two conflicting values guaranteed by the Convention, namely the protection of the applicant’s reputation as part of his right to respect for his private life and the newspapers’ freedom of expression. In that respect, it needs to be ascertained whether the courts applied standards which were in conformity with the principles embodied in arts 8 and 10 of the Convention” [26]

The Court concluded that the domestic courts were, in the circumstances, justified in finding that the public interest in publishing the information in question outweighed the applicant’s right to the protection of his reputation.

The point arose again in the Article 10 case of Lindon, Otchakovsky-Laurens and July v France ((2008) 46 EHRR 35), the Grand Chamber concerned a novel entitled “Jean-Marie le Pen on Trial” which recounted the trial of a fictional National Front militant who had murdered a young man of North African descent. The novel was based on real events and contained a number of statements about M le Pen – that he was “the chief of a gang of killers”, equated him to Al Capone, suggested that he advocated murder and was a “vampire who thrives on the bitterness of his electorate” and “sometimes also on their blood”. The French courts convicted the author and publisher of the novel of defamation and imposed a fine of €2,286 and awarded damages of €3,811 to M le Pen and the National Front, along with an order that the publishers pay for the publication of an announcement of the judgment. A majority of the Grand Chamber (13-4) found that there was no violation of Article 10.

The ECtHR accepted that the novel, as a form of artistic expression, was entitled to protection under Article 10 and, since it related to a debate on a matter of general concern, that it constituted political expression of a high value. However, novelists – like anyone else exercising their right to freedom of expression – had “duties and responsibilities”. The novel was not a work of pure fiction, but included real people and information presented as “fact”. The publishers had not carried out even basic verification of those facts.  The ECtHR took into account that M Le Pen, as a politician, was required to show a high tolerance for criticism and that he was a particularly controversial figure, who had been convicted of a number of speech crimes, including inciting racial hatred.  Even so, the descriptions in the novel overstepped permissible limits.  This case made clear that even a controversial politician is entitled to benefit from the protection afforded by Article 8 of the Convention and that, in its view, it is legitimate to ensure that, even in political struggles, there was a “minimum degree of moderation and propriety”.

Judge Loucaides gave a concurring judgment in which he emphasised that the right to reputation is “part and parcel of the right to respect for one’s private life” and is, in consequence “an autonomous human right, which derives its source from the Convention itself”. He pointed out that

“When there is a conflict between two rights under the Convention, neither of them can neutralise the other through the adoption of any absolute approach. Both must be implemented and survive in harmony through the necessary compromises, depending on the facts of each particular case”.

He went on to say that the reputation of politicians should not be at the mercy of the mass media because

“Reputation is a sacred value for every person including politicians and is safeguarded as a human right under the Convention for the benefit of every individual without exception”.

He then took the opportunity to make some general remarks, arguing that

“the suppression of untrue defamatory statements, apart from protecting the dignity of individuals, discourages false speech and improves the overall quality of public debate through a chilling effect on irresponsible journalism. …. The prohibition of defamatory speech also eliminates misinformation in the mass media and effectively protects the right of the public to truthful information. Furthermore, false accusations concerning public officials, including candidates for public office, may drive capable persons away from government service, thus frustrating rather than furthering the political process”.

There is a joint dissenting judgment from the four judges in the minority (including the judge from the UK, Mr Justice Bratza). This underlines the fact that the decision turned not on disagreement about fundamental principle, but on a different view of the facts. The four dissenters placed greater weight on the real distinction between works of fiction and fact, as well as taking the view that there was a sufficient factual basis for the value judgments about M Le Pen expressed in the novel .

In Pfeifer v Austria ((2007) 48 EHRR 175)  a professor committed suicide following the collapse of defamation proceedings over an article, written by the applicant, which criticised the professor for alleging that the Jews had declared war on Germany in 1933 and trivialising the crimes of the Nazi regime. The applicant was accused, in a later publication, of having unleashed a manhunt which had led to the death of the professor and having been a member of a “hunting society” which had chased him to his death. The applicant’s defamation action in the Austrian Courts failed and he complained that Austria had failed in its positive obligation to protect his Article 8 right to reputation.  The parties agreed that Article 8 was engaged (see [35])

The ECtHR identified the principal issue as being whether the State, in the context of its positive obligations under Article 8, had achieved a fair balance between the applicant’s right to protection of his reputation, as an element of his “private life”, and the other party’s right to freedom of expression guaranteed by Article 10 of the Convention: [38]. It said that the obligation under Article 8 to protect the applicant’s reputation “may arise where statements going beyond the limits of what is considered acceptable criticism under Article 10 are concerned” [44]. It reiterated that there was little scope under Article 10 for “restrictions on political speech or on debate on questions of public interest” [45].

The majority said the publication sued on claimed that the applicant had caused the professor’s death by ultimately driving him to commit suicide. No proof had been offered for the alleged causal link between the applicant’s article and the professor’s death. The publishers had overstepped acceptable limits, because they accused the applicant of acts tantamount to criminal behaviour [47]. Even if the statements were value judgments, the ECtHR held that they lacked sufficient factual basis [48]. As a result, the ECtHR was not convinced that the reasons advanced by the domestic courts for protecting freedom of expression outweighed the right of the applicant to have his reputation safeguarded. There had accordingly been a violation of Article 8 [49].

Judges Loucaides and Schäffer dissented on the facts. However, at the conclusion of his dissenting opinion Judge Loucaides, drew attention to the important issue of principle involved in the decision, with which he was in complete agreement. He said

“I feel the need to express my great satisfaction at the clarity and firmness with which, for the first time, a judgment of this Court has made it clear that a person’s right to protection or his or her reputation is protected by Article 8 as being part of the right to respect for private life, a position that I have always supported”.

A similar result was reached in the case of Petrina v Romania (Judgment of 14 October 2008)(available only in French, see press release here).  The applicant had been accused of having collaborated with the State Security Department under the former communist regime but his domestic libel proceedings were unsuccessful.  Although the subject of the debate was of general interest, there was factual basis for the allegation.  The reasons given by the domestic courts to protect freedom of expression were sufficient to take precedence over the applicant’s reputation.

THE KARAKO CASE

In Karako v Hungary (Judgment of 28 April 2009) the applicant was a politician whose opponent in an election campaign had said that he was in the habit of putting the interests of his electors second. His private prosecution for libel was unsuccessful and he complained of a violation of his Article 8 right to reputation. The Court accepted [23], that some attacks on a person’s reputation could be of such a seriously offensive nature as to have an inevitable direct effect on the victim’s private life. But the court took the view that, on the facts, the applicant had not shown that the publication in question had constituted such a serious interference with his private life as to undermine his personal integrity.   That being so, the applicant’s reputation alone was at stake in the context of the expression which was said to have damaged it.

The Court said this about reputation

“Concerning the question whether or not the notion of “private life” should be extended to include reputation as well, the Court notes that the references to personal integrity in the Von Hannover judgment reflect a clear distinction, ubiquitous in the private and constitutional law of several Member States, between personal integrity and reputation, the two being protected in different legal ways. In the legislation of several Member States, reputation has traditionally been protected by the law of defamation as a matter related primarily to financial interests or social status.

For the Court, personal integrity rights falling within the ambit of Article 8 are unrelated to the external evaluation of the individual, whereas in matters of reputation, that evaluation is decisive: one may lose the esteem of society – perhaps rightly so – but not one’s integrity, which remains inalienable. In the Court’s case-law, reputation has only been deemed to be an independent right sporadically” [22-23]

It went on to consider the case from the point of view of Article 10 and to hold that

“A limitation on freedom of expression for the sake of the applicant’s reputation in the circumstances of the present case would have been disproportionate under Article 10 of the Convention”. [28]

Judge Jociene concurred in the result but said this

“With regard to paragraphs 22 and 23 of the present judgment and especially the question (see paragraph 22), as to whether the notion of “private life” should be extended to include reputation as well, I think that such a question is unnecessary, because the jurisprudence of the Court has been clearly developed on this point. In the said Pfeifer v. Austria case the Court stated: “It has already been accepted in the Convention organs’ case-law that a person’s right to protection of his or her reputation is encompassed by Article 8 as being part of the right to respect for private life””.

It is noteworthy that, the  question as to whether there was an Article 8 reputation was not raised by either the Court (in the Statement of Facts and Issues) or by the Government in its Observations. The applicant did not refer the Court to the authorities discussed above on the point in his Submissions.

SUBSEQUENT CASES

Since Karako, the Court of Human Rights has held that Article 8 includes a “right to reputation” on a number of occasions.  For example, in A v Norway (Judgment of 9 April 2009) the Court said 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).

Similar views were expressed in the admissibility decision of Rukaj v Greece (Decision of 21 January 2010)

DOMESTIC CRITICS OF THE RIGHT TO REPUTATION

The development of an Article 8 right to reputation has had its critics.  In a recent piece in “Standpoint Magazine”, Mr Geoffrey Robertson QC says this

“… at Strasbourg more recently, some anti-press judges (from places like Malta) have insisted that “reputation” is a right that should be given equal weight because it is an aspect of privacy, and so it can be “balanced” against free speech that should have no presumption in its favour at all. This is an intellectually devious reading of the Convention, because back in 1950 an attempt was specifically made to insert “reputation” as a privacy right, and it was roundly defeated. To bring it back through the subterfuge of “judicial interpretation” has damaged respect for the European Court of Human Rights”.

The reference to anti-press judges “from places like Malta”, is, presumably, a reference to the Cypriot Judge Loucaides.   In slightly more measured criticism in Robertson and Nicol on Media Law (5th Edn, 2007, para 2-040), the same author suggests that “reputation” has been “carelessly and illegitimately” added to the protection afforded by Article 8.

Three points can be made in response.  First, the Convention is a “living instrument” and the omission of “reputation” from Article 8 is not definitive.  It does not appear to have been a “considered” removal to meet particular Convention policy objectives. Second, the corresponding provision of the International Covenant on Civil and Political Rights (the UN equivalent of the Convention, often known as the International Bill of Rights), Article 17, contains a reference to “honour and reputation”.  The United Kingdom (and the other Convention States) are bound, in international law, to give effect to this provision.  As a result, it cannot seriously be argued that provision for the protection of honour and reputation is incompatible with proper human rights protection.  Third, although the references to “reputation” as a right protected by Article 8 were not fully considered in the early case law, there can now be no doubt that the point is firmly established in the Convention jurisprudence as we have already discussed.

Mr Robertson’s arguments on this point were considered by the Supreme Court in Re Guardian News and Media ([2010] UKSC 1).  Lord Rodger noted that the Court’s previous case law confirmed that reputation was within the scope of Article 8 [39].  He said that the Court’s conclusion in Karako

“did not mean that the court was proceeding on the basis that the applicant’s claim in respect of his reputation did not fall within the scope of article 8. That would have been inconsistent with the court’s previous case law and would also have made nonsense of the reasoning in paras 24-29 of the judgment. In particular, in paras 24 and 25 the court is concerned with the inter-relationship of articles 8 and 10 in the circumstances. The outcome of that discussion (para 26) is that, even though the applicant is founding on article 8, the court must consider whether the Hungarian authorities properly applied the principles inherent in article 10. The court concludes that they did (para 27). Putting the two strands together, the court goes on to find, in para 28, that the applicant’s claim that his reputation as a politician has been harmed is not sustainable under article 8 and that a limitation of his opponent’s right to freedom of expression under article 10 would have been disproportionate. That leads, finally, to the conclusion that there has been no violation of article 8.

In short, in Karakó the European Court was concerned with the application of articles 8 and 10 in a situation where, in the court’s view, the applicant had not shown that the attack on his reputation had so seriously interfered with his private life as to undermine his personal integrity. In fact, the court does not mention any specific effects on the applicant’s private life” [41-42].

SUMMARY

To summarise, therefore, the Convention case law now clearly establishes that “reputation” is an aspect of the Article 8 right to respect for private life.  This view has been recently confirmed by the Supreme Court.  The state has a positive obligation to protect Article 8 rights.   As a result, when a person’s reputation is damaged by media reports, the Court must balance the Article 8 rights of the person whose reputation is in issue against the Article 10 rights of the media.  How this is done in practice and its implications for domestic law will be considered in the final post in this series.