On 30 March 2010, the Fourth Section of the European Court of Human Rights (“the ECtHR”) handed down judgment in the case of Petrenco v Moldova. By a majority of 6:1 the Court held that the failure of the applicant’s domestic defamation claim was a breach of the positive obligation of the respondent State to protect the applicant’s Article 8 right to reputation. The applicant was awarded “just satisfaction” of €1,200 for non-pecuniary damage.
The case is important for three reasons. First, it provides a useful summary of the approach of the Court to issues of reputation and freedom of expression. Second, the court found that there was a breach of the positive obligation to protect reputation. This is only the third case in which such a finding has been made – the other two are Pfeifer v Austria (2007) 48 EHRR 175 and Petrina v Romania Judgment of 14 October 2008). Third, it is a decision of the Section of the Court which deals with United Kingdom cases (the President of the Fourth Section is the UK judge, Sir Nicholas Bratza) and shows the approach likely to be taken in UK applications raising these issues.
The applicant, Anatol Petrenco, was a professor of history. In 2002 the official government newspaper published an article written by a historian and former deputy minister for education criticising Mr Petrenco’s professional competence and suggesting that he got his university place and subsequent career as a historian thanks to his links with the Communist Party. The article twice mentioned that he had the “confidence of … the KGB”. He brought defamation proceedings and the first instance court found that that the article implied that he had collaborated with the KGB which collaboration had not been proved. However, the judgment was overturned on appeal and it was found that the author of the article had only expressed his opinions.
Although the complaint was brought under Article 10 the ECtHR, of its own motion, considered it under Article 8 on the basis that this included the right to protection of reputation (para 44). It noted that
In the cases in which the Court has had to balance the protection of private life against freedom of expression, it has always stressed the contribution made by articles in the press to a debate of general interest (see, for example, Tammer … §§ 66 and 68; Von Hannover, … § 60; and Standard Verlags GmbH v. Austria (no. 2), no. 21277/05 § 46, 4 June 2009). In cases concerning debates or questions of general public interest, the extent of acceptable criticism is greater in respect of politicians or other public figures than in respect of private individuals: the former, unlike the latter, have voluntarily exposed themselves to a close scrutiny of their actions by both journalists and the general public and must therefore show a greater degree of tolerance”
The impugned article had been published in the context of a lively debate of significant public interest. The applicant, Chairman of the Association of Historians of the Republic of Moldova at the time, had been a public figure; therefore, he had had to tolerate higher public scrutiny and criticism than had he been a private citizen. In those circumstances, the general tone of the article and the insulting language had not in themselves breached his right to respect for his reputation. However, different considerations applied to the implication that he had collaborated with the Soviet secret services.
The ECtHR noted that the domestic courts had classified the relevant statements as value judgments and that the article had been published in good faith (para 64). However it did not agree:
“the article intended to imply that the applicant had collaborated with the KGB. In the Court’s view, whether an individual has collaborated with the Soviet secret services is not merely a matter for speculation but a historical fact, capable of being substantiated by relevant evidence … The Court emphasises the damaging nature of the allegation in the present case, which was likely seriously to discredit the applicant and his views on the question under discussion. As such, rather than contributing to the debate, the allegation risked undermining its integrity and usefulness. The Court recalls that a person’s status as a politician or other public figure does not remove the need for a sufficient factual basis for statements which damage his reputation, even where such statements are considered to be value judgments, and not statements of fact as in the present case” (paras 65-66)
There was no evidence of such collaboration and as a result, the case “concerned a distorted presentation of reality, for which no factual basis whatsoever had been shown by the author“. By implying collaboration had taken place “as though it were an established fact when it was mere speculation on the part of the author, the article overstepped the limits of acceptable comments”. (para 66). As a result, the majority found that there was a violation of the positive obligation under Article 8 of the Convention. Three judges gave a joint concurring opinion.
In his dissenting opinion, the Icelandic Judge, David Thór Björgvinsson, did not differ from the majority on the principles to be applied but took the view that the domestic courts had struck the balance between Article 8 and Article 10 in the right place. He paid particular regard to: i. the fact that the article was published in the context of a debate of clear general interest; ii. There was no direct allegation of collaboration but, at best consisted of an innuendo that the applicant was well regarded by the KGB; iii. The newspaper published a retraction of the earlier article; iv. The applicant had been a member of the Communist Party and the allegation that he was well regarded by the KGB did not increase the level of stigmatisation sufficient to sacrifice the right to press freedom.
The judgment is noteworthy for a number of reasons. First, it proceeds on the basis that “reputation” is a right protected by the Convention. We have discussed the Strasbourg case law on this point in an earlier post. It is now clear that (certainly as far as the Fourth Section is concerned) the ECtHR will proceed on the basis that reputation is a right protected by the Convention.
Second, the fact that the publication is made in relation to a subject of “public interest” interest and is in good faith did not provide it with protection. Any attempt to confine the protection of libel laws in relation to “public interest” publications to allegations made in bad faith would be contrary to Article 8.
Third, the violation was found despite the fact that the allegation was an “innuendo”, rather than a direct statement and one that was found by the domestic courts to constitute a “value judgment”. The ECtHR again made it clear that the distinction between fact and value judgment was between statements which can be proved to be true and ones which cannot be. The contrast with the approach of the Court of Appeal in British Chiropractic Assocation v Singh is instructive.
Fourth, the difference in approach between the majority and the dissenting judge shows how the striking of the balance between Article 8 and Article 10 is always subject to different views. What is most striking however is that fact that, despite the powerful factors identified by Judge Björgvinsson, the majority found a violation of Article 8.
Overall, Petrenco shows that under the Convention, a careful balance now needs to be struck between expression and reputation. It seems to us that from the point of view of the Convention case law English libel law appears, in general, to strike this balance in more or less the right place.