Case Comment: Polanco Torres and Movilla Polanco v Spain

24 09 2010

On 21 September 2009 the Third Section of the Court of Human Rights gave judgment in the libel case of Polanco Torres et Movilla Polanco v Spain.  The applicants complained that the failure of their domestic libel action was a breach of the State’s positive obligation to protect their Article 8 rights to reputation.  The application was dismissed on basis that the article had the characteristics of a neutral report, it included a denial and the journalist had acted in good faith and discharged the obligation to take sufficient steps to verify the factual statements made. The judgment is available only in French.  There is, however, a press release in English.

Background

The applicants are the the wife and daughter of CM, the former President of the Civil and Criminal Division of the Cantabria Higher Court of Justice who died in 1998.  The second applicant was acting on behalf of her father.  On 19 May 1994 an article in the national daily newspaper “El Mundo” accused the first applicant (identified as the wife of CM) of involvement in unlawful dealings with a company.  There were said to be “irregular” transactions which were “opaque” to the tax authorities.  It was suggested that these were illegal operations with “dirty money”.

The report was based on computer discs received from an anonymous source which purportedly contained the company’s accounting data. “El Mundo” had verified with the company’s former accountant that the accounts were genuine and quoted him using quotation marks. He confirmed that the financial transactions at issue had been unlawful and that transfers of funds had not been declared by the company to the tax authorities. The article also contained a statement by the first applicant categorically denying any links with the company.   She said that the fact she appeared in the accounts of the company in question was probably the result of a “manoeuvre” by a defendant in a criminal case with the aim of discrediting her husband C.M. The full article also appeared the same day on the front page of the newspaper “Alerta”.

The first applicant and her husband C.M. brought defamation proceedings against “El Mundo”.  They succeeded at first instance and on appeal but the Constitutional Court quashed the judgments of the courts below. It found that the journalist had used all “effective” possibilities to verify the information, having confirmed the authenticity of the impugned accounts with the source of information that was the most reliable on that question: the former accountant of the company.  The Constitutional Court took into account the fact that the journalist had included in his article the denial by Mrs Polanco Torres.  The lower courts had also found against the newspaper “Alerta” but its appeal was declared inadmissible because “Alerta” had not made any efforts to verify the information it reported but had simply copied it from “El Mundo”.  The applicants complained that Spain was in breach of its positive obligation to protect the honour and reputation of the first applicant and her husband.

The Decision

The Court first noted that it had already held that

“A person’s reputation was part of his personal identity and moral integrity which formed part of his private life, even within the framework of a political debate …  It was necessary for the allegations to be sufficiently serious for their publication to have  a direct impact on the private life of the person concerned.  In order for Article 8 to be in play, the publication which might tarnish a person’s reputation had to constitute an impairment of his reputation of such seriousness that his personal integrity is compromised (Karakó v. Hungary, Judgment of 28 April 2009, para 23)” [40].

The Court noted that it had to strike a fair balance between the right to protection of reputation and the right to freedom of expression.  It recalled that Article 10 provides journalists with protection when they are acting bona fide, reporting on matters of general interest based on accurate factual information [43].

It was accepted that Article 8 was applicable, bearing in mind the seriousness of the allegations. The El Mundo article undoubtedly concerned a subject of general interest for its Spanish readers.  The journalist who wrote it had a duty to ensure that it had a sufficient factual basis.  The journalist had verified the authenticity of the discs with the former accountant of the company and had given the first applicant an opportunity to comment [50].

Although the accountant had been dismissed and was subject to criminal proceedings, this did not call into question his reliability as a source who implicated a third party and the legality of the means by which the information was obtained was not relevant. [51]

As a result, the Court concluded that

“the journalist who wrote the article in question could reasonably rely on the sources that he had available … There was no reason to doubt that he had taken sufficient measures to verify the veracity of the information” [52]

The Constitutional Court had put forward sufficient grounds in finding that the journalist’s right to impart information in the general interest had to be given more weight, than the applicants’ right to the protection of their reputation and honour. [53]

By six votes to one, the Court held that there had therefore been no violation of Article 8.  Judge Zupančič dissented holding that

“To support, as the majority do in this case, a pro forma verification and confirmation of the source, involves an unacceptable lowering of the protection of the individual against unprofessional or malicious conduct”

As an interesting footnote, the Court took the view that the fact that the domestic courts had upheld the applicants’ complaint against another newspaper, “Alerta” was not discriminatory or inconsistent.  The second newspaper had run the story on the front page and had taken no steps to verify, simply reproducing the “El Mundo” article in a non neutral form without telling its readers that this is what is had done. [60]

Discussion

A number of interesting points arise out this judgment.  First, the Third Section has confirmed that “honour and reputation” are protected by Article 8, subject to a “threshold of seriousness” – the attack must be on personal integrity.   The court considered the controversial decision in Karako v Hungary (Judgment of 28 April 2009) and took the view that its approach was consistent with the established case law on the “Article 8 right to reputation”.

Secondly, the Court has taken a “media friendly” approach to the requirements of “verification” and journalistic responsibility which must be satisfied if a false public interest story is to attract the protection of Article 10.  The steps taken to verify the data had involved interviewing the company’s dismissed former accountant who was subject to criminal prosecution.  No further investigation was conducted.  A “denial” by the first applicant was included but the story appears to have made direct allegations of wrongdoing.  This test appears to be less stringent than that laid down in earlier case law (see, eg Alithia v Cyprus, Judgment of 22 May 2008) and less stringent that the domestic Reynolds requirements.  There is considerable force in the dissenting judge’s view that what was done by way of verification was “pro forma”.  In particular, the source appears to have been someone with a clear “axe to grind” whose evidence should have been viewed with considerable caution.

Thirdly, the Court acccepted that a second newspaper which had lifted the story from the first and repeated it without attribution or investigation – a practice which is not unknown in England – was in a different position and was rightly sanctioned by the domestic courts.

There was a dissent from Judge Zupančič, a former legal academic and a senior member of the Court.  It will be interesting to see whether there is a reference to the Grand Chamber.


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26 10 2010
“Is there a right to reputation?” Part 1 – Heather Rogers QC « Inforrm's Blog

[…] is, so far, available only in French (there is a Press Release in English). The “Inforrm” blog comments that in this […]

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