This is the first part of a paper delivered at the JUSTICE/Sweet and Maxwell Human Rights conference on 20 October 2010.  The second, concluding part, will be posted later in the week.

In dealing with the question “Is there a right to reputation?” it is appropriate to start with the Universal Declaration of Human Rights, promulgated by the United Nations General Assembly in December 1948. That gives a clear “yes” since Article 12 provides that  “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks”.

The Universal Declaration also contains a guarantee of freedom of expression in Article 19:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

But the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”), which followed the Universal Declaration, has no equivalent reference to honour or reputation. The preamble to the ECHR refers to the parties being “resolved, as the Governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law to take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration”. “Privacy” was included in the ECHR, but not “honour and reputation”.  Article 8 of the ECHR, the equivalent to Article 12 of the Universal Declaration, provides:

“(1)       Everyone has the right to respect for his private and family life, his home and his correspondence.

(2)         There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The omission of “reputation” was deliberate, as appears from the “preparatory work” on Article 8 of the ECHR: see the information document prepared by the Secretariat of the Commission.

The ECHR refers expressly to “reputation” only in the context of Article 10. This guarantees the right to freedom of expression in Article 10(1), while Article 10(2) identifies a number of legitimate aims which may warrant a proportionate restriction upon the exercise of the right.  Article 10 states:

(1)     Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

(2)      The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

So the ECHR provides for the protection of reputation, but does not afford it the status of a Convention right.  Or so it appeared.

In recent years, though, the European Court of Human Rights (“ECtHR”) has held that the protection of reputation forms part of the Article 8 right. The Strasbourg approach has been followed in domestic law.  This is a brief outline of what has occurred.

In a series of case from about 2003, the ECtHR began to treat a person’s reputation as being capable of protection by Article 8 as part of the right to respect for private life: see, for example, Cumpana v Romania (2004) 41 EHRR 200 at [91], Chauvy v France (2004) 41 EHRR 610 at [70] and White v Sweden [2007] EMLR 1 at [21].

The case of Lindon v France (2008] 46 EHRR 35 is a good example of the new approach of the court. The author and publisher of a book had been convicted in France of defamation. The book was a novel – “Jean-Marie le Pen on Trial” – which gave a fictional account of a trial of a National Front militant for the murder of a young man of North African descent. The novel was based on real events and it referred to M le Pen as “the chief of a gang of killers”, equated him to Al Capone and suggested that he had advocated the fictional murder. The book described him as a “vampire who thrives on the bitterness of his electorate” and “sometimes also on their blood”.  The French courts imposed a fine and awarded damages to M Le Pen and to the National Front. The publishers were also required to pay for the publication of an announcement of the judgment.  In Strasbourg, the Grand Chamber found, by a majority of 13-4, that there was no violation of Article 10. The court accepted that the novel was entitled to protection under Article 10, as a form of artistic expression and, since the book related to a debate on a matter of general concern, that it constituted political expression.  But novelists – like anyone else exercising their right to freedom of expression – have “duties and responsibilities”.  The novel was not pure fiction. It included real characters and “facts”. The publishers had not carried out even basic verification of those facts.  Even allowing for the fact 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 – the descriptions in the novel overstepped permissible limits (There is a compelling dissenting judgment by the four judges in the minority including the judge from the UK, Nicholas Bratza). They took a very different view of the facts, drew a real distinction between fact and fiction, and took the view that there was a sufficient factual basis for the value judgments in the novel.

The role of Article 8 was set out in a concurring opinion by Judge Loucaides.  He said:

“For many years the jurisprudence of the Court has developed on the premise that, while freedom of speech is a right expressly guaranteed by the Convention, the protection of reputation is simply a ground of permissible restriction on the right in question which may be regarded as justified interference with expression only if it is “necessary in a democratic society”; in other words if it corresponds to “a pressing social need” and is “proportionate to the aim pursued” and if “the reasons given were relevant and sufficient”. Moreover, as a restriction on a right under the Convention it has to be (like any other restriction on such rights) strictly and narrowly interpreted. The State bears the burden of adducing reasons for interfering with [freedom of] expression and has to demonstrate the existence of “relevant and sufficient” grounds for doing so.

As a consequence of this approach, the case-law on the subject of freedom of speech has on occasion shown excessive sensitivity and granted over-protection in respect of interference with freedom of expression, as compared with interference with the right to reputation. Freedom of speech has been upheld as a value of primary importance which in many cases could deprive deserving plaintiffs of an appropriate remedy for the protection of their dignity.

This approach cannot be in line with the correct interpretation of the Convention. The right to reputation should always have been considered as safeguarded by Article 8 of the Convention, as part and parcel of the right to respect for one’s private life

Accepting that respect for reputation is an autonomous human right, which derives its source from the Convention itself, leads inevitably to a more effective protection of the reputation of individuals vis-à-vis freedom of expression …

Any defamatory statement amounts to interference with the right guaranteed by the Convention and can only be justified if it satisfies the requirements of permissible restrictions on the exercise of such right, i.e. it must be prescribed by law and necessary in a democratic society, corresponding to a pressing social need, proportionate to the social aim pursued, etc. Therefore it will be more difficult to defend a defamatory statement for purposes of Convention protection when it is examined as interference with a right recognised under the Convention, rather than as a necessary restriction on freedom of expression.

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.

The principle established by the jurisprudence, that there is more latitude in the exercise of freedom of expression in the area of political speech or debate, or in matters of public interest, or in cases of criticisms of politicians, as in the present case, should not be interpreted as allowing the publication of any unverified defamatory statements. To my mind this principle means simply that in those areas mentioned above, and in respect of politicians, certain exaggeration in allegations of fact or even some offending effect should be tolerated and should not be sanctioned. But the principle does not mean that the reputation of politicians is at the mercy of the mass media or other persons dealing with politics, or that such reputation is not entitled to the same legal protection as that of any other individual.

The key point was stated by the ECtHR in Pfeifer v Austria (2009) 48 EHRR 8 at [35]:

“The Court considers that a person’s reputation, even if that person is criticised in the context of a public debate, forms part of his or her personal identity and psychological integrity and therefore also falls within the scope of his or her “private life”. Article 8 therefore applies.”

Other cases have taken the same line: see, for example, Petrina v Romania (Judgment of 14 October 2008) at [19].

Then a slightly different approach to Article 8 and reputation emerged in Strasbourg. In A v Norway (Judgment of 9 April 2009) at [63], the ECtHR drew attention to the fact that Article 8:

“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 therefore concluded at [64]:

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 ECtHR considered the extent to which reputation comes within the scope of Article 8 in Karako v Hungary (39311/05) (28 April 2009). In that case, a Member of Parliament in Hungary complained that the authorities in Hungary had failed to protect his Article 8 rights by failing to prosecute a political opponent who had allegedly defamed him. The ECtHR said:

[17]       The Court is satisfied that the purported conflict between Articles 8 and 10 of the Convention, as argued by the applicant, in matters of protection of reputation is one of appearance only…

[18] …  this claim [by the applicant] implies that the right to reputation is an independent right protected by Article 8 of the Convention which the State has a positive obligation to protect.

[19]         At the outset, the Court emphasises the importance of a prudent approach to the State’s positive obligations to protect private life in general and of the need to recognise the diversity of possible methods to secure its respect….

[22]         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 [note: Von Hannover v Germany (2005) 40 EHRR 1] 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.  …

[23]         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 .. and mostly when the factual allegations were of such a seriously offensive nature that their publication had an inevitable direct effect on the applicant’s private life. However, in the instant case, the applicant has not shown that the publication in question, allegedly affecting his reputation, constituted such a serious interference with his private life as to undermine his personal integrity. The Court therefore concludes that it was the applicant’s reputation alone which was at stake in the context of an expression made to his alleged detriment.

[24]         The Court reiterates that paragraph 2 of Article 10 recognises that freedom speech may be restricted in order to protect reputation … In other words, the Convention itself announces that restrictions on freedom of expression are to be determined within the framework of Article 10 enshrining freedom of speech.

[25]         The Court is therefore satisfied that the inherent logic of Article 10, that is to say, the special rule contained in its second paragraph, precludes the possibility of conflict with Article 8.  In the Court’s view, the expression “the rights of others” in the latter provision encompasses the right to personal integrity and serves as a ground for limitation of freedom of expression insofar as the interference designed to protect private life is proportionate.

The ECtHR concluded at [28-29] that there had been no violation of art 8.

Perhaps the most recent ECtHR decision on this point is a judgment given on 21 September 2010: Polanco Torres v Spain (34147/06), which refers to Karako: see [40-41], [44-45]. The judgment is, so far, available only in French (there is a Press Release in English). The “Inforrm” blog comments that in this judgment:-

“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 … and took the view that its approach was consistent with the established case law on the “Article 8 right to reputation”.”

It is not yet known whether that case will proceed to the Grand Chamber.

Heather Rogers QC is a barrister at Doughty Street Chambers.