Court of Human Rights: five recent Article 10 cases – Hugh Tomlinson QC

20 01 2011

Over the past month, the Court of Human Rights has handed down judgment in six Article 10 cases.  We have already posted about the most recent, MGN v United Kingdom. Of the other five, two involved civil defamation claims in domestic cases.  In both civil defamation cases it was held that the State had infringed the right to freedom of expression but there was no finding of violation in any of the other cases.  The reasoning is not straightforward in any of these cases and there are continuing doubts about the quality of the Court’s Article 10 case law.

The only “media case” amongh the five was Novaya Gazeta V Voronezhe v. Russia ([2010] ECHR 2104) in which a unanimous First Section found a violation of Article 10 as a result of a domestic defamation award of RUB 25,000 (£525) and an order for the publication of an apology.  The applicant newspaper had published an article which concerned abuses and irregularities allegedly committed by the mayor of Novovoronezh and other municipal officials. It also made references to services supplied by a local businessman. The article relied on and quoted from a town administration audit report.  The domestic court allowed the plaintiffs’ action, holding in particular that the article implied the embezzlement of funds by the mayor and the businessman, of which the newspaper had failed to adduce any proof.  It pointed out that no criminal proceedings against the plaintiffs in connection with the audit of some of the financial matters in question had been opened and that the article thus lacked a factual basis.

In considering whether the defamation judgment was justified under Article 10(2), the Court took into account the fact that the domestic claimants were, respectively, an elected politician, two civil servants and a contractor who had worked for the State and thus received public funds.  The Court held (in what seems to be an extension of the previous case law) that

private individuals lay themselves open to scrutiny when they enter the public arena and considers that the issue of the proper use of public funds is undoubtedly a matter for open public discussion” [46].

When considering the content of the article, the Court noted that it concerned the management of public funds by the mayor and civil servants [48].  This is obviously a relevant factor when looking at “public interest”.  However, the Court then went on to say this:

the impugned statements mostly reflected the journalist’s perception of the situation concerning the distribution of the town’s off-budget funds …  The purpose of publishing the article was to call for closer public and independent control over the spending of off-budget funds in order to prevent or stop possible corrupt practices by the local officials. The Court considers therefore that the impugned statements in the present case reflected comments on matters of public interest and are thus to be regarded as value judgments rather than statements of fact“. [51]

As Stijn Smet points out in a piece on the Strasbourg Observers blog, this does not follow. The allegations included a number of factual allegations of wrongdoing including an allegation that “during the audit an estimate of the repair work actually performed in the town stadium was made up  … where have the remaining 1,300,000 roubles gone” (see [6]).  These are not “value judgments” and the reasoning cannot be supported. Mr Smet suggests that this error is a result of the “fragmented reasoning” process of the court.  Whatever the explanation, this part of the judgment displays poor standards of judicial analysis.

There was, however, an alternative basis on which the decision could have been reached.   The domestic courts had refused to take any steps to obtain the “audit” report to which the article referred.  The Court attached

decisive importance to the fact that [the domestic court] refused to obtain such evidence .. in requiring the applicant to prove the truth of the statements made in the article while at the same time depriving it of an effective opportunity to adduce evidence to support those statements and thereby show that they constituted fair comment, the domestic courts overstepped their margin of appreciation” [56].

This was a perfectly sound basis for the finding of violation – without the “over stretching” the notion of what constitutes a value judgment.  The Court’s overall conclusion that “the standards applied by the Russian courts were not compatible with the principles embodied in Article 10” [59] seems unassailable.

The other defamation case was Sofranschi v. Moldova ([2010] ECHR 2087).  The Fourth Section (which deals with UK cases) unanimously held that a successful domestic defamation claim had constituted a violation of Article 10.  The applicant had been ordered to pay compensation to the leader of a collective farm and candidate in local elections for mayor, who he had criticised in May 2003 in a letter to the President of Moldova and other authorities.   The applicant had stated that the candidate

has no education … obtained false diplomas … the property [of the collective farm] … is now used by shameless people … [and] has guns and threatens people with them“.

The applicant was the member of the staff of one of the other candidates.

The Court found that there was a violation of Article 10.  It took into account the fact that the language used was not abusive or strong and “did not go beyond the limits of acceptable criticism”.  It also noted that the applicant had been prevented from presenting evidence in support of the allegation about the use of guns and the domestic court had not treated the allegation of “shameless conduct” as being a value judgment.

This decision is also criticised in the piece on the Strasbourg Observers blog – which points out that, in relation to the factual allegations the Court appears to take into account the fact that “the applicant’s factual allegations rested on what he believed to have been solid grounds” [30].   Although the Court does not spell it out, it may be that this is simply what might be called a “responsibility factor” rather than some kind of complete defence to a defamation claim.  This approach would be consistent with the reasoning in the rest of the judgment.   Overall, it seems that the case has reached the right result for, substantially, the right reasons.

In the other three cases, the Court rejected the complaints of violations of Article 10.  In Hoffer and Annen v Germany ([2011] ECHR 46) the Fifth Section considered an application by anti-abortion campaigners who had handed out leaflets naming a particular doctor and comparing abortion to the Holocaust and had been convicted of criminal defamation.  They had been fined DM400 and DM1800 respectively.  The domestic courts had noted that although the statements in the leaflet could be interpreted in different ways, all possible interpretations amounted to a very serious violation of the physician’s personality rights.  Among other statements the leaflet referred to Dr F as “the killing specialist” and included these words “Stop the murder of children in their mother’s womb … Then: Holocaust, Today Babycaust”.

The Fourth Section agreed with the views of the domestic courts [48] and found that they had balanced the expression rights of the applicant against the physician’s personality rights and that the reasons relied on were sufficient to show that the interference was necessary in a democratic society.  They also took into account the relatively modest criminal sanctions [49].

Although this case involved a use of the criminal law – something which has been criticised by the Council of Europe – it is understandable why a German Court took the view it did and why its decision was upheld.  Nevertheless, the leaflet did not threaten or incite violence and, despite its strong language, it was clearly intended to form part of political debate on the abortion issue.   While a criminal conviction might have resulted on similar facts in the United Kingdom, there is a strong argument that this kind of conduct should not be criminalised and that a violation should have been found by the Court of Human Rights.

In Monteiro da Costa Noqueira v Portugal (Judgment of 11 January 2011, in French only) the Second Section considered another criminal defamation cases.  The first applicant was a politician and the second a lawyer to the political party.  At a press conference they accused a doctor and an opposing politician of abuse of authority, involving the deliberate running down of a ward at a public hospital in order to transfer patients to a private clinic.  The applicants were convicted of defamation and each fined €1,800.   In finding that there was no violation, the majority of drew attention to the fact that Article 10 protects those acting in good faith to provide credible information but that  the allegations made were of a criminal nature and had no factual basis.  The sanction imposed was not excessive.

It is interesting to note that Judges Tulkens, Popovic and Sajó dissented.  Their dissenting judgment is of some interest.  They suggested that

By focusing so strongly and exclusively on the protection of reputation, this decision serves to undermine the very philosophy of freedom of expression

They went on to say that

“if the accusations were totally false and applicants without any basis whatsoever …  it was open [to the politicians who had been attacked] to refute them, without necessarily resorting to criminal proceedings”.

It seems to us that the dissenters have the better of the argument.  It will be interesting to see whether, after this 4:3 split in the Second Section, the applicants seek to refer this case to the Grand Chamber.  If so, it could be an important case concerning defamation and political expression.

The final case is Mouvement Raelian v Switzerland (Judgment of 13 January 2011, available only in French) in which the First Section considered the curious case of the “Raelian Movement”.  This is an organisation based in Geneva with the stated aim of making initial contact and developing good relations with extra terrestrials.  In 2001 it sought permission from the police to conduct a billboard campaign – the post showing faces of extra terrestrials and a flying saucer – along with the phone number and internet address of the movement.  Permission to display the poster was refused on the basis that the movement’s views on cloning and eugenics entailed threats to morals and the rights of others.

The majority of the First Section found that there was no violation of Article 10 on the basis that the domestic authorities had given good and sufficient reasons for the ban.  The prohibition on the campaign could be regarded as proportionate measure with a legitimate aim.

Judges Rozakis and Vajic dissented.  They were of the view that the case raised an interesting and novel issue as to the use of public space for advertising.  They pointed out that the posters themselves contained nothing illegal and that the applicant association was legal in Switzerland.  Their conclusion seems to us to have considerable force:

“it seems difficult to understand that a legal association that have not prohibited its website can not use public spaces to promote same ideas through posters that are not illegal and does not offend the public. The argument that by accepting a poster campaign, the city could give the impression that it endorses the opinions in question … does not seem to match the realities of the contemporary role of cities, which act in this context as private managers of public spaces. It is neither realistic nor necessary in a democratic society to restrict such access by such restrictions”.


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20 01 2011
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