When a court is confronted with a conflict between two human rights, their indivisibility demands that both rights are accorded a priori equal weight in the considerations of the judges. Yet, research into the conflict between freedom of expression and the right to reputation in the recent defamation case law of the European Court of Human Rights indicates that the Court engages in preferential framing when attempting to resolve the conflict.

Preferential framing occurs when the European Court of Human Rights (or any court for that matter), confronted with a conflict between human rights, engages in reasoning that is framed to the benefit of one of the rights involved (generally the right invoked by the applicant), thereby neglecting the importance of the other right to a greater or lesser extent. In a recent publication – “Freedom of Expression and the Right to Reputation: Human Rights in Conflict”, I have argued that the ECtHR engages in preferential framing in its recent defamation case law and have demonstrated how this may lead to unsatisfactory reasoning on the part of the Court.

The European Court of Human Rights first recognised the existence of a conflict between freedom of expression and the right to protection of one’s reputation in defamation cases in the article 10 ECHR case Chauvy v. France (App. No. 64915/01, 29 June 2004), after having established that the right to protection of one’s reputation is protected by article 8 ECHR. The Court would later confirm the existence of a right to protection of reputation under the European Convention on Human Rights in the article 8 case Pfeifer v. Austria (App. No. 12556/03, 25 November 2007).

Following Chauvy v. France, all defamation cases coming before the ECtHR entail a conflict between two Convention rights. However, only one of the right holders will be present in Strasbourg. Because the individual complaint mechanism before the Court is one against the state, it is the state that will – sort to speak – replace one of the parties to the domestic dispute (the winning party). The state will defend its decision to protect the Convention right of the winning party in the domestic proceedings, while the applicant will argue that it has breached her Convention right in doing so. Because the original right holder is not physically present at the Court’s proceedings, it is tempting to disregard her Convention right to a certain extent and to focus on the Convention right invoked by the applicant. My research has indicated that this is exactly what happens in the defamation case law of the Court after Chauvy v. France, while one may expect that respect for the indivisibility of human rights would lead the Court to treat the article 10 and the article 8 right on an equal footing (the Court has always – rightly so – refused to establish a hierarchy between article 8 and article 10).

In order to address the problem of preferential framing and improve the legal reasoning of the ECtHR in defamation cases, I have proposed a model for the resolution of conflicts between human rights that is intended to ensure equal treatment and consideration of both Convention rights involved.

The model firstly requires that the Court identify the conflict by explicitly stating the involvement of two Convention rights. Yet, the research demonstrates that the ECtHR has consistently failed to do so in its post-Chauvy defamation case law: in a mere 19 out of 83 studied article 10 cases has the Court explicitly identified the conflict, while it has taken an explicit stance on the conflict in all seven of the studied article 8 cases. A first step towards improving (the transparency of) the Court’s reasoning in defamation cases would thus consist in systematic identification of the conflict.

Once identification of the conflict has taken place, the model requires that the Court treat both rights on an equal footing in attempting to resolve the conflict. If possible, the conflict should be resolved through what is termed Praktische Konkordanz [practical concordance] in the jurisprudence of the German Constitutional Court. This method of resolution involves the search for a compromise: both rights should concede some ground to the other, without being completely sacrificed. This allows a resolution to the conflict that keeps both rights intact to the extent possible. However, applying this method in specific defamation cases at the ECtHR is rather difficult. The Court will need to establish whether the right invoked has been violated or not and will thus nearly always be asked to determine which right should gain absolute preference in the instant case. In order to determine this preference in the concrete circumstances of each defamation case, the model proposes the use of six criterions. The impact criterion requires the Court to examine the damage done to each right by allowing the converse right to prevail. The additional rights criterion invites the Court to determine whether any other – less immediately obvious – rights are engaged on either side of the conflict. In defamation cases this can for instance be the right to presumption of innocence in article 6 ECHR, when a person is the target of allegations of criminal conduct. The general interest criterion may lead to a similar strengthening of one of the parties’ positions if the Court finds that the exercise of one of the rights also protects a general interest. The public watchdog function of the press is the clearest example of such a general interest in defamation cases, but the general interest may also be one the side of the right to reputation (maintaining the authority and impartiality of the judiciary, for instance). The core/periphery criterion applies when one of the rights involved is breached in its core, while the other right is only affected in its periphery. From Karakó v. Hungary (and the later Polanco Torres and Movilla Polanco v. Spain) it appears as though the right to protection of reputation principally does not belong to the core of the right to respect for private life of article 8 ECHR in the eyes of the Court, while political speech for instance does belong to the core of article 10 ECHR. The purpose criterion is concerned with the manner in which a right is exercised. It can be used when a right is exercised contrary to the very aim it is designed to achieve. In the context of defamation cases one may think for instance of personal attacks in the media, which aim to target individuals maliciously without contributing to any public debate. The final criterion is the responsibility criterion. It implies that a person exercising her right is responsible for the manner in which she chooses to do so. This criterion is particularly relevant in defamation cases when considering the duties and responsibilities that come with the exercise of one’s freedom of expression according to article 10 ECHR.

My analysis of 125 defamation cases of the ECtHR through the lens of the model has demonstrated that the reasoning of the ECtHR has undergone little to no changes after Chauvy v. France, despite the existence of a conflict between Convention rights in all subsequent defamation cases. The major shortcoming identified is the one-sided application of the impact criterion. The Court frames the case in terms of the damage done to the right invoked by the applicant, but generally ignores the damage done to the other right involved in the conflict (or that would have been done had it not received protection from the state). The article 10 jurisprudence of the Court is particularly disappointing in this respect, while the article 8 jurisprudence appears at first sight to be more systematic. This is not entirely illogical. The Court has been developing its specific article 10 reasoning in defamation cases for 25 years now, ever since Lingens v. Austria in 1986. It has merely continued to apply the same reasoning after Chauvy v. France, regrettably leading it to disregard the importance of the right to reputation in many cases. Since the article 8 jurisprudence on the right to reputation is relatively novel – the first case on the merits was Pfeifer v. Austria in 2007 and less than ten defamation cases have been decided by the Court under article 8 – one might expect the Court to reflect further on the conflict in those cases. It surely does so when identifying the conflict. All article 8 cases take a stance on the conflict and all of them engage with the importance of freedom of expression. However, ultimately also many of these cases commit the error of one-sided application of the impact criterion, generally framing the case to the benefit of the right to reputation invoked by the applicant. Also in its article 8 case law has the Court thus engaged in preferential framing.

Throughout my article, I discuss each criterion of the model separately, analysing – from the angle of the model – the relevance in the Court’s defamation case law of such elements as the status of the plaintiff in the domestic proceedings, the status of the defendant, the nature and severity of the penalty and the content, tone and form of the statement. In doing so I offer examples of cases that I consider to be bad practices, but also demonstrate how the Court has frequently applied the logics behind the model, thus ensuring greater consistency and transparency in those cases. Ultimately, I conclude that the model might prove to be a useful tool to assist judges in resolving the conflict between freedom of expression and the right to reputation in defamation cases. Importantly, the seeds for an improved legal reasoning of the ECtHR in defamation cases can be found in the existing case law. The process required to improve (the transparency of) the legal reasoning of the Court is thus one of increased and systematic attention to certain important elements, rather than an entire overhaul of the Court’s reasoning. Finally, I also demonstrate how the general conflict between freedom of expression and the right to reputation cannot and should not be decided in favour of either right. On the abstract level, a Praktische Konkordanz approach to the conflict is the only feasible and defensible one: the right to reputation does not warrant complete protection from every critical statement, but neither does the freedom of expression confer an unlimited right to utter speech that damages the reputation of others.

Stijn Smet, PhD Candidate at the Human Rights Centre of Ghent University, Belgium and contributor to the Strasbourg Observers blog