Three recent judgments in the Court of Human Rights illustrate the increasing importance of the concept of “journalistic responsibility” in defamation cases considered from the perspective of the right to freedom of expression. Where a publication deals with a matter of proper public concern a court must to consider these issues of responsibility and there will be a breach of Article 10 if it fails to do so. On the other hand, even if a journalistic takes proper steps to investigate the truth of a story, damages for defamation may still be appropriate if the publisher misrepresents the facts which have been established.
The first of the three cases concerned a defamation judgment against the Times of Malta arising out of an article reporting a court hearing. The Fourth Section case of Aquilina and Others v. Malta (Judgment of 14 June 2011) concerned defamation proceedings brought by a lawyer following a report in the Times of Malta that he had been found guilty of contempt of court.
At the hearing of a bigamy case the accused’s lawyer, Dr. A, failed to appear, the reason apparently being a dispute over excessive fees. The atmosphere in the court room was chaotic but the reporter believed that the magistrate had found Dr. A. in contempt of court. She subsequently tried to verify what she had heard via the proceedings’ records but could not as the magistrate and the court deputy registrar had already left their chambers. She checked however with another reporter, also present in the courtroom, who confirmed that he too had understood Dr A. to have been found in contempt of court. The next day the Times of Malta reported that Dr. A. had been found guilty of contempt of court.
Dr. A. immediately contacted the reporter to protest about the article. She verified the minutes of the proceedings and, noting that no mention was made of Dr. A having been found guilty of contempt of court, ensured that her newspaper issued an apology. Dr. A nonetheless brought civil proceedings against the applicants for defamation and they were ordered to pay 300 Maltese liras (approximately €720). The domestic courts found in particular that it was clear from the minutes of the hearing that Dr. A. had not been found guilty of contempt of court and that the article had not therefore been a fair report of the proceedings.
The Court of Human Rights considered whether the reporter had complied with her duty of responsible reporting. It observed that all the evidence – apart from the minutes of the hearing – suggested that Dr. A. had been found to be in contempt of court. Even the prosecutor himself had corroborated what the reporter had heard. The Court was struck by the fact that little or no attention had been paid during the defamation proceedings to this confirmation, made on oath by a prosecutor, and that no explanation was given for this omission.
The Court accepted that the reporter had, in line with best journalistic practice, attempted to verify what had taken place in the court room. She could not reasonably have been expected to do more, given that delaying the publication of news, a perishable commodity, would most likely have deprived it of all value and interest. Also bearing in mind that an apology had been issued, the Court found that the reporter had at all times acted in good faith and in accordance with her duty of responsible reporting. As a result, the defamation judgment was an unjustified interference with the applicants’ right to freedom of expression and there was a violation of Article 10.
The second case is Ringier Axel Springer Slovakia. v. Slovakia (Judgment of 26 July 2011) – a decision of the Third Section. A newspaper had alleged that a high-ranking police officer had been supporting a prominent politician while he was urinating in a public restaurant. The reporter had received an anonymous call alleging that an MP had urinated from the terrace of a public restaurant in the company of the then vice-president of the Slovakian police. A few minutes after the call, the reporter arrived at the restaurant and sat for about 10. minutes at a table watching the two men. He concluded that they were both drunk. After they had left, he interviewed a waitress and some of the people eating at the restaurant. The following morning, the reporter returned to the restaurant, took a photograph of the terrace and interviewed the waitress again. Some time later, he also met the police officer, who denied any improper behaviour.
Starting on 16 June 1999, several articles were published in relation to the alleged incident at the restaurant. The politician was described as being extremely drunk at the time, and having urinated off the restaurant’s terrace onto the pavement, helped by the police officer. A later article alleged that the police officer had wet his trousers while sitting on a chair in the restaurant during the evening in question. He was also reported to have offered to organise civic disturbances in return for the politician providing him with protection.
The newspaper was sued for libel both by the police officer and the politician. The application concerned only the action by the police officer. The Slovakian courts found in his favour, ordering the newspaper to publish a correction and an apology and to pay compensation, reduced on appeal to €12,250. The domestic courts found in particular that the reporter had not personally seen the police officer urinate in his trousers or help the politician to urinate across the restaurant’s terrace. They concluded that the newspaper had failed to establish the truth of the allegaitons and that, although there had been a public interest in the matter, the policeman’s interest in having his private life respected prevailed.
The Court noted that although the national courts had referred to the journalists’ good faith and the presence of a public interest in the matter, they had not taken evidence or made an analysis or drawn specific conclusions about these matters. In particular, they had not examined whether the reporters had acted in accordance with journalists’ duties and responsibilities, including whether the articles had been written in good faith and in accordance with the ethics of journalism. Neither had the domestic courts assessed the level of public interest in the articles or balanced any such interest against the individual interests of those concerned.
The Court concluded that, by failing to examine those issues, the domestic courts had failed to ensure that the legal protection received by the applicant was compatible with the requirements of Article 10, in violation of that Article. It considered that
“it was crucial that the domestic courts make a careful assessment of the presence and level of public interest in the publishing of the impugned information in the present case as well as strike a balance between any such public interest and the individual interests of those concerned since, as a matter of principle, domestic courts are better equipped to establish the facts relevant to the ensuing legal analysis. This also applies to the issue of the bona fides of the applicant company’s legal predecessor and other aspects of the case that are necessary for establishing whether the applicant company’s legal predecessor had acted in accordance with the “duties and responsibilities” inherent in Article 10 § 2 of the Convention. The Court considers that by failing to examine these elements of the case, the domestic courts cannot be said to have “applied standards which were in conformity with the principles embodied in Article 10” and to have “based themselves on an acceptable assessment of the relevant facts”” .
As a result of the failure of the domestic courts to consider issues of journalistic responsibility, there was a violation of Article 10.
Kania and Kittel
These cases can be contrasted with the decision in the Fourth Section case of Kania and Kittel v. Poland (Judgment of 21 June 2011). The applicants in that case were journalists who had written a number of newspaper articles suggesting that a Government minister, at the time the Head of the National Security Office, had received an expensive car as a present from a wealthy businessman. Tthe minister had brought defamation proceedings following which they had been ordered to publish an apology and pay compensation of PLN 10,000 (€2,400), jointly with the newspaper’s publisher and editor-in-chief.
The case concerned a politician and, as the Court noted,
“the limits of acceptable criticism are wider with regard to a politician than with regard to a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by journalists and the public at large. Therefore, such persons must display a greater degree of tolerance” 
However, this tolerance has its limits:
“it does not follow from this that politicians should not be given an opportunity to defend themselves when they consider that publications about them are erroneous and capable of misleading public opinion. In the Court’s view, in such cases a fair balance between the privileged position of the press in exercising its freedom of expression, and the politician’s right to protect his or her reputation is called for (see Sanocki v. Poland, no. 28949/03, §§ 61-62, 17 July 2007)”. 
The allegations made on the first page of the newspaper were that the politician had accepted an expensive car as a gift from a businessman and raised a legitimate concern of possible corruption. This was clearly a matter of public concern. Moreover, the domestic courts found that the applicants, when gathering information for their article, had acted with the requisite diligence and that they had had at their disposal sufficient and reliable information for concluding that the plaintiff had indeed been using a car owned by a third party.
However, the problem was the way in which the allegations in the article were expressed. The title of the article and the questions on the first page strongly suggested that the applicants had taken a bribe and that an investigation into the matter had been conducted by the prosecuting authorities. It was not argued that that was indeed the case. When the article was published, the applicants already knew that only an investigation concerning the theft of the car had been conducted as they had previously contacted the prosecuting authorities. Hence, the suggestion that suspicions of corruption were investigated by the prosecution was incorrect and the applicants were aware of it.
Although, someone who takes in a public debate on a matter of general concern is allowed to have recourse to a degree of exaggeration or even provocation, the Court considered that
“there is a difference between acceptable exaggeration or provocation, or somewhat immoderate statements, and the distortion of facts known to the journalists at the time of publication. In the present case, the title and questions criticised by the domestic courts cannot be said to amount to an acceptable journalistic technique consisting of giving a sensationalist title or leading paragraph to a text providing a reader with objective information. Given the discrepancy between the text published on the third page and the impugned title and questions published on the cover page, the Court is of the view that they seriously – and to the plaintiff’s detriment – misrepresented the reality as established by the applicants”. 
As a result, in this case the applicants, by publishing a title and information implying corruption on the plaintiff’s part without having shown that there was a solid factual basis for such a serious allegation had distorted the facts known to them.
The Court also took account of the fact that the damages awarded by the domestic courts were not excessive, the ordered apology was “neutrally worded” and no bad faith or lack of diligence was implied. It was also important that the proceedings were civil and not criminal. In all the circumstances, the interference with the applicants’ freedom of expression was justified under Article 10(2).
Two of these three judgments were given by the Fourth Section – which deals with UK cases. All three cases deal with the issue as to whether a journalist who acts responsibly should be sanctioned for the publication of allegations which turn out to be untrue. In English libel law this is known as the Reynolds or “responsible journalism” defence. The responsibility of the journalist – and in particular the steps taken to verify – are of crucial importance in assessing whether or not, when a story on a matter of public concern is involved civil sanctions against the media are in breach of Article 10 of the Convention. Even where serious defamatory allegations are made, there will be a violation of Article 10 if judgment is given against journalists who have acted responsibly and taken proper steps to verify the truth of the allegations.
The Ringier case suggests that the court has a positive obligation to consider issues of journalistic good faith and responsibility and to consider evidence in relation to them. This obligation appears to arise even where the point is not taken by the parties. However, as Kania and Kittlel shows there are limits to the doctrine – even where the publication in issue concerns politicians. Sanctions will be appropriate if the publication “mispresents” the facts which have been verified.
The jurisprudence of the Court of Human Rights in this area has developed along similar lines to the domestic law of libel – making it clear that the proper balance between the protection of reputation and freedom of expression is established if the law does not sanction responsible publishers. This aspect of the Court’s case law is unlikely to be affected by the forthcoming Von Hannover (No.2) case which will deal with privacy issues.