4CC6B51C7B08CThe judgment in OOO Ivpress and Others v. Russia (HEJUD [2013] ECHR 67) provides a useful reminder of the importance of distinguishing “value judgments” from “facts” in libel cases and of the importance of engaging in a specific consideration as to whether a publication contributes to a debate of general interest. The case also reminds us of the strict standards which are applied to sanctions against political speech. Violations of Article 10 were found in four linked cases in which the Russian domestic courts had entered defamation judgments against the Ivanovo-Press newspaper.

Background

The applicants were OOO Ivpress, a Russian limited-liability company with its registered office in Ivanovo, and two of its journalists, Valeriy Smetanin and Aleksey Ovchinnikov, Russian nationals. The case concerned four sets of proceedings brought against the applicants for defamation following articles published between 2003 and 2005 in their weekly newspaper, Ivanovo-Press.

The plaintiffs in all four defamation claims were State officials or employees, including the Ivanovo Region governor Mr T., the head of a department of the regional government and the leader of the incumbent party Mr V., the director of the regional social-security fund Ms S., and the director of a State company Mr K. The main thrust of the applicants’ criticism was not directed at their private activities but rather at their conduct in professional capacity and the manner in which they discharged the public functions which had been entrusted to them. Moreover, Mr T. and Mr V. were an elected public official and a career politician, respectively, who occupied positions of a certain prominence and visibility.

The applicants complained that the defamation claims against them being upheld and the damages they had been ordered to pay were breaches of Article 10.

Judgment

The Court reiterated that,

“in a democratic society, public officials must accept that they will be subject to public scrutiny and criticism, particularly through the media, over the way in which they have carried out or carry out their functions, insofar as this is necessary for ensuring transparency and the responsible exercise of their functions. It has been the Court’s constant position that the limits of permissible criticism are wider with regard to a government official in the course of performance of his or her functions than in relation to a private citizen” [70]

It was significant that the domestic courts had not “performed a balancing exercise between the need to protect the plaintiffs’ reputation and journalists’ right to divulge information on issues of general interest” [71].  They failed to carry out an analysis of whether or not the contested publications sought to make a contribution to a debate on matters of general interest or public concern.

But the fundamental difficulty with all the cases was a failure by the domestic courts properly to distinguish between statements of fact and value judgments.  The Court noted that it had

“on many occasions pinpointed the structural deficiency of the Russian law on defamation which made no distinction between value judgments and statements of fact, referring uniformly to “statements” (“svedeniya”), and proceeded from the assumption that any such “statement” was amenable to proof in civil proceedings” [72]

By Resolution no. 3 of 24 February 2005 issued by the Plenary Supreme Court of the Russian Federation the courts hearing defamation claims were required to distinguish between the statements of facts which can be checked for veracity and evaluative judgments, opinions and convictions which are not actionable under Article 152 of the Civil Code since they are an expression of the defendant’s subjective opinion and views and cannot be checked for veracity.

Two of the cases had been heard before this resolution was passed and two after.  Even in these two cases, the courts had difficulty in applying the distinction

“Thus, the domestic courts did not examine whether the statements about the governor Mr T. “bringing discredit upon himself” or turning people into “zombies” … or the statements about Ms S. “hiding her real face from public” and “making fun of President Putin” …  could have been value judgments not amenable to proof in civil proceedings“.  [78]

Although the awards of damages made by the domestic courts were relatively small

“What is important in the instant case is that the domestic courts in all four sets of proceedings – albeit to a varying degree – held the applicants responsible for failing to prove the truthfulness of value judgments, that they did not assess the issue whether or not the publications contributed to a debate on a matter of public interest or general concern, and that they failed to recognise the wider limits of permissible criticism in respect of State officials and employees” [79]

As a result, there was a violation of Article 10 in each case.   It held that a finding of a violation of Article 10 constituted sufficient just satisfaction for the applicants in respect of non-pecuniary damage.

Comment

Russia has the highest number of cases pending before the Court of Human Rights – with 28,600 in 2012 (in contrast to the 3,300 from the UK).  There have been many findings of violations of Article 10 against Russia on the basis of the failure of the domestic courts to distinguish between facts and value judgments.  This judgment suggests that the problem may not have been entirely resolved, despite the Resolution of the Plenary Supreme Court referred to above.

The judgment also emphasises that, in order to comply with the requirements of Article 10, the domestic courts may assess the issue of “whether or not the publications contributed to a debate on a matter of public interest or general concern”.  This “public interest” test is more familiar to English lawyers from cases involving misuse of private information but the Court also applies it in the defamation context.   This case suggests that a court considering a defamation case should always give specific consideration to the “public interest” question and to the balance of reputation and freedom of expression.  A failure specifically to address these issues could, of itself, lead to the conclusion that Article 10 has been breached.