Case Law, Strasbourg: OOO “Vesti” v Russia, defamation judgment in favour of public official, no Article 10 violation – Hugh Tomlinson QC

31 05 2013

kirovIn a judgment handed down on 30 May 2013 in the case of OOO ‘Vesti’ v Russia ([2013] ECHR 485) the Court of Human Rights has held that an award of damages and an order for the publication of a retraction in a defamation claim brought by the Chief Federal Inspector of the Kirov Region did not breach the Article 10 rights of the newspaper or the journalist.  The interference was not disproportionate to the legitimate aim of protecting the reputation and rights of others.

Background

On 16 August 2002 the Gubernskie Vesti, Kirov newspaper published an article under the headline “The Chief Federal Inspector has brought the media to its knees. But not the businessmen”.  The article related to a press conference held by Mr P, the Chief Federal Inspector of Kirov Region and Mr K, the Mayor of Kirov.  The press conference was about media coverage of a regional cultural project which was trying to raise money from local businesses.

The article was critical of the project and of Mr P and then stated that local businessmen had not become sponsors because they did not want to give money.  Some of them were said to be

“concerned that their money might be wasted on the lovers of the collector of funds rather than being spent on cultural events”

Mr P brought defamation proceedings.  According to his statement of claim, the article had asserted that he was in charge of the collection and distribution of funds for the project, that he was capable of committing a crime by embezzling the funds entrusted to him, and that he had lovers, thereby violating moral and ethical norms.

The District Court in Kirov found in favour of Mr P.  It noted that the defendant had not produced any proof of the truth of the information.  It awarded damages of 20,000 roubles (€650) for non-pecuniary damages and ordered the publication of a retraction statement.  The judgment was substantially upheld on appeal.

The application was lodged with the Court of Human Rights on 19 June 2003 and was declared partially admissible on 18 March 2010 ([2010] ECHR 554).

Judgment

The issue to be determined was whether the interference with the applicant’s Article 10 rights was “necessary in a democratic society”.

The Court began by reiterating the essential role of the press in a democratic society and went on to say

It is also significant that the plaintiff Mr P., the Chief Federal Inspector of the Kirov Region, was a civil servant. Although it cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent politicians do, civil servants acting in an official capacity are, like politicians, subject to wider limits of acceptable criticism than private individuals (see Thoma v. Luxembourg, no. 38432/97, § 47, ECHR 2001-III). Further, the allegations of misappropriation of public funds were obviously a matter of great public concern and therefore came within the scope of a public debate on a matter of general importance. The Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or debates on questions of public interest (see Feldek v. Slovakia, no. 9032/95, § 83, ECHR 2001-VIII, and Sürek, cited above, § 61). [59]

It repeated, however, that freedom of expression carries with it “duties and responsibilities” and that “special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals” [60]

There was an issue in the case as to whether the impugned statement in fact referred to Mr P at all.  The Court pointed out that this had been extensively debated in the domestic proceedings and the statement had been found to be directed at Mr P.  It found no reason to depart from that finding [63].

In relation to the nature of the statement made, the Court regretted that the domestic court had not expressed any opinion as to whether the statement constituted a factual allegation or a value judgment.  It went on to say

“The Court finds it difficult to determine whether that statement was a statement of fact or a value judgment. The use of the modal verb “might” suggests that it was a supposition rather than a statement of fact. Indeed, from a grammatical point of view, modality deals with uncertainties and attitudes, rather than certainties and facts. However, it is not necessary to determine this issue because, under the Court’s case-law, even a value judgment must be based on sufficient facts in order to constitute a fair comment under Article 10 (see Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001-II)”. [64]

The Court noted that the applicants did not endeavour to establish a sufficiently accurate and reliable factual basis for the allegation that Mr P had lovers and might spend public funds on them.  The second applicant claimed to have obtained information from unnamed businessmen but had not attempt to verify the rumours.  The Court reiterated that

“even public figures may legitimately expect to be protected against the propagation of unfounded rumours relating to their private life” [65]

The dissemination of unverified information went beyond the limits of responsible journalism.

Finally, the Court noted that the amount of damages was not excessive.

As a result, it could not be said that the decision of the domestic court overstepped the margin of appreciation [67]

The Court also rejected the applicants’ Article 6 complaints concerning the impartiality of the judge and an absence of equality of arms.

Comment

This is another case in which the Court draws attention to the requirements of responsible journalism – even where a publication concerns a politician and a matter of public concern.  The Court has, again, made it clear that responsible journalists should not repeat unverified rumours of wrongdoing by politicians.  Article 10 requires standards of responsibility which go beyond the good faith repetition of public interest content.  The provisions of section 4 of the Defamation Act 2013 must be “read and given effect to” in a way which is compatible with these requirements of Article 10.

An interesting feature of the case is the order of the domestic court for the publication of a retraction and apology.  The domestic court of first instance ordered the newspaper publish a statement which contained an apology, an acknowledgment that the statement was untrue and damaging, a promise to discipline the author of the article and an undertaking to respect the domestic law on the media in the future [14].   The appeal court overturned part of this order: the apology, promise to discipline the author and undertaking had no basis in domestic law.  In fact, subsequent Russian case law has found that an order for an apology can be made – and this has been upheld in Strasbourg (see Kazakov v Russia no. 1758/02, §§ 23 and 24, 18 December 2008)[56].  As the promise to discipline the journalist and the undertaking had been overturned on appeal the position had been remedied by the domestic courts [56].

Perhaps the most striking aspect of the case is the extraordinary delay in the Court of Human Rights.  The determination of the case took nearly 10 years – a period of time which in a domestic court would have been a clear and incontestable breach of the the “reasonable time” guarantee in Article 6.  Although the Strasbourg Court is seriously under resourced and has had to deal with a flood of cases from Eastern Europe over the past decade, delays of this length are obviously unjustifiable.  It is to be hoped that the Court’s continuing procedural reforms will enable them to be avoided in the future.


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