In the case of Print Zeitungsverlag GmbH v. Austria (Judgment of 10 October 2013), the First Section of the Court of Human Rights held that a domestic defamation judgment in favour of two local politicians did not constitute a breach of Article 10. On the facts this was a bad decision which failed to apply established Convention case law but it is of wider interest because, apparently for the first time, the Court applied privacy case law in the defamation context.
Background
The applicant, Print Zeitungsverlag GmbH, is the publisher of “Bezirksblatt, Lokalausgabe Hall/Rum (“the Bezirksblatt”), a weekly newspaper distributed free of charge in a region of Tyrol in Austria.
In January 2006 about 300 copies of an anonymous letter were sent out in two local towns. The letters referred to two local politicians, CM and JM, who were brothers and were practising lawyers. The letter was written in the form of a survey and contained the following question:
1. Would you buy a car from this man? 2. Would you stake your money on a promise made by this man? 3. Does this man have the necessary personal/ professional qualifications? 4. Has this man ever built anything properly? 5. Is this man honest with his own family? 6. Would you allow this man to execute your will? If you have answered one of these questions with ‘no’, please ask yourself why you want to leave this man in his current position. [9]
The Bezirksblatt printed a story about the letter, which contained a full copy of it. The journalist had approached the brothers in advance of publication and printed their replies to the accusations and reported that they had both said that the letter was an attempt to harm them politically [10]
The brothers sued Print Zeitungsverlag, claiming that the contents of the letter were defamatory. The domestic court held that the anonymous letter, which had been included in the article, fulfilled the actus reus of defamation, as it accused the brothers of dishonesty and other disreputable character traits, relating to both their professional and private lives.
The brothers obtained a judgment against the company, which ordered it to pay them €2,000 each in damages and to publish the judgment. Print Zeitungsverlag appealed the decision, but its case was dismissed by the Innsbruck Court of Appeal in August 2006.
On 30 May 2007 Print Zeitungsverlag applied to the Court of Human Rights complaining that the judgment of the domestic court was a violation of its rights under Article 10.
Judgment
The central question was whether the interference with the applicant’s Article 10 rights was “nccessary in a democratic society” to protect the reputation of others. Two rights protected by the Convention – freedom of expression by Article 10 and reputation by Article 8 – were in conflict and a fair balance had to be struck between them [31].
The Court then considered whether the domestic courts had struck a fair balance in accordance with the criteria set out in the 2012 Grand Chamber decisions of Von Hannover v Germany (No.2) and Axel Springer v Germany. The Court considered the following points
(a) Contribution to a debate of general interest: The article itself contributed to a debate of general interest, namely the upcoming election of the chairman of the local tourism association
(b) How well known is the person concerned and what is the subject of the report?: The claimants in the domestic proceedings were well known
(c) Prior conduct of the person concerned: Prior to the dissemination of the anonymous letter there had not been any allegations of misconduct against the claimants who had not sought the limelight.
(d) Method of obtaining the information and its veracity: The journalist had given the brothers an opportunity to comment before publication but did not claim that the allegations made in the anonymous letter were true or had any factual basis. It merely relied on the argument that printing the letter was no more than a quotation of someone else’s statements. But the domestic courts held that the the publication of an anonymous letter had to be distinguished from the quotation of a third person’s statement. The question was whether there was an overriding public interest in publication of the anonymous letter. The Court concluded that
“there had been no allegations against C.M. and J.M. before the publication of the anonymous letter and there is no indication that their own conduct provided any factual basis for the value judgments contained in the anonymous letter, which were thus no more than a gratuitous attack on their reputation. In these circumstances, the Court accepts that there were strong reasons for considering that the publication of the anonymous letter transgressed the limits of permissible reporting” [40].
(e) Content, form and consequences of the publication: The anonymous letter had been reproduced and thus disseminated it to a far larger public than the restricted circle of initial recipients. Its publication had negative repercussions for CM and JM in their professional lives as practising lawyers.
(f) Severity of the sanction imposed: The sanction was not of a degree of severity which would render the interference disproportionate.
The Court’s overall conclusion was the domestic court applied the correct criteria and gave “relevant and sufficient” reasons for arriving at the conclusion that while the publication of the article itself contributed to a debate of general interest, reproduction of the anonymous letter amounted to defamation. As a result, there was no violation of Article 10.
Comment
This decision is a surprising one. First of all the allegations which were sued on are posed in the form of questions which, although making defamatory insinuations, are plainly part of a political debate. No specific factual allegations of wrongdoing are made.
Secondly, and more importantly, the Court does not appear to have considered its own established case law in relation to “responsible reporting” (see, for example, “Case Law: Journalistic responsibility and defamation, three recent judgments of the Court of Human of Rights“). It does not appear to be suggested that the newspaper “adopted” defamatory allegations as its own. The journalist spoke to the brothers in advance of publication and the article contained their replies to the accusations. The conduct of the newspaper appears, therefore, to have been “in accordance with the ethics of journalism” (in English terminology “responsible”). Under English law there would appear to have been a “reportage” defence.
The decision is, however, of general interest for another reason. It shows the Court of Human Rights approaching a defamation case using the Grand Chamber’s criteria for balancing Articles 8 and 10 in the context of privacy complaints. This appears to be the first time that these criteria have been deployed in a purely defamation context by the Court. They are not, at first sight, very well adapted for use in this context. The fact that the Court has got things so badly wrong in this case suggests that these criteria cannot be applied, without modification, in a defamation case. I will deal with this interesting and important general point in a later post.
I fully agree with the conclusion that the judgment in Print Zeitungsverlag GMBH v. Austria shows a worrying trend. The European Court of Human Rights is indeed approaching defamation cases using criteria for balancing Articles 8 and 10, while these cases should not be dealt with from the perspective of Article 8 at all. It is certainly not the first time the Court is approaching defamation cases this way. Most recently the second section of the Court applied the same balancing test Article 8/10 in Belpietro v. Italy, 24 September 2013 and in Ricci v. Italy, 8 October 2013 in the context of defamation of public figures, reporting issues of public interest. The fourth section of the Court applied this balancing test, including the six criteria from Axel Springer AG v. Germany and Von Hannover no. 2 v. Germany (GC 7 February 2012), in its recent judgment in Ristamäki and Korvola v. Finland of 29 October 2013. The judgment clearly demonstrates that applying these Article 8/10 balancing criteria in defamation cases reporting on issues of public interest and damaging the reputation of public figures, is contrasting with the Court’s previous case law. It is substantially reducing the public watchdog function of the media and the right to freedom of expression.
In Ristamäki and Korvola v. Finland the Court finally did find a violation of Article 10, because the alleged defamatory reference to a well-known Finnish businessman in a TV-programme on economic crime and tax evasion had a sufficient factual basis. Therefore the conviction of the two applicant-journalists was a violation of Article 10. However, it is remarkable that the Court in this judgment takes into account that “the facts in the programme were presented in an objective manner and the style was not provocative or exaggerated”, being characteristics previous case law of the Court in defamation cases did not take into account, considered irrelevant or even fully accepted as part of journalistic freedom when reporting on issues of public interest. The Court also takes into account that “there is no suggestion that details of the programme or the photograph of K.U. were obtained by subterfuge or other illicit means (..). On the contrary, the programme was based on information given by the police authorities and K.U.’s photograph was taken at a public event”. This is another consideration which might be relevant in cases of intrusion of privacy, but certainly not when it concerns journalistic reporting on important matters of for society.
In previous case law the European Court made clear that the way journalists had obtained their information, documents or audio-visual recordings had no decisive impact on the outcome of the case in the perspective of Article 10 of the Convention, such as in Fressoz and Roire v. France and Radio Twist v. Slovakia.
Dirk Voorhoof, Ghent University
“It does not appear to be suggested that the newspaper “adopted” defamatory allegations as its own. The journalist spoke to the brothers in advance of publication and the article contained their replies to the accusations. The conduct of the newspaper appears, therefore, to have been “in accordance with the ethics of journalism” (in English terminology “responsible”). Under English law there would appear to have been a “reportage” defence.”
What an extraordinary interpretation of the Reynolds defence. The newspaper apparently made no attempt to find out the truth of the insinuations. It printed them in full rather than referring to the letter and the questions in general terms. If printing allegations and a denial is responsible journalism then the PCC can pack up and go home.
The “reportage” version of the Reynolds defence applies
“If upon a proper construction of the thrust of the article the defamatory material is attributed to another and is not being put forward as true, then a responsible journalist would not need to take steps to verify its accuracy. He is absolved from that responsibility because he is simply reporting in a neutral fashion the fact that it has been said without adopting the truth“, see Roberts v Gable [2007] EWCA Civ 721, [61](3).
This appears to be what happened in the Print Zeitungsverlag GmbH case (see judgment [11) – the report was about the fact of the anonymous campaign, not suggesting that the allegations made were true. The headline was “Anonymous campaign against M&M”. The subheading read “M&M or [C.M.’s and J.M.’s full surname] are the target of a not at all bittersweet campaign”. In English law, for better or worse, this would be protected by the “reportage” version of Reynolds.
I’ll believe it when I see it happen in an English or Welsh court.
Am I right that Strasbourg’s Fourth Section under Nicolas Bratza also reviewed the Roberts reportage doctrine, and held it did not violate the right to reputation under Article 8 (Roberts v UK, app no 38681/08, decision).
Curious that Roberts was not applied in this case. Either deliberate or an oversight.
As you say, in the case of Roberts v United Kingdom (Decision of 5 July 2011) the Fourth Section held that an application based on the “reportage” decision of Roberts v Gable was inadmissible. In the course of the decision, the Court said
the punishment of a journalist for assisting in the dissemination of statements made by another person would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so (see Jersild, cited above, § 35; Bergens Tidende and Others v. Norway, no. 26132/95, § 52, ECHR 2000‑IV; and Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001‑III). In assessing whether the reporting of allegations was incompatible with Article 8 in a particular case, it is necessary to examine the seriousness of the allegations reported, the context in which they were published and the extent to which the allegations were adopted by the author of the impugned publication (see Thoma, cited above, §§ 57-64). In this regard, the Court emphasises that a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the role of the press in providing information on current events, opinions and ideas (see Thoma, cited above, § 64; and Verlagsgruppe News GmbH v. Austria, no. 76918/01, § 33, 14 December 2006). [45]
This reasoning is directly applicable to the facts of the Print Zeitungsverlag GmbH case.