6198883619In its judgment in the case of Ungváry and Irodalom Kft v. Hungary ([2013] ECHR 1229), the Second Section of the Court of Human Rights held that defamation judgments against a historian and a literary weekly violated Article 10. The decision in relation to the historian (which was by a 4:3 majority) involved, once again, the questionable application of the “Axel Springer criteria” for balancing Articles 8 and 10 in the defamation context. The case gives rise to a number of difficult legal and factual issues.

Background

The first applicant, Krisztián Ungváry, is a Hungarian historian who writes about State security under the Communist regime.  The second applicant, Irodalom Kulturális Szolgáltató Kft, publishes the literary and political weekly, Élet és Irodalom (“the paper”).  In May 2007 the paper published an article by Mr Ungváry about state security and the student peace movement in the 1980s (known as “Dialógus”).  The article stated that Mr K., who at the time of publication was a judge of the Constitutional Court, had worked during the Communist era as an official contact of the state security services, written reports for them, and advocated hard-line policies.

Mr K. brought successful proceedings against the paper and it printed a rectification in February 2008. However, Mr Ungváry repeated his allegation in interviews and in a book he co-authored which was published in April 2008.  Mr K. brought a second successful civil claim against the two applicants for defamation in February 2009, which was upheld by the Supreme Court in June 2010. It ordered the applicants to pay 2,000,000 Hungarian forints (HUF) together (approximately €7,000), and for Mr Ungváry to pay another HUF 1,000,000 (approximately €3,500) himself.

On 31 October 2010, the applicants applied to the Court of Human Rights, complaining of a violation of Article 10.

Judgment

It was clear that there had been an interference with the applicants’ Article 10 rights and that this was for a legitimate aim and was prescribed by law.  The issue was whether the interference was necessary in a democratic society.

The Court set out a number of principles which apply in cases concerning the press.  Five of these are familiar and uncontroversial:

  • its vital role as “public watchdog”, playing a “pre-eminent role in a State governed by the rule of law” [41]
  • whilst exercising their duties journalists must, nevertheless, abide by the principles of responsible journalism, “namely to act in good faith, provide accurate and reliable information, objectively reflect the opinions of those involved in public debate and refrain from pure sensationalism” [42]
  • journalistic freedom covers possible recourse to a degree of exaggeration or even provocation – but offence may fall outside Article 10 “if it amounts to wanton denigration” [43]
  • the limits of acceptable criticism may be wider with regard to civil servants although it may be necessary to protect judges from offensive and abusive verbal attacks [44]
  • distinction needs to be made between statements of fact and value judgments – although even in the latter case there must be a sufficient factual basis for the judgment [46]

The Court added another principle which has been emphasised less often in the case law, namely that a distinction must be draw between reporting facts capable of contributing to a debate of general public interest and making “tawdry allegations about an individual’s private life” [47]  Press reports concentrating on “sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person’s strictly private life” do not attract the robust protection which Article 10 affords to the press [47].

Finally, the Court adds a point which has only recently come to form part of Strasbourg reasoning in defamation cases, namely that a fair balance must be struck between the Article 10 right to freedom of expression and the Article 8 right to reputation using the relevant criteria set out in Axel Springer v Germany [45]

In assessing the case in respect of Mr Ungváry the court drew attention to the fact that he was a public figure.  The central issue was whether Mr K was an “official contact” with State Security.  Although his reports had not been commissioned by State Security he had produced reports and there was a sufficient factual basis for the allegations made [59].

The Court considered the application of the Axel Springer criteria for balancing Articles 8 and 10:

  • The article contributed to a debate of general interest [62].
  • Mr K was a public figure and the publication did not concern his personal life [64]
  • The information was obtained by archival research and uncontested facts about the operation of state security [65]
  • As to the content, form and consequences of the publication, the article was written for a literary magazine, it presented a scholarly position which, although it used excessive language was not sensationalist.  Mr K had the opportunity to comment in the next issue and there was no indication of negative impact on his professional activities [66]
  • The sanctions were not criminal but the applicants were ordered to pay a considerable sum in damages and costs and the sanction had a chilling effect on the first applicant’s professional credibility.

As a result, it held that the domestic courts

“did not establish convincingly a proper balance among the personality rights of a public figure and the first applicant’s right to freedom of expression – a right that directly served the general interest by furthering the debate on an issue of great public interest” [69].

There was, therefore a violation of the first applicant’s Article 10 rights.

The second applicant had published Mr K’s response.  The paper could reasonably regard the article written by a well known historian as reliable and there were grounds for it to dispense with verifying the allegations.  The paper  in accordance with the rules governing journalistic ethics and, as a result, its Article 10 rights were violated.

Judges Kūris (Lithuania), Raimondi (Italy) and Lorenzen (Denmark) dissented.  These judges would have upheld the judgment of the Hungarian Supreme Court in relation to Mr Ungváry on the basis that the language that he used would have been understood as making defamatory allegations of fact.

Comment

A number of interesting and difficult points arise out of this split decision of the Second Section.

First there is the analysis of the general principles which apply in cases involving the press (set out at [41] to [48] of the majority judgment).  In addition, to the familiar principles it adds the qualification that where the press is writing reports intended to “titillate and entertain” it will not receive the “robust protection” of Article 10.  This is a very clear statement of the Court’s view that what has sometimes been called “entertainment journalism” deserves a lesser degree of Article 10 protection than “public interest journalism”.  It is a distinction which will not be welcomed by the tabloid press.

Second, there is the now increasingly familiar reliance on the “Axel Springer criteria” – designed to balance Articles 8 and 10 in privacy cases – in the defamation context.  As in the case of Print Zeitungsverlag GmbH v. Austria (see my comment here) the majority judges go through these criteria one by one (see [62] to [68]).   These criteria are plainly unsuitable for use in the defamation context and need to be appropriately adjusted if they are to assist in the defamation context.

Third, there is the curiously summary way in which the Court dealt with the position of the second applicant, the paper.  In five short paragraphs the Court (unanimous on this point) finds, in effect, that the paper was entitled to rely on the fact that the article complained of was written by a respected historian.  It says that the paper acted in accordance with journalistic ethics even though it took no steps to verify the facts.  In a paragraph which, potentially, has very wide ranging consequences, the Court said

“Publishers are understandably motivated by considerations of profitability and by holding them responsible for publications often results in proprietary interference in the editorial process. In order to enable the press to exercise its ‘watchdog’ function, it is important that the standards of liability of publishers for publication be such that they shall not encourage censorship of publications by the publisher. The consideration of liability-related chilling effect is of relevance in the finding of the proper standard of care” [74].

In other words, it appears to be suggested that there is a kind of “Article 10 carve out” for vicarious liability.  That a publisher who publishes something by a respectable author should not be held liable for its defamatory content.  It seems unlikely that such a wide ranging development of the law was intended and it will be interesting to see whether this point is taken up in subsequent cases.

Finally, there is semantic analysis of the article and the allegations which were made against Mr K.  The issues here are complex.  Central to these was the description of Mr K as an “official contact” of State Security.  The Hungarian Supreme Court (and the dissenting judges) took the view that this was an allegation of fact – that Mr K was an agent of State Security.  The majority thought that this could be construed as an expression of opinion.  The arguments are finely balanced and there is some force in the view of the minority that, in those circumstances, the margin of appreciation should apply and the Court of Human Rights should not interfere.

This is an interesting and difficult case which is worth reading in full.  The Court’s defamation jurisprudence continues to evolve and has not yet developed a clear and settled set of principles.