Case Law, Strasbourg: Lavric v Romania, the Positive Obligation to Protect Reputation – Hugh Tomlinson QC

30 01 2014

romania-libera4Under the European Convention on Human Rights, States have obligations ensure the protection both the freedom of expression and of the reputation in their domestic law.  The dismissal by a domestic court of a defamation claim may be a breach of the positive obligation to protect the claimant’s reputation. The recent case of Lavric v. Romania ([2014] ECHR 44) provides a particularly striking example of such a breach.

Background

The applicant, Elena Lavric, was a prosecutor. In 2000 and 2001 she initiated prosecutions against A.B.  The first set of proceedings resulted in a conviction, the second was discontinued on the order of the Chief Prosecutor.

In 2002 disciplinary proceedings were initiated against Ms Lavric following a complaint by A.B. On 6 March 2002 the prosecutor’s office attached to the Supreme Court of Justice found that Ms Lavric had not committed any disciplinary offence and closed the investigation.

Shortly before the dismissal of the complaint a national newspaper, Romania Liberă, published a series of articles about Ms Lavric.

The first article was entitled “Judicial corruption. Prosecutor L. falsified two indictments! An innocent person was sentenced to prison”. The first section was entitled “Professional dross, confirmed by her superiors” and referred to an allegedly “falsified” indictment.  The second section referred to “the cheating prosecutor L.” who

“did not manage to send A.B. before a court on the basis of her falsified indictment on this occasion. However she had already managed to send A.B. before a court of justice on the basis of another indictment, the product of scandalous falsification”.

It was stated that an examination of Ms Lavric’s conduct in connection with the first indictment

“could result, besides criminal charges against her for abuse of position, in her rapid exclusion from the magistracy by the disciplinary board of the public prosecutor’s office”.

The article also referred to a complaint of criminal damage lodged by “the mafia of crooked businessmen” against A.B. and allocated to “cheating prosecutor L.”  The article also accused the applicant, “the cheating prosecutor”, of causing A.B. to be sentenced to prison by lying to the courts with her “falsified indictment”.

The second article, published on 22 February 2002, was entitled “E.L., the prosecutor who falsifies indictments” and made a number of further allegations against the applicant.

Ms Lavric brought defamation proceedings,  These were successful at first instance.. The court found the journalist guilty of defamation and sentenced him to pay a fine equivalent to €270.  However, the appeal court quashed the first instance judgment and reheard the case.  It acquitted the journalist of defamation and dismissed the claim for damages.

The appeal court held that the journalist had merely provided details of A.B.’s situation as it emerged from the court records. It classified the relevant statements of the journalists as value judgments and found that the expressions used were to be examined in connection with the function of the press in a democratic society to impart information and ideas on all matters of public interest.

Ms Lavric complained that there was a breach of her right to reputation and dignity as a result of the articles which were published.  She relied on Article 8 of the Convention.

Judgment

The Court noted that the case engaged the State’s positive obligations arising under Article 8 to ensure effective respect for the applicant’s private life, in particular her right to protect her reputation [31].  The applicable principles were similar to those involving negative obligations: there had to be a fair balance between the competing interests [32].

The Court stressed the importance of the contribution made by the press to debates of general interest. The articles related to the professional activities of a public prosecutor who was a civil servant.  It noted that

“in a democratic society individuals are entitled to comment on and criticise the administration of justice and the officials involved in it. However, such criticism must not overstep certain limits, as it is in the general interest that prosecutors, like judges, should enjoy public confidence. It may therefore be necessary for the State to protect them from accusations that are unfounded” [35]

The Court rejected the view the statements were value judgments.  It said that

“the articles in question contained allegations of unlawful and improper conduct by the applicant. Thus the journalist alleged, in particular, that the applicant in her capacity as a public prosecutor had abused her powers and unlawfully pressed charges against A.B. He also alleged that the applicant had been involved in bribery and falsification of indictments concerning A.B. Those allegations are, in the Court’s view, statements of fact which the domestic court of last resort did not require to be supported by relevant evidence” [40].

The allegations were of a serious nature.  The Court stressed that

“A person’s status as a politician or other public figure does not remove the need for a sufficient factual basis for statements which damage his or her reputation, even where such statements are considered to be value judgments, and not statements of fact … In this respect, the Court further observes that, in giving judgment on 3 November 2003, the District Court emphasised that there was no proof that the applicant had committed any disciplinary or criminal offence in connection with her professional activity” [42]

Although one of the two articles was simply a reproduction of A.B.’s complaints, this was not a case comparable to Bladet Tromsø and Stensaas v. Norway – where the journalist had published allegations taken from an official report.  In the present case, the journalist had simply reproduced allegations made by a private person:

“the journalist did not dissociate himself from the position expressed by A.B. in her complaints and did not make clear that his articles represented only a reproduction of A.B.’s allegations. The journalist reproduced the contents of the complaints lodged by A.B. and presented them as the objective truth, instead of they were – the statements of a party. Furthermore, the journalist did not check the accuracy of those seemingly partial statements and did not offer the applicant the opportunity to respond to the accusations against her”. [47]

In short, the journalist had not written the articles with the professional care required of journalists.  It was not, therefore, appropriate to make reference to the “leeway generally permitted to journalists for provocation and exaggeration when articles concern public figures” [48].  The articles exceeded the acceptable basis limits of comment in relation to a debate of general interest.  There was, therefore, a violation of Article 8.

Comment

The “positive obligation” to protect reputation is a relatively new development.  As I mentioned in a recent post, the Court has first read “right to reputation” into Article 8 in 2004.  In contrast to the steady flow of Article 10 cases there has only been a trickle of decisions about the breach of the positive obligation to protect reputation. The first of these was Pfeifer v Austria (Judgment of 15 November 2007), followed by Petrina v Romania (Judgment of 14 October 2008) and, most recently, Popovski v. The former Yugoslav Republic of Macedonia (Judgment of 31 October 2013) and Someşan and Butiuc v. Romania (Judgment of 19 November 2013),

This was a particularly clear case of failure by the domestic courts.  Although the applicant was a public official, the allegations were extremely serious and without any factual basis. The journalist simply repeated claims made by someone who had been prosecuted by the applicant without any apparent attempt to verify.  The conclusion of the domestic appeal court that allegations that the applicant had “falsified” indictments was a “value judgment” was obviously wrong.

The judgment also, incidentally, confirms that even where a public official is involved there is no requirement under the Convention to demonstrate that the publisher was malicious.  If factual allegations are being made then the publisher must either prove them to be true or show that they had acted with appropriate “professional care”.


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