The Fifth Section of the European Court of Human Rights forcefully reiterated the importance of freedom of expression in the political sphere in the case of Axel Springer AG v Germany (No.2) ([2014] ECHR 745)(French only). The Court held that the German courts had erred in finding that an article commenting on the circumstances in which the former Federal Chancellor of Germany had put an end to his term in office had overstepped the limits of journalistic freedom.
Background
On 12 December 2005, the German mass-circulation daily newspaper Bild (published by the applicant Axel Springer AG) printed an article on the election of former Federal Chancellor Gerhard Schröder to the chairmanship of the German-Russian consortium ‘NEGP’ – set up to construct a gas pipeline from Russia to western Europe – shortly after his term as Federal Chancellor.
The article questioned in particular whether and to what extent Mr Schröder had benefited from the political decisions he had taken as Chancellor in securing the position on the consortium. It contained a passage quoting the “terrible suspicion” expressed by the Vice-President of the Liberal Democrat parliamentary group, Carl-Ludwig Thiele, that Schröder had sought to put an end to his term of office as Federal Chancellor because of the lucrative position he had been offered in the German-Russian consortium.
Mr Schröder applied to the German courts seeking a ban on any further publication of the passage.
On 19 January 2007, the regional tribunal of Hamburg found in Mr Schröder’s favour and granted the ban sought, on the ground that the publication of the passage had violated provisions of the German Civil Code and the right to “the protection of personality” (Allgemeines Persönlichkeitsrecht) by suggesting to its readers – without sufficient factual basis – that Mr Schröder had called for an early general election on the basis of private and self-serving motives.
The Hamburg Court of Appeal upheld the lower court’s finding, but differed slightly in its reasoning. It deemed that the facts as they seemed at the time were sufficient to justify the publication of such suspicions. The Court of Appeal condemned the applicant, however, for failing to include any mitigating elements; limiting itself to relaying corroborating circumstances; failing to carry out any research before publishing Mr Thiele’s words; and, in particular, not seeking the opinion of Mr Schröder or a relative. The decision was ultimately upheld by the Constitutional Federal Court on 18 February 2010.
The applicant appealed to the European Court of Human Rights, alleging a violation of its right to freedom of expression guaranteed by Article 10.
Judgment
A unanimous Court held that there had been a violation of Article 10. The German Courts had failed to establish convincingly that there had been a pressing social need to give primacy to the protection of Mr Schröder’s reputation over the applicant’s right to freedom of expression and the public interest in play. It followed that the interference had not been “necessary in a democratic society” under Article 10(2).
Having regard to the margin of appreciation enjoyed by national courts, the Court applied the criteria it had set out in von Hannover v Germany (No.2) (2012) 55 EHRR 15 and Axel Springer AG v Germany (2012) 55 EHRR as relevant for the balancing exercise between the right to respect for private life under Article 8 and the right to freedom of expression under Article 10.
Contribution to a debate of general interest
The subject matter of the article pertained to a debate of great general interest. This was particularly the case in relation to the contentious passage as it raised the question of whether Mr Schröder had sought to wind up his role as Chancellor because of the position he had been offered on the consortium.
Notoriety of the person concerned
It was clear that Mr Schröder had been, at the relevant time, as the head of the German government, a highly prominent political figure.
The subject of the article and the nature of the information
The Court noted that the article did not relay details pertaining to Mr Schröder’s private life with the aim of satisfying public curiosity (c.f with Axel Springer) but related rather to his behaviour whilst in office and his involvement in the consortium shortly after the end of his term as Chancellor. The circumstances therefore called for a wide interpretation of freedom of expression.
Turning to the designation of the passage complained of as one of fact or value judgment, the Court noted that the questions raised by Mr Thiele in relation to Mr Schröder’s motives were by their very nature difficult to prove. The Court reiterated its case law to the effect that conclusions expressed on the motives or possible intentions of a third party constituted a value judgment rather than a factual assertion lending itself to proof (Diena and Ozolins v Latvia n.16657/03 and Ungváry and Irodalom Kft v Hungary n.64520/10 considered). In any event, the Court noted that the Hamburg Court of Appeal had found a sufficient factual basis for the suspicions published and had taken issue rather with the lack of mitigating arguments contained in the article and steps taken to verify the information.
The Court could not agree with the German courts that the article should have contained factors mitigating in favour of the former Chancellor who, by virtue of his position as the head of government at the time, had to display a much higher degree of tolerance than an ordinary individual. It being undisputed that Mr Thiele had held the views expressed in the article, the Court considered that a publisher could not be expected to verify systematically the merits of any allegation made by a politician in respect of another uttered in the context of a public political debate. The German Courts had also failed to consider that the applicant’s use of the expression “terrible suspicion” in the passage could reflect its intention to distance itself from Mr Thiele’s views.
The Court noted that the parties disagreed on whether comment had been sought from Mr Schröder’s spokesman but held that it had no reasons to believe that the applicant had not carried out the attempts it maintained it had, at the very least in relation to seeking comment after Mr Schröder had accepted his position on the consortium.
The form and consequences of the publication
The Court noted that the contentious passage was part of an article that featured the views of several political figures with regard to Mr Schröder’s new role on the consortium.
With regards to the repercussions of the article, the Court merely noted that the dailynewspaper Bild was one of Europe’s most widely published national newspapers.
The severity of the sanction imposed
Finally, the Court noted that the ban on publication ordered by the German courts could have a chilling effect on the applicant’s exercise of freedom of expression.
Comment
Where matters of political importance are concerned, protecting one’s privacy or reputation in Strasbourg is no easy task. There is little scope under Article 10(2) jurisprudence for restrictions on political speech or on debate of questions of public interest and the Court will not hesitate to substitute its view for that of the domestic courts in such situations. Citing an often-relied upon judgment from 1986 (Lingens v Austria), the Court reiterated that those in political positions inevitably and knowingly lay themselves open to close scrutiny of their words and actions by journalists and public alike, and consequently must display a greater degree of tolerance. This is particularly so where such scrutiny is expressed by a political peer. The fact that the views in relation to Mr Schröder’s actions had been expressed by Mr Thiele, a German politician and member of parliament, weighed heavily in the Court’s assessment.
From a domestic perspective, at a time when the future of the public interest defence under the Defamation Act 2013 is still undetermined, the judgment will, no doubt, be welcome by the press. The Court referred to interviews as one of the most important forms of journalism, without which, it held, the press would not be able to play its essential role of “watch-dog” in a democratic society. To sanction a journalist for having facilitated the dissemination of the views expressed by a third party in an interview would seriously impair the contribution made by the press to discussions of issues of general interest. By the same token, the Court recalled that the press presents an important medium by which political figures could make their ideas known to the public. The Court seemed unmoved, moreover, by the argument that the press could publish defamatory content without respecting any norms of responsible journalism so long as such content was dressed as a third party quote. Context, it seems, will be key.
Finally, the judgment offers yet another example of the Court’s application of the Axel Springer/von Hannover criteria, developed in the context of privacy claims, to defamation cases. The problems raised by this trend – namely the reliance on a number of criteria that are usually irrelevant to defamation cases – have been discussed previously on Inforrm (see here and here).
Alexia Bedat is a barrister, with a special interest in media law.
Very interesting case, with much of the ECHR’s reasoning reflecting concepts long established in US law on “public official’s/public figure’s” lawsuits claiming injury to reputation or privacy.