In the case of Armellini v Austria (Judgment of 16 April 2015) the First Section of the Court of Human Rights dismissed an Article 10 complaint by applicants who had been found guilty of defaming professional footballers by accusing them of taking bribes. The decision of the domestic court to convict the applicants of defamation was based on relevant and sufficient grounds and properly balanced the Article 8 and Article 10 rights involved.
Background
The applicants in this case were two Austrian journalists, Harald Armellini and Frank Andres, and Zeitungs-und Verlags GmbH, a publishing company.
The case concerned an article by Mr Armellini and Mr Andres, published in February 2005 in the regional newspaper Neue Voralberger Tageszeitung about a football betting scandal. The article reported in particular the suspicion that three professional football players of the club Casino SC Bregenz had been bribed by the betting mafia in order to let three matches end with a particular result.
Following the publication of the article, the three players filed a private prosecution leading to criminal proceedings against the applicants on charges of defamation. They complained, in particular, about four passages:
(i) “Terrible suspicion against football-pros confirmed: Bregenz players bribed with €60,000”
(ii) “Sold and betrayed the team for €60,000?”
(iii) Bregenz players A.T., D.G. and A.I. were bribed €60,000 for their team to lose three matches.
(iv) (Regarding the third plaintiff. A.T.) “A.T. had made contact with the Croatian betting-mafia”.
The applicants argued that they had only voiced suspicions but that, in any event, the statements were true or at least reasonably believed to be true.
The Regional Court accepted that there was a public interest in the story but that the journalists had not acted with sufficient professional diligence. They had no personally conducted any research but had relied on a freelance contributor and had not checked the reliability of his sources. They had not given the subjects of the article an opportunity to respond. In short they had not proved the truth of the allegations.
As a result, Mr Armellini and Mr Andres were convicted of defamation and sentenced to fines, which were suspended on probation. The publishing company was ordered to pay compensation, the amount of which was reduced on appeal, in April 2006, to €12,000 for each plaintiff. At the same time, the appeal court dismissed Mr Armellini’s and Mr Andres’ appeal against their conviction.
The applicants complained that their convictions for defamation and the order to pay compensation had violated their rights under Article 10 (freedom of expression).
Judgment
It was clear that there had been an interference with the Article 10 rights of the applicants but that this was prescribed by law and served a legitimate aim [28] and [30].
The Court noted the essential function of the press in a democratic society and its duty to impart information and ideas on matters of public interest. However the safeguard afforded by Article 10 to journalists reporting on matters of public interest was subject to the proviso that they were “acting in good faith and on an accurate factual basis and providing reliable and precise information in accordance with the ethics of journalism” [39].
The Court reiterated that Article 10 does not guarantee wholly unrestricted freedom of expression to the press:
“journalists must, when exercising their duties, 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 a public debate, and refrain from pure sensationalism” [41]
The Court also noted, as it now usually does in defamation cases, that a fair balance had to be struck between
“the right of the press under Article 10 of the Convention to inform the public on matters of public interest and concern and, on the other, to the State’s positive obligations under Article 8 of the Convention to protect the reputation of persons to whom such proceedings relate” [42]
The outcome of the application should not be different according to whether it was lodged under Article 8 or Article 10.
In this case, although the subject matter of the article was of considerable public interest, it was a direct attack on three footballers:
“The Regional Court carefully examined the character of the article and, besides the wording, also took into account its context, layout and presentation. In particular it found that the manner in which the text was printed, drawing the reader’s attention to the accusation raised, and the use of photographs and leading questions created an overall impression of being a statement of facts about the scandal and not a genuine expression of a suspicion”. [45]
The accusations could be seriously damaging to the personal and professional reputations of the footballers and could have important financial repercussions.
The applicants did not rely on a solid factual basis for the articles. The Court did
“not consider that the domestic courts set unreasonable requirements for proving the truth of the applicant’s allegations nor overstretched the requirement of journalistic diligence” [47]
The interference with the applicants’ rights to impart information was proportionate.
In short,
“the Court finds that the respondent State acted within its margin of appreciation in assessing the need to protect the plaintiffs’ reputation in the defamation proceedings instituted by them. It is satisfied that the restriction on the applicants’ right to freedom of expression resulting from the judgments of the Regional Court and the Court of Appeal was supported by reasons that were relevant and sufficient, and was proportionate to the legitimate aims pursed” [49].
Comment
This case demonstrates the limits of the “public interest” defence available to journalists under the Article 10 case law. The libel judgment against the applicants was a proportionate interference with their Article 10 rights, despite the public interest nature of the article, because they had attacked the footballers without any sufficient factual basis. The applicants had not properly checked the facts or checked the reliability of the sources. They had not given the footballers an opportunity to comment.
The domestic courts had carried out a proper balancing exercise between freedom of expression and the right to reputation and, as a result, the decision was within the margin of appreciation of the respondent.
It is noteworthy that, although the Court referred to the need to balance Article 8 and Article 10 it was not drawn into applying the six Axel Springer “privacy balancing criteria” in the defamation context (see Hugh Tomlinson’s post “Privacy and Defamation, Strasbourg blurs the boundaries”). The mechanical application of these criteria has led the court into error on a number of occasions and the more flexible approach taken in this case is to be welcomed.
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