On 7 July 2015, the Third Section of the European Court of Human Rights handed down a judgment in Morar v Romania ( ECHR 668)(available only in French), ruling that a domestic court’s finding of criminal defamation against a journalist violated Article 10 principles on freedom of expression. Unfortunately, the court failed properly to engage with the issue of journalistic bad faith.
The applicant in this case is a Romanian journalist. In the context of the presidential elections of 2004, he wrote four articles for the satirical weekly magazine Academia Caţavencu dating from 16 February to 30 March 2004 which concerned, inter alia, a political advisor to a potential candidate called VG. (para. 6) These articles made speculative insinuations that VG worked as a spy and money launderer linked with the former Securitate of the totalitarian regime, out of an art gallery in Washington DC. (para. 10)
On 26 April 2004, VG brought charges of criminal defamation against three journalists at Academia Caţavencu. The trial court found that only the applicant could be considered a publisher in this situation, that the articles were not defamatory and that, moreover, the plaintiff had engaged in public political discourse and was thus subject to journalistic criticism. (paras. 21 & 22) The plaintiff appealed this on the grounds that the article contained defamatory imputations of fact, and also on the grounds that Mr Morar had acted in bad faith. (para. 28)
On 23 December 2005, the appeal was approved by the District Court, who sentenced the applicant to a nominal criminal fine of 1000 Romanian Leu (approximately £160), suspended. The applicant was additionally ordered to pay $10,000 in civil damages and $16,000 in legal costs. (para. 31) It was found that the impugned articles had damaged the reputation and that the imputations were factual. It was also noted that the imputations by nature touched on an area covered by secrecy and therefore the applicant was unable to prove their truth. (para. 32)
The applicant appealed this judgment to the European Court of Human Rights under Article 10, Article 6 and Article 41 ECHR on the grounds that his conviction was made in the absence of evidence. He claimed that it was for the prosecution to provide evidence, including evidence of bad faith. (para. 44) The government claimed that the article contained contained factual imputations and value judgments which did not have a minimal factual basis. (para. 46)
It was not in dispute that the conviction was both prescribed by law and in pursuit of a legitimate aim. The court therefore analysed only the issue of whether the conviction was “necessary in a democratic society”. (para. 50)
In contrast to the defamation of judges, the Court allows a significantly wider limit of acceptable criticism of public figures in the political sphere than ordinary individuals. This principle was reiterated in the present case, and deemed to apply not just to politicians but “everyone who is in the public sphere whether by acts or by position.” (para. 55) On these grounds the court overturned the Romanian District Court’s finding that VG was not a public figure. The act of involvement in the preparation of a bid for the presidential election was deemed by the court to be sufficient. (para. 57)
The Court contrasted the approach of the trial court and the appellate District Court with regard whether the statements constituted facts or value-judgments, and noted that it could be difficult to distinguish the two. (para. 59) Ultimately, it determined the case independently of this question on the grounds that even value-judgments can be excessive where devoid of fact. (para. 59)
The Court considered that, even though the offending articles used “unsuitable” language, it remained within the limits of permissible exaggeration or provocation. (para. 65) This is based partly on the fact that the defamed person in question was considered by the Court a public figure and also on the fact that it was in the characteristic style of a satirical publication. (para. 61)
The Court condemned the application of a criminal sanction, even one which did not have to be fulfilled, as stigmatising and excessive. The subsequent decriminalisation of defamation in Romania was referenced but this did not sway the court to view the conviction as proportionate. (para. 68)
This judgment is a positive one for freedom of expression. However, it raises some issues regarding the Court’s approach to the determination of defamatory statements, the relevance of the status of the parties involved in the defamation and the application of criminal sanctions.
It is long-established case law that value-judgments are afforded a much higher level of protection under the ECHR, due to the fact that they cannot be made subject to proof. This has shaped much of the discourse on how freedom of expression interacts with the right to reputation in European human rights. As a rule of thumb this works to protect most news reporting, but as this case shows, what constitutes a demonstrable truth is frequently a more complex question than the simplistic binary approach indicates. The Court here used this approach but gave little analysis as to why finding a violation was the appropriate conclusion in the circumstances.
It may have been more sensible for the court to approach the question of “bad faith” – akin to the defence of responsible journalism under British law. Though this was brought up by the parties it was curiously ignored in the judgment. Bad faith is much more central to this issue. At its core, the case turns on how wildly speculation is permitted on the basis of known or knowable facts and what evidence is necessary to support those facts: in this case the speculation that owning an art gallery would indicate that someone was involved in espionage, and the evidence of a letter from a third party declaring the subject of the defamation to be a spy. The Court is of course correct to determine that there is a very different standard of evidence required in a legal setting to a journalistic setting. However, the fact that it gives no indication as to what the limits of journalistic speech are is troubling. If any factual basis can be used to justify any claim with only the scantest of corroboration, defamatory statements could be linked in absurd ways to anodyne facts and found not to undermine a person’s right to reputation.
In this case, as has been the trend in many recent defamation judgments in the ECHR, the focus has been more on the status of the parties involved than the content of the speech. This is an understandable approach in the context of public officials who are subject to criticism, but it is problematic where this becomes the ratio of the analysis. The margin for criticism of public officials may be wider due to the relative importance of protecting political speech, but the lack of reasoning regarding the bad faith question makes this seem as though it is the only justification for allowing the speech rather than a factor in determining the permissibility. When read aside the recent judgments regarding the narrower scope for criticism permitted when the defamed party is a judge, it seems that the Court is creating a law in which the permissibility of defamation is determined based more on the standing of the publisher and the subject rather than the content of the defamation itself. In this context, the public interest in political criticism should be balanced with the public interest in a fair election process where candidates and their advisors are not subject to baseless accusations.
Much more substantive reasoning is needed with regard the standards of evidence needed to demonstrate good faith journalism. The ECHR should look at establishing a principle along these lines as their skirting the issue clouds the law in this area. The troubling lack of clarity has the potential to encourage abuses of the journalistic role as well as, conversely, leaving no room for the responsible journalist should the subject of their defamation be outside of the political sphere.
Finally, the Court seems very willing to condemn criminal sanctions for defamation in cases where they are finding a violation. Conversely, where the Court has found no violation of Article 10 – as in the case of Peruzzi v Italy which concerned the defamation of a judge to his colleagues – the Court reiterates that criminal defamation falls within the margin of appreciation allowed to Contracting States. This suggests that in defamation cases the Court determines the outcome and applies the preferred reasoning to achieve the desired result. To have two entirely contrasting statements on the matter in judgments merely a week apart suggests an unacceptable inconsistency of policy that further muddies the already murky water of permissible defamatory speech under Article 10.
Joseph Williams is an LLM candidate at the London School of Economics, specialising in IT, Media & Communications Law