On 22 September 2015, the First Section of the European Court of Human Rights handed down a judgment in Koutsoliontos and Pantazis v Greece ( ECHR 815)(in French), in response to two applications made against the Hellenic Republic, alleging a violation of Article 10 of the European Convention on Human Rights. The Court ruled that the domestic court’s order of €15,000 to be paid jointly and severally by the defendants, constituted a violation of Article 10.
The first applicant is the owner and editor of “Proïnos Logos”, a local newspaper in the city of Ioannina. The second applicant is the Director of Modern Historic Monuments in Ioannina, and also a former City Councillor and Deputy Mayor. The second applicant published an article in Proïnos Logos on 21 September 2004 which criticised the action of FF, mayor of the city from 1986 to 1994 and leader of a political party from 1982 up to the time of the judgment. (para. 7)
The article, entitled “The Hotel Xenia and Alzheimers”, made a number of comments about FF’s management of the development of the Hotel Xenia by the Central Archaeological Council. It described him as “managing to operate the hotel as a “collectivist” business of the Brezhnev type.” (para. 9) The article went on to say that this was not “one of his infantile, immature and immoral pranks” but rather an indication of the “senile dementia which characterises his attitude and his political behaviour.” (para. 9)
The trial court convicted the applicants, and ordered civil damages of €15,000 to be paid jointly and severally. (para. 18) The applicants appealed to the European Court of Human Rights on Article 10 grounds. The cases were taken together by court due to the similarity of the facts. (para. 26) The Greek government pleaded inadmissibility on the grounds that the applications were late, (para. 28) but the Court declared the application admissible due to the fact that, under its established case law, it should consider the date from which the parties can actually take knowledge of its content. (see inter alia Papachelas v Greece [GC] No 31423/96 §30 ECHR 1999-II) and therefore the applications were not considered late under the Court’s own jurisprudence. (para. 30)
Having established that the applications were admissible, the Court proceeded to apply the three-part proportionality test to the restriction on freedom of expression, as required by Article 10(2) of the ECHR. The Court determined that the interference was both prescribed by law and in pursuit of a legitimate aim, and therefore the question at issue was only whether the interference was necessary in a democratic society. (para. 36)
The Court found that the order of civil damages against the applicants in this case constituted a violation of Article 10. In particular the Court noted the absence of any reasoning in the domestic courts with regard to the distinction between facts and value-judgments (para. 44) as well as the fact that the persons acted in a public context and the article in question was “contributing to a debate in the general interest.” (para. 45) The Court considered that the national authorities did not provide relevant and sufficient reasons to justify the applicants’ conviction to pay civil damages, and that in this context preventing the insult and defamation to FF did not constitute a “pressing social need”. (para. 47)
The Court placed emphasis on the fact that the competent courts did not distinguish between facts and value-judgments, and instead “simply looked at whether the words used in the article in question could undermine the personality and reputation of the complainant.” (para. 44)
The Court also noted that the style of the article was “polemical, sarcastic, incisive and provocative.” (para. 43) The issue of style is usually invoked in the context of satire, but the Court rightly notes that it is not the responsibility of the domestic courts to “indicate to the person the style to use when they exercise the right of criticism.” (para. 43) The language of the Court is notably forceful and decisive in this.
The case, once again, affirms the principles of freedom of expression and the value of Article 10 rights. However, the Court’s reasoning is difficult to follow, particularly with regard to the distinction between speech and speaker, as well as the content and the subject of the defamation.
The overwhelming trend in ECHR jurisprudence on the conflict between defamation laws under the banner of the right to reputation, and Article 10 freedom of expression principles, has been to protect those whose defamation is directed against politicians. This is discussed in the case, (para. 45) and is part of the broader idea of a “debate in the general interest”. The Court noted that “the text at issue originated in a dispute between the second applicant and FF”. A dispute between two parties, even public figures, is not strictly in the general interest. However, the Court reiterated at this point that the second applicant was the Director of Modern Historical Monuments. (para. 45)
This is troubling. Such reasoning indicates that the Court is more interested in the speakers than the speech itself when determining the question of public interest. The Court has historically established that speech directed against politicians is less likely to be found defamatory due to the high value of political debate. However, as the Court earlier noted, “some of the expressions used … had a personal character and could prima facie be to deride the person of FF.” (para. 43) This point surely turns on the meaning of “senile dementia”, a defamation which is both personal and a question of fact. The Court failed to adequately justify its reasoning on this issue.
On the surface, the Court makes the right noises for freedom of expression and a robust right under Article 10 in Koutsoliontos v Greece, particularly with regard to criticism of public figures. However, being overly focused on the “status” of the parties – which, in the case of the publisher of a defamation rather than the subject, should not be at all relevant – to determine the value of the speech is highly problematic. This is particularly troubling when, as here, it is used to justify the idea that speech is part of a debate in the general interest even where admittedly the remarks have a personal character.
The decision reached by the Court here was arguably correct in the circumstances. The content of the article is certainly of interest to the public insofar as it concerns the business activities of a politician, the position of FF as a public figure does give rise to a wider scope for criticism. The “senile dementia” comments can be read as a political hyperbole rather than a factual allegation of a personal nature. However, this argument was not well-made by the Court. The established principles on freedom of expression continue to be arbitrarily applied and outcome-focused. Giving special protection to high value speech is commendable. Giving special protection to high value speakers is not the way to achieve it.