In Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina ([2017] ECHR 608)  the Grand Chamber of the ECtHR found by an 11-6 majority that there was no violation of Article 10 in findings of defamation by the national courts in relation to a public servant’s right to reputation.

Background

The applicants were four Bosnian NGOs against whom the national courts in Bosnia & Herzegovina had made adverse decisions in defamation proceedings. The defamation proceedings had been brought by a candidate (“MS”) for director of a public radio station. The applicants had, during MS’s candidacy, written to the regional authorities opposing her candidacy on the basis that she “lacks the professional and moral qualities for such a position”, specifically because of concerns they raised about her approach to matters of sensitivity between the different ethnic and cultural groups in Bosnia. That letter had later, and by means apparently unknown to the applicants, been published in the media.

The national courts found that the applicants had included in the letter allegations which were damaging to MS’s reputation and which they knew or ought to have known were false. The Constitutional Court held that that finding (and the damages of EUR1445 which each applicant paid to MS) was an interference with Article 10 but that it was justified as necessary in a democratic society.

The applicants brought an application to the ECtHR, where the Chamber by a majority of 4-3 found that there had been no violation of Article 10. The case was then referred to the Grand Chamber.

Grand Chamber judgment

The applicants argued that the appointment of a radio director was a matter of public concern, and the limits of acceptable criticism of public servants like MS were wider than otherwise. Their letter had not contained a definite statement of facts and had been contained in private correspondence which there was no intention to publish in the press. The balance between MS’s right to reputation and their right to freedom of expression had not been correctly struck.

The Grand Chamber agreed that the national courts’ findings constituted an interference with Article 10 which would need to be prescribed by law, in pursuit of a legitimate aim, and necessary in a democratic society if it were to be justified. The domestic Defamation Act 2003 (and the application of its provisions to the present scenario) was sufficiently foreseeable for the interference to be prescribed by law. The protection of the rights of other is a legitimate aim by which to limit freedom of expression.

The more interesting and detailed element of the Grand Chamber’s analysis is whether the interference was necessary in a democratic society and whether, therefore, a fair balance between the applicant’s Article 10 rights and MS’s Article 8 rights had been struck.

It started with the core principle that Articles 8 and 10 deserve equal respect. How to secure compliance with the rights they contain falls within the margin of appreciation of domestic authorities, and if a balancing exercise has been carried out by states in conformity with criteria laid down by the ECtHR, there will need to be strong reasons to substitute the conclusion reached.  The ECtHR criteria are now well established in a line of authority: Von Hannover v. Germany (no. 2) [GC] (nos. 40660/08 and 60641/08, paras 104-07), Axel Springer AG ([GC], no. 39954/08, paras 85-88), Couderc and Hachette Filipacchi Associés v. France [GC] (no. 40454/07, paras. 90-93) and Perinçek v. Switzerland [GC] (no. 27510/08, para 198).

The accusations against MS contained in the letter were serious, amounting to criminal conduct under domestic law. They were capable of tarnishing her reputation and causing her prejudice professionally and socially. The court considered and rejected an argument that the letter should be approached as if its authors were whistleblowers, but accepted that MS was to be regarded as a public servant and the comments about her must be read in that context, albeit with the caveat that the comments here were made by NGOs, not private individuals, and without any direct personal experience of the matters complained of.

The Grand Chamber accepted that ethnic and religious representation in institutions in Bosnia & Herzegovina was a matter of public importance and that the applicants had a legitimate interest in being informed about the matters raised in the letter. By applying to be a candidate for director of the public radio station, MS had knowingly entered the public domain and laid herself open to close scrutiny. However, the letter contained statements of fact over which the applicants had assumed responsibility but the veracity of which they had failed to verify. The more serious the accusation, the higher the diligence required by those bringing it to the attention of the authorities, particularly where it was bodies like the press or NGOs which act as a “watchdog” over public servants. The applicants had not exercised that diligence. The impact of the allegations had been to harm MS’s career prospects and her professional reputation. In light of all the circumstances, the majority of the Grand Chamber was satisfied that the domestic courts struck a fair balance between the interests of the applicants and the interests of MS. Accordingly, there was no violation of Article 10.

Comment

The decision is an very significant one for ‘political defamation’ and the difficult balance between Articles 8 and 10 as regards public servants’ right to reputation. The Chamber had found by a 4-3 majority that there had been no violation of Article 10 on the basis that the allegations in the letter had been reported without a reasonable attempt to verify the allegations. The 11-6 majority of the Grand Chamber reached the same conclusion but expanded on the reasoning.

It is notable that the majority of the Grand Chamber relied upon the ethical obligations of NGOs to verify the veracity of their allegations, which it held operate in much the same way as the obligations of the press to verify.  Although the allegations had initially been supplied in private correspondence to a number of state officials in order that they investigate and act accordingly, the majority of the Grand Chamber held that did not absolve the NGOs of the need to set out a proper factual basis for the allegations.

The problem with the judgment is that it begs as many questions as it answers.

The first difficulty comes when assessing which allegations must be verified; in distinguishing between value statements and statements of fact; and in assessing what constitutes political speech. The Court’s caselaw here is that context is everything. In Lykin v Ukraine ([2017] ECHR 17), for example, a letter was read out at a party political meeting held in public, which contained a number of statements highly critical of a local politician – a mixture of factual allegations and value judgments. The Court emphasised that a politician is entitled to have his reputation protected, but the requirements of that protection have to be weighed against the interests of free and open discussion of political issues.  The speaker in that case, given the context in which he made his allegations, was making statements about the performance of an elected politician – that was classic political speech which required the closest protection. Where political speech is concerned, context, not just verification of facts, is key.  The allegations were made in good faith; some were value judgments and not susceptible of proof. Nonetheless the context of a public political meeting was such that the domestic courts had imposed too high a threshold in requiring the speaker first to verify their allegations.

It is difficult to see why such an approach should not apply equally in the Medžlis case – indeed on the reasoning of the majority of the Grand Chamber, it would have been better for the NGOs if they had not raised the allegations in private first, but had instead ventilated them publicly in a context which could have been considered political. That seems an odd corollary when the aim is to grant an appropriate level of reputation protection in a political context.

The second problem concerns the NGOs’ duty to verify: they were supplying the information to the authorities in good faith in order that they consider and investigate matters not with a view to it being published; they were not the authors of the information supplied. As the dissenters held, surely that must impute some duty on the authorities to verify, rather than the NGOs, who are clearly not as well placed, to research and delve into the matters in question.  There is undoubtedly a chilling effect if citizens (including NGOs) must verify matters of concern against elected officials (or those running for office) before they draw these matters of concern to the authorities’ attention.

At present, unless the allegations are made in a context which can be classified as whistleblowing or political, the provider of the information may inherit some duty to verify even where the express purpose of supplying the information is in order that it be checked and acted upon. As (Bosnian) Judge Vehabovic explained

“The applicants never claimed that the information contained in the letter was true, but invited the competent authorities to investigate the allegation submitted in it”.

The third problem concerns exactly what is being balanced in this type of case: the minority forcefully held that Article 10 rights have

“to be weighed not in relation to the interests of the freedom of the press or of open discussion of matters of public concern but rather against the applicant’s right to report irregularities in the conduct of State officials to a body competent to deal with such complaints. Acting as a quasi-whistleblower and reporting alleged misconduct to the aforementioned authorities in a private letter requires the application of a more subjective and lenient approach than in completely different factual situations. Against this background we find it unjustified to assess the truthfulness of the statements contained in a private letter with the same rigour as if they were contained in an article published by the applicants in the press”.

The majority had approached this case by extrapolating the press duty to verify to NGOs, even where allegations were supplied in private. Here the matters of concern were very serious indeed – allegations that the applicant for the post of director of a major radio station had shown contempt for different ethnic and religious segments of Bosnian society.  What were the NGOs’ options? To raise the allegations in private correspondence and ask the authorities to investigate; to air the allegations publicly in a political discussion context; to ventilate the allegations publicly in a whistleblowing forum.

The reality is that a complaint against a public official is likely to contain information which is a mixture of fact and value judgment. The context in which a citizen (including an NGO) raises the issue is likely be a combination of complaint of misconduct, necessarily with a political context, of information which may have been supressed or only known to a few. The approach of the majority is to extrapolate a ‘press verification’ analysis to private citizens (including NGOs) making complaints or raising issues of concern regarding public officials. Although the majority refuse to speculate on whether the NGOs had in fact leaked their correspondence to the press, the effect of their judgment is that they might as well have.

At a time when the probity of public servants’ conduct is of ever-pressing concern, the judgment has even greater significance than otherwise.

Alex Bailin QC and Jessica Jones are members of Matrix