In Fuchsmann v Germany, the Fifth Section of the European Court of Human Rights held that an entrepreneur’s Article 8 rights were not violated by the publication of an article linking him to Russian organised crime.
In refusing to grant an injunction against the continued publication of the article online, the Court of Appeal in Germany had properly balanced the competing rights under Articles 8 and 10 of the European Convention on Human Rights (‘ECHR’).
Background
The applicant, Mr Fuchsmann, was an internationally active entrepreneur who was one of the principal owners of a broadcasting company in Kiev.
The case concerned the publication of a newspaper article on the website of The New York Times in June 2001. The article was about a criminal investigation in the United States into a company owned by a former New York City mayoral candidate who was alleged to have bribed Ukrainian officials to obtain a television licence. The article named Mr Fuchsmann and referred to his alleged ties to Russian organised crime based on reports by the FBI and European law-enforcement agencies. It also alleged that he was barred from entering the US.
In May 2001, before the article was published, the journalist from The New York Times notified Mr Fuchsmann but he did not comment or answer any questions.
In June 2002, Mr Fuchsmann sought injunctions against the statements in the article about him.
In January 2008, the Dusseldorf Regional Court declared the action inadmissible due to lack of international jurisdiction. The Dusseldorf Court of Appeal confirmed that decision, but it was later quashed by the Federal Court of Justice in March 2010 in respect of the challenged statements in the online version. As the online version was accessible from Germany and mentioned a German businessman, the German courts had jurisdiction.
The case was referred back to the Court of Appeal which, in June 2011, granted the injunction against the statement that Mr Fuchsmann had been banned from entering the US as it had an insufficient factual basis. However, the Court of Appeal dismissed the rest of the claim after balancing Mr Fuchsmann’s private rights against the freedom of the press.
In October 2012, the Federal Court of Justice rejected Mr Fuchsmann’s complaint and, in April 2013, the Federal Constitutional Court refused to consider his constitutional complaint.
On 13 November 2013, Mr Fuchsmann lodged an application against the Federal Republic of Germany with the European Court of Human Rights (‘the Court’). A hearing was held on 26 September 2017 and judgment was handed down on 19 October 2017.
Judgment
Mr Fuchsmann argued that the German courts failed to protect him from an article containing seriously defamatory statements, and that the approach of the Court of Appeal was inconsistent with the general principles as outlined in the case-law of the Court [27].
The Court considered that the allegations that Mr Fuchsmann was involved in gold smuggling, embezzlement and organised crime were sufficiently grave to engage Article 8 [30]. The case required an examination of the question of whether a fair balance had been struck between the applicant’s right to the protection of his private life under Article 8 and the newspaper’s right to freedom of expression under Article 10 [32].
- Contribution to a debate of public interest
The Court of Appeal was correct to hold that there was a public interest in the historic allegations because they had become relevant again due to the New York City mayoral corruption case and the allegations against Mr Fuchsmann were necessary for the readers’ understanding [36]-[37]. Furthermore, the public had not only an interest in news about current events, but also in the possibility of researching important past events [38]. The Court emphasised:
“the substantial contribution made by Internet archives to preserving and making available news and information.” [39].
- How well known is the person concerned and what is the subject of the report?
The Court of Appeal’s observation that there was a certain interest in Mr Fuchsmann as a German businessman internationally active in the media sector was consistent with the Court’s case-law. Previously the Court held that a manager of a prestigious enterprise could be considered by his position in society to be a public figure [41].
- Method of obtaining the information and its veracity
While the main source for the statements was an internal FBI report, rather than an officially published report or a public statement, the Court of Appeal had examined the factual foundation for the statements in detail [45]. There was no reason to call into question the Court of Appeal’s conclusion that the information in the FBI report was corroborated by other reports and there was a sufficient factual basis for the statements [45]-[46]. By contacting Mr Fuchsmann before publication of the article the journalist had fully complied with his journalistic “duties and responsibilities” [47].
- Prior conduct of the person concerned
Mr Fuchsmann’s prior conduct did not affect the assessment because there was no suggestion that he actively sought the limelight [49].
- Content form and consequences of the publication
The article was free from polemic statements and did not divulge any intimate private details [51]. The Court agreed with the Court of Appeal’s assessment that the consequences of the article in Germany were limited, as the online article was accessible only as a result of a directed search with an online search engine [52]. The Court noted “that the applicant provided no information in his submissions regarding any efforts made to have the link to the article removed from online search engines” [53].
Conclusion
Where the national authorities have undertaken a balancing exercise in conformity with the Court’s case-law, strong reasons are required to substitute the Court’s own view for that of the domestic courts. No such reasons existed as the Court of Appeal had struck a reasonable balance between the competing rights and acted within its margin of appreciation [54].
Comment
This case is an interesting example of the application of the general principles on balancing privacy rights under Article 8 with the right to exercise freedom of expression under Article 10.
The Court was robust in its approach to protecting the public interest in maintaining Internet archives for researching important past events. In dismissing the argument that the allegations were no longer newsworthy, the Court’s approach ensures that the archives will not be eroded by privacy claims based on historic allegations.
In considering the way the information was obtained, the Court carefully delineated between official published reports and internal documents. The New York Times Company, intervening as a third party, argued that journalists were permitted to rely on official reports from domestic authorities [29]. However, the court was not prepared to accept that this rule extended to internal FBI reports. This approach carefully limits the circumstances in which journalists can rely on reports without undertaking independent research.
Interestingly, the Court was unimpressed by Mr Fuchsmann’s failure to show he had attempted to have the link to the article removed from online search engines. In future, applicants may wish to demonstrate that they have attempted to minimise the impact of allegedly defamatory articles on their privacy rights.
Emma Foubister is a trainee barrister at Matrix Chambers
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