In the case of Milosavljević v. Serbia ( ECHR 441) the Court of Human Rights, Second Section, dismissed an Article 10 complaint by a journalist who had been subject to an adverse defamation judgment in respect of an article accusing a local public official of trying to rape an underage Romani girl.
The allegations were of a serious and sensitive nature and the journalist had not provided accurate and reliable information.
The applicant was a journalist and editor-in-chief of Svetlost, a weekly news magazine. On 3 June 2010 the magazine published an article he had written which said that Mr B, the head of a local council office had tried to rape an underage Romani girl in April 2010. A second article by another journalist was entitled “The false inspector … attempted to rape an underaged girl” but went on to make it clear Mr B had been brought before a judge following a criminal complaint.
A month later Mr B office lodged a civil defamation claim against the applicant, the second journalist and Svetlost regarding the published articles.
In July 2010 Mr B was charged with the crimes of unlawful deprivation of liberty and illicit performance of sexual acts in relation to the above incident. However, the alleged victim recanted her earlier testimony and in December 2012 Mr B was acquitted of all charges.
The Kragujevac High Court held that in the first article the applicant as its author had stated as fact that Mr B had committed the crimes of unlawful deprivation of liberty, false impersonation and attempted rape despite the fact that the criminal proceedings against the latter had still been pending, thereby breaching his right to be presumed innocent.
Furthermore, the applicant had included an untrue statement of fact when he had reported that Mr B had committed the crime of attempted rape even though he had known that the police had not pressed charges for that offence. Damages of 100,000 dinars were awarded and the applicants were ordered to publish the Court’s judgment.
In April 2011, the appeal court upheld the judgment on liability but reduced the damages to 50,000 dinars (€622). In December 2011 the applicant’s appeal to the constitutional court was dismissed.
On 6 August 2014 the applicant lodged an application to the Court of Human Rights relying on Article 10. He maintained that the articles raised serious issues concerning the alleged sexual abuse of an underage Romani girl.
There was no doubt that the judgment was an interference with freedom of expression. It was prescribed by law and pursued a legitimate aim namely the “protection of the reputation or rights of others”. In deciding whether the interference was “necessary in a democratic society” the Court had to balance the rights protected by Article 8 with those protected by Article 10 applying the well-known Axel Springer criteria:
“(a) the contribution made by the article in question to a debate of public interest; (b) how well known is the person concerned and what is the subject of the report; (c) the conduct of the person concerned prior to the publication of the article; (d) the method of obtaining the information and its veracity; (e) the content, form and consequences of the publication; and (f) the severity of the sanction imposed”  .
The two articles clearly concerned an incident of public interest, “referring as they did to an alleged sexual assault on an underaged Romani girl and the very serious charges subsequently brought against Mr B in this connection” .
Further, civil servants when acting in an official capacity were in some circumstances subject to wider limits of acceptable criticism than private individuals – although not to the same extent as politicians . As the article did not concern allegations about the improper carrying out of public duties it could not be said that Mr B should have shown a greater degree of tolerance that a private individual in a similar situation .
The domestic courts had rule against the applicant because of the publication of inaccurate statements of fact. The applicant should have been able to make the distinction between an allegation that Mr B “attempted to rape” and that he was “suspected of attempting to rape”.
The Court held that the consequences of the publication of the articles in question were clearly sufficiently serious so as to attract the protection of Article 8 in respect of Mr B’s reputation. Furthermore , the final civil court judgment rendered against the applicant, for the mental anguish suffered and the costs incurred, plus statutory interest, cannot be deemed as severe in itself .
The Court therefore concluded that the civil courts had struck a fair balance between the applicant’s Article 10 rights and Mr B’s right to protection of reputation 
“The alleged incident giving rise to the impugned articles involved allegations of a particularly serious and sensitive nature. In spite of the essential role of the press in a democratic society, however, paragraph 2 of Article 10 does not guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern ... Indeed, the protection afforded by Article 10 of the Convention to journalists, as well as to editors by implication, is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism” 
The result in this case is unsurprising. The first article presented suspicions of criminal misconduct as allegations of fact. Although Mr B was a public official he was not a politician and the allegations did not relate to the performance of his public duties.
However, the judgment demonstrates, once again, the problem with applying the Axel Springer criteria in defamation cases. These criteria were developed for the purposes of assessing privacy complaints. They are ill-adapted for use in cases where the complaint concerns a publication which is said to be defamatory. As I have previously argued (see Privacy and Defamation, Strasbourg blurs the boundaries) the use of these criteria in defamation case risks leading the Court into confusion.
In this, as in other defamation cases, there were in substance four issues: (a) what allegations were made in the articles? and (b) were they allegations of fact or a “value judgment”? (c) if they were an allegation of fact were they true? and (d) if not, did the journalist nevertheless act responsibly in publishing them? (or as the Strasbourg court often puts it “did the journalist act in accordance with the ethics of journalism?”).
The first three of these issues were briefly addressed by the Court under the heading of Axel Springer criterion (d) “The method of obtaining information, and the content, form and veracity of the information contained in the articles”. The fourth issue was not analysed at all – the Court simply referring to the need for “responsible journalism” at the end of its judgment.
In short, although the Court reached the right result, it failed to emphasise the crucial point that it is irresponsible (and not in accordance with the ethics of journalism) to report allegations as if they were proven facts.
Hugh Tomlinson QC is the joint author of The Law of Human Rights, 2nd Edn, OUP, 2009, and an editor of Inforrm.
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