In the case of SIC – Sociedade Independente de Comunicação v Portugal ( ECHR 703) the Fourth Section of the European Court of Human Rights held that an award of damages totalling €146,000 euros (about £124,200) – a record in Portugal – to a politician wrongly linked to an investigation into a paedophile scandal in the Azores was disproportionate and could have a chilling effect on freedom of expression.
The case arose from news broadcasts by two Portuguese television stations in early December 2003 about the ‘paedophilia in the Azores’ case following an investigation on São Miguel island by the broadcasters, both run by the applicant company, SIC, and the national weekly newspaper Expresso.
The day after the second day’s reports the politician, referred to by the Strasbourg court as RR, resigned his post as Regional Secretary of Agriculture and Fisheries, saying that although he had nothing to do with the paedophilia scandal, he was the subject of rumours and harmful statements which had damaged his personal honour and his authority as a government member.
A month later, in early January 2004, one of the broadcasters reported that RR had been questioned by police investigating the scandal and had appeared in court – but two hours later retracted and corrected its report, saying that RR had not been in court, and had not been detained or indicted.
RR sued, and Portugal’s Supreme Court finally awarded him €50,000 (£42,550) in non-pecuniary damages, and €65,758 (about £55.850) in pecuniary damages.
Between May and October 2013 SIC paid RR, in six monthly instalments, the damages plus €30,230 euros (£25722.71) in interest, amounting to a total of €145,988.28 (£124,221.43).
SIC applied to the Strasbourg court, arguing that the various news reports broadcast by its television channel could not be interpreted as a whole.
While it admitted that RR’s honour and reputation were damaged with regard to the one news report that police had arrested and questioned him, it argued that the previous reports had not directly identified him, and that the rumours emerging as a result of those reports could not be imputed to it – its journalists had simply summarised the information they had collected through their investigation.
A politician’s resignation was always newsworthy and, as a political issue, would be subject to comment and discussion by journalists, the company said.
Finally, it argued that the compensation awarded was excessive and disproportionate – it was the highest amount anyone had ever been ordered to pay for damaging a person’s reputation and honour, and had had a chilling effect on the exercise of the freedom of expression.
The Fourth Section chamber of the Strasbourg court said (at §58) that it was ‘inconceivable’ that, where judicial cases or criminal investigations were concerned, there should be no prior or contemporaneous discussion of the subject matter of trials, be it in specialised journals, in the general press or among the public at large.
‘Not only do the media have the task of imparting such information and ideas; the public also has a right to receive them.’
Cases such as this, in which the measures taken or sanctions imposed by the national authority were capable of discouraging the participation of the press in debates over matters of legitimate public concern, required the most careful scrutiny (at §62).
In this case, it went on, the relevant statements comprised several opening reports on the prime-time evening and midday news about the ongoing investigations into a network implicated in the sexual abuse of minors in the Azores, and there was no doubt that it was information of public interest (§63).
RR was and remained a public figure, regionally and nationally, and, at the time, held a high-level political appointment as Regional Secretary of Agriculture and Fisheries.
The news reports of early December 2003 stemmed from different sources, collected through an investigative report compiled by both SIC and the leading weekly newspaper Expresso, and concerned facts which at that point had already been published in the December 6, 2003, edition of Expresso.
The sources of the news report of January 9, 2004, were reporters working for SIC.
The Fourth Section said (at §66) that it ‘acknowledges that taking into account the content of the reports and the particular stigma attached to offences of a sexual nature involving children, allegations of involvement in this type of offence have the capacity to cause prejudice to the personal enjoyment of the right to respect for private life’.
Although RR was not directly identified in the news reports of December 2003, he was nonetheless easily identifiable, so those reports were able to cause prejudice to him.
SIC, the Court went on (at §68), had accepted that the January bulletin falsely reporting that RR had been arrested and questioned by police, had, despite the rectification hours later, infringed his right to reputation and honour.
‘The Court also finds that, when the applicant company stated that RR had been arrested and was being questioned by the police, it did not act in a responsible way, particularly as it knew that the news was widely disseminated via media outlets both domestically and internationally. Accordingly, there were compelling reasons to impose a sanction on the applicant company for the false information.’
But SIC had rectified this mistake a few hours after the news broke, thus limiting the harm to RR’s reputation both in scope and in time.
Although the domestic courts considered that it was still possible to find references online to his potential involvement in such a crime, RR had resumed his role in politics shortly after SIC’s report – going on to serve as a member of the national parliament between 2005 and 2013 and remaining, to this day, a well-established and active politician.
On the level of damages, the Fourth Section court said (at §69) that while it was not possible to conclude that there was no harm at all to RR’s right to a reputation and honour, it was
‘difficult to accept that the injury to his reputation in the present case was of such a level of seriousness as to justify an award of that size’.
It went on:
‘Such an amount of compensation, which was high when compared with previous cases concerning Portugal that the Court has examined … is also capable of discouraging the participation of the press in debates over matters of legitimate public concern and has a chilling effect on the freedom of expression and of the press. The Court therefore considers it excessive in the circumstances of the present case.’
These considerations sufficed to enable it to conclude that the interference with SIC’s right to freedom of expression was disproportionate and not ‘necessary in a democratic society’.
The Fourth Section declined to order Portugal to pay SIC pecuniary damages of more than €145,000 , saying that Portuguese law allowed the company to apply to the domestic courts to reopen the litigation and remedy the breach of Article 10.
SIC was awarded €4,283.57 euros (about £6,345) for costs and expenses incurred in the proceedings in Strasbourg.