No Article 10 breach by anti-corruption NGO

3 February 2012 by

Růžový Panter, OS v. Czech Republic (App No 20240/08) – read judgment (only available in French)

The European Court of Human Rights (Fifth Section) decided yesterday that there was no violation of Article 10 as a result of a defamation judgment against a Czech anti-corruption NGO, “Pink Panther”. The case arose out of a press release concerning a widely publicised case concerning tax evasion in relation to light heating oils (called “LTO”). The press release asked a number of questions in relation to the case. the

Background

The press release published by the applicant was addressed to IL, the then Vice-President of the Chamber of Deputies, (later Interior Minister) and invited him to clarify his relationship with certain persons, including TP. The relevant part read as follows [6]:

About five years ago IL took part in an expedition to Kilimanjaro where he met, according to him by coincidence, VK who sold light heating oils and who had just been sentenced for preparing a murder. 

We think that is necessary for deputy IL to declare publicly whether fact that he rented space in his building to TP is a similar coincidence … because TP was previously a member of the board of company M Limited, where the president of the supervisory board was M.Š. , who was also sentenced for murder linked to LTO fraud. It is not possible that deputy IL did not know that TP is linked to people who have sold LTO because the media have recently covered the case. … We invite IL to … say whether he considers it acceptable for the vice president of the Chamber of Deputies of the Czech Parliament and the opposition candidate for Minister of the Interior to rent offices in his building, to a person who had the time banded together [spolčila] as part of his business with people convicted of plotting a murder case related to LTO.

TP brought proceedings “for protection of personality” against the applicant, requiring the removal of the website an apology and damages. This claim was successful and damages of about €3,300 were awarded. The Court heard substantial evidence and considered the meaning of the word “spolčila” in Czech. It held that the press release had given the false impression that TP, had helped others, namely VK and M.Š., to commit fraud by selling the LTO or preparing a murder.

The judgment was upheld by the domestic courts on appeal and the applicant made an application to the Court of Human Rights.

Judgment

There was no doubt that the judgment of the domestic court was an interference with the applicant’s Article 10 rights, was prescribed by law and pursued a legitimate aim. The question was, therefore, whether it was “necessary in a democratic society” [27-28]. The Court of Human Rights had to consider whether the reasons given by the national authorities to justify the interference were “relevant and sufficient” and whether it had applied standards consistent with the principles of Article 10 and based on an acceptable assessment of the relevant facts [29].

Furthermore, the Court noted that,in cases of this kind it had to

determine whether the domestic authorities had struck a fair balance between, on one hand, the protection of freedom of expression, enshrined in Article 10, and, secondly, that the right to reputation of the persons concerned which, as an element of privacy is protected under Article 8. The latter provision may require the adoption of positive measures to ensure effective compliance of privacy even in relations between individuals (Von Hannover v.. Germany, No. 59320/00, § 57, ECHR 2004-VI, Petrina c. Romania, No. 78060/01, § 35, 14 October 2008). [30]

The applicant contended that the publication referred only to the true fact that TP was linked with VK and M.Š since he was on the board of directors of a company which also included them.

The Court noted that, in this case it was

difficult to draw a clear dividing line between facts and value judgments in this case because the judgment against the applicant was not based on the main factual claims in the press release as such, but rather how they were presented to the public and the impression they could produce in the reader [31]

The Court recognizes that

a distortion of reality, made in bad faith, may sometimes go byeond the limits of acceptable criticism: a true statement can be coupled with additional comments, value judgments, assumptions, or even innuendo that create a false image to the public (see, for example, Vides Aizsardzības Klubs v. Latvia, No. 57829/00, § 45, May 27, 2004)[32]

The use of the term “banded together” [spolčila] was crucial. Although it could be considered a value judgment, it has to have a sufficient factual basis (see Lindon, Otchakovsky-Laurens and July, §55). In this case, the domestic court clearly explained why they believed that the term carried a criminal connotation. It also noted that text mentioned a link between TP and people “sentenced” though at the time VK and M.Š. had not yet been tried. There was no reason to think that the domestic courts had not properly balanced the interests in question [32].

The Court noted that, as the domestic courts had pointed out, the right to freedom of expression under Article 10 carried with it “duties and responsibilities” so that “the protection provided by Article 10 is subject to the condition that they are acting in good faith and based on accurate facts”. The fact that the press release was on the website of the applicant NGO meant that the public was likely to consider it credible and serious [33].

Although the applicant was seeking, on behalf of the public, to expose the questionable connections of deputy IL, it had ample opportunity to use appropriate means to achieve this end – it was not necessary to include the full name of TP, who was a private individual [34].

The damages represented at the relevant time about five and a half times the average monthly salary and the measures taken were not disproportionate to the legitimate aim pursued [36].

The Court concluded that

the domestic court could reasonably find that the interference with the applicant’s exercise of its right to freedom of expression was necessary in a democratic society within the meaning of Article 10 of the Convention, to protect the reputation and rights of TP.[37]

Comment

This case is an interesting example of the approach of the Court of Human Rights to defamation cases. It is now recognised that a balance has to be struck between Article 10 expression rights and Article 8 privacy rights. The publication complained of was by a serious campaigning NGO on a matter of public interest and the basic factual allegations against TP were correct. Nevertheless, the “impression” (or as English lawyers would say the “natural and ordinary meaning”) conveyed was that TP was part of a criminal association. This was false. The press release went beyond “value judgments” (what English lawyers would call comment) and made false factual allegations.

As in any defamation case the precise words used were crucial – the use of the word “spolčila” – “banded together” or perhaps “conspired” – was crucial. The Court also took into account the fact that the applicant NGO was a credible and serious body which the public would be likely to trust.

This case illustrates the careful balance which the Court of Human Rights seeks to strike in freedom of expression cases. Even where the publication in question deals with serious issues of public importance – such as the connections of a senior politician – the publishers must act with care and responsibility and must ensure that the “reputation rights” of third parties are appropriately protected.

This post first appeared on Inforrm’s blog and is reproduced here with permission and thanks.

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