Case Summary and Outcome

The European Court of Human Rights (ECtHR) ruled that the State of Portugal violated José Pedro Almeida Arroja’s right to freedom of expression after domestic courts criminally convicted him of defamation and causing offence to a legal person for discussing how political interests allegedly negatively influenced the construction of a hospital. Almeida Arroja made remarks on a television program suggesting that due to the influence of a politician and his law firm, the construction of the pediatric wing for the São João Hospital was halted. As a result, he was charged with defamation and causing offence to a legal person. The Matosinhos Criminal Court sentenced him to pay a fine of EUR 4,000 and ordered him to pay EUR 5,000 in compensation to the law firm for non-pecuniary damages, for the crime of causing offence to a legal person, although it acquitted him of the defamation charges. His conviction was upheld by the Porto Court of Appeal which also convicted Almeida Arroja of aggravated defamation and increased the value of the fine and the damages. The Supreme Court of Portugal rejected Almeida Arroja’s appeal. The ECtHR found that the Portuguese courts failed to properly balance Almeida Arroja’s right to freedom of expression and the right to reputation. Furthermore, the Court determined that the sanctions imposed on Almeida Arroja were disproportionate and unjustified in a democratic society, highlighting the public interest in the issues he discussed.

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Facts

José Pedro Almeida Arroja is a Portuguese national, an economist, and a university professor, “who at the material time provided political commentary on the Monday edition of a daily news programme broadcast by the private television channel Porto Canal.” [para. 6] He is also the chair of the J. association, which was created to raise funds and support the construction of a pediatric wing for the São João Hospital, in the city of Porto. In 2014, meetings were held between Almeida Arroja and representatives of the hospital to discuss the project and outline the responsibilities of the involved stakeholders. During these discussions, the hospital sought legal advice from the law firm C., which resulted in the drafting of a tripartite Memorandum of Understanding (MoU) “establishing the rights and duties of the J. association, the construction companies, and the hospital.” [para. 7] However, the J. association rejected the first draft of the agreement. A second draft was later sent to Almeida Arroja in April 2015.

On 25 May 2015, during a news program on Porto Canal, Almeida Arroja made comments suggesting that political interests influenced the legal advice provided by the law firm C. to the São João Hospital. Almeida Arroja implied that the law firm’s involvement, directed by P.R.—a politician and member of the European Parliament—, led to the halting of the construction project.

P.R. and the law firm C. filed criminal complaints against Almeida Arroja with the Matosinhos public prosecutor’s office, accusing him of aggravated defamation and causing offense to a legal person, as outlined in Articles 180, 183, 184, and 187 of the Portuguese Criminal Code. Following these complaints, the public prosecutor decided to bring charges against Almeida Arroja.

On 12 June 2018, the Matosinhos Criminal Court held that Almeida Arroja made false statements regarding the Memorandum of Understanding (MoU) and its alleged political implications, which had damaged the reputation of law firm C. According to the court, Almeida Arroja was aware that the MoU was drafted by the law firm solely to protect the interests of its client—the hospital—and falsely claimed that political influence, particularly from P.R., had obstructed the project. The court emphasized that Almeida Arroja’s statements were untrue and harmed the credibility, prestige, and trust of law firm C.

As a result, the Matosinhos Criminal Court convicted Almeida Arroja of causing offense to a legal person, as provided for in Article 187 of the Portuguese Criminal Code, and sentenced him to pay a fine of EUR 4,000. Additionally, he was ordered to pay EUR 5,000 in compensation to law firm C. for non-pecuniary damages. Regarding P.R., the court found that Almeida Arroja had acted with the intention of humiliating him and damaging his honor, reputation, and political character. However, the court acquitted Almeida Arroja of aggravated defamation against P.R., concluding that while the statements included a mix of facts and opinions, they were primarily value judgments, “which could not be true or false,” [para. 21] about a matter of public interest, protected under the right to freedom of expression.

On 12 July 2018 and 3 September 2018, Almeida Arroja and P.R. appealed the decision to the Porto Court of Appeal. On 27 March 2019, the Porto Court of Appeal upheld Almeida Arroja’s conviction for causing offense to a legal person (law firm C.) and additionally convicted him of aggravated defamation against P.R. under Articles 180 § 1, 183 § 2, and 184 of the Portuguese Criminal Code. The appellate court sentenced him to an aggregate fine of EUR 7,000 and ordered him to pay EUR 5,000 to law firm C. and EUR 10,000 to P.R. for non-pecuniary damages.

Almeida Arroja subsequently appealed the decision to the Supreme Court of Portugal. However, his appeal was rejected.

Almeida Arroja submitted an application before the European Court of Human Rights (ECtHR), considering that his right to freedom of expression, as enshrined in Article 10 of the European Convention on Human Rights (ECHR), was violated by Portuguese domestic courts after being convicted of defamation and causing offence to a legal person.

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Decision Overview

The Fourth Section of the European Court of Human Rights delivered a unanimous decision in this case. The central issue it analyzed was whether the decisions handed down by the domestic courts of Portugal against the applicant—who was criminally convicted and sentenced to pay fines and non-pecuniary damages, after saying on a local TV show that political interests negatively affected the construction of a hospital—violated his right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR).

The applicant argued that the domestic courts’ decisions against him infringed upon his right to express opinions and criticisms about a public interest matter.  He contended that the conviction and sanctions imposed on him were disproportionate and unjustified under Article 10 of the ECHR, further asserting that they had a chilling effect on the exercise of freedom of expression.

The Government, for its part, contended that the interference with the applicant’s rights was justified under the Convention as it aimed to protect the reputation of others. The Government argued that the applicant’s conviction was valid because he had made insulting factual allegations that were proven false, and he was aware of their falsity at the time of making them. Although Portugal acknowledged that the construction of the pediatric wing of São João Hospital was a matter of public interest, it contended that the applicant had deliberately breached his duties and responsibilities, as a television commentator, by disseminating false information. Additionally, the Government emphasized that while politicians are generally expected to tolerate a higher degree of criticism, P.R. was not acting in his capacity as a politician at the time the applicant made his statements.

Regarding the proportionality of the sanctions, the Government maintained that the penalties imposed on the applicant were not excessive—given his malicious intent, the severity of the statements, and their widespread dissemination through mass media. Moreover, the Government considered that the conviction did not produce a chilling effect on freedom of expression. The government also claimed that the interference with the applicant’s right to freedom of expression was “necessary in a democratic society” under Article 10(2) of the ECHR, as it served to protect the reputation and rights of others.

The Court acknowledged that the parties did not contest that the applicant’s conviction, as ordered by the domestic courts of Portugal, constituted an interference with his rights under Article 10 of the ECHR. Hence, the Court assessed, using the three-part test, whether this interference violated the applicant’s freedom of expression.

The ECtHR first examined whether the interference with the applicant’s freedom of expression was “prescribed by law,” noting that the domestic courts relied on Article 187 of the Criminal Code to issue convictions for the crime of causing offence to a legal person. On this point, the Court questioned whether Article 187 was correctly applied, arguing that the statements in question could be considered value judgments rather than factual assertions. However, the Court did not reach a definitive conclusion about the lawfulness of the interference, choosing instead to focus on its necessity.

Subsequently, the Court studied whether the interference pursued a legitimate aim. The ECtHR acknowledged that protecting the reputation of others—specifically, the prestige and reputation of the law firm C. and the individual P.R.—was a legitimate aim within the meaning of Article 10(2) of the Convention. Although, for the Court it was debatable whether a legal entity could enjoy the right to reputation—based on the principle established in Freitas Rangel v. Portugal—the ECtHR held it was prepared to assume that this aim could be relied upon in the present case.

Consequently, the Court went on to assess whether the interference was “necessary in a democratic society” and proportionate to the legitimate aim it pursued. The ECtHR referred to Handyside v. the United Kingdom, Editions Plon v. France, Otchakovsky-Laurens and July v. France, and Axel Springer AG v. Germany, to underscore that freedom of expression was vital for a democratic society and that any restrictions to it must be convincingly established.

According to the principles established in Couderc and Hachette Filipacchi Associés v. France, the Court held that it has identified several criteria to balance competing rights in cases where freedom of expression has been restricted. Thus, when analyzing the necessity and proportionality of interferences to the aforementioned right, the Court must take into consideration: “[the] contribution [of the expression] to a debate of public interest; how well known the person affected was; the subject of the news report; the prior conduct of the person concerned; the content and method of obtaining the information and its veracity; and the form and consequences of the publication.” [para 68]

The ECtHR established that the statements in question pertained to a matter of public interest—namely, the construction of the pediatric wing of São João Hospital in Porto. The applicant’s remarks, for the Court, although partly based on value judgments, were made in the context of a public debate about the influence of political interests in public administration. Thus, the ECtHR considered that the “criterion of contribution to a debate of general interest, [was] therefore fulfilled.” [para. 73]

In regards to how well-known was the person concerned, the Court relied on Axel Springer AG v. Germany to highlight that “it is, in principle, primarily for the domestic courts to assess how well known a person is, especially where that person is mainly known at national level.” [para. 74] Accordingly in the present case, the Court acknowledged that the first-instance domestic court established that P.R. was a well-known public figure, particularly in academic and political circles. Following the precedent laid out in Oberschlick v. Austria (no. 2), the ECtHR emphasized that politicians, by their very nature, subject themselves to a heightened scrutiny of their actions and statements, by both the media and the public. Consequently, they are expected to exhibit a higher level of tolerance, particularly when their own public statements are open to criticism. As a public figure, the Court argued, P.R. was expected to tolerate a higher level of criticism compared to private individuals.

Regarding the subject of the statements made by the applicant, the Court noted that it concerned the construction project of the pediatric wing of São João Hospital in Porto. The applicant made these statements while expressing his views on the Memorandum of Understanding (MoU) and the reasons for the project’s suspension. He implied that the legal opinion provided to the public hospital by law firm C., directed by P.R., was influenced by political interests.

Upon examining the content and the veracity of the expression, the Court questioned whether the applicant’s statements were factual allegations or value judgments. It emphasized, following Pedersen and Baadsgaard v. Denmark and Freitas Rangel v. Portugal, that while value judgments do not require proof of their truth, they must have a sufficient factual basis. The Court found that the applicant’s statements, although serious, were mostly opinions and value judgments rather than factual assertions. Moreover, the ECtHR considered that the domestic courts had overly focused on the factual nature of the statements without sufficiently considering their broader context and their role in public debate.

In its analysis of the form and consequences of the publication, the Court considered the reach of the applicant’s statements, noting they were broadcast on a television channel with a limited audience. While, as established in Delfi AS v. Estonia, the audiovisual medium was considered powerful, the overall impact was not deemed significant—in light of the reach of the statements (9,500 television viewers) and the size of the city of Porto.

The ECtHR found that although the protection of reputation is a legitimate concern, the measures taken against the applicant were disproportionate. It noted that the applicant was sentenced to an aggregate fine of EUR 7,000 and ordered to pay a total of EUR 15,000 in compensation for non-pecuniary damages. Considering the precedent outlined in Morice v. France, and Anatoliy Yeremenko v. Ukraine, the ECtHR emphasized that “the mere fact of a criminal sanction is by itself capable of having a dissuasive effect, even if the sum involved is moderate and the person is easily able to pay.” [para. 87] Furthermore, the Court referred to its jurisprudence in Tavares de Almeida Fernandes and Almeida Fernandes v. Portugal to argue that damages awarded in defamation cases must bear a reasonable relationship to the harm caused. In this case, the ECtHR found that the awarded compensations were disproportionate, especially when taking into account the limited audience of the television program in which the statements were made and the lack of evidence that the law firm C., or P.R.’s career, had been seriously affected by the statements.

In light of the above criteria, the Court concluded that the domestic courts of Portugal failed to adequately balance the applicant’s right to express opinions on matters of public concern against the reputation of the individuals and entities involved. In addition, relying on Bozhkov v. Bulgaria and SIC – Sociedade Independente de Comunicação v. Portugal, the Court found that the severity of the sanctions imposed on the applicant, including the aggregate fine and the significant damages awarded, were disproportionate, and as a result could have a chilling effect.

Considering all of these arguments, the ECtHR held that Portugal violated the applicant’s right to freedom of expression under Article 10 of the ECHR. The Court ordered the respondent State to pay the applicant EUR 10,000 for non-pecuniary damages and EUR 5,000 for costs and expenses.

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