Defamation / Reputation
Afanasyev v. Zlotnikov
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The Grand Chamber of the European Court of Human Rights ruled by 12 votes to five that Germany had violated the applicant’s right to freedom of expression when it fined a magazine and prohibited further publication of articles concerning the arrest of an actor for cocaine possession. The actor had brought an action alleging that the magazine had breached his right to privacy. The Court reasoned that the articles concerned public judicial facts obtained from official sources about someone well-known to the public regarding an arrest in a public place albeit for a minor and common crime and that, although the sanctions were lenient, they were unnecessary in a democratic society and disproportionate to the legitimate aim pursued. The dissenting Judges agreed with the majority’s assessment of the facts but they felt that the majority had simply reached a different conclusion giving more weight to freedom of expression than privacy in comparison to the domestic courts, and hence gone beyond the Court’s remit as it was not supposed “to repeat anew assessments duly performed by the domestic courts”.
On September 23, 2004 an actor, referred to in the case files as “X”, was arrested at the Oktoberfest festival for possession of 0.23 grams of cocaine. A journalist was able to gather the details of this arrest by questioning the police present at the scene and a public prosecutor from the prosecutor’s office of Munich Regional Court I. X was well-known within Germany for playing the role of a police superintendent in a television show which had been broadcast on a private channel from 1998 to 2005. X had one prior conviction for the importation of drugs for which he had received a five-month suspended prison sentence and two years’ probation, along with a EUR5000.00 fine in in July of 2000.
On September 29, 2004 the daily newspaper “Bild” published an article concerning the arrest of X which was advertised on the front page of the daily with the headline “Cocaine! Superintendent Y caught at the Munich beer festival.” The article was accompanied by three photos of X and included details of his arrest and the events leading up to it as well as details of X’s acting career and his previous drugs-related conviction. On the same day press agencies and other newspapers and magazines reported on X’s arrest referring in part to the Bild article. Also on the same day, the prosecutor in charge of the case confirmed the facts contained in the Bild article to other written media and television channels.
Following the publication of the article, X brought proceedings against Axel Springer AG, the parent company of Bild, before the Hamburg Regional Court. The Regional Court imposed an injunction on the publication of the article dated September29 which was later confirmed in a judgment on November 12, 2004 and subsequently by the Court of Appeal on June 28, 2005.
On November 11, 2005 the Regional Court prohibited any further publication of almost the entirety of the first article on pain of an agreed penalty and ordered Axel Springer AG to pay a penalty of EUR5000.00 and to reimburse the procedural expenses which amounted to EUR811.88 plus statutory interest. The Regional Court concluded that the article, as published by Bild, had amounted to a serious interference with X’s personality rights and had resulted on him being “discredited in the eyes of the public”. The Court also reasoned that X’s personality rights prevailed over the public’s interest in being informed, even if the truth of the facts was not disputed. The Court further reasoned that: 1) the offense committed by X was only of medium or even minor seriousness for which there was no public interest in knowing about it; 2) the offense would never have been reported to the press if it had been committed by someone unknown to the public; 3) X only had one prior conviction dating several years back; 4) the public interest focused more on the character played by X than on X himself and X had not done anything to attract special press attention; 5) while X played a police superintendent on TV the public could distinguish between him and this character and X had never sought to portray himself as an emblem of moral virtue; and 6) the fact the paper had obtained the information from an official source did not absolve the magazine from the requirement to check whether the publication of the information was justified in light of X’s personality rights.
On March 21, 2006 the Court of Appeal dismissed an appeal brought by Axel Springer AG against the decision of the Hamburg Regional Court. The Court of Appeal essentially agreed with the reasoning of the Regional Court. However, it did not consider that the company’s liability extended beyond minor negligence given that the information disclosed by the public prosecutor’s office had led it to believe that the report was lawful. The illegal disclosure by the public prosecutor’s office did not, however, make publication by the applicant company legal. The Court of Appeal accordingly reduced the agreed penalty to EUR1,000. It refused leave to appeal on points of law because its judgment did not conflict with the case-law of the Federal Court of Justice. Axel Springer AG attempted to further appeal to the Federal Court of Justice but was refused leave to appeal on November 7, 2006. On November 11 the Federal Court of Justice refused the applicant company leave to appeal on points of law on the ground that the case did not raise a question of fundamental importance.
On July 7, 2005 the Bild printed a second article with a headline that read “TV series Superintendent X confesses in court to having taken cocaine. He is fined 18,000 euros!”. The article partially transcribed the confession made by X before the court and was accompanied by one photo of him. X also brought proceedings against Axel Springer AG for the publication of this article.
On August 15, 2005 the Hamburg Regional Court granted an injunction against any further publication of this article and, in a judgment of September 22, prohibited the further publication of the article on pain of penalty and ordered the company to pay EUR449.96 in costs plus statutory interest. The reasoning was essentially the same as that contained in the decision pertaining to the first article. Axel Springer AG’s appeal against this decision was also dismissed by the Court of Appeal and it was once again refused leave to further appeal to the Federal Court of Justice. The company then attempted to appeal to the Federal Constitutional Court against both decisions but on March 5, 2008 a three-judge panel of the Federal Constitutional Court declined to entertain this constitutional appeal.
On September 12, 2006 and again on January 29, 2008 the Hamburg Regional Court ordered Axel Springer AG to pay X two penalty payments of EUR5000.00 each for having breached the order of August 15, 2005. Among other reasons, this was because the company had published in print on July 7, 2006 and online on March 22, 2007, a statement by one of its editors that read: “Accordingly, we had no right whatsoever to report on the trial of the popular actor X for possession of cocaine, even though he was a very well-known recidivist and the offence was committed at the beer festival in Munich”.
Axel Springer then brought an application before the European Court of Human Rights claiming Germany had violated its freedom of expression. The case was initially allocated to the Fifth Section but on March 30, 2010 the Section relinquished its jurisdiction in favor of the Grand Chamber which issued its decision February 7, 2012.
The issue for the Grand Chamber of the European Court of Human Rights to decide was whether Germany had violated freedom of expression by enjoining the publication of the Bild articles concerning the arrest and subsequent conviction of X and imposing fines on Axel Springer AG (the applicant) because of the publication of those articles.
The German Government acknowledged that its domestic courts’ decisions had interfered with the applicant’s freedom of expression but argued that the interference was prescribed by law and pursued a legitimate aim, namely the protection of privacy. It further argued that the debate centered on whether the measures adopted by the domestic courts had been proportionate and that the European Court of Human Rights “should intervene only where the domestic courts had not taken account of certain specific circumstances when undertaking the balancing exercise or where the result of that exercise was patently disproportionate” [para. 64].
The applicant, on its part, argued that: 1) X was a well known actor especially popular among young male adults; 2) criminal offenses were, by nature, never purely private matters and X was a repeat offender; 3) the public interest in being informed prevailed over X’s right to privacy especially since X had courted public attention in the past and used the media for self-promotion; 4) X had publicly asserted following his first conviction that he had given up taking drugs waiving his right to privacy on that matter; 5) the truth of the facts reported in the article was not disputed; 6) it had been the prosecution authorities who had disclosed the facts and the identity of the person arrested; 7) the information had already been made public by the prosecution authorities; and 8) the press could not be limited to reporting only on political figures given that “since prominent persons were able to establish a certain image of themselves by seeking the attention of the media, the latter should be permitted to correct that image when it no longer corresponded to the reality” [para. 70].
The Court began its analysis by reviewing its case law pertaining to freedom of expression and the “margin of appreciation” principle. It went on to summarize the criteria laid-down by case-law for the balancing between freedom of expression and privacy, these being: 1) whether the publication contributes to a debate of general interest; 2) how well known is the person concerned and what is the subject of the report; 3) the prior conduct of the person concerned; 4) the method of obtaining the information and its veracity; 5) the content, form and consequences of the publication; and 6) the severity of the sanction imposed.
The Court then proceeded to apply those criteria to the case. It acknowledged that, as the articles concerned public judicial facts, they could be considered to present a degree of general interest, further noting that such interest would vary in degree based on factors such as “the degree to which the person concerned is known, the circumstances of the case and any further developments arising during the proceedings”. As to how well-known X was, the Court disagreed with the domestic courts’ assessment and considered him “sufficiently well known to qualify as a public figure”. It also highlighted that he was primarily known for a role, that of a police superintendent whose mission was law enforcement and crime prevention which increased the public interest in being informed about his arrest for a criminal offence.
In respect of the subject of the articles, the Court acknowledged that they pertained to a relatively minor and very common crime given the small quantity of the drugs that were found in X’s possession. It also agreed with the domestic courts’ assessment that the offense would not have been reported if it had been committed by an unknown person. However, it highlighted that the arrest had taken place in public during the Beer Festival which, as recognized by the domestic Court of Appeal, was a matter of important public interest.
In relation to X’s prior conduct, the Court considered that he had “actively sought the limelight” which reduced his “legitimate expectation” that his private life would be protected. As to the methods of obtaining the information. The Court found that the applicant’s submissions that it had obtained the information prior to publication from an official press conference were unlikely to be true as the only verified press conference had taken place after publication of the first article. However, it noted that, even if the information had not been obtained in a press conference, it was not disputed that the journalist had obtained it from official sources (the police and the prosecutor) and therefore it could not be considered to have been obtained in bad faith. The Court also pointed out that the prosecutor’s office had confirmed the facts of the first article in a press conference the day after the article was published and that the facts contained in the second article were already publicly known before its publication.
In respect of the content, form and consequence of the articles, the Court found that the articles only related to the facts and did not contain any “disparaging expression or unsubstantiated allegation” and that “[t]he fact that the first article contained certain expressions which, to all intents and purposes, were designed to attract the public’s attention cannot in itself raise an issue under the Court’s case-law”. As to the severity of the sanctions, the Court considered that these were lenient but nonetheless capable of having a “chilling effect” [para. 108].
Based on its analysis of each of the criteria, the Court concluded that Germany’s interference with the applicant’s freedom of expression was not “necessary in a democratic society” and that there was “no reasonable relationship of proportionality between, on the one hand, the restrictions imposed by the national courts on the applicant company’s right to freedom of expression and, on the other hand, the legitimate aim pursued”. Thus, it ruled by twelve votes to five that Germany had violated the applicant’s right to freedom of expression [para. 110].
Judge López Guerra issued a dissenting opinion which was joined by Judges Jungwiert, Jaeger, Villigier and Poalelungi. The dissenting judges agreed with the majority’s assessment of the facts but considered that the majority had acted as a “fourth instance” when the role of the Grand Chamber was only “to verify whether the domestic courts have duly balanced the conflicting rights and have taken into account the relevant criteria established in our case-law without any manifest error or omission of any important factor”. They considered that the domestic courts had performed the required balancing exercise and assessed the competing interests of freedom of expression and privacy giving extensive reasons for their judgments. Thus, they felt that the majority had simply reached a different conclusion giving more weight to freedom of expression than privacy in comparison to the domestic courts when it was not supposed “to repeat anew assessments duly performed by the domestic courts”.
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