Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Expands Expression
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The European Court of Human Rights (ECtHR) found that the criminal conviction of two applicants on grounds of “serious public insult” for publishing criticism of a judge’s ruling in a newspaper was a violation of their right to freedom of expression. The applicants had criticized the judge’s ruling in a lawsuit between a company seeking an environmental license and the municipal council which had voided proceedings for the license. Their criticism, which appeared in the newspaper as a letter to the editor, alleged that the judge lacked competence, knowledge, interest, and impartiality. On this basis, the prosecutor instituted criminal proceedings against the applicants, and they were found guilty of serious public insult. Their conviction was upheld on appeal, and the constitutional court also dismissed their amparo appeal for a violation of their right to freedom of expression. The ECtHR found that these interferences in the Article 10 rights of the applicants were not necessary in a democratic society when balancing freedom of expression against the “protection of the reputation or rights of others”. The Court reasoned that the state’s margin of appreciation was limited by the public interest involved in the content of the letter. Thus, while it was necessary to protect judges from personal attacks in order to safeguard the functioning of the judiciary, this could not be a bar to the expression of opinions on matters of public interest. Furthermore, since the value judgments of the applicants in the letter had a sufficient factual basis, they were protected speech. Finally, the criminal penalties were disproportionate because of their nature and severity, and their inevitable chilling effect on free speech.
In August 2007, Watts Blake Bearner Espana S.A. (WBB) sought an environmental licence from the Aguilar del Alfambra municipal council. Two assessments of the application were carried out and produced contrary results. In June 2008, the proceedings for the licence were voided by the council on the grounds that the activities for which the licence was sought demanded an evaluation of their environmental impact, and not a mere administrative licence. This occurred after campaigning against the project, by the Plataforma Ciudadana Aguilar Natural, a non-profit association concerned with sustainable development issues in Aguilar.
WBB filed a judicial administrative appeal against the decree in September. Administrative Judge 1 of Teruel appointed an engineer to proffer a technical opinion, since the analyses had produced contrary results. While the appointment was not objected to by either party, the municipal council challenged the final report of the engineer, and WBB impugned the report and competence of Mr. I.Z, who had carried out the second assessment of the application. In November 2009, the judge ruled in favour of WBB, declaring that the decree was null and void on the basis of the report of the court-appointed expert, and the finding that Mr. I.Z lacked necessary impartiality due to his ties with a member of the board of the Plataforma Ciudadana Aguilar Natural. The municipal council appealed the decision with the Aragon High Court’s Administrative Chamber in December, but the decision of the lower court was upheld in November 2012.
Meanwhile, in March 2010, the two applicants who were members of the board of the Plataforma Ciudadana Aguilar Natural, had published an open letter in the local newspaper criticising the ruling of Administrative Judge No. 1. The letter which was published while the municipal council’s appeal was pending, alleged that the judge had shown a “partiality and lack of competence”. It also detailed how the judge had displayed a lack of interest in technical matters, an ignorance of case law, and questioned her judgment of the evidence.
In response, the public prosecutor commenced criminal proceedings proprio motu against the applicants. They were convicted in July 2011 of “serious insult committed publicly,” and were sentenced to pay a fine of 8 euros every day for ten months. If they failed to pay the fine, they were to be deprived of their liberty in a ratio of one day of deprivation for every two days of fine unpaid. They also had to bear the cost of publishing the judgment in the same newspaper which published their letter, and compensate the judge with EUR 3,000 for non-pecuniary damages. The court based the conviction on the view that the criticism in the letter had not been directed at the judgment, but took the form of a personal attack against the judge by alleging that she lacked competence, knowledge and an impartial attitude.
On appeal, the judgment was upheld by the Audiencia Provincial of Teruel in January 2013. The court reasoned that the letter had involved value judgments about the judge and did not constitute legitimate criticism of the judgment. Such remarks which were “absolutely vexatious” were not entitled to the constitutional protection of freedom of expression under Article 20 § 1 (a).
The applicants filed an amparo appeal in the Constitutional Court on grounds of a violation of their right to freedom of expression, with the public prosecutor intervening in support of them. However, the Court ruled against them in April 2015, citing the limitation posed by the necessity of protecting the honour of others, on the right of freedom of expression. It noted that the Constitution did not protect the “right to insult,” and personal disparagements which affected the dignity of a person would constitute an attack on honour. Since the disparaging remarks here had not been essential to the discussion of the judgment, they were not protected. The Court also referred to Belpietro v Italy, to find that judges held a special position by virtue of which they could not respond to unfair criticisms of the exercise of their roles, and such unfounded attacks would then affect confidence in the judicial system.
The applicants brought a complaint to the ECtHR, alleging that that these judgments in Spanish courts constituted an unjustified interference with their right to freedom of expression under Article 10 of the Convention.
The ECtHR was primarily concerned with the question of whether the interferences with the applicants’ rights satisfied the conditions in Article 10(2). This is because neither party contested the existence of an interference.
The applicants were seeking just satisfaction, and the government argued that the interferences were justified because the restriction was prescribed by law and pursued the legitimate aim of protecting the authority and impartiality of the judiciary, as well the rights and reputation of persons. The government also submitted that the penalties imposed were necessary and proportionate because the attack on the judge neither served a public interest nor furthered debate on relevant issues, the judge had no right of reply to the “false” allegations in the newspaper, and the explicit inclusion of her name had adversely affected her personal life.
Nevertheless, the ECtHR, found the interference in the rights of the applicants to be unjustified because they failed to satisfy the three part test of validity i.e. the conjunctive requirement that restrictions be prescribed by law, pursue a legitimate aim, and be necessary to pursue that aim in a democratic society.
Prescription by law and legitimacy of the aim
On the first two prongs of the three part test of validity, the ECtHR found the interferences to be sufficiently prescribed by law and in pursuance of a legitimate aim. This was because Articles 208 to 211 of the Spanish Criminal Code which formed the basis of the charges were assessed to be “accessible, foreseeable and compatible with the rule of law” [para. 41], and the Court also accepted the government’s submissions on the legitimacy of the aim. [para. 42]
Necessity of the interference
On the third prong of the test, i.e. the necessity of the restrictions in a democratic society, the Court found the interference disproportionate for the following reasons:
First, while states have a margin of appreciation in evaluating the need for a restriction, it is subject to supervision and review by the court. Accordingly, the Court is to examine whether the reasons proffered by the national authorities are “relevant and sufficient” to justify the interference, and whether the interference is “proportionate to the legitimate aims pursued.” [para. 45]
Crucially, since the comments in this case had centered around the functioning of the judiciary in ongoing proceedings, they were found to be in the public interest, meriting heightened protection and limiting the margin of appreciation available to the state. The Court also noted that the band of acceptable criticism was even wider for official acts. Since the applicants had commented on ongoing judicial proceedings on an environmental interest of the local population, the comments drew higher protection. Furthermore, the Court remarked that NGOs which highlighted such public interests were playing a “public watchdog” function and so required protection similar to that garnered by the press. [para. 50]
Second, the Court referred to Axel Springer AG v. Germany, Bédat v. Switzerland and Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina to hold that an attack on personal reputation must be of a certain seriousness in order for Article 8 concerns to arise.
Additionally, with respect to the defamation of judges, both Miljević v. Croatia and Morice v. France, were cited as relevant. In this regard, it was important to protect judges from unfounded damaging attacks because they were prevented from replying by their duty of discretion, and such attacks could affect public confidence in the judiciary. Nevertheless, this was not supposed to bar individuals from expressing their opinions and value judgments on public interest matters when they had sufficient factual bases. Since the judge had been part of the a “fundamental institution of the State” she was liable to broader bounds of criticism. [para 57]
Third, the Court observed that the Spanish courts had distinguished between factual statements and value judgements. But since the latter could not be proved with fact, demanding such proof violated the freedom of opinion under Article 10. In this case, the letter of the applicants did constitute a value judgement. The proportionality of a restriction on such value judgements hinged on the existence of a “factual” basis for the statement. The Court found that a sufficient factual basis did exist here because the letter had a “sufficiently close connection with the facts of the case,” was not misleading, and could be inferred from the judgment. The position of the applicants as non-lawyers was also relevant to assessing the expression of their disagreement with the court. Furthermore, freedom of expression also protected information and ideas which were prone to “offend, shock or disturb.” [para. 55]
Fourth, the Court also noted that the nature and severity of penalties were relevant to proportionality determinations. The “relatively moderate nature of a criminal fine” would not negate the chilling effect of it, as held in Mor v. France. [para. 49] The sanctions levied in this case were also not the “lightest possible,” and the layperson status of the applicants had been completely disregarded by the Spanish courts. Furthermore, token sanctions are still criminal sanctions, and so could have a chilling effect on the freedom of expression. The mere fact that the penalty of deprivation of liberty had not been carried out, could not expunge the criminal record of their conviction. Thus the Court found the criminal penalization of the applicants had been disproportionate and unnecessary.
By way of just satisfaction under Article 41 of the Convention, the Court awarded the applicants pecuniary damages equivalent to the amount which the Spanish courts had ordered them to previously pay, as well as non-pecuniary damages, costs and expenses, and default interest.
Joint Dissenting Opinion of Judges Eloegui and Serghides
Judges Eloegui and Serghides based their dissent on the balancing exercise performed by the Court, concluding in contrast to the majority that the right to honour or reputation of the judge should have been prioritized.
To this end, they re-examined the facts of the case, and WBB’s administrative proceedings for a license. They concluded that there were contradictions in the letter, and the remarks of the applicants had an inadequate factual basis to be protected. Furthermore, the letter could not be looked on as a critique of judicial proceedings, because it was more in the vein of a personal attack.
They also disagreed with the majority’s view that the demand for proof of fact in respect of criticisms constituted an infringement of the freedom of expression. The dissenting judges viewed such a requirement as promoting “a marketplace of ideas based on data” and noted that it helped counter fake news. [para. 9]
The dissenting judges distinguished the case from Morice v. France to conclude the two cases had no similarities. The judges noted that in Morice v. France, a factual basis was established for the statement, and the circumstances of the case, the tone of the statement, and the need to protect the authority of the judiciary were considered in favour of protecting the impugned statement. However, here the applicants had disparaged the professional capabilities of the judge, and launched a personal attack against the judge, questioning her integrity.
The dissent considered the judgments of the Spanish courts to be beyond reproach. The judges concurred with the Spanish courts’ findings that the value judgments of the applicants exceeded the bounds of “the legitimate right to criticise” by insinuating the judge had shirked her ethical responsibilities.
The dissent accorded equal weight to both Article 8 and Article 10 rights, and upheld the results of the balancing exercise carried out by the Spanish courts. The judges noted that the concept of “rule of law” underpins all the provisions in the Convention, including Articles 8 and 10.
Finally, the dissenting judges found the monetary penalties imposed on the applicants to be proportionate because of the seriousness of the criticisms in the letter, the damaging effect on the judge’s reputation and the existence of a much higher penalty for the same crime under the Criminal Code which had nevertheless not been levied.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands freedom of expression by demonstrating that the judiciary is not exempt from fair criticism, and that the proportionality of restrictions on value judgements will be assessed on the extent of the factual basis they have. It also highlights the public watchdog functions of civil society organizations, and the public interest involved in debates on environmental matters. Importantly, it continues to uphold that criminal penalties such as imprisonment are bound to have a chilling effect regardless of whether imprisonment actually occurs or not.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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