Defamation / Reputation
Hlynsdottir v. Iceland (no. 2)
Closed Expands Expression
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The European Court of Human Rights (ECtHR) found that Poland’s domestic courts had violated Article 10 of the European Convention on Human Rights (ECHR) by applying stricter standards to a commentator than were applied to journalists. The ECtHR found that the same standards of “responsibility” should be applied to all participants in general interest public debates.
During a radio debate in 2007, Grzegorz Michal Braun, a film director, historian, and author of press articles, referred to a well-known professor as a secret collaborator with the communist regime. Although Braun was the author of press articles and documentary films, the Polish government did not consider him to be a “journalist” under the law. In 2008, as a result of statements Braun made about the well-known professor’s involvement with the communist-era government, a regional court ordered Braun to pay a fine and to publish an apology for having damaged the professor’s reputation. Poland’s Supreme Court ultimately dismissed Braun’s appeal.
In analyzing the interplay between two competing rights – the right to freedom of expression and the right to protect one’s good name – Poland’s Supreme Court referred to a previous resolution (18 February 2005, III CZP 53/04 OSNC 2005, nr 7-8, p 114) in which it had decided that a journalist’s actions would not be considered illegal if they were made in the public interest and fulfilled the duty to act with due diligence. Otherwise, imposing an obligation on a journalist to prove the veracity of each statement would unjustifiably limit the freedom of the press in a democratic society. However, the Supreme Court considered that this approach could not be applied to Braun’s case because his statement had been of a private nature, and because he could not be considered to be a journalist with a socially necessary duty to inform. Therefore, the interpretation of the law adopted by the lower courts was correct, in the estimation of the Supreme Court. The Supreme Court found that making false allegations was illegal, and the question of due diligence would be taken into account only when assessing the fault of the defendant.
Following the approach taken by the lower courts in the case, the Supreme Court considered that making an untrue statement that offended one’s personal rights would always be contrary to the law. Breaching someone’s personal rights would not be against the law only if the statement could be proven to be true. An untrue statement would remain illegal even if all efforts had been made to diligently collect and examine its factual basis. In consequence, whether Braun had acted in good faith and in the public interest or believed the statement had been true did not influence the illegality of his action. Good faith could only be considered when assessing his financial liability for offending the personal rights of the well-known professor.
The applicant then petitioned the ECtHR under Article 10 of the ECHR for breach of his right to freedom of expression. Article 10 reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
When balancing Braun’s right to freedom of expression and the professor’s right to respect for his reputation, the domestic courts had distinguished between the standards applicable to journalists and those applicable to other participants in public debate, without examining whether such a distinction was compatible with Article 10 of the ECHR. In fact, under the Supreme Court’s case law, the standards of due diligence and good faith were applied only to journalists, while others, such as Braun, were required to prove the veracity of their allegations. As the veracity of Braun’s statements could not be proven, the domestic courts had considered them untrue and therefore illegal.
However, the issue of whether or not Braun was a journalist under the domestic law was not of particular relevance for examining the complaint under Article 10, as the ECHR offers protection to all participants in debates on matters of legitimate public concern. What mattered in the present case was that Braun had clearly been involved in a public debate on an important issue.
The ECtHR was therefore unable to accept the approach that had required Braun to fulfill a higher standard of proof than that of due diligence solely on the ground that under the national law, Braun was not considered a journalist. The reasoning relied on by the Polish courts could thus not be considered relevant and sufficient under the ECHR.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
A State Party to the ECHR cannot accord greater freedom of expression to a journalist than to a non-journalist when the non-journalist partakes in a public debate on a matter of public concern.
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.
ECtHR decisions are binding on the parties involved. The ECtHR’s decision sets States Parties to the ECHR on notice that a state cannot accord greater freedom of expression to a journalist than it would to a non-journalist when the non-journalist partakes in a public debate on a matter of public concern. Namely, a state cannot require that a non-journalist be held to a standard higher than due diligence.
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