Defamation / Reputation
Hlynsdottir v. Iceland (no. 2)
Closed Expands Expression
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The European Court of Human Rights overturned criminal sanctions imposed on two applicants for defamatory articles and pictures published in a newspaper. Telegraf, a Romanian newspaper, published an article that implied corruption in the Romanian Government. Criminal proceedings were initiated against the publishers of the article for defamation and insult, which resulted in a ten-month sentence for the applicants as well as a hefty fine. The court reasoned that the criminal sanction was not proportionate to the crime alleged and that it produced a chilling effect on speech.
This case involved an article that was published in a Romanian newspaper, Telegraf, which implied corruption in the Romanian Government. Criminal proceedings were initiated against the publishers of the articles for defamation and insult—punishable offenses under the Romanian Criminal Code. The applicants were sentenced to three months for insult and seven months for defamation and were ordered to serve seven months in prison. The applicants were also prohibited from working as journalists a full year from the date that their imprisonment concluded. Finally, the applicants were ordered to pay a fine of 25,000,000 Romanian Lei (about 2,033 euros at the material time). The lower court’s decision was appealed to Romania’s Supreme Court of Justice, and the Court dismissed the appeal. Thereafter, the publishers challenged the Court’s decision in an application to the European Court of Human Rights (“ECtHR”). The applicants never served the prison sentence because it was first deferred and ultimately pardoned.
Paul Mahoney, President of the ECtHR Chamber in the present case, delivered the opinion of the Court.
In their application before the ECtHR, the applicants alleged their conviction was unlawful under Article 10 (Freedom of Expression) of the European Convention on Human Rights (“ECHR”) as an interference with their right to freedom of expression. The ECtHR found that it was not disputed that there was interference with the right; therefore the relevant question was whether that interference was justified. The Court further found that the interference was prescribed by law as it was authorized under the relevant provisions of the Criminal Code.
Thus, under the ECtHR’s Article 10 violation requirements, the crux of the issue was whether the interference in question was necessary in a democratic society. To make this determination, the Court looked to whether there existed a “pressing social need” for the interference, which the Court found to exist because the interference was meant to protect the reputation and dignity of the defamed person. The Court found, however, that the sanction was not proportionate to the offense. The Court noted that it must, “exercise the utmost caution where the measures taken or sanctions imposed by the national authorities are such as to dissuade the press from taking part in the discussion of matters of legitimate public concern.” Para. 111. The Court found that, by imposing criminal sanctions (and the possibility of imprisonment) upon the press for defamation, a chilling effect emerged. Therefore, the Court found that, although the interference was justified, the punishment was not proportionate to the offense, and accordingly, Article 10 was violated. The Court did not award damages or costs.
Concurrence: The concurrence argued that the applicant’s cases should not have been combined, as there may have been no violation for one of the applicants.
Dissent: The dissent contested only one point: the failure to award pecuniary damages.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression by holding that imposing criminal sanctions for defamation is unlawful because it acts as a prior restraint on the press.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Article 205; 206; 64; and 115
Case significance refers to how influential the case is and how its significance changes over time.
Decisions of the ECtHR often exhibit persuasive authority over ECHR States Parties.
Let us know if you notice errors or if the case analysis needs revision.