Defamation / Reputation
Afanasyev v. Zlotnikov
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The European Court of Human Rights found that the Düsseldorf Court of Appeal had taken the relevant criteria into account when balancing the applicant’s right to respect for his private life against the New York Times’ right to freedom of expression and, therefore, there had been no violation of Art. 8 of the Convention. The applicant, Boris Fuchsmann, had challenged an article alleging that he had ties to Russian organized crimes according to an FBI report. The Court reasoned that the allegations were sufficiently serious to engage the applicant’s Art. 8 rights and that in carrying out its balancing exercise the domestic court had appropriately considered and reasonably found that the article contributed to a debate of public interest; the applicant was a public figure; and the information had a factual basis and was obtained in good faith in order to provide accurate and reliable information.
The applicant, Boris Fuchsmann, is a German national and an internationally active entrepreneur in the media sector and chief executive officer of the media company Innova Film GmbH. He is also Vice-President of the World Jewish Congress and President of the Jewish Confederation of Ukraine. In 2010, Fuchsmann was publicly honored by New York’s former mayor for his efforts to improve American-Russian relations.
On June 12, 2001 the New York Times published an article which revealed that Fuchsmann had ties to Russian organized crime according to reports by the FBI and European law enforcement agencies. The article further stated that in 1994 the “FBI report on Russian organized crime in the United States described Mr. Fuchsmann as a gold smuggler and embezzler, whose company in Germany was part of an international organized crime network. He is barred from entering the United States”. A similar article was published on the newspaper’s website and since then has been accessible via search engines. Before the article was published the journalist working on it contacted the applicant via email with inquiries concerning the story but Fuchsmann refrained from commenting – the article noted this.
On July 31, 2002 Fuchsmann sought injunctions in respect of certain parts of the article. On January 9, 2008 the Düsseldorf Regional Court found that German courts did not have international jurisdiction and therefore the application was found inadmissible. This was confirmed by the Court of Appeal. However, the next instance court, the Bundesgerichtshof (BGH, Federal Court of Justice) said that because the online version was accessible in Germany and mentioned a German citizen, the applicant’s reputation and personality right under Art. 2(1) and Art. 1(1) Grundgesetz (GG, Basic Law) could be violated in Germany. Consequently, German courts had jurisdiction. Therefore, on June 22, 2011 the Court of Appeal had to decide again, and this time granted an injunction in respect of the part of the article stating that Fuchsmann had been banned from the U.S., dismissing the rest for lack of merit because his interests did not outweigh the right to freedom of press and the informational interest of the public under Art. 5(1) GG. Further appeals and a constitutional complaint were rejected, and Fuchsmann filed an application to the ECtHR.
The European Court of Human Rights unanimously found the application to be admissible and that there was no violation of Art. 8 of the European Convention of Human Rights.
The Court started off by finding that Art. 8 of the Convention was engaged because the accusation of being involved in gold smuggling, embezzlement and organized crime constituted a grave attack on personal honor and reputation. Therefore, the Court had to consider whether the domestic court had struck a fair balance between the applicant’s right to respect for his private life under Art. 8 and the newspaper’s right to freedom of expression under Art. 10 of the Convention employing previously established criteria.
The Court firstly considered whether the article contributed to a debate of public interest, for example in cases where the publication concerns political issues or crimes. The Court agreed with the Court of Appeal’s findings establishing that there was a public interest because a German businessman was suspected of being involved in criminal activities.
Secondly, the Court had to decide whether the person concerned was a private individual or a person acting in a public context, such as a political or public figure, because the latter is entitled to a lesser protection over his private life than a publicly-unknown person. The Court agreed with the Düsseldorf Court of Appeal that the applicant, acting as an internationally active businessman in the media sector, could be considered as a public figure.
Thirdly, the newspaper’s method of obtaining the information has to be in good faith in order to provide accurate and reliable information. Moreover, when it comes to attacking a person’s reputation, the newspaper must consider the authority of its source as well as giving the person an opportunity to defend themselves. In the case at hand, the main source was an FBI report which was corroborated by reports from several law-enforcement agencies and submissions by the applicant. Therefore, the Court found that the report could be considered a reliable source. Also, the applicant had the opportunity to comment because the journalist had contacted him. Only with regard to the statement that the applicant had been barred from entering the U.S., did the Court of Appeal find that there was an insufficient factual basis and issued a prohibitive injunction. The Court saw no reason to depart from this and agreed that there was a sufficient factual basis for the remaining statements at issue.
In conclusion, the Court found that the Court of Appeal took the relevant criteria into account when balancing the opposing rights against each other. Therefore, the Court found no violation of Art. 8 of the Convention.
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