Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Mixed Outcome
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The European Court of Human Rights held that a criminal defamation conviction which resulted in a journalist being required to pay, in fines and damages, the equivalent of thirty five times her monthly salary violated the right to freedom of expression. The Court also held that the criminal defamation law under which she had been convicted did not violate the right to freedom of expression, although the burden of proof imposed on the journalist had been too high. The case had been brought by a journalist who had reported that public officials took bribes to let students into specialized schools.
In Bulgaria, after completing primary school, students have the option of continuing their education in a specialized secondary school. To gain entry into a specialized secondary school, students must pass rigorous examinations, unless they have certain medical conditions which will earn them entrance without examination. In June of 2000, several parents complained that apparently healthy children were being admitted to these schools without examination after being “diagnosed” with chronic illnesses. After this complaint was filed, an inspection was instigated which found several violations of admissions procedures, including admitting students without examination who did not suffer from any qualifying medical conditions. Subsequently, a formal investigation was commenced by the prosecutor’s office on suspicion of bribe taking. The investigation found that while officials had breached their duties there was no evidence to support the taking of bribes.
In September 2000, a journalist published an article entitled, “Corruption in Burgas Education! Four Experts and a Doctor Sacked Over Bribes?” The article discussed the investigation and stated that the committee members had been taking bribes. Subsequently, the committee members wrote to the publication denying the allegations and requested that the applicant be penalized. Two days later, the publication ran another article, entitled “Education Kickbacks Affair Confirmed.” This included the letter written by the committee members along with a response from the journalist. Thereafter, a third article was published, entitled, “Burgas no. 1 Education Chief Removed: Compass Triggered Inquiry With Articles About Bribes.”
The Committee members lodged a criminal complaint against the journalist and the editor of the publication with the Burgas District Court, alleging defamation and requesting damages of 30,000 Bulgarian levs. Some time later, the claims against the editor were withdrawn but the claims against the journalist moved forward. At trial, the journalist was found guilty of defamation and ordered to pay fines, costs and damages of more than 7,000 Bulgarian levs. The journalist as well as the committee members appealed and the Regional Court upheld the conviction, finding that the article had contained untrue statements about the applicants and imputed offenses that they had not committed. The journalist appealed the case to the European Court of Human Rights. Two freedom of expression and human rights organizations, ARTICLE 19 and Open Society Justice Initiative, submitted third party comments.
The European Court of Human Rights focused on three sets of issues: whether the criminal defamation law under which the applicant had been committed violated the right to freedom of expression, in particular with regard to the burden of proof that had been set; whether the journalist had acted as a “responsible journalist”; and whether the sanction imposed on the journalist had been excessive.
The Government argued that the information published by the applicant had not been verified and had misled the public and that the amount of damages was proportionate to the injury suffered. The applicant criticized the law she was convicted under, and noted the serious problem of corruption in Bulgaria and how investigation of corruption was impeded by the imposition of high fines.
The third party interveners argued that the absence of the “presumption of innocence” in Bulgarian criminal defamation law violated basic tenets of human rights law. Surveying comparative law, they argued that “the burden of proof on defendants in defamation proceedings, and especially in criminal cases has a clear potential to cast a chilling shadow on free expression.” [Third Party Comments, para. 9]. The third party interveners also emphasized that the press plays a vital role in the free flow of information ideas and that the courts, when imposing restrictions on journalism, should take great care to consider the impact that these restrictions could have on that free flow of ideas.
The European Court of Human Rights focused on whether the conviction and fine had been “necessary in a democratic society”. The Court noted the important role that the press plays as “public watchdog” and emphasized that the courts must be especially cautious in imposing sanctions which potentially have a chilling effect on the press or discourage the free flow of ideas.
Turning to the facts of the case, the Court observed that the article concerned a matter of public interest and discussed the functioning of public officials. The Court also observed that the allegations made in the articles were factual, and did not find error in the requirement under Bulgarian defamation law that the applicant demonstrate that the allegations were truthful. The Court noted that it had ruled in numerous previous cases that requiring that a journalist prove the substantive truth of allegations made by them did not violate the right to freedom of expression. The Court emphasized that the right to freedom of expression must be balanced with the committee members’ right to private life. Furthermore, the Court considered that this burden had not substantially affected the outcome of the proceedings against the applicant. The Court noted that defamation is not a strict liability offense in Bulgaria and that the State must establish the relevant intent in order to secure a conviction. However, the Court did not agree with the domestic courts’ finding that the only way of proving criminality was to show that someone had actually been convicted of a crime; this would not provide the press with sufficient freedom to report on issues involving allegations of criminal behavior.
As to whether the applicant acted in line with the requirements of responsible journalism, the Court emphasized that although the press is afforded great latitude, “the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism.” [Para. 63]. The Court noted that the allegation of bribe taking in this specific case made it very difficult to obtain corroboration, but observed that the domestic courts had extensively assessed the steps taken by the applicant to verify the information she had obtained and had found them to be insufficient. The Court emphasized that allegations of a serious nature, such as bribe taking, required more research than mere speculation on the part of the journalist.
Turning to the sanction imposed, the Court found that this had been wholly disproportionate. The total sum imposed was the equivalent of thirty five monthly salaries for the applicant. The Court found this to be a clear violation of the right to freedom of expression.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
By finding that the monetary sanction imposed on the applicant journalist for defamation was grossly disproportionate, the Court has expanded freedom of expression. Imposing fines of nearly three years’ salary for a journalist has a clear a chilling effect on the right to freedom of expression.
At the same time, the Court also found that criminal defamation laws in and of themselves do not violate the right to freedom of expression, and that requiring a journalist to prove the substantive truth of allegations published is permitted. As elaborated in the comments submitted by the third party interveners, this effectively denies the applicant the right to be presumed innocent until proven guilty. The Court did note that in this case, the burden of proof had been set too high – the journalist had been required to proof the truth of her allegations to the level of that required in a criminal court, which would inhibit reporting on allegations of criminality. Proof of a criminal conviction is not the only way to establish that a crime has been committed.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Article 32, 39, 40, 41, & 57
Case significance refers to how influential the case is and how its significance changes over time.
Judgments of the European Court of Human Rights are binding upon parties to the case and constitute an authoritative interpretation of the meaning of Convention rights for all other States that are party to the Convention.
A Submission to the European Court of Human Rights from Article 19 and the Open Society Justice Initiative
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