Case Summary and Outcome

The European Court of Human Rights held that Hungary had violated a Facebook’s user’s right to freedom of expression by holding her civilly liable for a post which had criticised a local municipality.  A Facebook user shared a post which expressed dissatisfaction with the municipality’s property management practices and expressed her own opinion on money spent by the municipality. The municipality and municipal office then filed a lawsuit for violation of the personality right to reputation. The Hungarian Court of First Instance found that the Facebook user had infringed the municipality and the municipal office’s personality rights to reputation by spreading false statements of fact and ordered an apology and monetary damages. The Court of Appeal reduced the amount of damages and found that the municipal office’s rights had not been infringed. The Curia upheld the Court of Appeal’s decision and the Constitutional Court rejected the Facebook user’s constitutional complaint. The European Court of Human Rights found that the civil penalties did not serve a legitimate aim when a public entity – such as a municipality – brings a claim for an infringement of personality rights.

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Facts

On December 10, 2014, a Hungarian Facebook user published a post calling on the citizens of Tata (a town in north-western Hungary) to protest against the “squandering” of certain properties of the local municipality.

The post stated, among other things: “A few years ago, the officials of Tata sold the Wagner House, a city gem in need of renovation that also served as a nurses’ residence, to […]. Let us not even go into the price at which […] acquired a property belonging to our city. It is also irrelevant that it was renovated, since the city is now leasing back the building, which should never have been sold. And now it is being leased back at an exorbitant price. … Moreover, this is not a property the city can do without! The central medical on-call service, which serves patients from Tata and the surrounding settlements, is located here now. It has been known for years that the specialist outpatient clinic does not belong to Tata, and the on-call service must move from there. So this was not a sudden idea. Dear fellow citizens of Tata, isn’t this a bit strange? They sell the building, but then lease it back long-term at a huge cost. It is a good deal for the entrepreneur, because the purchase price and the renovation costs he invested come back to him. But this is the plundering of the citizens of Tata!!!!! … Do you remember the property on Almási Street? Or the kindergarten on Görög Hősök Street? They sold those too!! It is now owned by the security company Derik Hungária. If we do not raise this issue, what will remain for the city when everything is sold?? … We must review the sale of the property to determine whether it was lawful. Was it advertised? Did the buyer pay a fair price? What was the need to sell the city’s property, our property, belonging to us, the citizens of Tata …” (sic!)

In December 2014, Mária Somogyi, a Hungarian woman, shared the above post on her user profile on Facebook. Somogyi also added a comment to the profile of the user who published the original post, raising the question of how much the Tata municipality pays for the general register office operating in the building of Forrásház (which had been relocated because the mayor was disturbed by the large number of citizens coming to the office for administrative matters) noting that the municipality “pays a high rent”.

The Municipality of Tata and the Joint Municipal Office of Tata (“the Municipality”) brought an action against the Somogyi for sharing the post and the publication of the comment for infringement of the personality right to reputation referred to in Section 2:45 (2) of Act V of 2013 on the Civil Code (Civil Code). The Tatabánya Regional Court acting as the court of first instance found that Somogyi had damaged the reputation of the municipality by sharing the post and spreading untrue facts. The Court ordered Somogyi to publish a statement of redress and to pay HUF 50,000 in non‑pecuniary damages to the municipality and the municipal office.

With regard to the post she shared, the Court noted that it said that the municipality had sold the property directly to the contractor mentioned, knowing in advance that it would lease it back from him later. The Court identified that this allegation contains several untrue facts: the municipality did not sell the property to the contractor, and given that he only acquired ownership of the property after about a decade and several changes of ownership, it is also untrue that the municipality could have known at the time of the sale that it would eventually lease the property back; and that the “officials of Tata” colluded with the said contractor in the legal transaction. These facts were considered material to the content of the post, as the criticism of the municipality’s management of assets is based precisely on them.

The untrue statement of facts contained in the post and shared by Somogyi were found to undermine public confidence in the functioning of the local municipality by calling into question the proper conduct of the proceedings in the interests of the electorate. Accordingly, for spreading these untrue statements, the Court found that Somogyi had infringed the municipality’s reputation.

However, the Court did not regard the criticism concerning the second property mentioned in the post as a statement of fact nor did it consider the statement of fact contained in Somogyi’s comment (that the local municipality “pays a high rent”) to be a material fact for the purposes of the publication that would justify the imposition of civil law sanctions.

Somogyi filed an appeal against the first instance judgment to the Győr Court of Appeal. The Court of Appeal dismissed the claim of the Municipal Office in its entirety and reduced the amount of the aggravated damages to be paid to the municipality to HUF 10,000. The Court of Appeal found that the Municipal Office did not have a right of action, as the term “officials of Tata” used in the post could not be applied to them as it was intended to refer to the members of the local municipal council who voted on the sale and lease, as well as the mayor who signed the contracts. In relation to the property mentioned in the post, the Court attached decisive significance to the multiple changes of ownership and the long period that elapsed between the sale and the lease agreement and as the content of the post cannot be reconciled with these facts, its very premise was found to be an untrue statement of fact. The sharing of the post on the social media platform therefore constituted an infringement of reputation through the dissemination of false statements.

Somogyi lodged a petition for review against the decision of the Court of Appeal before the Curia, and the highest judicial forum upheld the final judgment in the part challenged by the review. The Curia found that the contested post disseminated false statements and presented true facts in a misleading manner, which together also conveyed offensive content. It emphasized that not even the public interest in the free discussion of public affairs can justify the falsification of true facts. The Curia confirmed that the protection of reputation as a personality right is also a right of a public body with legal personality and this right can be infringed if a person operating a profile on a social media platform transmits a statement containing offensive content. The Curia held that the Court of Appeal had correctly established that Somogyi had infringed the reputation of the municipality and also correctly decided on the further objective legal consequence. It held that the Court of Appeal was correct in finding that the award of non‑pecuniary aggravated damages was warranted and that it had appropriately determined the amount in light of the circumstances of the case.

Somogyi filed a constitutional complaint to the Constitutional Court against the judgment, requesting that the decisions of the Győr Court of Appeal and the Curia be declared unconstitutional and annulled. The Constitutional Court held that Somogyi was not, in fact, seeking a constitutional review of the contested judgments of the courts, but rather aimed to have the judicial position regarding the establishment of the facts, the assessment of facts and evidence, and the conclusions drawn therefrom, overturned. The Court found that there was no doubt as to the constitutionality affecting the merits of the judicial decision, and that the matters raised in the petition did not give rise to any question of fundamental constitutional significance. Accordingly, the Constitutional Court rejected the constitutional complaint.

Somogyi brought an application before the European Court of Human Rights alleging a violation of the freedom of expression under Article 10 of the European Convention on Human Rights (the Convention).

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Decision Overview

The First Section of the European Court of Human Rights delivered a unanimous decision. The central issue for the Court’s determination was whether the finding that Somogyi had infringed the municipality of Tata’s reputation was a legitimate restriction to her right to freedom of expression.

Somogyi argued that the interference in her right to freedom of expression through the application of the Civil Code did not serve a “legitimate aim” of protecting the reputation of others. She did not dispute that a legal person exercising public (political) authority may have a legitimate interest in protecting its reputation, but submitted that this interest was public rather than private. She argued that by sharing the contested post she was contributing, as a citizen concerned by the case, to a public interest dispute. She stressed that the post was on her personal Facebook page, which did not enjoy significant visibility, and from which she derived no financial benefit and that the municipality had the means to refute the allegations. Somogyi argued that, even if the shared post was factually incorrect, the error was negligible and did not affect the overall message that the municipality mismanaged public funds.

The Hungarian Government argued that some of the allegations made by Somogyi were untrue and capable of adversely affecting public opinion and the reputation and authority of the municipality. As a legal entity, the municipality possesses fundamental rights, and the reputation of those operating in business corresponded to the municipality’s interest in maintaining public confidence. It accepted the statement of the Curia that those exercising public authority must tolerate a wider range of criticism.

It was not disputed that the judgments of the Hungarian courts constituted an interference with Somogyi’s freedom of expression and that the contested interference had a legal basis in domestic law. The parties disagreed only on whether that interference pursued a “legitimate aim” within the meaning of Article 10(2) of the Convention and whether it was proportionate to the aim pursued.

The Court, in its previous case law, including OOO Regnum v. Russia, has held that the “protection of the reputation … of others” in Article 10(2) of the Convention applies to legal persons as well as natural persons, but that the latter have a more limited scope for state action. Referring to the Steel and Morris case, the Court noted that local public administration bodies, government-owned companies and political parties cannot sue for defamation because it is in the public interest that a democratically elected body should be widely open to public criticism. Similarly, in Lombardo v. Malta, the Court held that only in exceptional circumstances can a measure restricting statements critical of an elected body’s acts or omissions be justified on the grounds of “the protection of the rights or reputation of others”, while in Romanenko v. Russia, the Court found that allowing public bodies to bring proceedings in their own name for defamation was unjustified.

The Court noted that, by virtue of its role in a democratic society, the interest of an executive body vested with state authority in maintaining its reputation fundamentally differs from both the right to reputation of natural persons and the interests of private or state-owned legal entities competing in the market: whereas a commercial company seeks to generate profit by relying on its reputation, bodies of the state administration serve the public, funded by taxpayers. The Court therefore found that civil proceedings for the protection of personality rights brought by a legal entity exercising public authority cannot, as a general rule, be regarded as pursuing a “legitimate aim” of protecting the reputation of others within the meaning of Article 10(2) of the Convention. However, it did not exclude the possibility that individual members of a public body who are easily identifiable, given the limited number of members of the public body and the nature of the allegations against them, may be entitled to bring proceedings individually on their own behalf.

The Court noted that the contested post, for which Somogyi was held liable, criticised the performance of public functions by the municipality and that the contested sale did not concern privately owned real property or direct economic activity, but the management of municipally owned real property and the use of public funds. Regardless of the reasoning of the domestic courts, the Court was not persuaded that the municipality had an interest “in protecting commercial success and viability,” whether “for the benefit of shareholders and employees” or “in the interest of wider economic assets”, that would warrant legal protection. [para. 32] In exercising their right of ownership, the municipality and municipal office also served the public, and their activities were financed by taxpayers. With reference to Thoma v. Luxembourg and Kaperzyński v. Poland, the Court found that it could not be established that the members of the municipality were “easily identifiable” as neither the original post shared by Somogyi nor her own comment referred to the alleged wrongdoing of any identified or identifiable employee. [paras. 40–42]

Accordingly, the Court held that the proceedings brought by the municipality of Tata against Somogyi did not serve any of the legitimate aims listed in Article 10(2) of the Convention, and that in the absence of such an aim, the “necessity of the measure (intervention) in a democratic society” did not require further examination. [paras. 43-44] Accordingly, the Court found there had been a violation of Article 10 of the Convention.

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