Defamation / Reputation
Johnson v. Steele
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The European Court of Human Rights found that Russia was in violation of Article 10 of the European Convention on Human Rights when its domestic courts’ held the applicants guilty in civil defamation proceedings. The applicants had expressed their value judgements on the Governor of the Tula Region being corrupt in a newspaper, which led to the filing of defamation proceedings for damaging the Governor’s reputation with statements that were not corroborated by fact. The Court found that the courts did not balance the interests of the Governor in protecting his reputation against the right to freedom of expression and the interests of the public in receiving matters of public concern; they exceeded their margin of appreciation; and they failed to take account of the role of the press as public watchdog. Accordingly, the Court found that such an interference with the right to freedom of expression was not necessary in a democratic society where criticism of government officials should be allowed within permissible limits for public interest.
The case concerned two separate instances. In the first instance, Mr Vladimir Viktorovich Timakov (the applicant) a journalist and a member of the Tula Regional Duma (the regional legislature) at the material time, published an editorial article on May 9, 2009 in a newspaper owned by OOO ID Rubezh (the applicant company). The article alleged that the Governor of the Tula region (Mr D.) was engaged in corrupt practices. Mr D. filed a case for civil defamation against the applicants in the District Court of Tula, which found them guilty. The applicants appealed on the grounds that the article merely expressed the author’s value judgement on Mr. D’s professional activities. On February 4, 2010, the Tula Regional Court upheld the District Court’s judgement finding the statements at issue were presented as fact and that they “overstepped the limits of permissible and acceptable criticism in respect of a political and public figure”. [para. 11] It further found there was no reason to reassess the award of RUB 1,000,000, but ordered that both applicants pay RUB 500,000 (EUR 12,000) in damages, rather than being held jointly and severally liable, and that each was responsible for paying RUB 100 (EUR 2.40) in court fees. [para. 11]
In 2014, Mr. Timakov and his business partner Mr Vladimir Borisovich Leonov, the only two shareholders in OOO ID Rubezh, were forced to dissolve the company due to the burden of paying the court fines.
In the second instance, on April 29, 2009 the applicant, in his capacity as a representative in the Tula Regional Duma, spoke about Mr. D’s corrupt behaviour to Ms. P, a journalist, on what he thought was a private telephone call. Unbeknownst to him, Ms. P was recording the call. Ms. P published a part of the applicant’s views on a local news website, without informing him. These views were reproduced in another newspaper article. Mr D. brought another set of civil defamation proceedings against the applicant, the news website and the regional newspaper. [para. 22] The District Court, once again, found the applicant guilty, it held the impugned statement to be a statement of fact that was unsupported by evidence, ordered a retraction to be published and awarded Mr. D. RUB 1,000,000 (EUR 25,000). On March 18, 2010, the Regional Court upheld the District Court’s judgement in its entirety. [para. 25] In both instances, the applicants’ attempts to file for supervisory review proved futile.
In parallel with bringing his civil defamation proceedings, Mr D. lodged a request for the institution of criminal proceedings for libel against the applicant in connection with the reproduced newspaper article in the second instance. [para. 34] The applicant was indicted. On November 29, 2010, the Zarechenskiy District Court of Tula found the applicant guilty of libel disseminated in the media under Article 129 § 2 of the Criminal Code. [para. 41] However, the criminal proceedings were terminated on June 30, 2011, for lack of the constituent elements of a crime. [para. 42]
In 2013, Mr D. was convicted for bribery. Yet, the applicant’s request for reopening of the first case was dismissed as it would entail a reassessment of evidence.
The Court examined both applications jointly. The main issues before the Court concerned questions on locus standi, and alleged violations of Articles 10 and 6 § 1 of the European Convention on Human Rights (the Convention). Specifically, regarding Article 10, the applicants argued that the judgments in the civil defamation proceedings had amounted to an interference with their freedom of expression which had not been “necessary in a democratic society”. The Government accepted that there had been an interference with the applicants’ freedom of expression but argued that it had been prescribed by law, had pursued the legitimate aim of protecting Mr. D’s reputation and had been “necessary in a democratic society”.
On the question of the locus standi of the applicant company which had been dissolved while the application was still pending in Court, the Court ruled that since its only two shareholders (the applicant and one other person) had a joint and legitimate interest in pursuing the case they could stand in place of the applicant company to pursue the application. [para. 50]
The Court then proceeded to examine the alleged violation of Article 10 of the Convention. The applicants submitted that the judgements rendered against them in the civil defamation proceedings amounted to an unnecessary interference with their right to freedom of expression that had not been necessary in a democratic society. [para. 56] The domestic courts had tried to overprotect Mr D.’s reputation in a democratic society where all public officials ought to be open to criticism by the press and the issue of corruption is in the public interest. Further, the applicants argued that the domestic courts had not taken into account the essential role of the press in a democratic society or Mr. Timakov’s position as a member of the regional legislature who had been commenting on a matter of public interest. They also submitted that amounts awarded to Mr. D. were disproportionate as they had been larger than the fine imposed on him in the criminal proceedings for bribery. Additionally, the initiation of criminal proceedings for libel had been a disproportionate interference with the applicant’s right to freedom of expression. [para. 58]
On the other hand, the Government submitted that while there had been an interference with the applicants’ right to freedom of expression, it had been prescribed by law, had pursued the legitimate aim of protecting Mr D.’s reputation and had been necessary in a democratic society. [para. 52] The applicants’ unverified statements had tarnished Mr. D’s reputation as a public officer and had overstepped the limits of permissible criticism. [para. 53] Moreover, the criminal proceedings against the applicant had been terminated.
Since both the parties had already admitted that the interference with freedom of expression had been prescribed by law and had pursued the legitimate aim of protecting the rights and reputation of others, the Court sought to analyse whether the interference had been necessary in a democratic society. [para. 62]
The Court observed that the domestic courts had failed to perform the requisite balancing exercise as stated in Skudayeva v Russia App. No. 24014/07 (2019) where the Court noted that the domestic courts’ “reasoning appears to be based on the tacit assumption that interests relating to the protection of “the honour and dignity of others”, in particular of those vested with public powers, prevail over freedom of expression in all circumstances”. In the present case the Court said that the domestic courts had given more importance to Mr D.’s right to reputation than the applicants’ right to freedom of expression while disseminating opinions on a matter of public interest. It said that the courts had failed to recognize the roles played by Mr. Timakov as a journalist and the applicant company as an editorial and publishing house and how they had brought the matter of corruption into the public arena: “the domestic courts failed to pay heed to the essential function that the press fulfils in a democratic society”, the Court said. Furthermore, the Court said that the nature and severity of penalties are “further factors to be taken into account when assessing the proportionality of an interference” and a penalty must not amount to censorship which would prevent the role of the press as public watchdog Bedat v Switzerland [GC] Application No: 56925/08 (March 29, 2016). The Court accepted the Applicants’ argument that the fines were disproportionate and had a chilling effect. Additionally, it had been a grave omission on the part of the domestic courts not to distinguish between ‘statement of facts’ and ‘value judgements’, and thereby wrongly convict the applicants. In a democratic society, value judgements could be given by the press to ensure accountability of government officials. Further, the District and Regional Courts had not allowed evidence to back up the claims that the statements were “value judgements” and not “statements of fact”. The Court noted that the domestic courts failed to balance the right to a private life with the right to freedom of expression, exceeded their margin of appreciation and failed to show that the restrictions were proportionate to a legitimate aim. The Court went on that while the interference with the applicants’ right to freedom of expression may have been “relevant”, it was not “sufficient”. and thus the interference was not necessary in a democratic society. [para. 71] Hence, this amounted to a violation of the applicants’ rights under Article 10 of the Convention. The Court did not address the criminal proceedings for libel as it ran parallel to the civil defamation proceedings for some time and concerned the same statements which the Court had examined previously. [para. 72]
The Court also upheld a violation of Article 6 § 1 of the Convention due to the absence of any reason to justify why the civil defamation case against the applicants was heard in camera. [para. 83]
Thus, the Court unanimously found a violation of Article 10 of the Convention, and ordered the respondent State to pay Mr Timakov EUR 1,542 in respect of pecuniary damage and EUR 9,750 in respect of non-pecuniary damage and EUR 2,925 to Mr Leonov as regards his claim made on behalf of the applicant company.
Judge Schembri Orland (concurring)-The judge added that the Court should have addressed the interference with freedom of expression on account of the institution of criminal proceedings for libel as well, since criminal sanctions have a greater chilling effect on the media’s freedom of expression than ordinary civil remedies.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by restating several principles laid down in the Court’s case-law in particular the essential role that the press plays in a democratic society. It reinforces the chilling and disproportionate effect of large awards and by upholding journalists’ rights to criticize the functioning of public officials, the decision expands the scope of freedom of expression. Such criticism is necessary in the public interest to ensure that officials work to the best of their capacities. Moreover, by affirming the crucial distinction between ‘factual statements’ and ‘value judgements’, the decision protects an individual’s right to express personal opinions if it benefits the society at large by holding government officials accountable.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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