Content Regulation / Censorship, Defamation / Reputation, Political Expression
The Case of Sarawak Report and Malaysia Insider
Closed Expands Expression
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The European Court had to determine whether the criminal sentence imposed on a journalist for defamation amounted to a breach of his freedom of expression guaranteed by Article 10 of the European Human Rights Convention. It found that the interference complained of was not “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention, for three main reasons: (i) the applicant reported on matters of public concern and on a politician’s public work; (ii) there was no evidence that the applicant intention was to defame; (iii) the journalist offered reasonable grounds for his criticisms – he relied on official reports and presented the other side’s viewpoint.
Cătălin Petrică Cojocaru (the applicant), a journalist and chief editor of Orizontul, the local weekly magazine of Paşcani, Romania, was convicted of criminal defamation for an article about the mayor of Paşcani published in the 15-21 February 2005 edition of that magazine, titled “Resignation of Honour” which listed ten points advocating for the mayor’s resignation. On the same page, the applicant wrote a news piece about an investigation into the mayor’s activities. This second piece quoted a politician commenting about an ongoing investigation into some of the mayor’s activities by the prefectural standards board as well as contained statements by another politician and the mayor. The mayor lodged a criminal complaint with the Paşcani District Court accusing the applicant of insult and defamation and seeking civil damages.
The District Court convicted the applicant of defamation and ordered him to pay a criminal fine of 10,000,000 Romanian lei (ROL) and to pay the mayor, together with the publishing company, ROL 30,000,000 in compensation for non-pecuniary damage, but acquitted him of the accusations of insult. The District Court stated that “although irregularities have been found in the activity of the Paşcani Agency for the Administration of Markets, this fact alone did not entitle the applicant to write that the victim was a ‘Mafioso who received bribes from businessmen’ in order to create facilities for them, as there is no evidence to support these statements.”
The applicant appealed and noted that he had not written the sentence quoted by the District Court, namely that the mayor was a Mafioso who received bribes from local businessmen. On appeal, the Iaşi County Court affirmed the District Court’s finding. The court of appeal confirmed the lower court’s finding and explained that the expression “subscribe to … a mafia-like system” defamed the victim. It further reiterated the journalist’s obligation to act in good faith, and took the view that in not limiting his assertions to what was necessary to inform the public, the applicant had made value judgments intended to defame the mayor. It also noted that the applicant had failed to abide by the warnings given to him by way of previous convictions for similar facts and had persisted in his criminal behaviour.
The applicant appealed to the European Court. The Romanian government argued that the interference was provided for by law, notably Articles 206 and 998-999 of the Criminal Code, and had pursued the legitimate aim of protecting the victim’s reputation. The Romanian government further contended that the courts had given sufficient reasons to justify the conviction, and considered that the applicant had acted in bad faith with the intention of denigrating the victim and had presented no evidence to justify the accusations made, thus failing to observe press ethics. The Romanian government also considered that the penalty was proportionate.
The Court began by making reference to the general principles established in its case-law concerning freedom of expression, in particular: the protection afforded to journalists who cover matters of public concern; the press duty to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest; the limits of wider criticisms are wider as regards a politicians than as regards a private individual.
The Court, having established the legality of the interference and that it pursued the legitimate aim of protection of the rights of others, focused on whether the interference was necessary and proportionate.
The Court found that the applicant reported on matters of public concern, namely the activities undertaken by the mayor, a public figure, and that he referred strictly to the acts performed in his official capacity and not to his private life.
The Court found that the supposed defamatory allegation which led to the applicant’s conviction by the District Court (namely that the concerned person was a “Mafioso who received bribes from businessmen”) did not exist in the original article; in addition, the domestic courts were not consistent on whether the defamatory allegations constituted statements of fact or value judgments, which require differing degrees of factual proof.
The Court found that the applicant presented evidence to support his statements in the form of official reports revealing irregularities in the local administration, thus in the mayor’s realm of activities, and found that the evidence relied on by the applicant should not have been expected to prove the mayor’s criminal guilt, in particular for a crime that the applicant himself did not mention expressly in his article (bribery), but to offer reasonable grounds for his criticism. The Court found that the applicant, as a journalist dealing with a matter of general interest, offered sufficient evidence in support of his statements the mayor of Paşcani, whether they were deemed to be of a factual nature or judgment values, and that the language used was not particularly excessive.
Finally, the Court found that there was no evidence that the applicant’s intention had been to defame. The reasoning in the domestic court decisions does not offer sufficient guidance in establishing such an intention.
Thus the Court found that the applicant acted in good faith for the purpose of Article 10.
The Court found that the domestic courts did not put forth relevant and sufficient arguments capable of justifying the interference suffered by the applicant, the national authorities therefore failed to strike a fair balance between the relevant rights and related interests, and the interference thus was not necessary in a democratic society within the meaning of Article 10.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision reiterates long-standing positions by the European Court regarding the role of the Press, the protection of the Press when reporting on matters of public interest and the limits of acceptable criticisms: wider as regards to politicians than as regards private individuals.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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