Defamation / Reputation, Political Expression, Press Freedom
Feldek v. Slovakia
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The Grand Chamber of the European Court of Human Rights held that convicting a journalist for criminal defamation when there was no evidence to prove the falsity of his statement was a disproportionate interference with his freedom of speech and expression. The applicant, a Romanian journalist was convicted for defaming the chief executive of a state-owned company and a Senator, for his articles alleging fraud published in a weekly magazine. The Court found that the articles were written on matters of public interest and there was no proof that the descriptions in the article were untrue. According to the Court, a journalist should not be debarred from publishing their opinion. As a public watchdog, a journalist cannot be penalised for imparting critical value judgment on matters of public interest, and hence the Court found Romania had violated Article 10 of the Convention.
The case concerned two articles published by the applicant Mr. Ionel Dalban, in the weekly magazine Cronica Romaşcană. Relying on Fraud Squad reports, in September 1992, Mr. Dalban published an article accusing Mr. G.S, the chief executive of a state-owned agricultural company FASTROM of defrauding the State. The article alluded to Senator R.T’s participation in the fraud as a board member of the company who received an exorbitant salary. Early next year, he published a similar article, describing the car provided to Senator R.T by the company to hint at their participation.
Following the publication, G.S and R.T initiated defamation proceedings against Mr. Dalban. After two criminal investigations, the public prosecutor had found no evidence against G.S on charges of misappropriation or harm to public interest. Further, the allegations against the Senator were factually incorrect since the salary received by the Senator was significantly lesser than that claimed by the journalist and the car was provided under the State’s standing order. On the basis of these facts, the court of first instance convicted the journalist of criminal defamation, suspended his right to practice journalism indefinitely, imposed a fine and sentenced him to a three-month imprisonment.
Mr. Dalban appealed against the decision, citing documentary evidence to corroborate his allegations against G.S. He argued that allegations against Senator R.T were mere factual errors, not defamatory statements.
In a majority decision, the appellate court denied the appeal and upheld the lower court decision. Without examining the evidence placed before the court, the appellate court relied on the public prosecutors’ investigation to find that the allegations against G.S “did not correspond to reality” and held that the use of the car by R.T was lawful. However, the court lifted the ban on practicing journalism [para 20].
In 1995, the applicant filed a complaint to the European Commission of Human Rights. The Commission, through a report dated January 1998, unanimously held that there was a violation of Article 10.
In Romania, the revelations instigated judicial investigations and encouraged national newspapers to write about the alleged fraud and conviction.
In 1998, the Procurator-General applied to the Supreme Court seeking a reversal of the conviction. On the libel charges for statements made against G.S, the Supreme Court acquitted the applicant on grounds of good faith. On libel charges for statements made against R.T, the court decided to discontinue the proceedings due to the applicant’s death.
On referral by the Commission and wife of the deceased applicant, the matter was referred to the Grand Chamber of the European Court of Human Rights. The wife prayed for an award of ROL 250,000,000 (approximately 25,000 USD in 1998) for pecuniary and non-pecuniary damages caused due to the Article 10 violation.
The Grand Chamber unanimously delivered a judgment. While the State’s interference with the applicant’s freedom of expression was prescribed by law and pursued the legitimate aim of protecting others’ reputations and rights as per Article 10(2) of the Convention, the central issue for consideration was whether interference with the Article 10 right “was necessary in a democratic society” [para 46].
The Court found that the interference was not necessary.
Referring to Bladet Tromsø and Stensaas v. Norway, App No. 21980/93 (May 20, 1999), the Court reiterated that a public authority’s interference with the Article 10 right will be considered a necessary interference only when there is: (a) a pressing social need, (b) proportionality to the legitimate aim pursued by the authority and (c) relevant and sufficient justification provided by the national authorities. When reviewing a decision under Article 10, the court’s duty is to review the decision in light of the factual circumstances of the case as a whole. It is not to step into the shoes of the national court [para 47].
The Court held that imparting ideas of public interest is an essential function of the press in a democratic society. The Court explained that “[i]n cases such as the present one, the national margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its rightful role of ‘public watchdog’ in imparting information of serious public concern” and that “journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation” [para. 49].
The two articles expressed critical value judgment on matters of public interest. The national courts concluded that allegations against G.S were false based on two prior investigations, without examining evidence adduced by the applicant. With respect to R.T, the articles did not discuss his private life and only described his behaviour as an elected representative. There was no proof to suggest that the articles were untrue or designed to defame G.S and R.T.
Further, the government did not challenge the Commission’s finding of an Article 10 violation. Hence, the conviction and sentence were a disproportionate interference the journalists right to freedom of expression.
While no damages were awarded for pecuniary losses, for the non-pecuniary damage caused by loss of reputation, the court awarded 20,000 French Francs (approximately 3,450 USD in 1999) as damages.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expanded the right to freedom of expression by reaffirming the fundamental role of the press in democratic societies. The Grand Chamber recognized the crucial role that journalists play as public watchdogs which grants them some latitude in publishing articles on matters of public interest, including “possible recourse to a degree of exaggeration or even provocation.” [para. 49]
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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