Defamation / Reputation, Political Expression
Instytut Ekonomichnykh Reform, TOV v. Ukraine
Closed Expands Expression
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Patrick de Carolis made a documentary about September 11 in which he accused Prince Turki Al Faisal of Saudi Arabia, one of the subjects in the documentary, of having financed and participated in Al-Qaeda. The Prince brought successful suites against the documentarian and another journalist for defamation.
The European Court of Human Rights held that the conviction for defamation related to the documentary violated Article 10 on right to freedom of expression.
The applicant, Patrick de Carolis, was the director and journalist behind a TV documentary titled “September 11, 2001: the prosecution case” that aired on the channel France 3 in 2006. The documentary questioned the reason why five years after the event there had been no trial specifically regarding complaints made by the families of the victims of 9/11 against those thought to have funded Al-Qaeda. [6-7] Prince Turki Al Faisal of Saudi Arabia, one of the subjects in the documentary, brought a suit in the Paris Criminal court for defamation against de Carolis and another journalist who made the documentary for accusing him of having financed and participated in Al-Qaeda.  The Paris Criminal Court found them guilty and fined them EUR 1000 and EUR 7500 in costs.  The conviction was confirmed by the Court of Appeal which held that while it was true that the documentary was serious and without personal animosity toward the Prince, the journalists should have exercised particular caution and objectivity since the subject matter involved extremely serious charges that had been examined by a court.  An appeal by France 3 and de Carolis to the Court of Cassation was also dismissed. 
Patrick de Carolis and France 3 then brought a complaint of an Article 10 freedom of expression violation to the European Court of Human Rights. They argued that the documentary was to inform and alert the public on matters of political importance and undoubtedly of general interest.  They also argued that Prince Turki Al Faisal was not a private individual since he was ambassador to the US between 2005 and 2006.  Further, they argued that the fine imposed by the court for defamation, as well as a judicial statement that was broadcast sent messages to the investigative press that would dissuade them from informing the public about the behavior and acts of powerful and influential people. 
The Government did not dispute that the conviction was an interference with freedom of expression but argued that it met the requirement of Article 10 (2) as an interference ‘prescribed by law’ for a ‘legitimate aim’ to protect the reputation or rights of others.  Further, they argued that the domestic courts thoroughly and sufficiently analyzed the case and the penalties imposed were both proportionate to the harm caused to the Prince and were not deterrents to the press. [42-43]
Judges Angelika Nußberger, Ganna Yudkivska, André Potocki, Faris Vehabović, Síofra O’Leary, Carlo Ranzoni, Mārtiņš Mits, and Claudia Westerdiek delivered the decision. The Court outlined the fundamental principles of Article 10 and held that the freedom of the press plays a fundamental and vital role in the proper functioning of a democratic society, in particular in the role of ‘watchdog’ which is done through news reports often based on interviews. Therefore to punish a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press and should not be done without serious reasons. [44-46]
The Court held that given that the documentary certainly concerned a matter of public interest and that the Prince was a prominent public person, the scope for the state to restrict the right to freedom of expression was substantially reduced. [52-53] The Court held that the statements made in the documentary were value judgments and not pure statements of fact and concluded that those judgments had a sufficient factual basis.  The Court concluded that the subjects of the documentary were not treated contrary to the standards of responsible journalism. 
With regards to punishment, it was held that the criminal sanction in addition to the damages and the distribution of a judicial statement on France 3 was a disproportionate interference in the circumstances, and a breach of freedom of expression. The Court added that this interference may have a chilling effect on the exercise of that freedom and the small size of the fine is not sufficient to remove that risk, what matters is that there was a criminal and civil conviction. 
Therefore, the Court unanimously concluded that Article 10 was violated as there had been a disproportionate interference with the right to freedom of expression which was not ‘necessary in a democratic society’.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expressions because it confirms Article 10 protection for investigative journalism and condemns the criminal and civil sanction of journalists on the basis of defamation to avoid a chilling effect.
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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