Content Regulation / Censorship, Protection of Sources, Defamation / Reputation
Marena v. Auler
Closed Expands Expression
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The European Court of Human Rights found a violation of the right to freedom of expression where a columnist had been held liable in defamation, and ordered to pay EUR 2,500, for an opinion piece questioning the relationship between an opposition politician and the police. The columnist, Michael Falzon, wrote an article about the fact that an opposition MP had personally asked the Commissioner of Police to investigate allegedly threatening emails and letters he had received. The MP successfully brought defamation proceedings against the columnist. The domestic courts determined that Mr. Falzon had failed to sufficiently prove the allegations he had allegedly made against the MP in his article, including the allegation that he had manipulated the Commissioner. The European Court of Human Rights disagreed with the approach adopted by the national courts, particularly in relation to whether some of Mr. Falzon’s statements were fact or opinion. It also criticized the domestic courts for attributing meanings to the article that had not been explicitly set out. Furthermore, it noted that the value judgments set out in the article had a sufficient factual basis, and much of this basis was information that the opposition politician had placed in the public himself. The European Court of Human Rights also believed that the damages award, which was not based on any assessment of harm caused to the politician, could have a chilling effect on speech. Therefore, it concluded that the national courts had not properly balanced the columnist’s right to freedom of expression against the politician’s reputation.
The case concerned Michael Falzon who had served as a Member of Parliament and a government minister in Malta. After his retirement from parliament, he started to write weekly opinion columns in the daily newspaper Maltatoday.
On May 6, 2007, the deputy leader of the Malta Labour Party (whose name was also Michael Falzon and who for easy reference will be referred to as “M.F.”) delivered a speech in which he informed the public that he had received an anonymous email and threatening letters, and that he had complained directly to the Commissioner of Police asking him to investigate the issue. He also spoke about the exchange he had the with Commissioner of Police, including that the Commissioner asked him if it turned out to be X or Y would he still want them to prosecute.
On May 13, 2007, Mr. Falzon published an opinion piece in Maltatoday entitled “[p]olicing one’s enemies”. The article was prompted by M.F.’s speech and queried the manner in which the two main political parties perceived the police force. The piece began with a remark about the film “The Lives of Others”, which dramatized the surveillance techniques used by the Stasi. The piece then went on to set out Mr. Falzon’s concern that M.F. persuaded the Commissioner of Police to investigate “the source of a trivial and unimportant anonymous e-mail that he had received.” The article went on to set a series of questions: “Has not MLP Deputy Leader … [Mr M.F.] successfully used the Police Force to control the freedom of an innocent, law-abiding private citizen whom he suspected could be a political enemy? And has not somebody in the police force abused of his powers by condescending to do this for the advantage of the faction led by … [Mr M.F.] in the MLP’s internal squabbles? Why should the police force interfere in Labour’s internal politics where, it is obvious, there are too many cooks spoiling the broth?”; and “[d]oes the MLP Deputy Leader …, carry more weight and influence with the Commissioner of Police than the Deputy Prime Minister who is politically responsible for the Police Force?”.
On July 17, 2007, the deputy leader instituted libel proceedings against Mr. Falzon, claiming that statements in the article had been defamatory. In May 2010, the Court of Magistrates found Mr. Falzon liable in defamation and ordered him to pay damages of EUR 2,500 plus costs. Although the Court of Magistrates noted that public figures, such as a politician, were subject to wider limits of acceptable criticism, it concluded that the article had tarnished and impinged M.F.’s reputation. It held that Mr. Falzon had failed to prove that (i) M.F. had manipulated the Commissioner due to political office, (ii) M.F. had offended the police force with his actions by using them for personal aims, and (iii) M.F. was a deus ex machina who pulls the strings of the police force from behind the scenes to reach his goals.
Mr. Falzon’s appeal was dismissed on October 6, 2010. The Court of Appeal held, among other things, that Mr. Falzon could not rely on a defence of fair comment. The Court of Appeal reasoned that “[i]n the eyes of the ordinary reader, the comments and criticism made by [Mr. Falzon] could not be considered as objectively reasonable, made in good faith and balanced, given that they were based on a certain assumption – that M.F. had exercised influence over the [Commissioner of Police] with the aim of controlling people’s freedom”. [para. 21]
Mr. Falzon subsequently brought constitutional redress proceedings, complaining (among other things) that his right to freedom of expression have been violated. He argued that he was expressing an opinion about the works of a public figure, which was allowed in a democratic society. He also argued that the Court of Magistrates referred to insinuations and allegations that had not been made or implied by his article, such as the allegation that M.F. had “manipulated” the Commissioner of Police. The Civil Court (First Hall) held that it was not true that the article did not imply that M.F. had “manipulated” the Commissioner of Police as he questioned “[h]as not MLP Deputy Leader … successfully used the Police Force to control the freedom of an innocent, law-abiding private citizen whom he suspected could be a political enemy?” The Civil Court went on to say that, even if the statements were invented by the Court of Magistrates, this did not breach his right to freedom of expression. The Civil Court reasoned that, although the term “use” does not mean “manipulate”, the context of the article implied an element of abuse. It also held that the reference to the Stasi in the opening paragraphs was regrettable and gave the impression a comparison was being made. It concluded that the lower courts struck a fair balance between the competing rights at stake.
Mr. Falzon appealed to the Constitutional Court, which dismissed his appeal in January 2013. On the point about the distinction between facts and value judgments, the latter of which cannot be proved, the Constitutional Court stated that a person could not hide behind an opinion or value judgment to impute untrue facts in respect of other persons. Moreover, the Constitutional Court reasoned that even though the alleged facts were presented in the form of questions, this did not exclude per se that they constituted factual assertions rather than value judgments. It also observed that the damages award was not particularly severe.
Mr. Falzon brought the case to the European Court of Human Rights, claiming a violation of his right to freedom of expression under Article 10 of the European Convention on Human Rights. He contended that the domestic courts had failed to distinguish between facts and value judgments, and did not take into account the context of the article. He also argued that his criticism was directed towards a politician and concerned an issue of general interest, namely the relationship between the police and politicians, which was strongly protected under the right to freedom of expression. He also noted that much of the information underpinning his value judgments had been placed in the public sphere by M.F. himself. The Government of Malta argued that protection of reputation extended to politicians, and that Mr. Falzon’s statements could not be covered by the certain acceptable degree of exaggeration or provocation available to journalists under the right to freedom of expression. It stated that the “strong and unfounded” statements of Mr. Falzon on the alleged behaviour of M.F. had justified the moderate sanction imposed.
The European Court of Human Rights (Court) began by noting that there was common ground between the parties that the outcome of the libel proceedings constituted an interference with Mr. Falzon’s right to freedom of expression. Moreover, it was not disputed between the parties that the interference was “prescribed by law” (namely the law on defamation provided by section 28 of the Press Act) and “pursued a legitimate aim” (namely “the protection of the reputation or rights of the others”). It was left for the Court to determine whether the interference was “necessary in a democratic society”. In particular, the Court had to examine whether the domestic courts had struck a fair balance between protecting M.F.’s reputation and the right to freedom of expression. The Court found that the impugned statements were not serious enough to engage M.F.’s right to respect for his private life under Article 8 of the European Convention on Human Rights (Court) – i.e. it was not a conflicting rights issue.
The contribution to a debate of public interest
The Court noted that Mr. Falzon was a regular opinion writer in two weekly publications and, therefore, the case must be examined in the context of the essential role of the free press in a democratic society. The Court then went on to note that “a distinction needed to be made between reporting details of the private life of an individual and reporting facts capable of contributing to a debate in a democratic society – relating to politicians in the exercise of their official functions”. [para.58] In the present case, the article referred to M.F.’s behaviour as a politician rather than to his private life. The Court observed that “questioning the behaviours of a politician and holding the latter to account undoubtedly contributes to a debate of general interest for Maltese society as a whole”. [para.58] It also noted that there was little scope under the Convention for restrictions on political speech and on debate concerning questions of public interest.
How well known is the person concerned, and his prior conduct
The Court noted that M.F. was a politician who had to show a greater degree of tolerance as someone who “inevitably and knowingly laid himself open to close scrutiny”. [para. 59] Moreover, the Court noted that it was M.F. who had brought the original matter to the public’s attention by delivering a speech in public. This speech had informed the public (i) that M.F. had received an anonymous email and threatening letters, (ii) that he had complained directly to the police about these, and (iii) about the details of his discussion with police.
The method of obtaining information, its veracity, and the content and form of the article
The Court noted that Mr. Falzon’s article was mostly based on information disclosed in M.F.’s speech. The Court then considered whether Mr. Falzon had acted in good faith and in compliance with ordinary journalistic obligations to verify factual allegations. The Court said that “this obligation requires the journalist to rely on a sufficiently accurate and reliable factual basis which can be considered proportionate to the nature and degree of the allegation, given that the more serious the allegation, the more solid the factual basis has to be.” [para. 60] In this case, the Court had considered the statements to be of limited seriousness.
In relation to the opening paragraphs containing an implied comparison with the film “The Lives of Others”, the Court held that these constituted a value judgment that represented Mr. Falzon’s subjective appraisal of M.F.’s actions. Therefore, they were not susceptible to proof and were within the acceptable degree of exaggeration. In relation to the statements set out in question format, the Court noted that the domestic courts attributed to them meanings which had not been explicitly set out and, in consequence, considered that they were untrue factual assertions. The Court took issue with “the decisions of the domestic courts concerning unuttered statements, and their decisions to consider certain statements as factual (which they claimed had not been proved), as opposed to value judgments. Indeed, the Court’s case law has shown a broad and liberal interpretation of “value judgments” when it comes to journalistic freedom on matters of public interest, particularly concerning politicians.” [para. 64]
The Court thought it plausible that Mr. Falzon was expressing his concerns on a matter of public interest by using a provocative style in order to raise awareness of the actions of the deputy leader of the opposition party. The Court concluded that “the questions posed by [Mr. Falzon], which appear to have been the main reason of his condemnation by the domestic courts, were legitimate questions having a sufficient factual basis: M.F.’s own speech.” [para. 65]
The severity of the sanction imposed
The Court held that the damages award of EUR 2,500, despite any findings concerning the effect on M.F.’s private life, could have a chilling effect.
In light of the above-mentioned considerations, the Court concluded that the domestic courts had not appropriately performed a balancing exercise between the need to protect the plaintiff’s reputation and Mr. Falzon’s right to freedom of expression. Therefore, there had been a violation of the right to freedom of expression under Article 10 of the Convention.
As for damages, the Court awarded Mr. Falzon EUR 2,500 in respect of pecuniary damages and EUR 4,000 in respect of non-pecuniary damage.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands freedom of expression by recognizing the important role of the press in a democratic society, and their right to present value judgments in the form of comparisons and questions. The judgment also suggests that courts must demonstrate that damage awards are commensurate with the harm sustained by an individual’s reputation. Where this is not the case, those judgments will likely have a “chilling effect” on free speech. It also recognizes that the extent to which a journalist has to prove the veracity of a statement must be proportionate to the nature and degree of the allegation (in this case the allegations were of limited seriousness). Furthermore, the European Court of Human Rights reiterated the strong protections that are afforded to expression concerning politicians and debates of general interest.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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