Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Expands Expression
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The European Court of Human Rights (Court) held that a journalist’s right to freedom of expression had been violated on account of a judicial decision finding that he had defamed a local politician. The Russian courts had found that Oleg Dmitriyevich Fedchenko had defamed a member of the Bryansk Region Duma in an article that alleged, among other things, that he had used his official car for private purposes. The domestic courts had awarded 40,000 Russian rubles to the politician and ordered Mr. Fedchenko to publish a retraction within 10 days of the judgment coming into force. The Court held that the impugned statements were not sufficiently serious to engage the right to respect for private life under Article 8 of the European Convention on Human Rights. The Court further held that there was little scope under the right to freedom of expression for restrictions on debate on questions of public interest. The Court noted that many of the statements were value judgments and were not susceptible to proof. It also criticized the domestic courts for their failure to apply the standards and principles developed in the Court’s case law.
The case concerned Oleg Dmitriyevich Fedchenko, who had been editor of a weekly newspaper, Bryanskiye Budni, since he founded it in 1999. On February 21, 2008, Mr. Fedchenko published an article headlined “Fedorov always takes the lead”. The article was about Viktor Fedorovich Fedorov, a member of the Bryansk Region Duma and the head of the regional Committee on Legislation, Law and Order and State Service. It referred, among other things, to Mr. Fedorov using his official car for private purposes.
Mr. Fedorov brought an action for defamation against Mr. Fedchenko and sought damages in the amount of 40,000 Russian roubles (RUB) claiming that the article presented untrue facts. He claimed, in particular, that the following statements were untrue and damaging to his honor and reputation:
The Bryanskiy District Court, relying heavily on an expert report following a psychological and linguistic examination, allowed the claim in part. The District Court considered that the expression “dumped” contained a negative assessment of the claimant as an immoral person and found that, therefore, the passage contained information damaging to his honor and reputation. Moreover, other quotes had showed Mr. Fedorov in a negative light as he was portrayed “as a person who had committed the immoral and antisocial deed of using his official cars for private purposes, and who had possibly even exercised an unlawful activity because members of the regional Duma were prohibited from other paid duties.” Lastly, the District Court held that another quote had suggested that Mr. Fedorov had pursued his own enrichment instead of defending the interest of the public, and that had damaged his honor and reputation. The District Court held the editorial board of Bryanskiye Budni and Mr. Fedchenko jointly liable for 40,000 RUB in respect of the non-pecuniary damage sustained by Mr. Fedorov. It also ordered the newspaper to publish a retraction within ten days of the judgment’s entry into force. On appeal, the Bryansk Regional Court upheld the judgment of the District Court.
Relying on Article 10 (freedom of expression) of the European Convention on Human Rights, Mr. Fedchenko complained that the domestic courts’ judgments had violated his right to express his opinion and to impart information and ideas on matters of public interest.
The European Court of Human Rights (Court) reiterated that the right to freedom of expression applied to information and ideas that offend, shock or disturb and that the press played an essential “public watchdog” role in a democratic society by imparting information and ideas on all matters of public interest. The Court also distinguished between statements of fact and value judgments ruling that “even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive.” [para. 42]
As for the facts of the case, the Court first noted that it was not disputed between the parties that the civil proceedings for defamation against Mr Fedchenko constituted an interference with his right to freedom of expression, that it was in accordance with the law, and that it pursued the legitimate aim of protecting Mr Fedorov’s reputation. The Court had then to establish whether the interference was “necessary in a democratic society”. In doing so, it took the following elements to take into account: (i) the position of Mr. Fedchenko, (ii) the position of the plaintiff who instituted the defamation proceedings, and (iii) the subject matter of the debate before the domestic courts.
The Court first said that Mr. Fedchenko was sued in both his capacity as editor of the newspaper and the author of the article in question. Then, it added that the most careful scrutiny was called for when “measures taken or sanctions imposed by the national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern.” [para. 45]
As for Mr. Fedorov, who had sued Mr. Fedchenko for defamation, the Court noted that he was a member of the Bryank Region Duma and the head of the regional Committee on Legislation, Law and Order and State Service. Then, it reiterated that the limits of acceptable criticism were wider as regards a politician than as regards a private individual. In particular, the article in question discussed Mr. Fedorov’s transition from one party to another and his wealth which was, in the Court’s view, a matter of general interest to the local community. The Court reiterated that there was little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest.
The Court had also to ascertain whether the domestic authorities had struck a fair balance between the right to freedom of expression and the right to reputation. In this regard, in order for Article 8 of the Convention to come into play, an attack on a person’s reputation must attain a certain level of seriousness and its manner must cause prejudice to personal enjoyment of the right to respect for private life. In the present case, the Court was not convinced that the impugned statements could be considered as an attack reaching the requisite threshold of seriousness and capable of causing prejudice to Mr Fedorov’s personal enjoyment of private life. [para.48]
The Court looked at the newspaper article as a whole and had particular regard to the words used in the disputed parts of it, the context in which they were published, and the manner in which the article was prepared.
The first impugned passage
The Court pointed out at the outset that the first impugned passage, “both ‘dumped’ the Social Democrat Nikolay Rudenok”, was based on the fact that Mr Fedorov had switched political parties. In the Court’s view to the extent that the tone of the passage may have implied Mr. Fedchenko’s disapproval of Mr Fedorov having switched political parties, that constituted a value judgment which was not susceptible to proof. The domestic courts thus failed to distinguish between a statement of fact and a value judgment. The Court further held “that using the word ‘dumped’, apparently with a view to adding a sarcastic tone to the passage, meant that the applicant overstepped the margins of a certain degree of exaggeration or even provocation allowed by journalistic freedom.” [para. 51]
The second impugned passage
The Court noted that the domestic courts, relying on the expert report, found that the next passage, “[H]owever, according to rumour, the head of the Committee … has a ‘small wholesale business’ in neighbouring Orel”, implied that the plaintiff had exercised an unlawful activity because members of the regional Duma were prohibited from carrying out other paid activities.
The Court noted that there are circumstances when the press may be exempt from their ordinary obligations to verify factual statements that are defamatory. The Court noted that “[a]s part of their role as a ‘public watchdog’, the media’s reporting on ‘stories’ or ‘rumours’ – emanating from persons other than an applicant – or ‘public opinion’” is to be protected where they are not completely without foundation. [para.54]
The Court had then to assess the nature and degree of the defamation and held that it was not convinced that the statement about the “small wholesale business” could be considered as damaging to Mr. Fedorov’s reputation. The Court further observed that the Bryanskiy District Court found the statement defamatory by relying on the conclusions of the expert report to the effect that it might have implied that Mr. Fedorov had possibly acted unlawfully. The Court found this conclusion “rather strained”. Firstly, the reference to the supposed “small wholesale business” was of too general a nature to infer from it that Mr. Fedorov held a paid post elsewhere. Secondly, it appeared from the context of the article that such an inference was not Mr. Fedchenko’s intention and was one that was unlikely to have been made by an average reader. [para. 56]
The Court noted that, in the impugned passage, Mr. Fedchenko expressly stated that the allegation was based on rumors that were then unverified sources. However, having regard to its finding that the statement in question could not be considered as damaging to Mr. Fedorov’s reputation, the Court considered that the publication based on rumors in the present case was compatible with the exercise of the right to freedom of expression. [para. 57]
The third impugned passage
The Court went on to analyze the passage “he all too often takes a ‘promenade’ there in his official cars” and considered that it was based on the fact that Mr. Fedorov went on business trips to Orel in official cars. It noted that the words “all too often” reflected Mr. Fedchenko’s opinion that Mr. Fedorov’s business trips to Orel were too frequent, which constituted a value judgment. Moreover, the word “promenade” was ironically employed and that was compatible with the exercise of a journalist’s right to freedom of expression.
The fourth impugned passage
The Court finally dealt with the passage “[d]uring the three years of his ‘parliamentary career’ the head of the Committee … bought three cars for himself. And each one was a foreign car that was cooler than the one before”. The Court observed that it was not contested by Mr. Fedorov that over the previous years he had bought several cars. Furthermore, he provided the Bryanskiy District Court with a registration certificate for a Mitsubishi Pajero Sport, the vehicle he owned at the time. Accordingly, the Court held that the statement had a sufficient factual basis. The Court further observed that the word “cooler” employed by Mr. Fedchenko reflected his opinion that each new car bought by Mr. Fedorov was better than the previous one, and thus constituted a value judgment. As for the ironic tone of the passage, it was perfectly compatible with the exercise of a journalist’s right to freedom of expression.
The Court concluded that the domestic courts had not sufficiently taken into account all the standards established in its case law on Article 10 of the Convention. The Court further noted that “the fact that the proceedings were civil rather than criminal in nature and that the final award was relatively small does not detract from the fact that the standards applied by the domestic courts were not compatible with the principles embodied in Article 10 since they did not adduce ‘sufficient’ reasons to justify the interference at issue, namely the imposition of a fine on the applicant for publishing the impugned article.” [para. 63] In light of the foregoing, there had been a violation of Article 10 of the Convention. As for damages, the Court awarded 7,500 EUR in respect of non-pecuniary damages to Mr. Fedchenko on account of the breach of his right to freedom of expression.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment expands expression since the European Court of Human Rights (Court) showed a strong commitment to push back against the judicial harassment of journalists who are often victims of vexatious legal actions brought by politicians. The Court’s judgment is not surprising and is a common-sense approach in relation to relatively harmless statements about a politician. The Court emphasized the vital role of “public watchdog” which the press performs in a democratic society and recognized that the press is entitled to repeat rumors in certain circumstances.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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