Defamation / Reputation
Afanasyev v. Zlotnikov
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The European Court of Human Rights held that a journalist’s right to freedom of expression had been violated on account of civil defamation proceedings that had been brought against him. The Russian courts had found that the journalist had defamed a Deputy Governor of the Bryansk Region in his reporting of a land fraud case and had awarded damages against the journalist. The European Court of Human Rights took into account the fact that the story was written by a journalist, it concerned a public official who had to tolerate a greater degree of criticism, and related to a matter of public concern for the local community. The European Court also took a detailed look at the relevant passages that were found to be defamatory of the Deputy Governor. It noted that a number of the passages did not directly refer to the Deputy Governor and, therefore, could not be found to be defamatory of him. It noted that, if a statement could be found to be defamatory even when it did not refer to an individual, journalists would be inundated with lawsuits resulting in an excessive and disproportionate burden being placed on the press, which would inevitably have a chilling effect on them.
The case concerned Oleg Dmitriyevich Fedchenko, the editor and founder of a weekly newspaper, Bryanskiye Budni, who had been sued over a story concerning the involvement of state officials in the misappropriation of federal land.
On August 9, 2012, Mr. Fedchenko published an article with the headline “Pity the birds” which he wrote under a pen name. In the article, he discussed criminal proceedings which were pending against two men, Maksim Kosenkov and Ruslan Pogulyayev, who had been charged with obtaining land by fraud. He also referred to witness statements in criminal proceedings against Anna Stregeleva, the former head of the regional department of the Federal Agency for State Property Management. These statements related to the misappropriation of orchards that had constituted plots of federal land, which had formed the basis of Ms. Stregleva’s conviction. The article also reported that the Deputy Governor of the Bryansk Region, Nikolay Simonenko, had been involved to a certain extent in the events which had constituted the basis for the conviction. However, he had been wrongly prosecuted and the Bryanskiy District Court later awarded him compensation for non-pecuniary damages. The article had a photograph next to it of Mr. Simonenko and the Governor of Bryansk Region, Mr. Denin, in a room with other people. The article further reported that Mr. Simonenko had said at a meeting that “the issue with the orchards was agreed upon with the governor”.
Mr. Simonenko brought an action for defamation against Mr. Fedchenko and sought damages of 300,000 Russian roubles (RUB). He claimed that the following passages were untrue and had damaged his honor and reputation:
On September 26, 2012, the Bryanskiy District Court of the Bryansk Region dismissed the claim noting, among other things, that Mr. Fedchenko had expressed his opinion on the basis of procedural documents in the criminal case against Ms. Stregeleva and the actions of certain participants in the proceedings. Mr. Simonenko appealed.
On November 27, 2012, the Bryansk Regional Court set aside the judgment, allowed the claim against Mr. Fedchenko, ordered him to publish a retraction within fifteen days of the judgment’s entry into force, and awarded Mr. Simonenko damages of RUB 5,000 (approximately 125 euros). The Regional Court held that the passages in question had referred to Mr. Simonenko as his photograph had been published next to the article. It referenced, among other things, expressions such as “thieves from the local administration”, “thieves from the authorities” and “thief-officials” and found that calling a person a “thief” had meant that they stole or were a criminal who practiced theft. It concluded that the passages in question had contained “negative judgments that were insulting and discrediting to the moral character of the claimant”. Moreover, “they had diminished his business reputation, portrayed him negatively as a person engaged in criminal activity, as a State official who abused his powers for mercenary ends, and created a wrong perception about the claimant in the eyes of society, both as a citizen and as a deputy governor of the Bryansk Region.” [para. 15] All four passages had damaged Mr. Simonenko’s honor and reputation.
On December 27, 2012, the Bryansk Regional Court refused to allow a cassation appeal from Mr. Fedchenko.
Mr. Denin, Governor of Bryansk Region, who had also appeared in the photo next to the article along with Mr. Simonenko, also instituted defamation proceedings against Mr. Fedchenko on account of the First Impugned Passage and the Second Impugned Passage. On April 23, 2013, the Bryanskiy District Court granted the claim. Mr. Fedchenko appealed and on October 22, 2013, the Bryansk Regional Court quashed the judgment and dismissed the claim. It found that the First Impugned Passage had constituted a value judgment and could not have been regarded as concerning the claimant specifically since his name and position were not mentioned. The Court further noted that the fact that Mr. Denin’s photograph had been published next to the article did not constitute sufficient reason to conclude that the passage was specifically about him. The Second Impugned Passage was found not to be defamatory because it had not constituted a statement of fact but had rather been a supposition, which was reflected in the use of the word “could”. Therefore, none of the two passages could be considered defamatory.
Mr. Fedchenko brought the case before the European Court of Human Rights claiming that the Bryansk Regional Court decision of November 27, 2012 had violated his right to express his opinion and to impart information and ideas on matters of public interest guaranteed by Article 10 (freedom of expression) of the European Convention on Human Rights. He argued that the interference with his right to freedom of expression had not been proportionate.
The European Court of Human Rights (Court) began by recalling the general principles that it had itself established in its case-law, including those that set out the important role the press plays in a democratic society and those that related to value judgments, which were not susceptible to proof.
Turning to the facts of the present case, the Court observed 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. The parties also agreed that this interference was in accordance with the law and in pursuit of the legitimate aim of protecting Mr. Simonenko’s reputation. It was left for the Court to establish whether the interference had been “necessary in a democratic society”. In making this assessment, it took several elements into account: the position of Mr. Fedchenko, the position of Mr. Simonenko, and the subject matter of the debate before the domestic courts.
The Court noted that Mr. Fedchenko was sued in his capacity as the editor of the newspaper and the author of the article in question. Therefore, it had to apply a “more careful scrutiny” as measures taken or sanctions imposed by the national authority were capable of discouraging the participation of the press in debates over matters of legitimate public concern. [para. 38] Moreover, the Court noted that Mr. Simonenko was Deputy Governor of the Bryansk Region and the limits of acceptable criticism were wider as regards a politician than as regards a private individual.
The Court noted that the impugned article discussed a swindle involving plots of land and corruption in the regional administration, which had entailed the institution of criminal proceedings against regional officials, Ms. Stregeleva and Mr. Simonenko, albeit with different outcomes in those two cases. The Court considered that this was undoubtedly a matter of public interest.
The Court noted that in certain cases a balance had to be struck between Article 10 (right to freedom of expression) and Article 8 (right to respect for private life) of the European Convention on Human Rights (Convention). The Court reiterated that, for Article 8 of the Convention to be engaged in defamation cases, “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.” [para. 51] The Court held that, in the present case, the impugned statements could not be considered as encompassing the threshold of seriousness and therefore, were not capable of causing prejudice to Mr. Simonenko’s personal enjoyment of private life.
The Court went on by considering the newspaper article as a whole and having particular regard to (i) the words used in the disputed parts, (ii) the context in which they were published and (iii) the manner in which the article was prepared. It observed that in three out of the four impugned passages the applicant did not mention Mr. Simonenko by name. Instead, they referred to “the Bryansk thieves”, “Bryansk thieves from the authorities” and “thief-officials”. The Court stated that it did not share the Bryansk Regional Court’s findings that all passages implied a reference to the criminal proceedings against Mr, Simonenko and had affected him directly. In this regard, the Court reiterated that, as far as the law of defamation was concerned, a statement had to refer to a particular person to be considered a defamatory one. It added: “If all State officials were allowed to sue in defamation in connection with any statement critical of the administration of State affairs, even in situations where the official was not referred to by name or in an otherwise identifiable manner, journalists would be inundated with lawsuits. Not only would that result in an excessive and disproportionate burden being placed on the media, straining their resources and involving them in endless litigation, it would also inevitably have a chilling effect on the press in the performance of its task of purveyor of information and public watchdog.” [para 45]
Turning to the passages in question, the Court observed that the article discussed corruption within the regional authorities that had involved a number of State officials and had led to the conviction of one of them. The article in question was accompanied by a photograph where Mr. Simonenko appeared along with other people and included other passages where he was mentioned by name. However, the Court doubted the domestic court’s finding that Mr. Simonenko had been affected by the passages in question. Besides, even assuming that Mr. Simonenko could have been considered to have been directly affected by these passages, the Court found that they were value judgments that had a sufficient factual basis given the criminal proceedings instituted against certain regional officials, including Mr. Simonenko. Moreover, by calling the relevant officials “thieves” in the present context, Mr. Fedchenko had not overstepped the degree of exaggeration or even provocation covered by journalistic freedom.
As regards the Second Impugned Passage, the Court noted that the Bryansk Regional Court found it to be an assertion that Mr. Simonenko should be punished for the offences he had committed, which constituted a statement of fact. The Court was not convinced by such an interpretation and held that it constituted speculation by Mr. Fedchenko as to what sentence Mr. Denin and Mr. Simonenko might have received if they had been found guilty by the court of a similar offence. That was clearly a supposition by the author and could not be considered as a statement of fact. Moreover, this passage remained within the acceptable limits, “being closely connected with the factual information provided by the applicant in his article, given that criminal proceedings had been instituted and discontinued against Mr Simonenko, and another set of criminal proceedings had led to the conviction of another regional official.” [para. 49]
In light of the foregoing, the Court had no difficulty in concluding that the domestic courts had failed to strike a fair balance between the journalist’s right to freedom of expression and the protection of Mr. Simonenko’s reputation in accordance with the Court’s case-law under Article 10 of the Convention. The Count further noted that the fact that the proceedings were civil rather than criminal in nature, and that the final award was relatively small, did not detract from the fact that the standards applied by the domestic courts were not compatible with the principles embodied in Article 10 of the Convention. There had accordingly been a violation of Article 10 of the Convention since the interference was not “necessary in a democratic society”. As for damages, the Court awarded Mr. Fedchenko EUR 7,500 in respect of non-pecuniary damages.
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 its commitment to fighting against the judicial harassment of journalists who are often victims of vexatious legal actions brought by politicians. This was one of a series of cases brought by Oleg Dmitriyevich Fedchenko following successful defamation suits that had been brought against him by Russian politicians. In all of these cases, the Court found a violation of the right to freedom of expression and noted the domestic courts’ failure to apply its case law on the right to freedom of expression. In this case, the Court was careful to point out that, for a claim in defamation to be made out, the relevant statement must refer to the plaintiff. If this were not the case, journalists would find themselves facing numerous defamation suits and this would ultimately have a chilling effect on the press.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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