Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
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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 by a local official. The Russian courts held that the journalist’s newspaper had defamed a Deputy Governor of the Bryansk Region in an article that alleged inappropriate behavior by local officials who purportedly intervened to reopen a shopping center that was in breach of fire safety regulations. The European Court of Human Rights noted that the article covered a topic of general interest and that the Deputy Governor had to tolerate a wider degree of criticism due to his position. The European Court went so far as to find that the criticisms themselves were not sufficiently serious to interfere with the local politician’s right to respect for private life. It also found that the fine and the order to issue a public a retraction imposed by the domestic courts were disproportionate to the aim pursued, namely the protection of the Deputy Governor’s honor and reputation, and were therefore not “necessary in a democratic society”.
The case concerned Oleg Dmitriyevich Fedchenko, the editor and founder of a weekly newspaper, Bryanskiye Budni, which was sued for defamation because of an article that alleged a number of public officials had acted reprehensively in supporting a shopping center that had not complied with fire safety regulations.
In June 2010, the prosecuting authorities conducted a check into compliance with fire safety rules at the Tymoshkovykh shopping center. The report stated that fifteen breaches of the rules had been found. On June 21, 2010, the prosecutor applied to a court with a request to order N.K. Timoshkov, the owner of the shopping center, to rectify the breaches and the application was allowed in part. In September 2011, the prosecuting authorities conducted another check. They found that the breaches had not been rectified and found new ones. Overall, fifty violations of fire safety regulations were found, of which fifteen were considered to pose a threat to the life and health of people inside the center. The Bryansk Regional Court also ordered the shopping center to close temporarily and the proceedings on the merits remained pending when the Regnum Centre news portal published an article on its website about the temporary closure.
On March 26, 2018, the iBryansk.ru news portal published an article on its website about a meeting between Mr. Timoshkov and representatives of the Ministry of Emergency Situations, the Bryansk prosecutor, the Head of the Bryansk Administration and the Deputy Governor of the Bryansk Region (Mikhail Klimov). On March 27, 2012, the Regnum Centre published an article alleging that the Bezhitskiy District Curt of Bryansk had dismissed an application to lift the provisional measure. On March 30, 2012, following Mr. Timoshkov’s meeting, the shopping center reopened.
On March 29, 2012, Mr. Fedchenko published an article in Bryanskiye Budni headlined “… and were Timoshkov’s errand boys”, where he criticized the officials who had taken the side of the shopping center in the above events, among whom Mikhail Klimov, Deputy Governor of the Bryansk Region, was mentioned.
On April 23, 2012, Mr. Klimov brought an action for defamation against Mr. Fedchenko and sought damages of 500,000 Russian rubles (RUB). He claimed, in particular, that the following passages had damaged his honor and reputation:
On September 27, 2012, the Bryansk District Court of the Bryansk Region allowed the claim. In its decision it relied on a linguistic expert’s report, which found that many of the passages were statements of fact. The District Court noted that even where the passages had contained rhetorical questions, they had been presented with an implied assertion that those concerned were engaged in unlawful activities. Hence, those passages had constituted “negative statements that had discredited [Mr. Klimov’s] moral character and damaged his honor, dignity and business reputation.” [para. 26] The District Court also ordered Mr. Fedchenko to publish a retraction within ten days of the judgment’s entry into force and awarded Mr. Klimov RUB 5,000 in damages. On the appeal, the Bryansk Regional Court upheld the judgment. On February 19, 2013, the Bryansk Regional Court refused leave to Mr. Fedchenko to lodge a cassation appeal.
Mr. Fedchenko brought the case before the European Court of Human Rights claiming that the domestic courts’ judgments 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 judgments were disproportionate and the domestic courts did not sufficiently take into account the important role the press plays in a democratic society covering stories of general public interest.
The European Court of Human Rights (Court) began by recalling the general principles that it had itself established in its case-law. It reminded, in particular, that the press played an essential role in a democratic society and that the right to freedom of expression protected not only the thoughts and ideas themselves but also the way in which they were expressed. Furthermore, it reiterated that journalistic freedom covered a possible recourse to a degree of exaggeration, or even provocation.
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, and that it was in accordance with the law and in pursuit of the legitimate aim of protecting Mr. Klimov’s reputation. It was, therefore, left for the Court to establish whether the interference had been “necessary in a democratic society”. When carrying out this assessment, it took several elements into account: the position of Mr. Fedchenko, the position of Mr. Klimov, 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. 48] The Court also noted that Mr. Klimov was Deputy Governor of the Bryansk Region, and that the limits of acceptable criticism were wider as regards a politician than as regards a private individual.
The Court went on to observe that the impugned article discussed compliance with fire safety regulations at a local shopping center, its temporary closure and the role played by the local authorities in its reopening. The Court held that this was undoubtedly a matter of general interest to the local community. Therefore, Mr. Fedchenko was entitled to bring the story to the public’s attention and the local population were entitled to receive information about it. The Court noted that when a distinction is being drawn between statements of fact and value judgments, it was necessary to take into account the circumstances of the case and the general tone of the remarks, bearing in mind that assertions about matters of public interest may, on that basis, constitute value judgments rather than statements of fact. [para. 50]
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. Kilmov’s personal enjoyment of private life.
The Court went on by considering the newspaper article as a whole and had particular regard to the words used in the disputed parts, the context in which they were published, and the manner in which it was prepared.
As for the First Impugned Passage, the Court observed that the journalist had expressed his opinion on the role public officials played in reopening the shopping center. In Mr. Fedchenko’s view, their efforts had been aimed specifically at helping Mr. Timoshkov. Moreover, in the Court’s view, the journalist had enough factual basis to support such a value judgment in light of the meetings held between Mr Timoshkov and the local authorities, which had been widely covered in the media. The Court went on by examining the satirical tone of the impugned passage and noted that “the use of sarcasm and irony is perfectly compatible with the exercise of a journalist’s freedom of expression.” [para. 55]
As for the Second Impugned Passage, the Court considered it did not refer directly or specifically to Mr. Klimov. Therefore, Mr Klimov was not directly affected by the statement in question. The Court further noted that Mr. Fedchenko expressed his view in the Second Impugned Passage that local officials were acting inappropriately by trying to help Mr. Timoshkov, which constituted a value judgment not susceptible to proof.
As for the Third Impugned Passage, it also constituted a value judgment where the journalist had expressed his disapproval of the actions of local officials, choosing the form of a rhetorical question. This way of expressing an opinion had not overstepped the degree of exaggeration or even provocation allowed by journalistic freedom.
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 the Deputy Governor’s reputation in accordance with the Court’s case-law. 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. The Court concluded that the interference was disproportionate to the aim pursued and was thus not “necessary in a democratic society”. [para. 60] Therefore, there had been a violation of Article 10 of the Convention. As for damages, the Court awarded Mr. Fedchenko EUR 7,500 for non-pecuniary damage.
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.
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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