Defamation / Reputation, Political Expression
Instytut Ekonomichnykh Reform, TOV v. Ukraine
Closed Expands Expression
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The fourth section of the European Court of Human Rights (ECtHR) held that the state of Portugal breached the right to freedom of expression of a journalist when its domestic courts ordered him to pay fines and non-pecuniary damages for making statements in the Parliament and in a newspaper criticizing judges and prosecutors. The journalist was criminally convicted for insulting a legal entity after claiming that the Professional Association of Judges and the Professional Association of Public Prosecutors of Portugal were sharing confidential documents with the press. The Supreme Court of Portugal ordered the journalist to pay EUR 25,000 for non-pecuniary damages in favor of these associations. The ECtHR found that although this interference with the right to freedom of expression of the applicant was prescribed by law and pursued a legitimate aim, it was not proportional nor necessary in a democratic society. For this regional Tribunal, the applicant’s statements were about a matter of public interest and benefited from the special level of protection granted to political speech. The Court also considered that the monetary amounts the applicant was ordered to pay were disproportionate and could have a chilling effect.
Emidio Arnaldo Freitas Rangel (the applicant) was a Portuguese national and renowned journalist in his country. On February 2010 “he was invited by the Socialist Party to give testimony at a hearing before the Parliamentary Commission on Ethics, Society and Culture (Comissão Parlamentar de Ética, Sociedade e Cultura) on the topic of freedom of expression and the media in Portugal” [para. 6].
On April 6, 2010, Freitas gave his testimony before the Parliament. In his speech he was critical of the professional associations of judges and public prosecutors, saying that “[t]hey obtain documents concerning judicial cases for journalists to publish, exchange these documents at coffee shops, in the open; if they can help to breach the duty of judicial confidentiality [segredo de justiça], they really will share the documents” [para. 7].
After he finished his presentation to the Parliament, the applicant gave the following statement to a journalist from the newspaper Público: “Where does the material covered by judicial confidentiality come from? Can it only come from the justice system itself? … If they were resolving issues to do with a professional association, but no, what I have seen is an extensive and broad political intervention with negative consequences … They try to limit the decisions of the Attorney-General [Procurador Geral da República] and [to influence] public opinion, and they have privileged relationships with journalists to whom, from time to time, they pass on documents dealing with various topics” [para. 8]
Freita’s statements before the Parliament and to Público were widely covered by national media “and reported on by at least ten different news organisations” [para. 10].
On April 23, 2010, and May 5, 2010, respectively, the Professional Association of Judges (Associação Sindical de Juízes Portugueses – ASJP) and the Professional Association of Public Prosecutors (Sindicato dos Magistrados do Ministério Público – SMMP) “lodged criminal complaints against the applicant for insulting a legal entity” [par. 12]. After the complaints were lodged, criminal proceedings were brought against Freitas by the Lisbon public prosecutor’s office. On an unknown date, the ASJP and the SMMP also brought civil claims.
During the trial (first instance), the applicant claimed “that he had personally witnessed a journalist, E.D., exchanging files at a café with a member of the SMMP. E.D. denied those allegations during the hearing. [par. 17]. On May 7, 2012, the Lisbon Criminal Court convicted Freitas “on two counts of insulting a legal entity, pursuant to Article 187 §§ 1 and 2 and Article 183 §§ 1 (a) and (b) and 2 of the Criminal Code” [para. 18].
This court opined that the applicant’s claims were unsubstantiated and ordered him “to pay a fine of 6,000 euros (EUR), or alternatively, sentenced to 200 days’ imprisonment. As compensation for non-pecuniary damage, he was also ordered to pay the SMMP and the ASJP EUR 50,000 each” [p. 18].
The decision was appealed by the applicant on an unknown date to the Lisbon Court of Appeal. On November 22, 2012, this tribunal, however, upheld the criminal conviction against Freitas. For this court, the applicant surpassed the limit of freedom of expression with a “false attribution of serious acts, without the [applicant] having even proven that he had any grounds, in good faith, to believe in their veracity” [par. 22]. The court of appeal lowered to EUR 10,000, the amount to be paid in damages to the ASJP and the SMMP, since it considered that legal entities, unlike humans, do not suffer “[and this] diminishes the duty to compensate” [para. 23].
The ASJP and the SMMP, on an unknown date, requested judicial review from the Supreme Court of Portugal regarding the court of appeal’s decision “arguing that the amount that the applicant had been ordered to pay them in damages was too low”. On June 5, 2013, the Supreme Court increased to EUR 25,000 the amount “for non-pecuniary damage to be paid by the applicant” [par. 27] to each the ASJP and the SMMP. For the Supreme Court, Freitas acted with “the intention of offending the legal entities in question […] while knowing the falsehood of his statements” [para. 28] and his statements profoundly affected both the ASJP and the SMMP.
On December 5, 2013, Freitas submitted an application before the European Courts of Human Rights, against the State of Portugal. According to the journalist, the aforementioned decisions issued by the courts of Portugal violated his right to freedom of expression, as enshrined in Article 10 of the European Convention on Human Rights.
The main issue analyzed by the fourth section of the European Court of Human Rights was whether the decisions issued by the domestic courts of Portugal against a journalist —who was ordered to pay fines and non-pecuniary damages for making statements in which judges and prosecutors were criticized— breached the applicant’s right to freedom of expression.
According to the applicant, his statements were of public interest and “ ought to be interpreted in the light of the cultural, social and historic context, and within the scope of the debate in Parliament” [par. 42]. He also considered that the penalty he was convicted to and the amount “he had been ordered to pay in damages was excessively high, having an undue chilling effect on freedom of expression” [para. 43].
For its part, the Government of Portugal argued that the applicant knew his statements were false and that the interference to the applicant’s freedom of expression was prescribed by law, “pursued the legitimate aim of protecting the right to honour and reputation of others” [par. 44] and was necessary in a democratic society in order to “maintain the authority of the judiciary” [par. 44]. Additionally, in the view of Portugal, the amount of compensation ordered by its domestic courts was proportionate.
The Court noted that the parties did not dispute that the conviction against the applicant —issued by Portugal’s domestic courts— amounted to an interference to Article 10 of the ECHR. Since the Court did not dispute this either, it analyzed, through a three-part test, whether this interference breached the freedom of expression of the applicant.
The ECtHR first analyzed whether the measures enacted against Freitas were prescribed by law. For the Tribunal the criminal conviction against Freitas “was based on Article 187 §§ 1 and 2 (a) and Article 183 § 2” [para. 47] of the Criminal Code and his civil liability “was based on Article 484 of the Civil Code” [par. 47]. Therefore, the Court concluded that the interference was prescribed by law.
The ECtHR then analyzed whether the interference pursued a legitimate aim. The Court first noted that the “issue of whether a legal entity can enjoy the right to reputation” [par. 48] is debatable, but following Margulev v. Russia, in this case the Tribunal was willing to assume that the protection of this aim could be relied on. The ECtHR also opined that the measures enacted against the applicant “served the legitimate aim of protecting public confidence in the judiciary and thus maintaining the authority of the judiciary” [par. 48]. In light of this, the ECtHR believed that the interference complied with this part of the test.
Upon analyzing the final part of the test (the necessity of the interference in a democratic society), the Court asserted there is “little scope for restrictions on political speech or on debate on matters of public interest” [par. 50]. Following the precedent laid out in Baka v. Hungary [GC], the Court reiterated that remarks about matters of public interest, such as the functioning of the judiciary, benefit from a high level of protection.
The ECtHR also noted that it was important to distinguish between factual allegations and value judgments. Following Morice v. France, the Tribunal opined that “it is necessary to take account of 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” [par. 51]. The Tribunal also underscored that the protection of the reputation of a legal entity “does not have the same strength as the protection of the reputation or rights of individuals” [para. 53].
Furthermore, the Court also highlighted, as stated in Tromsø and Stensaas v. Norway, that more careful scrutiny is needed when analyzing “measures taken or sanctions imposed by the national authority [that] are capable of discouraging the participation of the press in debates over matters of legitimate public concern” [para. 52].
After stating these principles, the ECtHR analyzed the specific case to see then if the interference to the applicant’s freedom of expression was indeed necessary in a democratic society. The Court considered that the statements given by the applicant, before the Parliament and to a journalist, concerned “a matter of general interest to the community” [par. 54], dealing with issues regarding “how the political and economic classes influenced the media and freedom of expression in the country” [par. 58]. Taking into consideration the fact that many of the applicant’s views were expressed before the Parliament, where he was invited as an expert, the ECtHR also considered that “he should have been afforded an elevated level of protection, as is the case for parliamentary and political speech” [para. 59].
The Tribunal, contrary to the opinion of Portugal’s domestic courts, held that “most of the applicant’s statements consisted of his personal opinions, the truthfulness of which is not susceptible of proof” [par. 57]. However, the ECtHR considered the applicant did make one statement of fact when he claimed that the ASJP and the SMMP shared confidential information with journalists. Nonetheless, for the Court this statement, in spite of its nature, had to be understood in the context it was made: “the applicant’s statement of fact can be considered to have gone beyond this specific allegation and to speak in a more general way about the information sharing by the two organisations. While this may be seen as an exaggerated and thus unfortunate formulation, the applicant’s comments may well be interpreted as an illustration of a broader societal critique regarding the inappropriate intervention of the judiciary as a whole in politics and the media, which was a subject of public interest and which he believed to be true” [para. 57].
The ECtHR found, following the precedent set in Stoll v. Switzerland [GC], that the criminal fine imposed to the applicant had a deterrent effect and that the amounts he was ordered to pay “were disproportionate to any potential damage caused to the reputation of the associations” [par. 61]. For the Court, the severity of these sanctions could have a potential chilling effect “on the exercise of freedom of expression of persons called upon to participate in discussions of matters of general public interest and concerning institutions” [para. 61].
In light of these arguments, the ECtHR concluded that Portugal’s domestic courts did not properly justify their interference with the freedom of expression of the applicant. The measures issued against the applicant, the Tribunal noted, were not proportional to the legitimate aim pursued and were not necessary in a democratic society.
Since the interference did not pass this part of the test, the Court held that the Government of Portugal violated the right to freedom of expression of the applicant, as enshrined in Article 10 of the ECHR.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this decision, the ECtHR provided robust protection to political speech regarding matters of public interest. The judgment also considered the chilling effect on freedom of expression when speakers are ordered to pay disproportionate amounts of money in fines or in damages. In doing so, the Court fosters a safer environment that aligns with the special level of protection granted to political speech and the reduced protection of the reputation of legal entities.
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