Content Regulation / Censorship, Defamation / Reputation, Licensing / Media Regulation
Editorial Río Negro S.A. v. Neuquén
Closed Expands Expression
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The European Court of Human Rights (ECtHR) held that an employee’s dismissal after making critical comments of his work was a disproportionate interference with his right to freedom of expression. Bernardo Fuentes Bobo, a producer for Spain’s state-run television station, TVE, was dismissed after he wrote an article criticizing TVE and subsequently went onto two radio programs making further criticisms. Spanish courts upheld TVE’s right to dismiss him, finding his remarks to be of an offensive and insulting nature and holding that the Spanish Constitution’s Article 20 guarantee of freedom of expression did not extend to protecting the right to insult. The ECtHR determined that there was no reasonable relationship of proportionality between the sanction and the legitimate aim pursued, and accordingly, the impugned measure therefore constituted an interference with his right to freedom of expression as protected under Article 10 of the European Convention on Human Rights (ECHR).
Bernardo Fuentes Bobo was a producer employed by TVE, a state-run television station. In 1992, he co-wrote an article in a daily newspaper criticizing TVE’s management, for which he was suspended: first for 16 days and then for 60 days. While appealing his suspension, he appeared on two radio programs where he continued to criticize TVE’s actions, using words that TVE’s managers considered offensive. This resulted in his dismissal in 1994.
The High Court of Madrid found that the Fuentes Bobo’s statements were indeed offensive and held the dismissal to be compliant with Spain’s national workers laws. Fuentes Bobo then appealed to the Constitutional Court on the ground of infringement of his right to freedom of expression as protected by Article 20 of the Spanish Constitution. The Constitutional Court dismissed the appeal, holding that Fuentes Bobo had made statements that were clearly offensive value judgments, unnecessary to support the accusations of mismanagement he had been making against the leaders and company officials of TVE. Such statements are excluded from the protection of the right to freedom of expression, because Article 20 does not guarantee the right to insult.
Fuentes Bobo then appealed his case before the ECtHR.
On appeal to the ECtHR, Fuentes Bobo argued that his dismissal was an interference that did not fall within the meaning of a necessary intervention as stated in Article 10 of the ECHR. He argued that his radio appearance had been a part of a broad public debate on the mismanagement of public television and was as a result of the interest in the article he had published in the newspaper. Therefore, the statements broadcast on the radio were part of an overall context that should not be separated. In addition, he argued that the words used during the radio broadcast were part of the dynamics of a live conversational radio program and could not, in neither meaning, tone nor use, be considered as insults. Finally, Fuentes Bobo argued that an employment relationship could not diminish the scope of workers’ right to freedom of expression simply because their expression was directed against the employer.
The Spanish government argued that, as a state, it could not be considered guilty of improper interference with Fuentes Bobo’s freedom of expression because TVE was a company under private law, and, therefore, Spain could in no way be held responsible for his dismissal. Spain also insisted that the domestic courts had correctly found the statements made to be intolerable insults, justifying dismissal as a sanction. Spain further argued that, according to the ECtHR’s own case law, states have a wide margin of appreciation in assessing the extent of insulting expressions, and the ECHR cannot protect a right to insult under the guise of freedom of expression.
The ECtHR decided that it would take into account Fuentes Bobo’s statements in the context they were made: during live radio broadcasts in which there was no possibility of reformulating, perfecting, or retracting his remarks before they were made public. The ECtHR also agreed with the Spanish Constitutional Court that Fuentes Bobo’s acceptance, endorsement, and use of the terms and words used by the radio hosts against leaders of the TVE, such as calling them “leeches,” could be considered offensive and would undoubtedly justify a penalty in terms of Article 10 of the ECHR.
Before the ECtHR, the parties agreed to accept that the interference was “prescribed by law” and pursued a legitimate aim: the “protection of the reputation or rights of others.” Therefore, the interference fulfilled the two conditions required for an interference to be justified under Article 10. The ECtHR held that only the third condition, which requires that an interference be “necessary in a democratic society,” was in question.
The ECtHR recalled that Article 10 applies not only to the employer-employee relationship when governed by public law, but also when these relationships are governed by private law. Furthermore, the ECtHR added that, in some cases, the state has a positive obligation to protect the right to freedom of expression against violations, even from private individuals. The ECtHR also noted that in exercising its supervisory jurisdiction, it must consider the interference in the light of the whole case, including the content of the remarks and the context in which they were made, in order to determine whether the interference was “proportionate to the legitimate aims pursued” and whether the reasons given by the national authorities to justify it are “relevant and sufficient.” To do so, the ECtHR had to find that national authorities undertook an acceptable assessment of the facts and applied standards in conformity with the principles under Article 10.
The ECtHR agreed that Fuentes Bobo certainly had used coarse and rude remarks correctly classified as offensive by national courts, but also noted that the remarks in question had first been used by the radio hosts and that Fuentes Bobo had merely confirmed them as part of a rapid and spontaneous exchange of comments between himself and the radio hosts. The ECtHR held that the remarks seemed almost to have been caused by the comments and value judgments issued by the radio hosts and not by Fuentes Bobo. Moreover, TVE and the persons apparently affected by the offensive remarks had not engaged in any legal action for libel or insults against Fuentes Bobo, the radio station, or the radio hosts. The ECtHR found that, given Fuentes Bobo’s length of service and age, the maximum penalty of termination of the employment contract without compensation was of extreme severity and lighter, more appropriate disciplinary sanctions could have been applied.
Thus, the ECtHR found no reasonable relationship of proportionality between the sanction and the legitimate aim pursued, and accordingly, the impugned measure therefore constituted an interference with his right to freedom of expression as protected under Article 10 of the ECHR.
In their dissenting judgment, Judges Caflisch and Makarczyk disagreed with the majority with regard to the perceived severity and disproportionality of Fuentes Bobo’s dismissal. They held that the extreme sanction imposed upon him did not hit suddenly and unpredictably but occurred at the end of a series of events. First, he had been given a written reprimand for not respecting working hours in early 1993; then, after co-writing an article that accused TVE leadership of being a “concentration camp” and the leadership of “practic[ing] with impunity professional terrorism,” he had been sanctioned with suspension; and, finally, after the statements made during the radio broadcasts, he had been dismissed. The dissenting judges felt Fuentes Bobo must have realized, or should have known, that by continuing to provoke, he would incur the final penalty of dismissal. The dissent held that the employer had taken a perfectly measured progression of sanctions and that no lighter or more appropriate sanctions could have been applied, as the full range of such measures had already been exhausted. Therefore, there was no violation of Article 10 of the ECHR as there was no disproportionality in TVE’s action to dismiss because the work relationship between Fuentes Bobo and TVE had already been irrevocably shattered by his continual provocative behavior.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this case, the ECtHR held that a state has positive obligations to uphold freedom of expression, even in the context of relationships governed by private law, such as in employer-employee relationships. As such, the ECtHR found the dismissal of a long-term employee for voicing his opinions about the state-run television program for which he was a producer to be a disproportionate interference with his right to freedom of expression under Article 10 of the ECHR.
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