Content Regulation / Censorship, Defamation / Reputation, Indecency / Obscenity
Rodriguez v. Google Inc.
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The company “Ukraina-Tsentr” (applicant company) distributed during the mayoral elections information received by mail from local journalist (Mr. M.) that one of the candidates for mayor (Mr. Y.) ordered the murder of this local journalist. The Ukrainian courts had ruled that such dissemination of information was illegal and the applicant company was fined. The European Court ruled that there has been violation of Article 10 of the Convention on three main grounds: a) the domestic Courts had failed to distinguish between Mr. M’s accusation and the reporting of such accusation by the applicant company; b) the domestic Court had not explained the proportionality of the interference and thus failed to balance between the need to protect Mr. Y’s reputation and the applicant company’s press freedom; c) the information had been widely disseminated before it was reported by the applicant company. In its judgment, the European Court also stressed the vital role of the Press as a public watchdog, and the importance of protecting public debates involving public officials. The European Court thus concluded that the Ukrainian courts had “interfered with the applicant company’s right to freedom of expression in a manner which was not necessary in a democratic society”, accordingly, that there was a breach of Article 10 of the Convention.
During a June 2002 press conference relating to mayoral elections in Kirovograd, Ukraine, a journalist, Mr. M, accused a mayoral candidate, Mr. Y, of paying another individual $5,000 to murder Mr. M. The organization hosting the press conference reported on the statements by Mr. M. The applicant company later published an article that discussed the press conference and reported on Mr. M.’s accusation.
In August 2002, Mr. Y filed a civil claim against Mr. M and the applicant company alleging defamation. In December 2002, the District Court found that the accusation made by Mr. M. and the applicant company amounted to defamation and were untrue. Although the applicant company argued that the information had been published elsewhere, the District Court took the view that because there was not a contractual agreement between the company hosting the press conference and the applicant company, the applicant company could not prove that it had gotten its information from the other news source. The applicant company was ordered to pay UAH 100,000. On appeal, the fine to the applicant company was reduced by half, but the judgment stood. In October 2003, the Supreme Court upheld the judgment.
In addition to a complaint under Article 10, the applicant company filed complaints under Articles 6 and 41.
The applicant company argued that the domestic courts had failed to properly examine the fact that another organization had publicly disseminated the information and therefore, the approach of the domestic courts had not been based on law. They also argued that they had merely been reporting objectively on the accusations of another and that reporting the accusation was merely disseminating information of significant public interest it received from a third party within the context of election debates. The domestic courts grouped the applicant company with the individual who made the accusations and did not differentiate between making the statements and reporting on them, without additional comment, that the accusation had been made.
The government of Ukraine’s argument was that the interference had been made according to law and was necessary in a democratic society. The interference was supported by claiming that the domestic courts had balanced the applicant company’s Article 10 rights with Mr. Y’s Article 8 rights. It claimed that the lack of domestic review of where the applicant company had received its news was acceptable because domestic law allowed a safe harbor to defamation only where a journalist quoted, exactly, his source. As the applicant company’s report differed slightly from the publicly disseminated information, it was not protected by domestic law. It also viewed the fine assessed as being proportional in that it allowed the applicant company to remain in business and was reduced under appeal.
The European Court took the view that the level of acceptable criticism of Mr. Y was especially broad given that he was a politician. The Court stated that “there is little scope under Article 10 for restrictions on political speech or on debate on questions of public interest”. Additionally, journalists’ freedom of expression is broader than a normal citizen and journalistic freedom allows for provocation or exaggeration. The Court felt that “reproducing the statements of others, whether edited or not, constitutes one of the most important means whereby the press is able to play its vital role of ‘public watchdog’”.
The European Court ruled that the interference had a legal basis and thus focused on the necessity of the interference. It reviewed the report made by the applicant company in the context of the mayoral campaign and, determined that the applicant company presented the information in a neutral manner without its own commentary. The domestic courts found Mr. M and the applicant company together liable, but did not explain whether the defamation of the applicant company was in the contents of the report or the fact that that the applicant company had made the report. The European Court found no evidence that the Ukrainian Courts judgments performed any balancing of Mr. Y’s Article 8 rights and the applicant company’s Article 10 rights in the context of their right to journalistic expression and the nature of the statements as part of a political debate. They also viewed there to be no support to group the applicant company’s reporting on the issue with the individual who made the statement.
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The decision further confirmed and reiterated the European Court’s doctrine over the protection of political speech and of debate on questions of public interest as well as over the vital role of public watchdog played by the Media: “The press plays an essential role in a democratic society. Although it must not overstep certain bounds,…its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest, including those relating to justice. Not only does it have the task of imparting such information and ideas, the public also has a right to receive them. Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed. Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation.” and ” News reporting based on interviews or reproducing the statements of others, whether edited or not, constitutes one of the most important means whereby the press is able to play its vital role of “public watchdog.”
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§ 61, ECHR 1999-IV
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