Defamation / Reputation, Digital Rights, Press Freedom
The Case of RTVBN d.o.o.
Bosnia and Herzegovina
Closed Expands Expression
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The Chamber of the First Section of the European Court of Human Rights unanimously ruled that Hungary violated the Applicant’s (a news media outlet) freedom of expression by imposing objective liability on the Applicant due to the allegedly defamatory article. The case concerned the publication of a story about the President of Hungary’s conduct during military service, which was part of a media initiative to counter a smear campaign. The ECtHR found that the domestic courts had not properly balanced the right to freedom of expression against reputation protection, as the story addressed a matter of public interest. Additionally, the ECtHR criticized the imposition of objective liability, stating that it hindered the media’s role as a “public watchdog” and ran counter to established case law under Article 10 of the European Convention on Human Rights. The ECtHR concluded that Hungary’s interference with the Applicant company’s freedom of expression was not necessary in a democratic society, resulting in a violation of Article 10.
Index.hu Zrt, the Applicant is a Hungarian internet news portal and an owner of an online news portal Index.hu. During November 2014 a series of demonstrations against the Government took place in Hungary, followed by critical reports about the organizers and spokespersons of these protests by a television news channel. In response to what was perceived as a smear campaign, a journalist from Kettős Mérce, an internet blog portal, initiated a “solidarity initiative” on social media, encouraging people to share stories of minor infractions with a specific hashtag related to the television channel. [para 1-6]
On December 1, 2014, Index. hu published an article titled “I was in jail with J.A.” (J.A. being the President of Hungary at the time). This article reported on the solidarity initiative and summarized a story shared on Facebook by A.V., a former editor-in-chief of a political magazine. A.V. claimed to have been in military prison with J.A. during his compulsory military service, alleging that J.A. had been drunk and firing his weapon at random during the Argentina World Cup. Index.hu added a comment to the article, highlighting A.V.’s uncertainty about the accuracy of these allegations and stating their intent to seek a response from the Office of the President. [para. 7] Moreover, Index also wrote the following:
“[A.V.] himself said that he wasn’t sure that [J.A.] had actually been firing his weapon at random. Bearing in mind that that qualifies as a military offense that carries a sentence of more than just a couple of days of detention, the story is – at least in that respect – certainly made up. We have contacted the Office of the President for comment, and we will update the article once we have received their answer.” [para. 8]
Shortly after the article’s publication, the Office of the President issued a statement confirming that J.A. had been placed in military detention twice during his military service, but for a different reason—falling asleep on guard duty while secretly watching football matches, not for firing a weapon while drunk. [para. 9] After the official statement from the Office of the President, the Applicant published a separate article “in which it summarised the story of A.V. and quoted the statement of the Office of the President denying the allegations.” [para. 10]
On January 16, 2015, J.A. filed a civil action against A.V. and the Applicant company, alleging that they had disseminated false statements and damaged his reputation. In the initial court proceeding before the Court of First Instance, the case against the Applicant’s Company was dismissed on February 20, 2015, on the grounds of adhering to journalistic standards. However, on appeal, the Budapest Court of Appeal ruled in favor of J.A., stating that the statements were injurious, unrelated to a matter of public interest and that the Applicant company failed to verify their accuracy.
The Court noted that “the Court of First Instance had not concerned a matter of public interest and were not related to the media campaign, since J.A. had not been part of either the demonstrations or the governmental measures preceding them. Thus, it was not necessary to balance the applicant company’s right to freedom of expression against J.A.’s right to protection of his right to reputation. The statement had been injurious to J.A. and the applicant company had failed to check whether it was true”. The Court of Appeal ordered the applicant company to pay 600,000 Hungarian forints (HUF) (approximately 1588 USD) to J.A. [para. 12]
The Applicant filed a Review Petition before the Kúria, the Supreme Court of Hungary (Magyarország Legfelsőbb Bírósága). On September 7, 2016, the Kúria dismissed the Review Petition and upheld the Budapest Court of Appeal judgment. The Kúria asserted that the publication did not concern a matter of public interest and applied the principle of objective liability. The Kúria held that “the applicant company had been responsible for transmitting the injurious Facebook post to the broader public and that the question whether it had acted in good or bad faith was only relevant for the calculation of damages.” [para. 13] However, the Kúria reduced the damages payable to J.A. to 50,000 Hungarian forints (HUF) (approximately 127 USD) due to the Applicant company expressing doubt about the statements and publishing J.A.’s response. [para. 13]
The Applicant’s Company then lodged a Constitutional Complaint, contending that the publication had concerned a matter of public interest, namely the conduct of the President of Hungary during his compulsory military service. On May 23, 2017, the Constitutional Court declared the complaint inadmissible on the account that the Applicant’s Company had merely challenged the Court’s assessment of facts, which was not subject to review by the Constitutional Court. [para. 14]
Thereafter, the Applicant filed an application before the ECtHR asserting a violation of his right under Article 10 (freedom of expression) of the European Convention on Human Rights.
Justice Marko Bošnjak, Justice Alena Poláčková, Justice Krzysztof Wojtyczek, Justice Péter Paczolay, Justice Ivana Jelić, Justice Erik Wennerström, and Justice Raffaele Sabato delivered a unanimous judgment. The central issue before the Court was to determine whether the domestic decisions violated the Applicant’s right to freedom of expression.
The Applicant contended that J.A., being a former President of Hungary and a member of the ruling party, qualifies as a public figure, and as such, criticism directed towards him should be considered legitimate within the bounds of freedom of expression. It was further contended that the publication in question addressed matters of public interest, such as a media campaign and the President’s conduct during military service, which should enjoy the protections afforded to political speech under Article 10 of the ECHR. [para. 18]
Additionally, the Applicant asserted that their actions were in line with journalistic ethical standards. They claim to have sought the President’s perspective by contacting his office for comment and publishing his response in full. They argue that their article presented factual information, including relevant circumstances and the political and societal context, while also expressing skepticism about the story’s accuracy. Lastly, the Applicant disputed the application of objective liability, claiming that holding media outlets responsible for statements originating from third parties contradicts the Court’s established case law under Article 10, implying that they should not be held accountable for content they did not directly create or endorse. [para. 19]
On the contrary, the Government contended that the domestic courts had valid reasons for interfering with the Applicant’s right to freedom of expression. They asserted that the statements in question didn’t concern a matter of public interest as they didn’t relate to the President’s public performance or conduct but instead constituted the dissemination of false information, infringing on a public figure’s personality rights. The Government contended that offensive and hurtful statements aimed at humiliating others didn’t constitute an exercise of freedom of expression, and defamatory statements weren’t protected if the speaker knew their falsity or failed to exercise due diligence. Furthermore, the Government contended that domestic law required objective liability for spreading false statements and criticized the Applicant for not verifying the statement’s truthfulness with the President’s Office before publication. [paras. 20-22]
The ECHR first outlined the general principles regarding the necessity of interfering with freedom of expression and the need to balance it against the right to respect for private life. They referred to Morice v. France (2015) and Perinçek v. Switzerland (2015) as key cases that discuss these principles. The court also emphasizes the importance of editorial discretion and ethical journalism, citing Jersild v. Denmark (1994) and Pedersen and Baadsgaard v. Denmark (2004). [paras. 24-25]
The ECHR underscored the distinction between reporting facts of public interest and making salacious allegations about an individual’s private life. The Court referred to Armonienė v. Lithuania (2008) to highlight that, while the press plays a critical role in democracy, reporting on sensational and private matters receives less robust protection under Article 10. The ECHR acknowledged that news reporting, especially when based on interviews or statements of others, constitutes a vital means for the press to fulfill its role as a “public watchdog.” The Court observed that punishing a journalist for assisting in the dissemination of statements made by another person in an interview should only be considered if there were exceptionally strong reasons, referring to Jersild and Pedersen and Baadsgaard cases. [paras. 25-26]
The ECtHR held that both parties were in agreement that the judgments of the domestic courts in Hungary indeed constituted an “interference” with the Applicant’s exercise of its right to freedom of expression. Such interference is subject to scrutiny under Article 10 of the Convention, which stipulates that any such interference must meet certain criteria to be considered justifiable. It further noted that it was also undisputed that a domestic law prescribed the interference, specifically Article 2:45 of the Civil Code, which was in effect at the time. Furthermore, the interference pursued a legitimate aim as articulated in Article 10, paragraph 2 of the Convention, which is the “protection of the reputation or rights of others. These first two criteria, i.e., conformity with the law and the pursuit of a legitimate aim, were met. [para. 27]
The crucial question remaining for consideration by the Court was whether this interference was “necessary in a democratic society.” The Court noted that the Applicant’s company published the statements alongside a description of a campaign by another media outlet to counter defamatory reports against opposition activists. They also noted that the story originated from an uncertain source (A.V.) and questioned its accuracy given a lenient penalty received by J.A. [para. 28]
The Court noted that the Hungarian domestic courts had contended that the statements about J.A. were unrelated to his official capacity and were not part of a public interest debate, thus falling outside the scope of freedom of expression. However, the ECtHR disagreed with this assessment. It noted that while A.V.’s statements were polemical, the domestic courts had disproportionately focused on one statement, detached from the broader context of the article. The Court emphasized the importance of considering the overall context, public interest, and the author’s intent when evaluating provocative or exaggerated elements in journalism. [Balaskas v. Greece, (2020). The Court also referred to Ziembiński v. Poland (no. 2) (2016), where it stressed the importance of examining statements in their context. [paras. 29-31]
The ECtHR noted that, as the President of Hungary and a prominent politician, J.A. was subject to public scrutiny, and news about his private life, while often for entertainment, contributed to the variety of information available to the public, benefiting from Article 10 protection. It emphasized that the information about J.A.’s conduct during his military service had political relevance and could have piqued public interest in his approach to responsibilities. Furthermore, the Court highlighted that the story about J.A.’s military service was part of a broader media initiative and aimed to counter a smear campaign against organizers of an anti-government demonstration. This contextualized the publication as a comment on a matter of public interest. [paras. 32-33]
The ECtHR stressed that public figures like J.A. have a right to protect their reputation, but this must be weighed against the public interest in open political discussion. Referring to previous case law, Dupate v. Latvia, (2020), the ECtHR recognized that news about the private lives of public figures serves both entertainment and contributes to the variety of information available to the public. It stressed that public interest encompasses matters capable of causing controversy or involving important social issues.
The Court concluded that information about the President’s conduct during his military service was not purely of an intimate nature and had political relevance. It added that A.V.’s story was part of reporting on a media initiative that had garnered public attention and engagement, intending to counter a perceived smear campaign. Therefore, the impugned statement, when seen in its proper context, constituted a comment on a matter of public interest. The ECtHR pointed out that public figures like J.A. should expect close scrutiny from both journalists and the public, requiring a greater degree of tolerance. It underlined the need to balance reputation protection with the public interest in open political discussion. The Court held that the domestic courts failed to take into account that “the basic reason for publishing the story had been to draw attention to and illustrate that initiative, which was in turn intended to counter the perceived smear campaign being run against the organizers of an anti-government demonstration, rather than to gratuitously insult or attack J.A.” [para. 34-36].
Furthermore, the ECtHR addressed the nature and consequences of the statements in question. The ECtHR acknowledged that the article in question contained defamatory statements of fact, as determined by domestic courts. However, the ECtHR also took into account the domestic court’s findings regarding the harm caused, noting that the Kúria concluded that the publication had not seriously harmed the subject’s reputation, given his status and ability to respond to public statements. The ECtHR emphasized that the applicant company, as a media outlet, was bound by Article 10’s duties and responsibilities, including the obligation to act in good faith and provide accurate and reliable information in line with journalistic ethics. [paras. 37-38]
The ECtHR highlighted that the Applicant’s Company had taken steps to address the accuracy of the information, including pointing out contradictions in the statements and publishing the subject’s reaction on the same day. However, the domestic courts did not consider these contextual factors when finding the applicant company liable for disseminating injurious statements by a third party. Instead, they applied objective liability under the Civil Code, making the applicant company responsible for any untrue and injurious statement regardless of its good or bad faith. The ECtHR referred to Timpul Info-Magazin and Anghel v. Moldova, (2007) and emphasized that “as part of their role of “public watchdog”, the media’s reporting on “‘stories’ or ‘rumours’ – emanating from persons other than the applicant – or ‘public opinion’” is to be protected where these are not completely without foundation.” [para. 39]
Lastly, the ECtHR raised concerns about the imposition of objective liability on the Applicant’s company for disseminating third-party statements, irrespective of their good or bad faith. It referred to Jersild and Thoma v. Luxembourg, (2001), to highlight that punishing journalists for assisting in the dissemination of statements made by others would hinder press contributions to public interest discussions, except in cases with strong justifications. [para. 40]
In conclusion, the ECtHR found that Hungary’s national courts had not applied standards in conformity with Article 10 of the Convention. Consequently, the interference with the applicant company’s freedom of expression was not deemed “necessary in a democratic society,” resulting in a violation of Article 10. [paras. 41-42]
The Court awarded EUR 5 520 for costs and expenses but did not award any money for non-pecuniary damages since the applicant did not ask for it.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling is important since, inter alia, it stresses that the concept of objective liability is not appropriate for the cases of defamation. Namely, the court expressly stated that this type of liability cannot be imposed without assessing if a person acted in good faith. The good faith standard is essential for satisfying the standard that the ECtHR set out in Jersild judgment – the punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to the discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so.” (Jersild v. Denmark, para. 35)
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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