Defamation / Reputation
Afanasyev v. Zlotnikov
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In 2004, László Karsai, a university professor in Hungary, published an article in the weekly paper Életés Irodalom, criticizing the right-wing media and a historian for wrongly praising the former Prime Minister Pál Teleki. During his time in leadership, Teleki passed several anti-Semitic laws and cooperated with Nazi Germany. Karsai said that “the right-wing and extreme-right press . . . by this [indifference] keeps lying, keeps slandering, keeps stirring feeling against bashing the Jews, in an increasingly uninhabited way.”
The historian then brought a defamation action against Karsai, alleging that the article had adversely undermined his reputation. The Regional Court of Hungary initially dismissed the lawsuit on the ground that the impugned passage did not concern the plaintiff himself. The Budapest Court of Appeal, however, reversed the dismissal, which was subsequently upheld by the Supreme Court. In 2010, the European Court of Human Rights found Hungary in violation of Article 10 of the Convention on the grounds that the impugned statement by Karsai against the historian was a value-laden expression and that the article was made during a public debate. The Court also ruled that the civil penalty to retract the statement was capable of producing a chilling effect on Karsai’s freedom of expression.
László Karsai is a historian and university professor who has written numerous articles on World War II, specifically on the persecution of Jews and Roma. In public debates, he has criticized Hungarian’s failure to acknowledge its role in the World War II and the Holocaust, particularly the era under the governance of Pál Teleki, who passed several anti-Semitic laws prior to the war.
In 2004, Karsai published an article on the weekly paper Életés Irodalom. The piece primarily was centered on the role of the country’s right-wing media and a historian in praising former Prime Minister Teleki. Karsai expressly refuted their views and accused them of misinforming the public about the prime minister’s political leadership and personal integrity. The article specifically referred to the right-wing historian as an “amateur historian [who] wrote several articles extolling the virtues of Pál Teleki – the devout Catholic, the enthusiastic Scout leader – who in his view was an anti-Nazi ‘Realpolitiker’.” In a subsequent passage, he wrote:
“These articles and studies promoted very little reaction. There are very few of us who, at least from time to time, pick up the products of the right-wing or extreme right-wing press, which, perhaps encouraged by this [indifference], keeps lying, keeps slandering, keeps stirring feeling against and bashing Jews, in an increasingly uninhabited way.”
Upon publication of the article, the named historian brought a defamation lawsuit against Karsai, alleging that the piece damaged his reputation. In June 2005, the Regional Court of Hungary dismissed the lawsuit on the ground that the passage in dispute did not concern the plaintiff; rather it was directed at the right-wing media. In January 2006, however, the Budapest Court of Appeal reversed the dismissal, ruling that the article as whole could be viewed as relating to the historian and that Karsai’s expression of “bashing Jews” was a statement of fact, which he failed to prove its veracity. That court ordered him to rectify the publication and pay the legal costs. In June 2006, the Supreme Court of Hungary affirmed the ruling and imposed additional legal fees on Karsai.
In December 2006, Karsai filed an application with the European Court of Human Rights, alleging that the decisions renders by Hungarian courts infringed his right to freedom of expression guaranteed under Article 10 of the European Convention on Human Rights.
The European Court of Human Rights delivered a unanimous decision.
As it was uncontested that the domestic court decisions had interfered with Karsai’s freedom of expression pursuant to Sections 75, 78, and 84 of Hungary’s Civil Code, the main issues were whether the interference pursued a legitimate aim permissible by the Convention and whether it was “necessary in a democratic society.”
Karsai argued that his article did not concern the historian and therefore, the judgment against him did not pursue any legitimate aim. The Court, however, made deference to the Hungarian Court of Appeal’s and the Supreme Court’s finding that the passage at issue was capable of affecting the plaintiff’s reputation.
On the second issue, the Court reiterated its jurisprudence that “[t]he test of ‘necessity in a democratic society’ requires [the determination of] whether the interference complained of corresponded to a ‘pressing social need.” [para. 25] Even though States Parties to the Convention are given a certain margin of appreciation in determining the need, the European Court was “empowered to give the final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10.” [para. 25] Relevant here, the Court noted that the “classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts.” [para. 31] Contrary to a statement of fact, an opinion is not susceptible of proof, but can be interfered or limited depending “on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive.” [para. 32]
After examining the article, the Court held that Karsai’s factual statement about the historian was a “value-laden one.” [para. 33] Furthermore, it held that the statement was made in the context of a public debate about the country’s past history of totalitarianism and its hostile views against Jews. As a result, the publication deserved “the high level of protection granted to the press in view of its functions.” [para. 35] The Court added that the right-wing historian had publicly written articles on the same subject and thereby, he had voluntarily exposed himself to public criticism. Lastly, the Court assessed the nature and severity of civil penalties imposed against Karsai. The Court determined that the order to retract the impugned statement was capable of producing “a chilling effect” because such imposition could adversely affect Karsai’s professional credibility as a historian.
Accordingly, the European Court of Human Rights found Hungary in violation of Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court introduced the notion of value-laden statement of facts. The ruling reiterated that public debates require a higher level of protection. According to the Court, ordering the ratification of a statement can cause a chilling effect in a democratic society.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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