Academic Freedom, Defamation / Reputation, SLAPPs
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Vladimir Fedorovich Kharlamov, a physics professor and the Applicant in this case, made a statement during a university-wide conference that the university’s candidate selection for the academic senate failed to include everyone, and thus, was a discriminatory selection that violated the rights of all those employed by the university. The university sued him for defamation of its business reputation.
The Russian courts of first instance and appeals found for the university and fined Kharlamov. He appealed to the European Court of Human Rights (“ECtHR”), which ruled that the Russian courts violated Kharlamov’s freedom of expression as enshrined by Article 10 of the European Convention on Human Rights (“ECHR”). The basis for the Court’s ruling was the Russian courts’ failure to balance relevant interests and to establish a pressing social need for penalizing Kharlamov.
The Applicant, Vladimir Fedorovich Kharlamov, was a tenured physics professor at Orel State Technical University. In December 2006, the University’s rector convened a university-wide conference to elect the university’s academic senate. Kharlamov, during the conference, stated that he was unhappy that he and his department were not consulted about the nominations process for candidates to the academic senate. In his statement, he explained that he felt that his rights as well as the rights of ordinary university employees had been breached. He claimed that this amounted to discrimination, and that such discrimination was a form of war.
Specifically, he said:
“… the elected academic senate may not be considered a legitimate body and its decisions likewise cannot be considered legitimate. All of them can be challenged in courts. The problem is that the staff or departments did not know anything about the candidates to the academic senate or of their academic achievements; no one nominated those candidates. This is some kind of a private party that is going on, some people have gathered and elected themselves. My rights have been violated: I, as a member of the faculty, have been excluded from the procedure which is of great importance both for me and for the university as a whole – the election of the academic senate. My rights have been breached, and I will complain to courts about the breaches of my rights. The rights of ordinary university employees, ordinary lecturers, have been breached, too: they were removed from the election to the academic senate, this is discrimination. Any discrimination is a form of war; you have declared war to the people, and sooner or later you will get the results of this war in some way or another, in your own families.”
In response, the university sued Kharlamov for defamation, claiming that he undermined the university’s and the academic senate’s professional reputation. The claim was brought under Article 152 of the Russian Federal Civil Code, which offers judicial protection to a person or entity’s reputation, and allows compensation for offenses against reputation.
In February 2007, the Sovetsky District Court heard the claim of defamation against Kharlamov. At the trial, four witnesses testified that the physics department did not hold a meeting to select delegates for the university-wide conference or candidates for the senate because the heads of departments selected the delegates and the candidates.
The District Court found that Kharlamov had publicly accused the university of violating the applicable laws and of committing dishonest acts. It found that Kharlamov’s statement could not be construed as an opinion because it was made in the affirmative form. The court explained that any negative appraisal of a legal entity affects its reputation and undermines it. Moreover, it explained that the success of the activities of a legal entity depend on a good business reputation, especially in a market economy. The court awarded Orel University RUB 20,000 in damages and RUB 2,000 in court fees. Kharlamov appealed.
In April 2007, the Orel Regional Court heard the appeal, and upheld the lower court’s decision, but partly amended it. First, the court ruled that Kharlamov’s metaphor of war did not explicitly refer to the university, and thus could not be considered to have been damaging. Secondly, the court ruled that Kharlamov’s statement about no one having nominated the candidates was true. Lastly, the court explained that Kharlamov’s claim that the elected academic senate was illegitimate was in the form of fact. However, Kharlamov’s factual reality was contrary to the actual reality, whereby the academic senate’s selection fully complied with the university’s internal regulations.
Kharlamov appealed to the ECtHR, arguing that the Russian courts’ ruling violated his freedom of expression as guaranteed by Article 10 ECHR.
First, the ECtHR looked at whether the interference with Kharlamov’s freedom of expression had a lawful basis. The Court found that it did, as Article 152 of the Russian Civil Code allowed interference to protect reputation of others.
Second, the ECtHR looked at whether Article 152 pursued a legitimate aim. However, the Court stated that interference with freedom of expression to protect the rights or reputation of others has been justified only in exceptional circumstances. Thus, instead, the Court found that the test of proportionality of the interference was more appropriate.
In considering the proportionality, the Court first looked at the necessity test: (1) whether the interference corresponded to a pressing social need; (2) whether it was proportionate to the legitimate aim; and (3) whether the reasons given by the national authorities to justify it were relevant and sufficient. In applying the test, the Court considered that it must look at the case as a whole, pursuant to a margin of appreciation.
The ECtHR highlighted that it had previously ruled that employees owe a duty of loyalty to their employers, and thus, the Court must strike a balance between the freedom of expression and the reciprocal rights and obligations specific to a professional environment. However, the Court also stressed that there exists a principle of open discussion in academic institutions.
After outlining the applicable precedent, the ECtHR found that the Russian courts failed to recognize that the case involved a conflict between Kharlamov’s freedom of expression and the university’s protection of reputation. The Court ruled so because it found that the Russian courts mainly focused on the discussion of the damage to the university’s reputation, and failed to balance the need to protect the university’s reputation and the applicant’s right to publicly make comments on issues of general interest. Additionally, the Russian courts failed to consider that the “dignity” of a person cannot be equated to that of an institution, and that an institution’s reputation does not necessarily enjoy the same protections as a person’s.
The ECtHR reiterated that a distinction must be drawn between statements of fact and value judgments: specifically, that the existence of fact can be demonstrated, whereas value judgments cannot be demonstrated. This distinction falls within the margin of appreciation of domestic courts.
The Court found that, in this case, the Russian courts focused on Kharlamov’s claim to illegitimacy of the academic senate, which they found to have been false since the university followed its internal regulation. However, the ECtHR observed that Kharlamov’s statements aimed to highlight the shortcoming of the academic senate election procedure. Thus, his statement was a personal comment on a matter of public interest. Four witnesses corroborated Kharlamov’s claim that not everyone participated in the academic senate’s candidate selection. The Court found irrelevant the Russian Government’s argument that the voting procedure complied with the university’s rules.
Lastly, the ECtHR stressed that employees are entitled to some exaggeration and hyperbole when making statements, as long as they do not cross the threshold of admissible criticism. In this case, Kharlamov’s statements did not go beyond the generally accepted degree of exaggeration.
Based on the above, the ECtHR concluded that the Russian courts failed to fairly balance the relevant interests and to establish a pressing social need for protecting the university’s reputation over Kharlamov’s freedom of expression. Therefore, there was a violation of Article 10 ECHR.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision is a scant criticism of content analysis that Russian courts often apply in cases concerning freedom of expression. The ECtHR explicitly states that Russian courts focus too much on whether the statements made by Kharlamov were damaging, rather than trying to balance his right to expression against the university’s right to defend its dignity.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Employees owe to their employer a duty of loyalty, reserve and discretion.
Case significance refers to how influential the case is and how its significance changes over time.
The decision warns against courts focusing solely on content analysis within the ECtHR jurisdiction.
Let us know if you notice errors or if the case analysis needs revision.