Content Regulation / Censorship, Protection of Sources, Defamation / Reputation
Marena v. Auler
Closed Expands Expression
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The European Court of Human Rights held that a fine that had been imposed by the Slovakian Broadcasting Council against a television company for harming the dignity of the recently deceased Polish President amounted to a violation of the right to freedom of expression. The case concerned a television broadcast regarding the tragic death of the Polish President Lech Kaczynski in a plane crash. The Slovakian authorities found that the manner in which the program was presented, particularly the use of the expression “I am sorry, but I do not pity the Poles. I envy them”, showed a lack of regret for the Polish President’s death and harmed his human dignity. The European Court of Human Rights found that the program did not constitute a gratuitous personal attack on the Polish President and was, instead, within the margin of acceptable political expression.
The case arose from a television commentary entitled “[c]ompassion in Accordance with Protocol” that was broadcast on the Slovakian programme JOJ PLUS on April 12, 2010, two days after the crash that led to the death of the Polish President Lech Kaczynski. The programme made reference to the condolences coming from different sides of society in response to the President’s death, it criticized the political policies of the late President, and it concluded with the line: “I am sorry, but I do not pity the Poles. I envy them.”
The Broadcasting Council of Slovakia initiated an administrative procedure against the broadcaster of JOJ PLUS, MAC TV, under section 19(1)(a) of the Broadcasting and Retransmission Act. The Broadcasting Council found that the way in which the content of the programme was presented harmed the dignity of the President, and fined the company 5,000 EUR. It focussed primarily on the last two sentences of the commentary (“I am sorry, but I do not pity the Poles. I envy them”). The Broadcasting Council considered that the commentator’s right to express themselves in a sarcastic, critical or ironic way was an inherent part of journalistic expression. However, it concluded that the degree of sarcasm and irony on this occasion “had been so high that its content and the manner in which the author’s opinion had been presented had been sub-standard and had dishonoured the late President.” [para. 10] The Broadcasting Council stated further that the imposition of the fine was “necessary in a democratic society” as it served the “legitimate aim” of protecting the right to human dignity.
The broadcast company, MAC TV, appealed against the decision. The domestic courts upheld the reasoning of the Broadcasting Council. For instance, the Constitutional Court found that the lower courts’ decisions were not arbitrary and were duly explained. The Constitutional Court also noted that the commentary had harmed the late Polish President’s dignity by expressing a positive attitude toward his death.
Subsequently, MAC TV filed an application to the European Court of Human Rights complaining that its right to freedom of expression had been violated by the decision of the Broadcasting Council. The applicant company argued that they were expressing a political opinion with regards to the conservatism of President Kaczynski, and were commenting upon his death as the end of a political era. The Slovakian Government argued that a part of the commentary expressed satisfaction over the President’s death and that amounted to an interference with his human dignity. They also argued that the financial sanction imposed was minimal, did not have a significant impact on the company’s business, and did not have a “chilling effect” on its activities. The Media Legal Defence Initiative (MLDI), intervening as a third party in the case, argued (among other things) that an individual’s right to reputation did not survive the death of that individual.
In its judgment, the European Court of Human Rights (Court) recognized that the decision of the Broadcasting Council was an interference with the right to freedom of expression that was prescribed by law, namely section 19(1)(a) of the Broadcasting and Retransmission Act. When considering whether the purpose of protecting a deceased person’s reputation constituted a “legitimate aim” under Article 10(2) of the Convention, the Court decided that it was not necessary to reach a general conclusion on such a point.
Instead, the Court found on the specific facts of the case that the restriction was not “necessary in a democratic society”. Firstly, the Court noted that the company was the provider of private TV channels that was fined by the Broadcasting Council for a political view expressed following the death of the Polish President Kaczynski. The Court highlighted the importance of free political debate in a democratic society and that strong reasons are required to restrict such debates. The Court also indicated that politicians, such as the Polish President, were subject to wider limits of acceptable criticism compared to private individuals. The Court concluded that the commentary was of public interest as it gave the applicant’s reaction to the political governance of the late Polish President and his political conservatism.
The Court also observed that while the domestic authorities claimed to have considered the general context of the programme, they essentially based their decision on the last two lines of the piece (“I am sorry, but I do not pity the Poles. I envy them”). The Court held that the national authorities’ approach was too narrow in scope, and failed to consider the commentary in its overall context. The Court went on to conclude that “the commentary, seen in its context, cannot be understood to have constituted a gratuitous personal attack on, or insult to [President] Lech Kaczynski.” [para. 49] Although some of the statements in the piece were strong, the Court did not find that the company had overstepped the limits of acceptable exaggeration or provocation tolerated under the Convention right to freedom of expression. Moreover, the Court could not accept that the final two lines related to the human tragedy that was the death of the late President, but rather it found that they continued the commentary that went before on the former President’s policies.
The Court also considered the nature of the contested proceedings. The Court was critical of the fact that the Broadcasting Council initiated administrative proceedings against the applicant company on its own initiative to protect the dignity of the deceased Polish President. It did not act upon the request of the President’s close relatives or any Polish authorities.
The Court concluded national authorities failed to demonstrate that the interference was “necessary in a democratic society” and, therefore, there had been a violation of Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands freedom of expression. The European Court of Human Rights found a violation of the right to freedom of expression because a media outlet had been penalized for publishing controversial statements following the death of a well-known politician. In its judgment, the European Court of Human Rights highlighted that, even after death, politicians must expect a greater degree of criticism compared to private individuals. Most interestingly, the European Court of Human Rights also threw into doubt the power of regulatory bodies to institute administrative proceedings on their own initiative for breaches of regulatory codes concerning defamation of the dead.
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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