Defamation / Reputation
Johnson v. Steele
Closed Expands Expression
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The European Court of Human Rights held that the criminal defamation conviction of a mayor for criticizing the head of a nuclear pollution watchdog agency violated his right to freedom of expression. The mayor had suggested, during a TV debate, that the former head of the French Office for Protection against Ionizing Radiation had failed sufficiently to protect the population from the radioactive fallout from the Chernobyl nuclear accident. The Court emphasized that as an elected representative, a mayor should have great latitude to raise criticism on issues of public concern.
In October 1999, Noël Mamère, mayor of Bègles and the city’s deputy to the French National Assembly, took part in a televised debate. In response to another guest’s discussion of the Chernobyl nuclear accident in 1986, he said:
“Only a few weeks ago some mushrooms imported into France were found to contain caesium and that is the result of Chernobyl. I was presenting the 1 o’clock news on the day of the Chernobyl disaster in 1986; there was a sinister character at the SCPRI called Mr. Pellerin who kept on telling us that France was so strong – the Asterix complex – that the Chernobyl cloud had not crossed our borders.”
At the time of the Chernobyl disaster, Pellerin was the head of the Central Service for Protection against Ionizing Radiation. He was later subsequently placed under a government investigation as persons with thyroid cancer brought series of civil actions alleging that his office had failed to protect the public from radioactive fallout from the Chernobyl accident, and that official authorities had lied and played down the pollution.
In January 2000, prior to the civil lawsuits being lodged, Pellerin brought a criminal defamation action against Mamère over his televised comments, alleging public defamation of a civil servant under Sections 29 and 31 of the Freedom of the Press Act of 1881. He also brought proceedings against the television channel that had aired the TV show, France 2, and its director of publication.
In October 2000, the court found both Mamère and the director guilty of criminal defamation and sentenced each to a 10,000 French Francs fine and, jointly and severally, to pay 50,000 French Francs in damages. They were also ordered to publish an acknowledgement of the judgment in a newspaper, at their own cost.
Following unsuccessful appeals to the Paris Court of Appeal and the Criminal Division of the Court of Cassation, Mamère lodged an application with the European Court of Human Rights, complaining that his right to freedom of expression had been violated.
Mamère argued that the criminal defamation conviction violated his right to freedom of expression under Article 10 of the European Convention on Human Rights. He specifically argued that his impugned remarks concerned a very serious public health issue as they referred to the Chernobyl disaster.
The main issue before the Court was whether the criminal defamation conviction was “necessary in a democratic society” for the protection of Pellerin’s reputation. In assessing this question, the Court emphasized that while freedom of expression is not an absolute right and States have a certain margin of appreciation in assessing restrictions, in this case “the applicant’s remarks concerned issues of general concern, namely, protection of the environment and public health”. The Court stressed furthermore that “the applicant was undeniably speaking in his capacity as an elected representative committed to ecological issues, so his comments were a form of political or ‘militant’ expression.” [para. 20]
In light of this, the Court first held that Mamère should have had the opportunity to present a defence of truth and good faith. The Court reiterated that, “people prosecuted as a result of comments they make about a topic of general interest must have an opportunity to absolve themselves of liability by establishing that they acted in good faith and, in the case of factual allegations, by proving they are true.” [para. 23]
Furthermore, the Court emphasized that while those who take part in a public debate of general concern “must not overstep certain limits, particularly with regard to respect for the reputation and the rights of others, a degree of exaggeration, or even provocation, is permitted … [A] degree of immoderation is allowed.” [para. 25] The Court found that Mamère’s remarks were within the limits of such admissible exaggeration or provocation. It found that the reference to Pellerin as a “sinister character” concerned not him as a person, but as a representative of a body that had been in the forefront of informing the public about the effects in France of the Chernobyl accident. The Court also found that Mamère’s use of the phrase “kept on telling us…” was a reference to Pellerin’s numerous public statements, and not an allegation that he lied to the public. The Court concluded that the domestic court’s finding of lack of good faith revealed a “particularly inflexible interpretation of the applicant’s remarks, which is not easy to reconcile with the right to freedom of expression.” [para. 26]
Furthermore, the Court took particular note that the impugned comments criticized Pellerin in his official capacity, as the head of the institution in charge of protecting the health of the general public. The Court emphasized that while “it cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent to which politicians do, in certain cases civil servants acting in an official capacity are subject to wider limits of acceptable criticism than ordinary citizens.” [para. 27] The Court also stressed that “the requirements of protecting civil servants have to be weighed against the interests of freedom of the press or of open discussion of matters of public concern.” [para. 27] The Court took into account in particular that one of the main tasks of the SCPRI, of which Pellerin was the director, was to monitor radiation levels in the country and alert the relevant ministries in the event of a problem. Furthermore, at the time when the remarks at issue were made, the SCPRI no longer existed and Pellerin had retired.
On the basis of these considerations, the Court concluded that Mamère’s conviction for defamation could not be considered proportionate and therefore “necessary in a democratic society” within the meaning of Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment of the European Court of Human Rights expands freedom of expression. It emphasizes the need for strict scrutiny of defamation convictions where the alleged defamatory remarks were made by an elected representative against a public servant acting in his or her official capacity, and the remarks concerned a matter of public concern.
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.
As a judgment of the European Court of Human Rights, this is binding on the parties ot the case and sets an authoritative interpretation of the Convention for other States. The case has been cited in several other judgments and is an important part in the Court’s jurisprudence on the level of criticism of their functioning that public officials should tolerate.
The case has been cited in standard-setting judgments outside Europe, notably by the Inter-American Court of Human Rights.
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