Case Summary and Outcome

The European Court of Human Rights (ECtHR) found that the applicant’s (the managing director of a company) criminal conviction for slanderous defamation by Greek domestic courts was a disproportionate violation of his right under article 10 of the Convention. This conviction related to official company documents issued by the applicant in his capacity as managing director in private correspondence to the former legal advisor (a Ms. L.P.) of the company, where he berated her for unprofessional and unethical conduct in her legal advisory role. The first-instance Misdemeanour Court of Athens, the appellate court, and the Court of Cassation successively found the applicant to be guilty on grounds that he had not adduced proof of the factual truth of his statements, and he had published the statements by letting them be known to the lawyer drafting them, the bailiff serving them on Ms. L.P., and the residents of the building where Ms. L.P.’s office had been located because in her absence the bailiff had affixed the documents to Ms. L.P.’s door. The ECtHR found the conviction to be prescribed by law, and pursuing a legitimate aim, but disproportionate because the domestic courts’ reasoning had been insufficient. The applicant’s statements had been a mixture of facts and value judgements backed by facts, and not only facts as the domestic courts had determined. Further, the domestic courts had failed to accurately assess their limited adverse impacts on Ms. L.P.’s reputation as there was no proof they had been published publicly, and there was no indication the courts factored in the disputatious context subsisting between the applicant and Ms. L.P. Finally, the sentence was disproportionate notwithstanding its suspended nature, because the applicant’s criminal record was not expunged and such criminal sanctions were bound to have a chilling effect.

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Facts

On November 5, 2007 the applicant, Theodoros Matalas, a Greek national, was appointed CEO of a company. On that day he asked all the company’s employees and advisors, including Ms. L.P – the company’s legal advisor, to furnish details of matters pending under their care, so he could accurately assess outstanding issues affecting the company. Ms. L.P. provided an in-person, oral report about pending cases involving the company on November 10, 2007. On November 23, 2007, she sent in a written report to the same effect. The applicant questioned the report’s accuracy because it was only six lines long and noted in very “general terms” that there were no pending cases involving the company [para. 6].

Thereafter, on December 11, 2007, the applicant informed Ms. L.P. through an official document that she had been removed. On January 14, 2008, Ms. L.P. was asked to return all files relating to legal issues concerning the company, and to collect her personal effects from the office. On January 24, Ms. L.P. agreed. When she visited the company to deliver the files, the applicant was not present. Thereafter, he alleged that she had still not provided all relevant information about the company’s pending legal interests.

Thus, on February 4, 2008, the applicant sent Ms. L.P. an official document condemning her “unprofessional and contrary to ethics behaviour” by not informing the company of the status of legal matters involving the company, and attributing it to a “malicious intention” on her part to “harm the company’s interests” as revenge for her removal. He further alleged that the information she had provided to the company so far had been “incomplete and erroneous” [para. 9].

On April 22, 2008, Ms. L.P. filed a criminal complaint against the applicant for “slanderous defamation” in the document of February 4, 2008 [para. 10].

On November 26, 2014, despite arguing that he had no intention to defame, the applicant was found guilty of slanderous defamation and received a suspended sentence of ten months imprisonment by the first-instance Misdemeanour Court of Athens. The decision was appealed and heard on October 7, 2015, by the three-member Misdemeanour Court of Athens.

The applicant argued that the February 4 document was factually accurate as Ms. L.P. had failed to inform the company of pending legal cases. He referred to an incident on 14 January 2008, where an opposing party’s counsel had informed him of a trial on the following day that Ms. L.P. had said was scheduled for February 15, 2008. He alluded to Ms. L.P.’s agreement on January 24, 2008 to hand in all documents relating to the company, only after sending her several official documents. He also stated that he had made the statements to protect company interests in his capacity as managing director and so was protected under article 367 of the Criminal Code. However, the appellate court held that the applicant’s choice of words had not been necessary to protect company interests, and the February 4 letter had included “lies” because there was no proof that Ms. L.P. had not fully informed the company of pending legal interests. The new legal advisor’s deposition was irrelevant as she had not been present at meetings with Ms. L.P. Further, the employee who took delivery of documents from Ms. L.P. had not made any remarks at that time. Additionally, the allegations against Ms. L.P were known by the lawyer drafting notices against her, as well as the people in her office building because the notice had been attached to her door. The applicant was thus given a suspended sentence of eight months and his argument that he should be given a more lenient sentence because he had lived thus far an honest life was rejected.

The applicant appealed on grounds of erroneous interpretation of articles 362 and 367 of the Criminal Code by the appellate court, erroneous findings that his statements were false and had been disseminated publicly, and the erroneous rejection of his argument of extenuating circumstances based on proof of his honest life.

On May 25, 2017, the Court of Cassation quashed the part of the appellate court judgement which rejected the applicant’s argument as to extenuating circumstances. The remainder of the decision was upheld. The case was remitted for a rehearing on the extenuating circumstances argument which was accepted and the applicant was given a suspended sentence of five months.

In light of these events, the applicant brought a case before the European Court of Human Rights, against the respondent state – Greece, claiming that his criminal conviction for slanderous defamation was a violation of his right to freedom of expression under article 10 of the Convention.

The applicant argued that his statements were factually accurate and evidence had been adduced in the domestic courts to that effect. He had further acted in his capacity as managing director and had addressed documents outlining L.P.’s actions in a document solely addressed to her. This was to protect the company interests and was not intended to offend her or be shared with the public. A bailiff engaged in serving official documents was not considered a “third person” under domestic law. The applicant contended that the official document asked Ms. L.P. to apprise the company of its legal interests, in her capacity as a lawyer.

The government argued that freedom of expression did not extend to the right to spread facts that could injure the reputation of others, especially if false. Domestic courts had ascertained that the applicant disseminated false information about Ms. L.P. to an indefinite number of people which could have harmed her reputation. The applicant was aware of the falsity of his statements and had injured Ms. L.P.’s reputation. Nevertheless, if an interference in the applicant’s right was found, the interference had been prescribed by articles 362 and 363 of the Criminal Code, and sought to protect Ms. L.P. reputation (evincing a legitimate aim). It was also necessary in a democratic society because the domestic courts had struck a ‘fair balance’ between competing interests. Ms. L.P. was not a political figure subject to a wider degree of criticism, and the statements regarding her conduct were not issued in general public interest. The applicant’s sentencing had also been proportionate and not severe.

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Decision Overview

The matter before the court pertained to a claim of violation of the article 10 right to freedom of expression by virtue of the applicant’s criminal conviction for slanderous defamation. The Court unanimously held that the applicant’s rights under article 10 had been violated. While the interference was adequately prescribed by law under articles 362 and 363 of the Criminal Code (pertaining to defamation), and pursued the legitimate aim of protecting the rights and reputation of others under article 10(2) of the Convention, it failed to meet the standard of “necessary in a democratic society”.

At the outset, the Court reiterated that freedom of expression was one of the “essential foundations of a democratic society”, noting that it also encompassed ideas and information that could be seen as offensive, shocking or disturbing under the demands of “pluralism, tolerance and broadmindedness”. Necessity implied a “pressing social need” and states had a margin of appreciation in ascertaining this, subject to supervision. Thus, the Court would look to whether the interference was proportionate to the legitimate aim and whether the reasons for it were “relevant and sufficient” (Handyside v. UK).

The Court noted that under the Convention, both article 10 protecting freedom of expression and article 8 guaranteeing a respect for private life, deserve equal respect (Perinçek v. Switzerland). However, there is a need to strike a balance between the values protected by articles 8 and 10 of the Convention. Thus, article 8 claims are maintainable only when the attack on a person’s reputation is of a certain seriousness and in a manner prejudicing the right (Bédat v. Switzerland), but is not a foreseeable consequence of that person’s own actions (Axel Springer AG v Germany).

To determine the appropriate approach for the present case, the Court assessed as relevant – a holistic view of the case, the form of the remarks, their content and their context. Accordingly, it was noted that while the accusations against Ms. L.P. concerned her unprofessional and unethical behaviour, and did not allege criminal conduct, they were nevertheless serious in the sense of article 8 as they were capable of causing harm to her in reputation, and in professional and social contexts.

To determine the proportionality of the interference, the Court drew on principles from Zakharov v. Russia, a case concerning statements made about public officials in written complaints to the authorities. This was due to the absence of any previous jurisprudence by the ECtHR on defamation for private statements made by individuals which were not intended to be publicly disseminated. Despite relevant differences in the addressees, the Court noted that the structure of behaviour in both cases was similar i.e., documents with allegations intended to remain private. Therefore, the Court used the following principles from Zakharov in its analysis:

1. a) the nature and exact manner of communication of the statements

The Court noted that while value judgements can have a factual basis, it is impossible to prove the “truth” of such judgements. Therefore, requiring such proof is an infringement of the right of freedom of expression, in itself. The state within its margin of appreciation will determine whether a statement is a value judgement or fact. Value judgements should have a sufficient factual basis (Pedersen and Baadsgaard v. Denmark), with the necessity of such a link depending on its circumstances (De Haes and Gijsels v. Belgium). In the present case, the domestic courts had classified the statements alleging Ms. L.P. had failed in her professional duties as “facts” and so found them to be false. However, the Court found this conclusion was not reasoned as the domestic courts had merely examined whether the expressions could be damaging to the plaintiff, but the role of the domestic courts does not extend to dictating the style of comments the defendant should have adopted. The Court concluded that the applicants’ statements had been a mix of fact and value judgements backed by fact.

While assessing the truthfulness of the allegations was a task for the domestic courts, the Court found that they had not sufficiently reasoned why the applicant’s statements were false in the face of evidence adduced by the applicant. The Court further noted that the applicant’s language was not “strong, vexatious or immoderate”, and criticism and insult were differentiated in case law for the purposes of justifying sanctions (illustratively, Skalka v Poland). Finally, since the applicant had sent the official document privately in correspondence, and had neither published it nor made it available “outside the proper channels of complaint” (contrast here with Puzinas v Lithuania), their negative reputational impact was limited [para. 55].

1. b) the respective context within which they were made

The Court observed that the statements were made in the context of a dispute between a managing director of a company and its former legal advisor. The Court noted that appreciation of this context was absent from the reasoning of the domestic courts.

(c) the extent to which they affected the person concerned

The Court also noted that the domestic courts had inaccurately assessed the limited impact the documents could have had on Ms. L.P.’s reputation. It was private correspondence, not intended for public dissemination. The document had been attached to Ms. L.P.’s door according to the procedure prescribed by the Code of Civil Procedure, in a sealed envelope. Furthermore, the lawyer and bailiff were only familiarized with its contents in the course of their duties, and the residents of Ms. L.P.’s building could not have known the contents of the sealed envelope.

(d) the severity of the sanctions imposed on the applicant

With regards to the nature and severity of the sanction, the Court reiterated that criminal sanctions for defamation were not disproportionate ipso facto (Radio France and Others v. France), but since alternatives in civil remedies were available, criminal penalties were to be levied only in exceptional circumstances such as situations of severe impairment of fundamental rights through hate speech or incitement to violence (Cumpănă and Mazăre v. Romania). The Court did not assess the present situation as exceptional in light of the nature of the statements, the manner of their communication, their context, and their possible effects. The sanctions were bound to have a chilling effect, and the suspension of the sentence did not mitigate this because the conviction was not expunged (Paraskevopoulos v. Greece).

Thus, the Court found article 10 breached through a disproportionate interference with the applicant’s rights, and the respondent state was asked to pay the applicant non-pecuniary damages as well as related taxes, costs, expenses, and interest.

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