Case Summary and Outcome

The Grand Chamber of the European Court of Human Rights upheld the Chamber’s finding that there had been no violation of Article 10 by the national courts in finding that four NGOs had damaged the reputation of Ms. M.S., a candidate for director of a public radio station, because they had failed to verify the truthfulness of allegations contained in a letter they sent to local government offices. The Grand Chamber carried out a comprehensive analysis in considering whether the national courts’ interference was necessary in a democratic society in that it was justified and proportionate and, subsequently, whether a fair balance between the applicants’ Article 10 rights and Ms. M.S.’s Article 8 rights had been struck. In particular it reasoned that: the fact that the allegations were contained in a private letter to a limited number of people did not eliminate the potential harmful effect while their subsequent publication had the potential to aggravate that harm; the applicants, like the press, were  required to verify the veracity of their allegations; and that the order awarding joint damages of EUR1,280 against the applicants and requiring them to retract the letter within fifteen days was not disproportionate.

Facts

Four non-governmental organizations from Brčko District of Bosnia and Herzegovina wrote a letter to several local government offices, protesting the appointment of a new director for the district’s public radio station. They specifically complained that the nomination process completely disregarded the required proportional representation among different ethnic groups and that the candidate was not qualified for the position as she had made a number of degrading statements about Muslims. The letter was subsequently published by three different daily newspapers. The candidate brought a civil defamation action against the NGOs.

In September 2004, the Brčko District’s court of first instance dismissed the judgment, holding that the NGOs could not be held liable for defamation because they did not publish the letter. On appeal, the district’s appellate court reversed the dismissal finding that the letter contained false statement of facts which were damaging to the candidate’s reputation. The judgment was upheld by the Constitutional Court of Bosnia and Herzegovina.

In October 2015, the Chamber of the Fourth Section of the European Court of Human Rights (ECtHR), by a majority of four to three, found no violation of the right to freedom of expression under Article 10 of the European Convention. For the purposes of assessing the defamation judgment as an interference under Article 10 of the Convention, the Chamber first noted the uncontested facts that the judgment was prescribed by law, namely under Section 6 of the Defamation Act of 2003 and that it pursued the legitimate aim of protecting the reputation of the candidate. As such, the main issue before the Court was whether the interference was “necessary in a democratic society” within the meaning of Article 10(2) of the Convention, which “requires the Court to determine whether [the interference] corresponded to a ‘pressing social need,’ whether it was proportionate to the legitimate aim pursued, and whether the reasons given by the national authorities to justify it are relevant and sufficient.”

The Chamber held, in particular, that the domestic courts had made a distinction between statements of facts and value judgments and that, relying on the available evidence, they had correctly concluded that the applicants had acted negligently by simply reporting Ms M.S.’s alleged misconduct without making a
reasonable effort to verify the accuracy of those allegations. It also found that the award of damages made against the applicants had not been disproportionate. It concluded therefore that the domestic courts had struck a fair balance between Ms M.S.’s right to protection of her reputation and the applicants’ right to report irregularities about the conduct of a public servant to the body competent to deal with such complaints and that the reasons given to justify their decisions had
been “relevant and sufficient” and met a “pressing social need”.

On January 8, 2016 the applicants requested that the case be referred to the Grand Chamber and on March 14, 2016 the panel of the Grand Chamber accepted that request. A hearing was held on August 31, 2016

Decision Overview

The Grand Chamber agreed with the Chamber that the decision of the Brčko District Court of Appeal holding the applicants liable for defamation constituted an interference with their right to freedom of expression, that the interference was prescribed by section 6 of the Defamation Act of 2003 and that it had pursued a legitimate aim (protection of the reputation or rights of others). In order to determine whether the interference was necessary in a democratic society, the Grand Chamber examined various factors and the following in particular.

In ruling on the applicants’ liability for defamation, the domestic courts had relied on the applicants’ letter alone, without having regard to its publication in the local press. Four statements in that letter had contained allegations of wrongdoing on the part of M.S.  in the workplace and a comment in a newspaper, of which she was allegedly the author, showing contempt for different ethnic and religious segments of Bosnian society. The allegations had been liable to portray M.S. as a person who was disrespectful and contemptuous in her opinions and sentiments about Muslims and ethnic Bosniacs and the nature of the accusations had been such as to seriously call into question her suitability for the post of director of the Brčko District radio for which she had applied and for her role as editor of the Brčko District’s entertainment program in a multi-ethnic public radio station.

That these allegations had been submitted to a limited number of State officials by way of private correspondence had not eliminated their potential harmful effect on the career prospects of M.S. as a civil servant and her professional reputation as a journalist. The applicants’ accusations about M.S. had also been leaked to the press and it was conceivable that their publication had opened a possibility for public debate and aggravated the harm to her dignity and professional reputation.

With regard to the authenticity of the information disclosed to the authorities, the applicants, like the press, were bound by the requirement to verify the veracity of their allegations, that requirement being inherent in the Code of Ethics and Conduct for NGOs and in the context of the “responsibilities” in the operation of NGOs. That the impugned allegations had been communicated to the State authorities by means of private correspondence, albeit an important consideration, had not conferred wholly unrestricted freedom on the applicants to submit unverified aspersions. Accordingly, the Court of Appeal held that the applicants had not “proved the truthfulness of these statements which they knew or ought to have known were false”, and the Constitutional Court found that those statements had concerned “manifestly untrue facts” and that the applicants “[had] not [made] reasonable efforts to verify the truthfulness of those statements of fact before reporting, but [had] merely made those statements”. The Court therefore concluded that the applicants had not had a sufficient factual basis for their allegations in their letter.

The Court also observed that the order awarding joint damages of EUR1,280 against the applicants and requiring them to retract the letter within fifteen days or pay damages did not raise an issue under the Convention.

Accordingly, the Court held that there had been no violation of Article 10 of the Convention, as it was satisfied that the interference had been supported by relevant and sufficient reasons and had been proportionate to the legitimate aim pursued. It found that the domestic authorities had struck a fair balance between the applicants’ freedom of expression (Article 10 of the Convention), on the one hand, and Ms M.S.’s interest in protection of her reputation on the other hand (Article 8 of the Convention), thus acting within their margin of appreciation.