Defamation / Reputation
Hlynsdottir v. Iceland (no. 2)
Closed Expands Expression
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The European Court of Human Rights found that the Serbian authorities had violated Article 10 of the European Convention on Human Rights by convicting a journalist for insult after they had written an article about a well-known human rights activist. The Serbian courts had held that by failing to place the words “witch” and “prostitute” in quotation marks when referring to how others perceived the human rights activist, the journalist had tacitly endorsed the insulting words as her own. The domestic courts convicted the journalist of insult and gave her a judicial warning. The European Court of Human Rights disagreed with the approach of the national courts, and ruled that it was evident from the context of the overall article that it was describing how the human rights activist was perceived by others. The European Court of Human Rights also found that the domestic courts had failed to balance the rights and interests of both parties, and had imposed a disproportionate criminal sanction on the journalist.
The applicant, Ljiljana Milisavljević, was a journalist working for a major Serbian daily newspaper (Politika). In September 2003, she wrote an article entitled “The Hague Investigator” that was about Nataša Kandić, a Serbian human rights activist who was known for her involvement in investigating crimes committed by the Serbian forces during the armed conflicts in the former Yugoslavia. She was also one of the most vocal advocates for full cooperation of the Serbian authorities with the International Criminal Tribunal for the Former Yugoslavia (ICTY).
At the time the article was published, a majority of the Serbian population was against the Serbian authorities’ cooperation with the ICTY, and there was a heated debate about the topic. Ms. Kandić herself came under attack by a significant portion of the Serbian political elite.
The article detailed aspects of Ms. Kandić’s career, set out the prestigious awards that she had won, and described her as a “campaigner for the truth on war crimes” and a “lonely voice of reason”. However, the article also made it clear that she “provoke[d] stormy reactions” from certain people. In the article, it was said that “although [Nataša Kandić] has been called a witch and a prostitute and is permanently under threat (this year she has also had to cancel her appearance at a local TV station owing to a bomb threat), she says: ‘This is simply the part of this job. I don’t think that they hate me, only my message.’” [para. 9]
Following the publication of the article, Ms. Kandić instituted a private prosecution against Ms. Milisavljević. Ms. Kandić complained that the piece tried to belittle her, and that it had portrayed her as a traitor to Serbia and as a “paid servant of foreign interests and a prostitute who sells herself for money.” [para. 10] Ms. Milisavljević, in her defence, argued that she did not intend to insult the activist and that she was only reporting on information taken from other magazines. She said that she put citations in quotation marks, except where she was paraphrasing the other sources.
In September 2005, the First Municipal Court found that Ms. Milisavljević had committed the criminal offence of insult by referring to Ms. Kandić as a “witch” and a “prostitute”. The First Municipal Court confirmed that the impugned phrase was taken from another article written by another journalist in another magazine. However, the First Municipal Court found that, by omitting the quotation marks, Ms. Milisavljević had agreed with the statement and it became her opinion. In light of Ms. Milisavljević’s clean record, her employment, and her “mature age”, no prison sentence or fine was imposed. In July 2006, the Belgrade District Court upheld the first instance decision and agreed with its reasoning.
Following these proceedings, Ms. Milisavljević was discharged from Politika, and she believed her conviction was the reason for this.
Ms. Milisavljević subsequently brought the case to the European Court of Human Rights complaining that her conviction for criminal insult violated her right to freedom of expression as enshrined in Article 10 of the European Convention on Human Rights. She argued, in particular, that her conviction was disproportionate, and had represented a threat and warning to all Serbian journalists.
The European Court of Human Rights (Court) began by noting that it was not disputed between the parties that the conviction amounted to an “interference by public authority” Ms. Milisavljević’s right to freedom of expression under Article 10 of the European Convention on Human Rights (Convention). The Court also accepted that the provision of the Criminal Code under which Ms. Milisavljević was convicted was adequately accessible, foreseeable and formulated with sufficient precision to enable the journalist to regulate her conduct. It was, therefore, “prescribed by law”. The Court also noted that it was not disputed between the parties that the “legitimate aim” of the conviction was “the protection of the reputation or rights of others”. As a result, it was left for the Court to decide whether the conviction was “necessary in a democratic society”.
The Court relied on the general principles set forth in Axel Springer AG v. Germany; namely consideration of (a) the contribution made by the article to a debate of general interest; (b) how well known the person concerned was and the subject of the report; (c) the conduct of the person concerned prior to the publication of the article; (d) the method of obtaining the information and its veracity; (e) content, form and consequences of the publication; and (f) the severity of the sanction imposed.
The Court held that the statements were made in the context of a public debate on matters of public interest. This was because the article was published at a time when there was a heated public debate on Serbia’s cooperation with the International Criminal Court for the Former Yugoslavia. The Court also took account of the fact that Ms. Milisavljević was a journalist writing about an undeniable public figure.
Although the Court accepted that the words “witch” and “prostitute” were offensive, it concluded that it was clear from the formulation of the sentence in which they were used that this was how Ms Kandinć was perceived by others, and not by the journalist authoring the article. The Court stated that it was evident that Ms. Milisavljević was merely transmitting the opinion of others. In this regard, the Court reiterated that “a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press’s role of providing information on current events, opinions and ideas.” [para. 37] Accordingly, the Court concluded that the omission of the quotation marks alone was not sufficient to justify the imposition of a penalty on the journalist.
The Court went on to state that the domestic courts had failed to conduct any balancing exercise between Ms. Kandić’s reputation and the journalist’s right to freedom of expression. Furthermore, there was no consideration of the overall context of the article, and the findings of the domestic courts were mostly limited to the omission of quotation marks.
The Court could not agree that the article was aimed at portraying Ms. Kandić in a negative light, and noted that the article contained opinions of her that were both positive and negative. The Court could not find that the impugned words, “witch” and “prostitute”, were to be understood as a gratuitous personal attack or insult to Ms. Kandić. The Court opined that they referred to how she was perceived professionally, rather than her private or family life.
Finally, with regards the severity of the sanction imposed, the Court concluded that convicting Ms. Milisavljević for a criminal offence of insult was disproportionate. The Court could not accept that the judicial warning was a lenient sentence, and stated that “what matters is not that the applicant was issued a judicial warning ‘only’, but that she was convicted for an insult at all.” [para. 41] The Court went on to state that “[i]rrespective of the severity of the penalty which is liable to be imposed, a recourse to the criminal prosecution of journalists for purported insults, with the attendant risk of a criminal conviction and a criminal penalty, for criticising a public figure in a manner which can be regarded as personally insulting, is likely to deter journalists from contributing to the public discussion of issues affecting the life of the community.” [para. 41]
In light of the foregoing, the Court held that the Serbian authorities had violated Ms. Milisavljević’s right to freedom of expression under Article 10 of the European Convention on Human Rights. As for damages, the Court awarded 500 EUR in non-pecuniary damages to Ms. Milisavljević.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands freedom of expression since the European Court of Human Rights (Court) held that the criminal conviction of a journalist for insult violated the right to freedom of expression. The Court was particularly critical of the domestic court’s overly narrow analysis of the journalist’s article, focusing primarily on the lack of quotation marks around the allegedly insulting words. The Court recognized that such an approach may negatively impact press freedom by placing an unreasonable burden on journalists to systematically and formally distance themselves from the content of a quotation. The Court’s reasoning in this regard upholds and protects the important role that the media plays in disseminating the opinions or views of others. Also of particular note is the Court’s approach to the penalty imposed in this case. Although no term of imprisonment or fine was imposed on the journalist, the Court still recognized that convicting a journalist at all can have a deterrent effect on other journalists discussing issues of public interest. In other words, the decision did not just consider the violation of the applicant journalist’s right to freedom of expression, but also took more general and wider press freedom considerations into account.
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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