Case Summary and Outcome

The European Court of Human Rights (“ECtHR”) held that it is violation of Article 10.2. of the European Convention on Human Rights (“ECHR”) to prosecute journalists for their publications on issues of public debate that may also offend a public figure, especially a politician, even if the journalist is using evocative and exaggerated expressions.

Facts

In 2005, the private company Mladina d.d. Ljubljana (“Applicant”), owner of the “Mladina” newspapers, published an article describing a parliamentary debate regarding the adoption of the Registration of Same-Sex Civil Partnerships Act. This article also described the debate of the deputies of the Slovenian National Party, who strongly opposed adoption of this act, and especially statements of one of the deputies, S.P., who was within his speech mimicking the gestures of homosexual men which was, within this article, described by the author as a “typical attitude of a cerebral bankrupt.”

After publishing this article, S.P. pressed charges against the newspaper for defamation of his honor and reputation. The district court partially upheld S.P.’s claim and ordered Applicant to pay him damages in the amount of 2,921.05 EUR, and to publish the introductory and operative part of the judgment in “Mladina” newspapers. The Applicant appealed to the Higher Court and Constitutional Court before lodging the current complaint before the ECtHR in 2010 on the grounds that the Slovenian court decisions violated the Applicant’s right to freedom of expression within Article 10 ECHR.

Decision Overview

The ECtHR unanimously found a violation of Applicant’s Article 10 ECHR rights.

Applicant stated that, in previous cases, it was established that generally offensive speech is acceptable in certain circumstances, especially in a situation such as the present case where speech is used to contribute to public debate about a topic of public importance. Moreover, Applicant emphasized that S.P. was a public figure and that he made his statements within the National Assembly about issues of public importance and therefore must accept a higher degree of critique. Finally, as for the very words used in the disputed article, Applicant stated that this was satire with some degree of exaggeration.

The Government, on the other side, stated that the article contained inaccurate and incomplete information, since the disputed statements in fact described the mockery of a child of homosexual parents might be exposed to when picked up after school. Second, the Government argued that the fact that delegate critiqued the legislation does not allow a journalist to make insulting remarks about S.P.’s character or his personal and intellectual characteristics, since this goes beyond acceptable critique that public figure must tolerate. As for the allegation that this was the satirical expression of a journalist, the Government insisted that this article was written to inform the public about a debate that was held in the Assembly, not as a satirical article. Finally, the Government stated that the penalty was proportional since it only pressed a civil claim for damages.

The ECtHR stated that this was certainly a limitation on the freedom of expression, which was prescribed by law (Code of Obligations) and was pursuing a legitimate aim (protecting the reputation of others), and therefore the Court’s job was to determine whether this restriction was necessary in democratic society.

The Court reaffirmed once again that “although journalists are required to respect certain boundaries, in particular with regard to the reputation and rights of others, their duty is nevertheless to impart – in a manner consistent with their obligations and responsibilities – information and ideas on all matters of public interest” [para.39.]. In that regard the Court emphasized the fact that the statement was given in the parliamentary debate, on the subject of public importance and by a politician which should be treated as a public figure and therefore tolerate a higher degree of critique. Therefore, the reasons the domestic courts used to justify their decision were relevant for the purposes of the necessity test to be applied under Article 10.2 ECHR, but they were not sufficient for the following reasons.

First, the Court noted that the disputable statement must be seen in the whole context of the article, meaning that whole parliamentary speech of S.P. was quoted in the article and that this description presented the author’s value judgment and metaphor. Therefore, the Court found that the description of S.P.’s speech and conduct could be regarded as a sufficient foundation for the author’s statement. Second, the Court stated that the disputable text was following the style and provocative comments made by S.P. This being so, the Court concluded that in the light of these considerations, the statement did not amount to a gratuitous personal attack on S.P. Moreover, in this regard, the Court also noted that political incentive “often spills over into the personal sphere; such are the hazards of politics and the free debate of ideas, which are the guarantees of a democratic society” [para.46].

Being so, the ECtHR concluded that this limitation was not “necessary in a democratic society” within the meaning of Article 10.2 of ECHR and that there was violation of Article 10 of the Convention.