Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Expands Expression
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In 2001, a constitutional law professor Mustafa Erdoğan published an article in an academic journal, and this article criticized the judges on Turkey’s Constitutional Court for the courts recent decision to abolish a political party. Three of the judges mentioned in this article brought a defamation suit against Erdoğan. The domestic courts ruled that an interference with Erdoğan’s right to freedom of expression was justified because the interference was done to protect the rights of others; however, the European Court of Human Rights held that this infringement on Erdoğan’s right was a violation of Article 10 of the Convention.
The European Court of Human Rights, Second Section, identified this case’s issue as whether the interference with Erdogan’s and Kopuzlu’s rights was “‘necessary in a democratic society.’” The applicants in this case, Erdogan and Kopuzlu, claim that the domestic court violated of Article 10 of the Convention when it handed down a decision, which they believe breached their respective right to freedom of expression.
In considering the issue before it, the Court first emphasize that freedom of expression is one of the foundations in a democratic society and is also needed for society’s progress and self-fulfillment of individuals. The Court also noted that this freedom applies both to “ideas” and “information” which are inoffensive, as well as those that “offend, shock, or disturb.”
In applying the “‘necessary in a democratic society’” test, the Court must consider the threshold issue of whether the interference in question relates to a “‘pressing social need.’” Additionally, in applying this test, “the Court must determine whether the reasons adduced by the national authorities to justify the interference were “‘relevant and sufficient’” and whether the measure taken was “‘proportionate to the legitimate aims pursued.’” By considering the national authorities’ justifications, the Court verifies that national authorities are using standards consistent with Article 10. The national authority, however, must be making its determination based on facts, rather than value judgments alone. Decisions can be made using value judgments if the decision is also supported by an adequate factual basis.
Additional considerations for the Court are the balance struck by the lower courts and the application of criteria when evaluating the balance. Specifically, the Court may consider the balance between Article 8’s protection of right to privacy and Article 10’s freedom of expression. The relevant criteria when evaluating this balance are as follows: “(a) contribution to a debate of general interest; (b) how well known the person concerned is and what the subject of the publication was; (c) prior conduct of the person concerned; (d) method of obtaining the information and its veracity; (e) content, form and consequences of the publication; and (f) severity of the sanction imposed.”
The Court recognized the importance of academic works and freedoms, including freedom of expression, and freedom to conduct research, and freedom to disseminate information. These freedoms are not limited to scientific or academic research, but also cover opinions and views, even when the views are unpopular. In accordance with case law, the Court must apply “careful scrutiny” when considering limitations on these academic freedoms.
In this case, the Court determined that the article’s subject matter, the justice system, is an importation issue to a democratic society. The Court also found that judges on the Constitutional court are subject to criticism for the actions they take in their official capacity, similar to the way that politicians are subject to criticism for their acts. However, the judges are entitled to some confidences if the judges successfully carry out their duties.
The Court noted that the courts and judges do not have immunity from criticism, if “the sole intent of any form of expression is to insult a court, or members of that court, an appropriate sanction would not, in principle, constitute a violation of Article 10 of the Convention.” Though the Court found that some of the language in the article to be harsh and potentially offensive to some, the Court found that statements in the article were value judgments reflecting Erdoğan’s own views, and the statements were on issues of public debate. The Court also found that the domestic courts did not consider if these statements were value judgments or statements of facts.
The Court, taking into account the article’s full text, context, and publication in a qausi-academic journal, “Court considers that the interference with the applicants’ freedom of expression was not based on sufficient reasons to show that the interference complained of was necessary in a democratic society for the protection of the reputation and rights of others.” Therefore, the Court holds that Article 10 of the Convention was violated. Accordingly, the Court awards Erdoğan EUR 7,500 in non-pecuniary damages.
Three judges submitted a joint concurring opinion on this matter, which discusses how speech should be evaluated.
The Second Section of the Court of Human Rights (” The Court”) stated that the issue in this case was whether the interference with Erdogan’s and Kopuzlu’s rights was justified as necessary in a democratic society. The Court Emphasized its (fundamental) importance of freedom of expression in a society that calls itself a democracy and distinguished between statements of fact and value judgments. It also noted the Axel Springer criteria of balancing the right to reputation and the right to freedom of expression.
The Court noted that Article 10 of the Convention underlined the importance of academic freedom and academic works. the Court continued to state that in connection to that, academic freedom in research and in training should guarantee freedom of expression, action, to conduct research, distribute knowledge freely, and to disseminate information. The Court continued to state that this freedom is not restricted to academic or scientific research, but also extends to the academics’ freedom to freely express their opinions ( even if they are controversial) in the areas of their research, professional expertise, and competence.
The Court reasoned that the domestic courts had not attempted to distinguish facts and value judgments nor did they assess whether the article was published in good faith. The Court also thought that it was relevant that the article was published in an academic quarterly instead of a popular newspaper. The Court determined that the reasons given by the domestic courts to justify interfering with freedom of expression were not sufficient enough to show it being necessary for a democratic society.
Judges Sajo, Vucinic, and Kuris gave a concurring opinion that emphasized the importance of academic freedom and suggested that the justification of extramural academic speech is best approached by considering the need to communicate ideas. They also suggested that academic speech should have the highest level of protection and suggested a test for determining whether academic freedom has been violated.
The Court ultimately held ( amongst other things) that there has been a violation of Article 10 of the Convention and that Turkey must reimburse Erdogan.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
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.
The decision was made by the Second Section of the Court of Human Rights.
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