Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Expands Expression
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The European Court of Human Rights held that a publisher’s right to freedom of expression had been violated when a Croatian court ordered the publisher to pay excessive damages to a judge who had been the subject of a caustic article in a weekly magazine. After domestic courts had found that the article was offensive and amounted to a gratuitous personal attack on the judge, the publisher approached the European Court of Human Rights. The Court held that the functioning of the judicial system was a matter of public interest, and that the excessive award of damages could “discourage open discussion of matters of public concern” and was therefore a violation of article 10 of the European Convention on Human Rights [para. 71].
On November 23, 2006, Z. S-K, a judge at the Zadar Municipal Court in Croatia, reported to the police that A.M., a photojournalist at Narodni List, a Croatian weekly magazine, had been secretly taking photographs of her outside the court building. The police questioned A.M. who said he was merely taking photographs of the building and the court employees under the instruction of Narodni List’s editor. A.M. was released, but Z. S-K filed a criminal complaint under article 131 of the Criminal Code that A.M. had made an unauthorized recording. The following day the police questioned A.M. again and requested a warrant from Judge B.B. at the Zadar Municipal Court to search his camera and Narodni List’s computers. No photos of Z. S-K. were found and, on December 12, 2006, in the absence of incriminating evidence, the Zadar Municipal State Attorney’s Office dismissed the criminal complaint against A.M.
Two years later, Judge B.B., who had issued the warrant to search Narodni List‘s premises attended the opening of another newspaper in Zadar started by a controversial local entrepreneur. On October 31, 2008, Narodni List published an article entitled “Judge B. should be put in the pillory”, referring to the event the judge attended which the magazine said violated the Code of Judicial Ethics because of a potential conflict of interest. The article made reference to the incident with A.M. and Z. S-K and B.B.’s role in issuing the warrant which the article described as illegal [para. 11].
B.B. requested an apology from Narodni List, and when the magazine refused, brought a civil action for defamation against the publisher of the magazine at the Benkovac Municipal Court (Općinski sud u Benkovcu), seeking 50,000 Croatian kunas (HRK) for non-pecuniary damage. B.B. argued that the article constituted an “open invitation to lynch him” and that it had harmed his reputation by calling into question his moral and professional integrity by insinuating that he had broken the law while exercising his duties as a judge [para. 12].
On March 10, 2010, the Municipal Court held that the Narodni List article had “exceeded the bounds of the freedom to publish information” and was “contrary to journalistic ethics” and had harmed B.B.’s “reputation, honor and dignity as an individual and as a judge of the Zadar County Court” [para. 14]. The Court ordered the publisher to pay B.B. 50 000HRK (€6,870 at the time) as compensation for the damage to his reputation and 6 005HRK (€825) for legal costs.
Narodni List appealed the decision to the Split County Court which dismissed it on December 3, 2010. The Court held that the article represented a grave personal media attack on the judge “settling scores with [him] in a very rude way, because of [Narodni List’s] dissatisfaction with a decision that [B.B.] adopted in the exercise of his duty as a judge” [para. 15].
Narodni List then filed a constitutional complaint with the Constitutional Court arguing that its rights to fair procedure and to freedom of expression under the Constitution and article 10 of the European Convention on Human Rights (the ECHR) had been violated. On October 19, 2011, the Constitutional Court dismissed the application, holding that the right to freedom of expression was not absolute and that the lower courts had applied the law correctly in finding in B.B.’s favour [para. 17].
Narodni List approached the European Court on Human Rights arguing that the Zadar Municipal Court’s judgment awarding damages to B.B. on the grounds that the article had harmed his reputation was a violation of the magazine’s right to freedom of expression under article 10.
The central issue for the European Court of Human Rights to determine was whether the judgment issued against Narodni List was necessary in a democratic society and so constituted a legitimate limitation of the magazine’s right to freedom of expression under article 10. The Court noted that the case “concerns in particular the freedom of the press in criticising judges as to how they discharge their duties” [para. 57].
Narodni List argued that the Croatian courts had not provided sufficient reasons for their judgments, and particularly had not “defined the limits on the freedom of journalists to express value judgments” [para. 36]. In addition, the magazine argued that the allegedly insulting character of the impugned article “reflected the general atmosphere in society” and “matched the level of arbitrariness in decision-making” in respect of the warrant issued by B.B. [para. 37]. The magazine added that the award of damages to B.B. had “instilled fear in the journalists of Narodni List … and had consequently led to self-censorship” [para. 37].
The Croatian government acknowledged that the award of damages was an infringement of Narodni List’s right to freedom of expression but argued that it was legitimate because it was lawful, pursued a legitimate aim and had been necessary in a democratic society as the article had not contributed to any public debate [para. 42]. The government submitted that although a judge should expect criticism as a public figure “a clear distinction had to be made between criticism and insult” [para. 43]. In addition, the government argued that the article had included no factual and contextual background to support the claims that B.B. had violated the Code of Judicial Ethics and that the article had “jeopardized the confidence the local public had in him and in the entire court” [para. 46]. Accordingly, the government submitted that the article constituted a “gratuitous personal attack on Judge B.B. which did not enjoy protection under Article 10” [para. 49].
The Court accepted that the judgment ordering Narodni List to pay B.B. compensation constituted an interference with the company’s freedom of expression. Applying the three-part test to determine the legitimacy of the interference, the Court also accepted that this interference was “prescribed by law” as it was based on the relevant provisions of the Media Act, 2006 and the Obligations Act, 2006 and pursued the legitimate aim of protecting the reputation of B.B.
In analyzing whether the interference was “necessary in a democratic society”, the Court recognized that the right to protection of reputation was protected by article 8 of the ECHR as part of the right to respect for private life. With reference to its decisions in Axel Springer AG v. Germany App. No. 39954/08 (2012) and Bédat v. Switzerland App. No. 56925/08 (2016), the Court noted that when assessing an interference with article 10, article 8 only comes into play when an attack on a person’s reputation attains a certain level of seriousness and in a manner causing prejudice to personal enjoyment to the right to respect for private life. The Court held that the Narodni List article did amount to such attack on B.B.’s reputation.
The Court stressed that the rights in articles 8 and 10 deserve equal respect and noted that “[i]n cases which require the right to respect for private life to be balanced against the right to freedom of expression, the outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the news report, or under Article 10 by the publisher” [para. 55].
The Court emphasized “the essential role played by the press in a democratic society” and that it has a duty “to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest” [para. 58]. However, the Court noted that protection afforded to journalists by article 10 is “subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism” [para. 58].
The Court held that questions concerning the functioning of the judicial system were of public interest and that “[t]he press is one of the means by which politicians and public opinion can verify that judges are discharging their heavy responsibilities in a manner that is in conformity with the aim which is the basis of the task entrusted to them” [para. 59].
The Court noted that article 10 provided little scope for restricting political speech or debate on matters of public interest, and stated that “a high level of protection of freedom of expression, with the authorities thus having a particularly narrow margin of appreciation, will normally be accorded where the remarks concerned a matter of public interest, as is the case, in particular, for remarks on the functioning of the judiciary” [para. 60]. The Court balanced this against the need to protect the judiciary to ensure it retains public confidence. Accordingly, the Court held that it “might therefore be necessary to protect such confidence against gravely damaging attacks that are essentially unfounded, especially in view of the fact that judges who have been criticised are subject to a duty of discretion that precludes them from replying” [para. 61]. But the Court emphasized that, because “judges form part of a fundamental institution of the State”, they “may thus be subject to wider limits of acceptable criticism than ordinary citizens” [para. 62].
Applying the principles to the present case, the Court held that the Narodni List article sought to draw the public’s attention to the functioning of the justice system by highlighting two events in which the magazine believed B.B. had acted in a manner “unbecoming of a judge” [para. 63]. The Court noted that even though the article was “coloured by Narodni List journalists’ personal experience and discontent with that particular judge” it nevertheless concerned an issue that was in the public interest [para. 63].
In ascertaining whether the article constituted a value judgment or amounted to factual allegations, the Court acknowledged that it can be difficult to differentiate between the two. The Court took into consideration the general circumstances of the case and the tone of the remarks and stressed that the interpretation of the nature of statements like these is primarily a responsibility for the domestic courts. Accordingly, the Court accepted the domestic courts’ finding that the Narodni List article constituted a value judgment [para. 67]. However, the Court held that, although the domestic courts had come to this conclusion, they had not examined whether those value judgments had sufficient factual basis.
The Court held that even though the article was “caustic, containing rather serious criticism, exaggerations … and a harsh metaphor” it was not insulting and that the use of a caustic tone in respect of comments directed at a judge is “not in principle incompatible with Article 10 of the Convention” [para. 69].
In examining the amount awarded to B.B. in damages the Court noted that the amount of €6 870 constituted two-thirds of what Croatian courts have awarded in non-pecuniary damages in respect of mental anguish caused by the wrongful death of a sibling [para. 70]. The Court stressed that the article concerned a matter of public interest and that even though the article included comments that were injurious to B.B.’s reputation and that Narodni List had not apologized to B.B. when requested, that did not entitle the domestic courts to make any award they saw fit: the Court emphasized that under the ECHR, “an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered” [para. 70].
The Court held that it was “difficult to accept that the injury to Judge B.B.’s reputation in the present case was of such a level of seriousness as to justify an award of that size [as] [t]he size of that award could, in the Court’s view, discourage open discussion of matters of public concern” [para. 71]. Accordingly, the Court held that the amount was “not proportionate to the legitimate aim of protecting the reputation or rights of others” [para. 70], was “not necessary in a democratic society” and that therefore there had been a violation of article 10 [para. 71].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The European Court of Human Rights confirmed that an excessive award of damages in a civil defamation case can constitute an infringement of the right to freedom of expression under article 10 of the European Convention on Human Rights.
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