Defamation / Reputation
Afanasyev v. Zlotnikov
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The Grand Chamber of the European Court of Human held that Norway had violated Article 10 of the European Convention on Human Rights by finding two police officials liable for defamation. The police officials had responded to the publication of a series of reports and articles alleging police abuse and accused the author of the reports of being dishonest. The domestic courts held that the police officials’ statements were defamatory of the author. The Court found that the officials’ statements were value judgments expressing their opinions and that there was circumstantial evidence to support their statements. The Court concluded that the officials’ statements did not go beyond the boundaries of acceptable criticism under Article 10 of the Convention and that they had been made in the context of a heated public debate in which there was no room for reformulating the message or correcting the tone. The Court held that the interference in the officials’ rights was disproportionate to the legitimate aim of protecting the reputation and rights of others.
In the 1970s, a law student and an associate professor of sociology at the University of Bergen in Norway conducted an investigation on police brutality cases occurring in Bergen between January 1975 and July 1976. In 1981, a summary of the research was published in a book entitled “Violence and its Victims. An Empirical Study”. The publication initiated a long-lasting public debate on the illegal use of force on the part of Bergen’s police. Subsequently, as part of the Ministry of Justice’s efforts to address the police brutality allegations, a Committee of Inquiry was formed to confirm whether the published research had merits. Anders Bratholm, professor of criminal and procedural law, was appointed as one of the two members of the Committee of Inquiry.
In 1982, the Committee of Inquiry published a report entitled “Report on Police Brutality,” indicating that “the real extent hardly differs from the two researchers’ estimates. However, the essential point must be that even the most cautious estimates that can be made on this basis indicate that the extent is alarming” [para. 9]. The Norwegian Police Association and Morgenavisen, a newspaper, among others, challenged the truthfulness of the conclusions gathered by the Committee of Inquiry in the report of 1982 and the research material used to support the book of 1981.
Subsequently, Bratholm continued his research work independently of the Committee of Inquiry and published a number of books on police violence. “Politivold” or “Police Brutality” of 1986 was based on the 1982 report – but included new facts – and alleged that leading police officers used violence to silence victims of police brutality. It also criticized a 1983 decision of the Bergen City Court supporting an accusation made by Morgenavisen against the material research collected for the book of 1981. “Documentation of police brutality and other misconduct in the Bergen police force” of 1986, published in collaboration with the law student who participated in the 1981 research, alleged that someone in a high-rank position was behind the attacks and harassment suffered by the researchers following the publication of their research. “Police misconduct and individual harassment. 220 statements concerning police brutality and other forms of misconduct in the Bergen police force” of 1987 indicated, inter alia, that cases of police violence in Bergen were attributable to a minority of police officers whose actions were concealed due to the demands for loyalty within the police. In 1988, the Norwegian law journal “Lov og Rett” published an article on the use of illegal force by police officers, referencing Bratholm and other academics’ work. Bratholm also published other articles relative to police violence.
Arnold Nilsen, the then-Chairmen of the Norwegian Police Association, and Jan Gerhard Johnsen, the then-Chairman of the Bergen Police Association, made a series of statements following Bratholm’s publication. After the publication of Bratholm’s first book, Johnsen gave an interview to the newspaper Dagbladet describing “Professor Bratholm’s recent report on police brutality in the Bergen police force as ‘pure misinformation intended to harm the police’” [para.13]. Nilsen published an article, “Unworthy of a law professor”, and stated that “[i]t is beneath the dignity of a law professor to present something like this. The allegations are completely frivolous since they are based on anonymous sources. They have nothing to do with reality” [para.14]. Nilsen also threatened to bring defamation proceedings against Bratholm and requested that Bratholm apologize for his statements. Nilsen delivered a speech at the annual general assembly of the Norwegian Police Association, which was later quoted in the article “Mr Bratholm accused of defamation,” and stated that “Professor Bratholm has had an opportunity to apologise for the two specific points which we find to be defamatory of the police as a professional group, but he has refused. Therefore we are instituting proceedings. No compensation will be claimed; we are merely seeking to have the statements declared null and void” [para. 20].
In July 1988, the Norwegian Police Association, joined by the Bergen branch, instituted defamation proceedings against Bratholm. The Police Association sought a declaration from the Oslo City Court that Bratholm’s declarations in the book “Documentation of police brutality and other misconduct in the Bergen police force” were null and void. However, after the European Court of Human Rights decided the case of Thorgeir Thorgeirson v. Iceland, both associations withdrew their defamation complaints against Bratholm.
In 1986, Bratholm shared the victims’ names – which had remained anonymous until that time – with the Prosecutor-General who opened an investigation. The investigation led to a police officer being prosecuted and later acquitted, but concluded that the remaining accusations against the police were unfounded. As a result of the investigation ten interviewees were convicted by the Gulating High Court of falsely accusing the police, which later became known as the “boomerang cases.”
In May 1989, Bratholm brought defamation proceedings against Nilsen and Johnsen asking the Oslo City Court to declare null and void certain statements. On October 7, 1992, the Oslo City Court held that the Bergen police had used illegal force and violence against civilians and that “Mr. Bratholm had not assailed his opponents’ integrity and had not expressed himself in a manner that could justify the applicants’ attack on him” [para. 25]. Accordingly, the City Court held that Nilsen and Johnsen’s statements were defamatory and unlawful under Articles 247 and 253(1) of the Penal Code. The City Court also declared the defamatory statements null and void, and ordered Nilsen to pay Bratholm 25,000 Norwegian kroner (NOK) but that damage claims against Johnsen were submitted outside the corresponding legal term.
On May 5, 1993, the Supreme Court upheld the City Court’s decision. On January 16, 1998, the Supreme Court reopened the “boomerang cases” and decided by means of a final judgment that “in the special circumstances at hand the correctness of the convictions was doubtful and that weighty considerations warranted a reassessment of the guilt of the convicted persons” [para. 29]. On April 16, 1998, seven of the ten accused were acquitted.
On November 2, 1993, Nilsen and Johnsen filed a complaint with the European Commission of Human Rights (the Commission) alleging that the City Court’s judgment of 7 October 1992 interfered with their right to freedom of expression under Article 10 of the Convention. On September 9, 1998, the Commission found Norway responsible for violating Article 10 of the Convention. On January 14, 1999, the matter was referred to the Grand Chamber.
Article 10(1) states: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”
Article 10(2) provides for the limitation of the right: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The European Court of Human Rights delivered a majority judgment of twelve to five. Judge Rozakis delivered a dissenting judgment, as did Judges Kūris, Türmen, Strážnická, and Greve. The central issue was whether the restriction of Nielsen and Johnsen’s freedom of expression were necessary in a democratic society and so whether Nielson and Johnsen had surpassed the boundaries of criticism established in the interest of protecting others’ reputations and rights. It was common ground that the defamation rulings did infringe their rights, that the restriction was prescribed by law and that it pursued the legitimate aim of protecting others’ reputations and rights.
Nielsen and the Commission argued that the police officials’ statements which had been found to be defamatory were expressed in the course of a heated public debate concerning a matter of public interest. They submitted that Bratholm participated in these debates as a member of the Committee of Inquiry and, because of this position, he was subject to a higher degree of criticism. Nielsen and Johnsen maintained that the Norwegian authorities misconstrued their statements and that they had not been made in bad faith.
The Norwegian government argued that Nielsen and Johnsen’s statements constituted a personal attack against Bratholm and that they had intended to hinder his reputation.
The Court emphasized the importance of freedom of expression and that the right protects expression that may “offend, shock or disturb” [para. 43]. It explained that to determine whether a restriction is necessary the Court has to determine “whether the ‘interference’ complained of 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” [para. 43].
The Court noted that Nielsen and Johnsen’s statements concerned a matter of public interest and that its jurisprudence establishes that “there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest” [para. 46]. After analyzing the context in which the statements were made, the Court noted that Nielsen and Johnsen’s statements were “made by elected representatives of professional associations in response to allegations calling into question the practices and integrity of the profession” [para. 44]. The Court referred to its case of Thorgeirson v. Iceland, and stressed that the statements were part of the debate on “arguable allegations of police misconduct” [para. 44]. The Court noted that the (majority of the) statements reflected Nielsen and Johnsen’s opinions and were thus comparable to value judgments. It held that the statements accusing Bratholm of misinformation and challenging his research material were somewhat supported by objective factors, notably the Prosecutor-General’s investigation finding police violence allegations unfounded and the “boomerang cases” of interviewees convicted of falsely accusing the police. The Court emphasized that the statements were made in the context of a heated public debate in which there was no room for reformulating the message or correcting the tone, and stated that as the statements constituted Nielsen and Johnsen’s contribution to the debate “a degree of exaggeration should be tolerated in the context of such a heated and continuing public debate of affairs of general concern, where on both sides professional reputations were at stake” [para. 52].
The Court held that Johnsen’s statement indicating that “[u]ntil the contrary has been proved I would characterise this as a deliberate lie” exceeded the limits of criticism allowed under Article 10(2) of the Convention as it “could be regarded as an allegation of fact susceptible of proof, for which there was no factual basis and which could not be warranted by Mr. Bratholm’s way of expressing himself” [para. 49].
Accordingly, the Court held that the interference with Nielsen and Johnsen’s freedom of expression was disproportionate to the legitimate aim of protecting the reputation and rights of Bratholm, and so Article 10 had been infringed.
Judge Rozakis would not have found a violation of Article 10. The Judge would have held that Nielsen and Johnsen’s statements were not protected under Article 10, and that even though their statements were made in a debate of public interest, they sought to protect private interests (those of the Norwegian police). The Judge also noted that the statements were directed towards a private person who could not treated the same as a “politician” or a “public figure.” The Judge would have held that the City Court’s judgment was proportionate to the legitimate aim pursued.
Judges Kūris, Türmen, Strážnická, and Greve also disagreed with the majority’s finding of a violation of Article 10. The Judges would have held that the statements sought to suppress Bratholm’s research on a matter of public interest and that none of the statements were made in their capacities as Chairmen of professional associations. The Judges also disagreed that there was a factual basis for the statements challenging Bratholm’s research material and accusing him of misinformation.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment expands the right to freedom of expression in the context of heated public debates – in which “a degree of exaggeration” must be afforded – and ensures the rights of professional associations to respond to attacks on the integrity of their profession.
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