Defamation / Reputation, Political Expression
Lagos del Campo v. Peru
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The Grand Chamber of the European Court of Human Rights (ECtHR) held, by twelve votes to five, that the applicants’ rights to freedom of expression and association under Article 10, read in light of Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, had not been violated. The claim before the ECtHR had arisen out of the dismissal of the applicants by Company P for serious misconduct by publishing and circulating a satirical caricature and critical articles about the conduct of their colleagues. The content in question was published in the monthly newsletter of the trade union of which the applicants were members of the executive committee. The principal question before the Grand Chamber was whether Spain was required to guarantee respect for the applicants’ freedom of expression by annulling their dismissal. The Grand Chamber, in its decision, held that the applicants’ dismissal was not disproportionate and did not require Spain to provide redress as the caricature and the articles had overstepped the limits of criticism admissible in labor relations and caused damage to the reputation of the applicants’ colleagues. It also held that the offensive expression did not have any public interest value as labor relations must be based on mutual trust in order to be fruitful, and that an attack on the dignity of individuals by such expression in the professional environment was a serious form of misconduct which justified severe sanctions due to its disruptive effects. The joint dissenting opinion differentiated itself from the majority judgement in key ways relating to the interpretation of the satirical expression, the relevance of the context of the publication, and the effect of the decision to uphold the sanction.
The applicants, namely Juan Manuel Palomo Sánchez, Agustín Alvarez Lecegui, Francisco José María Blanco Balbas, and Francisco Antonio Fernández Olmo, worked as delivery-men for Company P. In 2001, against a backdrop in which the applicants had brought several proceedings against their employer before the labor courts, they established a trade union. The applicants were members of the union’s executive committee. The union released a monthly newsletter which included reportage on relevant judgements of employment tribunals. In the March 2002 issue of the monthly newsletter, the union reported on one such judgement in which the tribunal had ordered the company to pay the applicants certain sums in respect of the salaries owed to them, thus partially upholding their claims. The cover page of the monthly newsletter showcased a caricature in which two employees of the company were preparing to sexually gratify the director of Human Resources. The articles accompanying the caricature employed vulgar language in order to criticize the actions of the two individuals who had testified in favour of the company during these proceedings initiated by the applicants. This issue of the monthly newsletter was displayed on the trade union’s notice board at the premises of the company as well as distributed among the workers. On June 3, 2002 the applicants were dismissed from the company for serious misconduct. The reason underlying this charge, and consequently the decision to dismiss, was that the applicants had maligned the reputation of the two employees as well as the director of human resources depicted in the caricature and critiqued in the articles.
The applicants challenged this decision before the courts. Employee Tribunal No. 17 of Barcelona dismissed their complaints in a judgement of November 2002, holding that the company had dismissed them in accordance with the relevant provisions of the Labour Regulations. The Tribunal held that the caricature and the accompanying articles exceeded the limits of the right to freedom of expression as they were offensive and called into question the dignity of the people depicted and critiqued therein. Referencing the limits imposed by the principle of good faith between parties to employment contracts as well as the need for judicial decisions to balance workers’ contractual obligations with their freedom of expression, the High Court of Justice of Catalonia upheld the judgement to the extent that it related to the applicants in May 2003. The applicants’ appeal on points of law was dismissed by the Supreme Court on March 11, 2004, and their amparo appeal before the Constitutional Court was declared as inadmissible on January 11, 2006. In particular, the Constitutional Court declared their appeal as inadmissible on the ground that the constitutionally protected right to freedom of expression did not extend to humiliating or offensive statements which were unnecessary in shaping opinions of others about the facts on which the applicants wished to complain.
The applicants lodged an application with the European Court of Human Rights (ECtHR) on July 13, 2006. They alleged that their rights under Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms had been violated by their dismissal on the basis of the content of the newsletter, and that the real reason for their dismissal had been their involvement in activities of the trade union which was violative of their right to freedom of assembly and association under Article 11. The Court held, in its Chamber Judgement of December 8, 2009 (reference may be made to Information Note no. 130, the case then being called Aguilera Jiménez v. Spain, App. Nos. 28389/06 et. al.), that the penalty imposed by the authorities had not exceeded the discretion enjoyed by the authorities. It was held that the applicants’ rights had not been violated under Article 10, and that no separate claim arose under Article 11. On May 10, 2010, the case was referred to the Grand Chamber of the ECtHR on the request of the applicants.
On September 12, 2011, the Grand Chamber of the ECtHR composed of 17 judges held, by twelve votes to five, that there had been no violation of the applicants’ rights under Article 10 read in light of Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The contention of the applicants before the Grand Chamber was that the Chamber had failed to sufficiently consider the backdrop in which the dispute about the content of the monthly newsletter published by the trade union had arisen. The applicants argued that the context was one of “harassment and systematic pressure” [para. 36] from the employer and the association of non-salaried workers supported by it, of which the two employees represented in the caricature were a part, aimed at preventing workers’ demands from coming to the fore and convincing the workers to waive their judicially recognized rights. The applicants alleged that the head of human resources at the company had tried to persuade members of the union and other delivery-men to refrain from asserting their rights by offering them money in exchange, and as the only salaried delivery workmen who had not waived their rights, the applicants had been dismissed without compensation. The trade union had also consequently been disbanded. The applicants thus put forth their view that their rights enshrined in Articles 10 and 11 of the ECHR had been violated. They further argued that the caricature on the cover of the monthly newsletter as well as the accompanying articles, may have been regarded as crude or shocking, but were satirical expressions meant to convey information about the salary demands of the workers before the employment tribunal and about the conduct of certain members of the association of non-salaried delivery-men. They did not make allusions to any part of the private spheres of the persons in question, and there had been no personal attack in the ironical tone employed. The applicants also argued that even if the critical tone in the monthly newsletter had impugned the right to reputation of those represented or written about, the penalty of dismissal imposed on them went beyond the scope of the legitimate protection offered by the right and was disproportionate to the ends pursued. They also referenced their dismissal based on attribution of the disputed content as arbitrary as the caricature and articles were unsigned.
The Government, in turn, recognizing its positive obligation to protect the applicants’ freedom of expression, argued that a contract of employment could be terminated when the employees so dismissed had attacked the employer or other employees. The Government argued that this was because such a termination pursued the legitimate aim of protecting the reputation of others when the exercise of freedom of expression exceeded its limits. In relation to the monthly newsletter, even though the caricature and articles had been published within and for the confines of the company as opposed to being public in nature, the damage to the reputation of the persons concerned was aggravated given that all the addressees/recipients knew which individuals were being criticized. The Government further put forth that the nature of the expression was reflective of the deliberation which resulted in the action, and that the applicants were fully aware of the damage their actions could result in. The Government contended that the disputed content did not contribute to a general debate of interest to all the workers, but rather was reactionary to the persons who had testified against them in proceedings in which they had asserted their individual rights. The Government also asserted that the freedom of expression exercised by the applicants could not be justified on the basis of trade union activity when it caused damage to the reputation of others as the restrictions pursuant to Article 10§ 2 were equally applicable to union representatives. The Government, in its submission, observed that the measure of dismissal taken against the applicants was proportional in this particular case due to the direct damage the coarse, rude, and insulting caricature and articles had caused to the reputation and honour of the persons depicted. Moreover, they argued that even if the opinions of the applicants could be considered to be legitimate, their nature of expression was offensive and deliberate, justifying the interference in their exercise of their freedom of expression by the company.
The right to freedom of expression under Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms read in light of Article 11
The Grand Chamber, in its decision, observed that in the present case the “question of freedom of expression is closely related to that of freedom of association in a trade-union context” [para. 52]. It noted, however, that the membership of the applicants in the trade union had not played a decisive role in their dismissal in the present case. This was because the complaint of the applicants primarily concerned their dismissal for having published the caricature and the articles in pursuance of their freedom of expression, a right which was not unlimited in the context of labor relations. Moreover, other members of the union who had been on sick leave at the time of the publication of the newsletter were not dismissed by the company despite their membership in the union. The Court, referencing Women on Waves and Others v. Portugal ECHR  31276/05, thus found that it would be more appropriate to examine the facts of this case under Article 10 interpreted in the light of Article 11. The principal question before the Grand Chamber was whether Spain was required to “guarantee respect for the applicants’ freedom of expression by annulling their dismissal” [para. 63]. In its examination of whether the applicants’ comments could be regarded as harmful to the reputation and honour of others, the Court saw no reason to question the findings of the domestic courts that the content of the newsletter had been offensive and capable of such harm. The Court noted that the caricature and articles published in the monthly newsletter were explicit in the accusations they made and were expressed in “vexatious and injurious terms” [para. 67] for the persons concerned. The differentiation between criticism and insult was reiterated by the Court, and citing Skałka v. PolandECHR [2003[ 43425/98 the Court noted that in principle, insult might justify sanctions. The Court, consequently, took the view that the “grounds given by the domestic courts were consistent with the legitimate aim of protecting the reputation of the individuals targeted by the cartoon and texts in question, and that the courts’ conclusion that the applicants had overstepped the limits of admissible criticism in labor relations cannot be regarded as unfounded or devoid of a reasonable basis in fact” [Para. 68].
In its examination of whether the sanction of dismissal imposed on the applicants was proportionate to the degree of seriousness of the content in question, the Court observed that the caricature and articles had been published in the monthly newsletter in the context of a dispute between the applicants and the company, and yet, they were critical not directly of the company but of two of its employees and the head of human resources. The Court reiterated, by relying on Lingens v. Austria ECHR  9815/82 and Nikula v. Finland ECHR  31611/96 that the extent of acceptable criticism is narrower in relation to private individuals vis-à-vis politicians or civil servants acting in exercise of their duties. The Court was in disagreement with the contention of the Government that the content in question did not concern a matter of general interest. It observed, citing Fressoz and Roire v. France ECHR  29183/95 and Boldea v. Romania ECHR  19997/02, that “The publication at issue took place in the context of a labor dispute inside the company to which the applicants had presented certain demands…The debate was therefore not a purely private one; it was at least a matter of general interest for the workers of the company P” [Para. 72]. It went on to hold, however, that such a matter, even in the context of labor relations, could not be used as a justification for the use of offensive expressions. It held that the remarks had been deliberate, and had been displayed publicly on the premises of the company and distributed among its staff. The Grand Chamber, agreeing with the domestic courts, held that labor relations must be based on mutual trust in order to be fruitful. It noted, “As the employment tribunal rightly found, even if the requirement to act in good faith in the context of an employment contract does not imply an absolute duty of loyalty towards the employer or a duty of discretion to the point of subjecting the worker to the employer’s interests, certain manifestations of the right to freedom of expression that may be legitimate in other contexts are not legitimate in that of labor relations (Vogt v. Germany ECHR  17851/91). Moreover, an attack on the respectability of individuals by using grossly insulting or offensive expressions in the professional environment is, on account of its disruptive effects, a particularly serious form of misconduct capable of justifying severe sanctions” [Para. 76]. The Court, thus held, that the applicants’ dismissal was not disproportionate or excessive as a sanction which would require Spain to provide redress by annulling the dismissal or by replacing it with a comparatively lenient measure. Thus, as per the Grand Chamber, there was no violation of the applicants’ rights under Article 10 read in light of Article 11.
Joint Dissenting Opinions of Judges Tulkens, Björgvinsson, Jočienė, Popović, and Vučinić :
In their joint dissenting opinion, Judges Tulkens, Björgvinsson, Jočienė, Popović, and Vučinić criticized the decision of the majority on several grounds. They noted that despite correctly identifying the intrinsic link between the freedom of expression and the freedom of association in the context of a trade union, the majority “brushes aside, somewhat artificially, the trade-union dimension of the case” [Para. 3 of the Joint Dissenting Opinion], and endorses the position that trade union membership had no decisive role to play in the dismissal of the applicants much like the domestic courts before which the applicants appeared. The dissenting opinion uses terminology such as ‘illusory’ and ‘theoretical’ [Para. 4 of the Joint Dissent] to describe the Court’s examination of Article 10 in light of Article 11. By way of this opinion, the dissenting judges make explicit their views on the role played by a trade union, and highlight the expansionary dimensions the right to freedom of expression can take in such contexts. It notes, “Admittedly, there has not yet been any specific Convention case-law associating trade-union freedom, in terms of “a right, in order to protect [its members’] interests, that the trade union should be heard”, with freedom of expression. We believe, however, that the case-law applicable to freedom of expression in a media context may be applied, mutatis mutandis, and with all the necessary precautions, to cases like the present one. A function similar to the “watchdog” role of the press is performed by a trade union, which acts on behalf of the company’s workers to protect their occupational and employment-related interests” [Para. 7 of the Joint Dissenting Opinion].
They further disagreed with the majority on the proportionality of the measure of dismissal to the legitimate aim pursued, being the protection of the reputation of others. They opine that the Court, in its judgement, did not examine in concreto whether the caricature and articles overstep “the bounds of remarks that “shock, offend and disturb” and that are protected by Article 10 of the Convention as an expression of pluralism, tolerance and broadmindedness, without which there is no democratic society. It is precisely when ideas shock and offend that freedom of expression is most precious” [Para. 10 of the Joint Dissenting Opinion]. They add, “As regards the cartoon on the newsletter’s cover, it is a caricature, which, while being vulgar and tasteless in nature, should be taken for what it is – a satirical representation. In other cases, the Court has recognised the satirical nature of an expression, publication or caricature. In refusing to take that nature into account in the present case, the judgment gives the curious impression of placing trade-union freedom of expression at a lower level than that of artistic freedom and of treating it more restrictively” [Para. 11 of the Joint Dissenting Opinion]. In relation to the text of the articles, the dissenting opinion observes that while the language employed is crude and vulgar, it is authored against the backdrop of the dispute between the employer and the applicants, and is critical only of the professional role and attitude of their colleagues in such a context. The dissenting opinion critiques the Court’s disassociation of the expression from the context, and terms the majority’s interpretation of the applicants’ intent behind publishing the caricature and articles as being an ‘attack on colleagues’ as speculative.
The dissenting opinion further distinguishes itself from the opinion of the majority by terming the distinction between spontaneous and deliberate expressions as being artificial, and expresses that the “somewhat artificial nature of this distinction, precisely in the context of labor relations, may give reason to fear that the present judgment constitutes a step backwards in relation to the Fuentes Bobo judgment (Fuentes Bobo v. Spain ECHR  39293/98), concerning the dismissal of a journalist on account of harsh criticism during a radio programme, where the Court found that there had been a violation of Article 10 of the Convention in the context of an industrial dispute” [Para. 14 of the Joint Dissenting Opinion]. The dissenting opinion goes on to note that given that the applicants were dismissed for serious misconduct even though such ‘offences’ were not provided for expressly in Article 54 § 2 of the Labour Regulations, and were penalized with the most serious measure contemplated under the Regulations, the “imposition of such a harsh sanction on trade-union members, who were acting in their own names but also to defend the interests of other workers, is likely to have, generally speaking, a “chilling effect” on the conduct of trade unionists and to encroach directly upon the raison d’être of a trade union” [Para. 17]. The dissenting opinion also criticized the majority’s argument of possible disruption in the workplace as being a legitimate ground on which to restrict the freedom of expression as opposed to confer greater protection. The dissenting opinion concludes that the rights of the applicants have been violated under Article 10 read in light of Article 11 due to the disproportionality of the interference in pursuance of the aims pursued, particularly in light of the relationship between the freedom of expression and of association, the context of labor relations, the seriousness of the sanctions, and the lack of a ‘compelling social need’ as ‘necessary in a democratic society’.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the ECtHR contracts expression by holding that the dismissal of the applicants from company P for ‘serious misconduct’ due to publication of a satirical caricature and accompanying critical articles in the trade union monthly newsletter was not disproportionate and did not require Spain to provide redress to them. The decision contracts expression as it fails to account for the obvious indicators of humour offered by the caricature and the text (Godioli), pays insufficient attention to the context of the industrial dispute in which the content was published, and fails to notice that the content is critical only of the professional and not the private conduct of the applicants’ colleagues. Moreover, the decision to uphold the harsh sanction of dismissal as proportionate in light of the legitimate aim of protecting the reputation of the applicants’ colleagues has a cautionary effect on the future conduct of trade unions. These reasons are elaborated lucidly in the joint dissenting opinion annexed to the judgement. It has been noted that such concerns about a restrictive trend in the approach of the Strasbourg Court to the right to freedom of expression, particularly in comparison to the traditionally high standards of the Court’s case-law in this matter, have been raised not only in Palomo Sánchez and Others v. Spain, but also in Lindon, Otchakovsky-Laurens and July v. France ECHR  21279/02 and 36448/02 and Stoll v. Switzerland ECHR  69698/01, among other decisions (Voorhoof).
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.
Judgments of the European Court of Human Rights are binding upon parties to the decision.
The decisions of the European Court of Human Rights have precedential value on the interpretation of the right to freedom of expression for other States Parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms.
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