Defamation / Reputation
Niskasaari v. Finland
Closed Expands Expression
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The European Court of Human Rights found that a journalist’s criminal conviction and two-month suspended sentence for insulting the head of the local council violated his right to freedom of expression. The case concerned an article written by a taxi driver in the local newspaper that referred to an unnamed politician as having abused their political position by, among other things, building a gazebo and planting trees in a way that obstructed public land. The Greek domestic courts found that the article referred to the head of the local council and convicted the taxi driver for “insult via the press”. The European Court of Human Rights held that the domestic courts failed to fairly balance the taxi driver’s right to freedom of expression against the councilor’s right to respect for private life. In particular, the Court concluded that the two-month suspended prison sentence was disproportionate and would have a “chilling effect” on public discussion.
The case concerned a Greek taxi driver, Panagiotis Paraskevopoulos, who published an article in a local newspaper in December 2007. The article was entitled “The ludicrousness of power” and alluded to someone who had been abusing their political position by, among other things, obstructing public land near their property by planting trees and building a gazebo. Referring to this unnamed individual, Mr. Paraskevopoulos stated in the article that “[b]ecause those people will serve petty political – but mostly their own personal – interests much more readily in order to impose themselves more easily than others, others whose vote they wormed out by making many promises”. [para. 6] Mr. Paraskevopoulos went on to use harsh and sarcastic comments when referring to this individual.
Despite the fact their name was not mentioned in the article, the head of the local council brought a criminal complaint against Mr. Paraskevopoulos for “slanderous defamation via the press”. The complaint against Mr. Paraskevopoulos was later changed to insult. In July 2013, the Court of Appeal found Mr. Paraskevopoulos guilty of “insult via the press” and sentenced him to a two-month suspended prison sentence. It found that the article “solely and exclusively” referred to and identified the local councilor. It also acknowledged that what Mr. Paraskevopoulos had reported was true, but went on to state that “taking into account the way the above-mentioned defamation was expressed, and in the circumstances which were previously detailed, the court concludes that there was an intention to insult, and for this reason the defendant must be punished for this act. In particular, the court bases its conclusion on the fact that the applicant presented the above-mentioned true facts along with unacceptable value judgments and references to the complainant’s public post”. [para.11] The Court of Appeal concluded that the insult was committed without a legitimate interest. It also made suggestions of alternative wording that Mr. Paraskevopoulos could have used to avoid harming the honor and reputation of the councilor while protecting the legitimate interest on which he relied. On February 23, 2011, the Court of Cassation upheld the judgment of the Court of Appeal.
In addition to the criminal complaint, the head of the local council also lodged a civil action for damages against Mr. Paraskevopoulos and was awarded EUR 2,5000 in damages.
Relying on Article 10 of the European Convention on Human Rights (freedom of expression), Mr. Paraskevopoulos complained that his criminal conviction for remarks about a local politician included in an article published in a local newspaper had violated his right to freedom of expression. He argued that he had been convicted because of his value judgments, and the domestic courts did not take into account that the value judgments had a sufficient factual basis. He also argued that the domestic courts failed to sufficiently take into account the wider limits of acceptable criticism that pertain to a locally elected politician. The Government of Greece argued that Mr. Paraskevopoulos’ expression fell outside the scope of protection of Article 10 of the European Convention on Human Rights. It also argued that the sentence did not have a “chilling effect” on freedom of expression, it promoted the correct political dialogue.
The European Court of Human Rights (Court) began by establishing that Mr. Paraskevopoulos’ conviction amounted to an “interference by public authority” with his right to freedom of expression. Then, the Court had to examine whether the interreference had met the requirements set forth in Article 10(2) of the European Convention on Human Rights (Convention), namely whether it was “prescribed by law”, in pursuit of a legitimate aim, and “necessary in a democratic society”. The Court had little difficulty in finding that the interference was prescribed by law (Articles 361 and 367 of the Criminal Code) and that it had pursued a legitimate aim (protecting the reputation or rights of others). The judgment focused on whether it was “necessary in a democratic society”.
The Court reiterated that Article 10 of the Convention applied not only to information and ideas that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Moreover, the Court recalled the distinction between statements of facts and value judgments, noting that value judgments were not susceptible of proof. When a statement amounted to a value judgment, the Court recalled that there must exist a sufficient factual basis to support it, failing which it will be excessive.
The Court went on by reiterating that when the interference was necessary in a democratic society to “protect the reputation or rights of others”, the Court must ascertain whether the domestic authorities had struck a fair balance between the right to freedom of expression and the right to respect for private life. The Court then considered the criteria laid down in its case law for cases that required a balancing of these two rights. The Court determined that, as the article was capable of harming the local politician’s reputation and causing her prejudice in both her professional and social environment even though she was not named, the accusations attained the requisite level of seriousness to engage the right to respect for private life. It was left for the Court to consider whether the domestic courts had struck a fair balance in line with the Court’s criteria.
Contribution to a debate of general interest
The Court agreed with the domestic court’s conclusion that the criticism contained in the article was not directed at the head of council’s private activities but rather at her conduct in her capacity as head of the local council. It concluded that her activities in that capacity “were clearly of legitimate concern if not to the general public then to the readership of the local newspaper in which the applicant’s article was published”. The Court held that “the manner in which a local official carries out his or her official duties and issues touching on his or her personal integrity is a matter of general interest to the community and there is little scope under Article 10 §2 of the Convention for restrictions on political speech or debate on matters of public interest.” [para. 36] It also observed that there is little scope under the provision for restrictions on political speech or debate on matters of public interest.
How well known the person concerned is, the subject of the publication, and prior conduct of the person concerned
The Court noted that the head of the council was an elected local official who “inevitably and knowingly laid herself open to close scrutiny of her every word and deed by both journalists and the public at large, and she had to consequently display a greater degree of tolerance”. [para. 37] The Court, nevertheless, conceded that a politician still had the right to have his/her reputation protected even when he/she was acting in a public capacity, but in such cases “the requirements of that protection had to weighed against the interests of the open discussion of political issues”. [para. 37] The Court found that these points were not addressed by the domestic courts in this case.
Content, form and consequences of the publication
The Court noted that Mr. Paraskevopoulos’ conviction for insult was based on the domestic courts’ assessment of a selected number of Mr. Paraskevopoulos’ value judgments and characterizations that allegedly disclosed an intention to insult. The Court also observed that the domestic courts convicted him of insult because defamation had a defense of truth that Mr. Paraskevopoulos could rely on. The Court criticized the domestic courts for assessing these value judgments and characterizations out of context. In the Court’s view, domestic courts should consider whether the context of the case, the public interest and the intention of the author of the impugned article justified the possible use of a dose of provocation or exaggeration.
While the Court agreed that some of the language used could be viewed as provocative, it could not find any remarks that were manifestly insulting. Indeed, the Court held that “while any individual who takes part in a public debate of general concern must not overstep certain limits … a degree of immoderation is allowed”. [para. 41] Moreover, the contested article did not appear to be a gratuitous personal attack on or an insult to the head of the city council since the statements had a clear factual background. [para. 41]
Severity of the sanction imposed
Finally, the Court took into account the fact that Mr. Paraskevopoulos received a two-month suspended prison sentence. The Court recalled that the imposition of a prison sentence for defamation was compatible with Article 10 of the Convention only in exceptional cases, notably when other fundamental rights had been seriously impaired such as in the cases of hate speech or incitement to violence. The Court found no justification for a prison sentence in this case. In the Court’s view, “such a sanction, by its very nature, will inevitably have a chilling effect on public discussion, and the notion that [Mr. Paraskevopoulos’] sentence was in fact suspended does not alter that conclusion particularly as the conviction itself was not expunged.” [para. 42]
The Court concluded that the Greek courts had not adduced “relevant and sufficient” reasons to show that the interference with Mr. Paraskevopoulos’ right was necessary in a democratic society for the protection of the reputation and rights of others. The Court also found the interference to be disproportionate. The Court concluded that there had been a violation of Article 10 of the Convention and awarded EUR 7,000 in respect of non-pecuniary damage.
Concurring Opinion of Judge Koskelo
Judge Koskelo agreed with the majority but stated that she believed different criteria should have been applied since the case concerned a balance between the right to freedom of expression and the right to reputation. She reasoned that the criteria that should have been applied was to take into account (i) the position of the person exercising his freedom of expression, (ii) the position of the person against whom the impugned statements were made, (iii) the subject matter and context of the statements, (iv) the nature of those statements (whether they were facts or value judgments), (v) other characteristics of the remarks, such as the form or medium and the language used, and (vi) the nature and severity of the sanction imposed.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression since the European Court of Human Rights found a violation of the right to freedom of expression where an individual had been convicted and given a two-month suspended prison sentence for writing a scathing article about a local politician. Of particular note is the Court’s findings with regard to the imposition of a suspended prison sentence. The Court considered the measure as a custodial sanction and noted the limited circumstances under which prison sentences can be imposed for speech-related offences. These observations were unchanged by the fact that the sentence had been suspended.
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.
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