Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Mixed Outcome
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The Grand Chamber of European Court of Human Rights held that the conviction for defamation and imposition of a fine against an Italian journalist for implying that a Public Prosecutor was not objective did not violate the right to freedom of expression. The journalist had described the prosecutor as a “communist militant” and accused him of paying an informer, and after the prosecutor filed defamation charges the Italian courts found the journalist guilty. The Court held that the conviction and sanction was not disproportionate and was a necessary interference of the journalist’s right to freedom of expression.
On November 21, 1993, Giancarlo Perna, an Italian journalist, published an article in an Italian newspaper called Il Giornale about G Caselli, the Principal Public Prosecutor in Palermo. The title of the article was “Caselli, the judge with the white quiff” and its subtitle read: “Catholic schooling, communist militancy like his friend [Luciano] Violante – Are the charges against Andreotti the start of a new Sogno case?”. The article was about a criminal proceeding brought by Caselli against G. Andreotti, an Italian statesman accused of being part of the Mafia. In the article, Perna stated that Caselli was the author of the document that had led to the investigation of Andreotti, and Perna wrote that Caselli had sworn an oath of obedience to the Italian Communist Party which – according to Perna, had a “strategy for gaining control of the public prosecutors’ offices of every city in Italy” [para. 13]. Perna also wrote that the file against Andreotti contained statements by a mafia pentito (an informer, as a former member of the mafia that decides to collaborate with a public prosecutor), with information that was given to Luciano Violante, another Italian Public Prosecutor. According to Perna, the information given to Violante by the informer in another case was then given to Caselli, who offered 11,000,000 lire a month to the informer.
Caselli filed a complaint against Perna for defamation through the medium of the press, aggravated as it had been committed “to the detriment of a civil servant in the performance of his official duties” [para. 14]. The District Court held that the article was defamatory and rejected the possibility of Caselli possessing “the qualities of impartiality, independence, objectivity and probity which characterize the exercise of judicial functions, an activity which the complainant was even alleged to have used for political ends, according to the author of the article” [para. 15]. It sentenced Perna and the manager of the newspaper to fines of 1,000,000 and 1,500,000 Italian lire (ITL) respectively.
Perna appealed the decision based on the freedom of the press and the right to report and comment on current events. The Milan Court of Appeal dismissed the appeal finding that the article was “undeniably seriously damaging to the reputation of the injured party” [para. 18]. The Court held that although some of the facts referred to in the article were not defamatory, like the political leanings of Caselli, others – such as that Caselli gave the oath of obedience given to the Communist Party and that the party had a strategy for controlling the Public Prosecutors – were undeniably defamatory.
Perna approached the Court of Cassation which confirmed the decisions of the lower courts.
On March 22, 1999, Perna lodged an application with the European Court of Human Rights, arguing that his convictions for defamation violated his rights to freedom of expression, under Article 10 of the European Convention on Human Rights, and to due process, under Article 6. The Second Section of the Court held that while there was no violation of Article 10 in respect of his conviction of the allegations that Caselli was participating in a plan to take control of the public prosecutors’ offices, there was a violation in relation to his convictions “for alleging, in the form of a symbolic expression, that the complainant had taken an oath of obedience to the former Italian Communist Party” [para. 6].
Perna and the Italian Government requested the referral of the case to the Grand Chamber. Caselli was admitted as a third-party intervenor.
The Court delivered a judgment of sixteen to one. The central issue before the Court was whether the sanctions imposed for defamation were necessary in a democratic society in that they protected a “pressing social need” [para. 39].
Perna argued that the Italian government infringed his right to freedom of expression because the domestic courts’ decisions had prevented him from presenting evidence to demonstrate that the “offending article was an example of the right to report and comment on current events within the context of freedom of press” [para. 33]. Perna submitted that it was fair to disagree with his characterization of Caselli but that it was not fair to impose criminal sanctions on the expression of that description [para. 37].
The government argued that the domestic courts’ decisions aimed to protect the reputation of others, particularly as the allegations were made about a Public Prosecutor and that Perna’s allegations had damaged the reputation and public confidence of Caselli. It maintained that the Court’s jurisprudence established that as Caselli was a legal officer and “in view of the special place of the judiciary in society, it might prove necessary to protect it against unfounded attacks” [para. 35].
Caselli submitted that the “political militancy” to which Perna referred had never been proved as a fact and that he had “never hidden his beliefs (which should not be confused with militancy)” [para. 38].
The Court held that the question of the Italian courts’ denial of admitting evidence had been examined in relation to Article 6, and so did not need to be re-examined under Article 10.
The Court set out the principles established in its jurisprudence on the importance of freedom of expression and the permissible limitations to the right. It reiterated that freedom of expression is essential for the progress of a democratic society and that it is applicable to information that can offend, shock, or disturb, and that the press has a vital role but that “it must not overstep certain bounds, regarding in particular protection of the reputation and rights of others and the need to prevent the disclosure of confidential information” [para. 29].
The Court confirmed that the domestic courts’ convictions were underpinned by the Italian Criminal Code – and so were prescribed by law – and served the legitimate purpose of the protection of the rights of others. Accordingly, the only question the Court had to answer was whether the conviction and sanction were necessary in a democratic society “and in particular whether it was proportionate and whether the reasons given by the national authorities in justification for it were relevant and sufficient” [para. 43].
The Court examined the article in its entirety and characterized Perna’s intention as being to portray Caselli as a Public Prosecutor that had committed abuse of authority and found that Perna had not proved that the conduct imputed to Caselli had occurred. Accordingly, the Court held that the conviction and fines were “not disproportionate to the legitimate aim pursued” and that the interference with the right to freedom of expression was to be considered reasonable in a democratic society [para. 48].
Judge Conforti delivered a dissenting judgment, in which he would have held that the procedural aspect should have been considered as part of the Article 10 allegations because some issues that can normally be tolerated “from the point of view of due process” may not be acceptable when assessing the interference with freedom of expression [p. 23].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court balanced the right to freedom of expression with the right to reputation, and took into account the effect of the article as a whole in finding that the defamation conviction was proportionate.
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