Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Expands Expression
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The European Court of Human Rights held that the Russian courts had violated a newspaper publisher’s right to freedom of expression by ordering it to publish an apology and pay symbolic damages following the publication of two articles criticizing the professional activities of a local politician. The case concerned defamation proceedings that had been brought against a publishing house for a series of articles that referred to a local politician as a “marmoset” and a “fool,” and that included a mocked-up image making the politician look like Osama bin Laden. The European Court of Human Rights found that the allegedly defamatory statements amounted to value judgments, and had remained within the acceptable degree of stylistic exaggeration. It was critical of the Russian law, which did not sufficiently take into account the difficulty in proving the veracity of value judgments. The European Court of Human Rights also held that the articles contributed to a debate of general interest and concerned a professional politician who had to tolerate a greater degree of criticism. It also found that the orders made against the newspapers, although minimal, could have had a “chilling effect” on the press.
The case concerned a publishing house based in Kstovo, in the Nizhegorodkiy Region of Russia. It was the founder, editor and publisher of a local newspaper, Zemlyaki.
In March 2004, the newspaper published a series of articles commenting on the professional activity of the then head of the Kstovo District Administration, Y.L. The first article was written by a local councillor and was entitled “Success has turned his head.” This article criticised the Kstovo District Administration’s policy concerning spending and property management. Part of the article spoke about Y.L. entering into loan agreements with banks on behalf of the Administration, and how that resulted in the Administration having to pay excessive interest. It discussed a fable called “the monkey and the loan,” and allegedly referred to Y.L. as a “marmoset” and a “fool.” The second article was entitled “The golden grin awards,” which included a photo collage depicting Y.L. as Osama bin Laden. The article was commenting on Y.L.’s approach to industrial waste, after he allegedly proposed to blow it up or burn it.
On May 11, 2004, Y.L. complained to the Kstovo City Court that the two articles contained defamatory and damaging material. On August 31, 2004, the Kstovo City Court partially granted Y.L.’s claims against the applicant company and the local councillor. It took issue with the first article’s reference to the terms “marmoset and “fool” when describing Y.L.’s activity as the Head of the Administration. In relation to the photo collage, the Kstovo City Court held that “[c]onsidering the events of last year: terrorist acts in America, Russia, Spain, Iraq, the world’s public opinion on bin Laden as terrorist no. 1, the court finds that the publication is defamatory to the honour, dignity and business reputation of the claimant and creates an image of an aggressive, cruel and fanatical actor.” [para.11] The Kstovo City Court ordered the company to pay an amount of symbolic value to Y.L. in damages, and publish a retraction that included an apology for publishing the allegedly defamatory statements.
In October 2004, the Nizhegorodkiy Regional Court upheld the decision on appeal. The publishing house was unable to obtain a further review before a supervisory authority.
Relying on Article 10 of the European Convention on Human Rights, the publishing house complained that the order to offer apologies to Y.L. had violated its right to freedom of expression. It argued, in particular, that the domestic courts had failed to draw a distinction between statements of fact and value judgments. It argued that the articles dealt with a matter of general interest and concerned a professional politician who had to be more tolerant of criticism. It also argued that the Kstovo City Court had acted unlawfully in ordering the publishing house to offer apologies to the claimant, since no such order could be granted under Russian law. The Government argued that, at the time, there had been no concept of value judgments under Russian law. It argued that the Russian courts had applied appropriate analysis in determining that the publishing house had published statements of fact of an insulting nature, and not value judgments.
The European Court of Human Rights (Court) found a violation of the right to freedom of expression under Article 10 of the European Convention on Human Rights (Convention).
The Court began by noting that it was not disputed between the parties that the civil proceedings for defamation against the publishing house constituted an interference with its right to freedom of expression. It was then left to the Court to establish whether the interference was prescribed by law, in pursuit of a legitimate aim, and necessary in a democratic society.
The Court highlighted that the interference had two aspects. Firstly, the publishing house was obliged to publish an apology and, secondly, it was obliged to pay compensation in respect of non-pecuniary damages to the claimant. Looking first at the order to publish an apology, the Court noted that at the time of the case the Resolution of the Supreme Court established the possibilities for the courts to: order compensation in respect of pecuniary and non-pecuniary damage; oblige a defendant, if the defendant were a mass media outlet, to retract the impugned statements; or give a claimant the opportunity to respond to the statements in the same mass media outlet. [para. 29] The year after the proceedings in this case, the Supreme Court passed a Resolution instructing courts that an apology was not prescribed under Russian law. The Court referred back to its previous case law concerning orders made by the Russian courts for the publication of an apology. The Court noted that, prior to 2005, the Russian courts had been inclined to interpret a retraction as possibly including an apology. In its own case law, the Court had accepted that this was sufficient for it to find that orders for the publication of an apology prior to the Supreme Court Resolution in 2005 were not unlawful in Convention terms. Turning to the order for payment of compensation in respect of non-pecuniary damage, the Court was satisfied that it had a legal basis under Article 152 of the Russian Civil Code. Accordingly, the Court held that the interference was prescribed by law.
The Court had noted that there was common ground between the parties that the interference pursued the legitimate aim of protecting the claimant’s rights. When assessing whether the orders against the publishing house were necessary in a democratic society, the Court began by noting that the margin of appreciation to be accorded to national courts in this case was a narrow one in the light of the vital role that the press plays in ensuring the proper functioning of political democracy. The Court also took the following elements into account: i) the position of the applicant company, ii) the position of the person against whom its criticism was directed, the subject matter of the publication, iii) the characterization of the contested statement by the domestic courts, iv) the wording used by the applicant company, and v) the severity of the penalty imposed on it.
In relation to the first element, the Court observed that the applicant in this case had been sued as the editorial board of the newspaper and, in that connection, the measures taken or sanctions imposed were capable of discouraging the participation of the press in debates over matters of legitimate public concern.
On the second element, the Court noted that the publishing house’s criticism was directed against a professional politician who knowingly laid himself open to close scrutiny. The Court also took into account the fact that the publications concerned the District Administration’s policy on spending and property management, and criticized Y.L.’s managerial abilities. The Court had no doubt that these were matters of public interest and that the articles contributed to the ongoing political debate.
On the third element, the Court found no evidence that the national courts had balanced the need to protect the claimant’s reputation against the publishing house’s right to impart information on issues of general interest. The Russian courts, instead, focussed exclusively on the alleged damage to the claimant’s reputation. Moreover, no consideration was given to the specific features of the political discourse.
On the fourth element, the Court criticized the Russian courts for not distinguishing between statements of fact and value judgments. In this regard, the Court noted that it had pointed out on many occasions the deficiency in Russian law on defamation, which presumes all statements are susceptible to proof in civil proceedings. The Court has consistently stated, in relation to value judgments, that the requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself. The Court then analyzed the two articles in question. It noted that both articles contained factual allegations, the accuracy of which were not challenged by Y.L. before the domestic courts. Instead, the case concerned the use of epithets when describing Y.L.’s professional activities and ability. The Court held that these epithets were quintessential examples of value judgments about Y.L.’s activities and ability. The Court concluded that the articles remained within the acceptable degree of stylistic exaggeration that could be employed by the press to express the value judgments.
The last element that the Court considered was the nature and severity of penalty imposed on the publishing house. The Court held that, although the sanctions imposed were of a minor nature, they were capable of discouraging the participation of the press in debates over matters of legitimate public concern.
In light of the above, the Court found that the Kstovo City Court’s decision of 31 August 2004 ordering the applicant company to publish an apology was an interference that was not proportionate to the aim pursued and, therefore, not “necessary in a democratic society.” The Court concluded that there had been a violation of the right to freedom of expression under Article 10 of the Convention, and awarded 7,5000 EUR in respect of non-pecuniary damages to the publishing house.
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 (Court) determined that national courts had violated the right to freedom of expression by ordering a newspaper to publish an apology and pay minimum compensation following the publication of two articles about a local politician. The Court held that the margin of appreciation accorded to national courts was a narrow one. In its judgment, the Court reiterated many of its general principles around the importance of protecting freedom of the press, the distinction between statements of fact and value judgments, and the high level of protection that is to be given to expression that contributes to debates of general interest and statements criticizing professional politicians. The Court also recognized, once again, that even minimal measures against the press can have a harmful “chilling effect” on journalism.
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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