Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Expands Expression
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The European Court of Human Rights found that the Russian courts had violated three newspaper founders’ right to freedom of expression by holding them liable in defamation for republishing allegations in a official public statement. The newspaper had reproduced statements made by a panel of State and municipal employees and private businessmen alleging that there were irregularities in the timber business that were connected to the involvement of the regional authorities in timber purchases. In its judgment, the European Court of Human Rights was critical of the domestic courts’ failure to balance the right to freedom of expression against the need to protect reputation. Furthermore, the European Court of Human Rights criticised the domestic courts’ artificial reading of a defence under domestic law that should have been open to the founders of the newspaper.
A weekly newspaper in Russia, Arsenyevskie Vesti, published an article in its fourth edition that exposed the massive unlawful felling of trees in the town of Dalrechensk, Russia, as well as the undocumented sales of timber to China. A regional panel on the protection of forests revealed that representatives from Chinese companies were constantly present at timber yards in the town and offered cash for timber. The article went on to quote from an open letter that had been adopted by the participants in the panel, which stated that “[a]ll these irregularities have clearly been on the rise since the town’s police department (timber purchasing quota of 4,500 cubic metres) and the courts’ management department of the Supreme Court of the Russian Federation (timber purchasing quota of 3,000 cubic metres) became the forest operators”. Seventeen individuals signed the letter, including the head of the Dalnerechensk municipal council, his first deputy, as well as other public officials and private businessmen, and was sent to the Presidential Envoy in the Far Eastern Federal Region on behalf of the Dalnerechensk municipal council. The open letter was also made public at a press-conference held on the premises of the Press Development Institute.
Following the publication of the article, the courts’ management department of the Primorskiy region filed a civil action against three founders of the newspaper for the protection of its professional reputation. The management department claimed that the publication undermined the authority of the courts’ management department and of the judicial system as a whole.
Following the institution of this case, the newspaper published a refutation that included a full reproduction of the open letter. The note emphasized that the open letter, and the article, did not specify which courts’ management department had purchased timber. Mr. Shulga, the head of the courts’ management department of the Primorskiy region, was named in the article. Following publication of the refutation, Mr. Shulga brought a civil claim for protection of his honor, dignity and professional reputation. He claimed that the refutation was not valid because a reasonable reader would have known from reading the article that his department was the target.
In June 2002, the Arsenyev Town Court of the Primorskiy Region granted Mr. Shulga’s claim against the founders, reasoning that the article had targeted Mr. Shulga’s department because it had been the only courts’ management department in the region that had been allocated a timber purchasing quota of 3,000 cubic meters for construction of a court house. The Town Court stated that the founders could not show that the inclusion of the department in the number of forest operators gave rise to “irregularities”. The founders tried to rely on a defense under section 57 of the Mas-Media Act that stated that “[t]he editor’s office and journalists may not be held liable for dissemination of information which is untrue and damaging to the honour or reputation of citizens and organisations if such information originated in press-releases of State bodies, organisations, agencies, companies or public associations or if such information is a verbatim reproduction of official statements by officials of State bodies, organisations or public associations” [para. 24]. However, the Town Court determined that the Press Development Institute that had publicly disseminated the open letter was an “autonomous non-commercial organisation” rather than a “public association”, and the head of the municipal council who had signed the letter was a municipal employee rather than an official of a State authority. In October 2002, the Town Court granted the department’s claim against the founders on the same basis.
The court thus ordered the applicants to publish a refutation and each of them to pay 10,000 Russian rubles to Mr Shulga and 15,000 rubles to the department. The founders alleged this was equivalent to four months of their income. They subsequently filed a complaint to the European Court of Human Rights.
The European Court of Human Rights (Court) found that the judgments of the Town Court interfered with the founders’ right to freedom of expression under Article 10 of the European Convention. It also found that the judgments were “prescribed by law” and pursued the legitimate aim of protecting the rights and reputations of others. The Court noted that jurisdictions around the world had adopted laws that prevented public authorities from suing in defamation. The Court acknowledged that such an approach might be justified for sound policy reasons, but the Court was not in a position to examine domestic law “in the abstract”. [para. 39] The Court could only determine whether the application of the law in this case was necessary in a democratic society. The Court made this determination by taking the following factors into account: (i) the subject matter of the publication, (ii) the position of the applicants, (iii) the position of the person against whom the criticism was directed, (iv) characterization of the contested statements by the domestic courts, (v) the wording used by the applicants, and (vi) the penalty imposed.
The Court noted that the publication concerned the unlawful felling of trees and undocumented sale of timber to Chinese companies, a matter of intense public interest for residents of the Primorskiy region, where the timber industry was one of the main employers. In doing so, the Court reaffirmed that reporting on matters relating to management of public resources lies at the core of the media’s responsibility and the right of the public to receive information. The Court criticized the fact that the domestic courts seemingly failed to perform a balancing exercise between the need to protect the plaintiffs’ reputation and the right of the members of the press to impart information on issues of general interest. Furthermore, the Court noted that the courts failed to give any consideration to the European Convention principle requiring very strong reasons for justifying restrictions on debates of public interest. The Court conclude that the domestic courts had thus failed to recognize that the present case involved a conflict between the protection of a reputation and the right to freedom of expression.
The Court noted that it was undisputed between the parties that the founders of the newspaper were not the source of the allegation about the increasing irregularities in the timber business. The Court reiterated that a distinction needs to be made according to whether statements emanate from a journalist or are quotations from others, since punishment of a journalist for assisting in the dissemination of statements made by another person would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so. The Court observed that the national courts failed to advance any justification for imposing a punishment on the founders of the newspaper for reproducing statements made by others, a failure which was incompatible with the European Convention.
Turning to the fact that the founders could not avail themselves of the defense under section 57 of the Mass-Media Act. The Court reiterated that “the press should normally be entitled, when contributing to public debate on matters of legitimate concern, to rely on the content of official reports without having to undertake independent research”. [para. 45] The Court concluded that “the distinction between State bodies and municipal bodies, drawn by the domestic courts in order to overrule the [founders’] reliance on [section 57 of the Mass-Media Act], was rather formalistic and artificial. In any event, the letter had been signed, among others, by the local police chief and an official or the tax inspectorate, both of whom obviously fall within the ranks of officials explicitly listed in section 57 [of the Mass-Media Act].” [para. 45]
The Court underlined that in the context of the balancing exercise under Article 10 of the European Convention, the relevant test is not whether the journalist can prove the veracity of the statements but whether a sufficiently accurate and reliable factual basis proportionate to the nature and degree of the allegation can be established. In this case, it was undisputed by the parties that the regional courts’ management department had obtained unusually high timber purchasing quotas, and that foreign companies had been able to purchase timber in the region without a licence. Where the impugned statement was made in the course of a lively debate at local level, elected officials and journalists should enjoy a wide freedom to criticize the actions of a local authority, even where the statement may lack a clear basis in fact. The Court thus found that the contested statement, albeit expressed provocatively, did not overstep the bounds of journalistic freedom.
Concerning the substantial penalties imposed on the founders of the newspaper, the Court noted that the domestic courts did not consider the income of the founders, and failed to take into account whether the damages awards would amount to an excessive burden on them. The Court found the penalty to be severe.
In conclusion, the Court did not find that the Russian authorities had adduced relevant and sufficient reasons for the interference with the founders’ right to freedom of expression. Accordingly, the interference amounted to a violation of Article 10(2) of the European Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment expands freedom of expression by recognising the vitally important role of the media in reporting on matters relating to the management of public resources. Furthermore, the European Court reiterated the principle that journalists should not be punished for disseminating the statements of others without particularly strong reasons for doing so. In this context, the European Court considered the domestic courts’ interpretation of a domestic law that was aimed at protecting journalists who repeat statements made in official reports, and criticised the courts’ narrow and artificial interpretation of such a defence in order to prevent the defendant’s from relying on it. This judgment is, therefore, an indication of the European Court’s disapproval of formalistic interpretations of defamation defences that are aimed at furthering the right to freedom of expression under Article 10 of the European Convention.
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 case and constitute an authoritative interpretation of the European Convention on Human Rights.
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