Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Expands Expression
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The European Court of Human Rights held that the Russian Federation was in violation of article 10 of the European Convention on Human Rights when its domestic courts found an author and opposition leader guilty for defaming the mayor of Moscow. After the author commented that “Moscow courts are controlled by the mayor” on a live radio broadcast in response to the domestic courts supporting the government’s decision to cancel an opposition march, the mayor lodged a defamation claim, and sought 500,000 Russian roubles as non-pecuniary damage. The Moscow District Court and City Court found in favor of the mayor. The European Court of Human Rights held that limitation of the author’s right to freedom of expression in this case was not “necessary in a democratic society” and noted that limits of acceptable criticism are wider where a politician is concerned. The Court also held that the damages award was disproportionate and acted as a chilling effect on the exercise of freedom of expression.
Eduard Veniaminovich Savenko, a Russian writer who published books and articles under the name “Eduard Limonov”, was a founding member of the National Bolshevik Party and one of the leaders of an umbrella coalition which organised opposition rallies. In 2006, the organizers sought to hold a Dissenters’ March, but the local government in Moscow refused to authorize the march. A court in Moscow upheld the decision of the local government.
On April 4, 2007, Savenko participated in a radio debate in which he stated that the Moscow court’s ruling was unlawful and that the decisions of these courts were controlled by the mayor of Moscow. The transcript of this debate was published on the radio station’s website. On May 18, 2007, the mayor of Moscow filed a defamation claim against Savenko and the radio station at the Babushkinsky District Court in Moscow, seeking 500,000 Russian roubles (RUB) (approximately €28 000 at the time) as non-pecuniary damage. The mayor called an expert from the Vinogradov Russian Language Institute who stated that, for the masses, Savenko’s statement implied that Moscow courts were not independent and that they would never rule against the mayor. This interpretation was corroborated by Savenko’s witnesses, but Savenko submitted that the amount of damages claimed was significant and he could not afford to pay as he was the father of a small child. On November 14, 2007, the District Court found in favor of the mayor, holding that Savenko had not produced any evidence to support his statement that the Moscow courts were controlled by the mayor. It ordered that Savenko and the radio station publish a rectification, and that Savenko and the station pay RUB500,000 to the mayor – the exact amount of damages sought by the mayor in the litigation.
Savenko appealed the decision to the Moscow City Court. The Court held that the damages awarded was correct, taking into account the extent of Savenko and the radio station’s liability, the nature of the statement, the manner and extent of its dissemination, and the nature of moral suffering caused to the mayor. It noted that Savenko’s statement had significantly undermined public confidence in the authorities, and, on February 7, 2008, the Court rejected Savenko’s appeal.
On April 25, 2008, the court bailiffs asked Savenko to pay the entire damages amount within three days. On August 26, 2008, Savenko’s home was searched and his personal belongings were removed. The District Court rejected his request to pay the damages amount in instalments, a decision which was upheld by the City Court. On two separate occasions, Savenko was prevented from leaving Russia as he not paid the amount in full.
Savenko approached the European Court of Human Rights, arguing that the defamation ruling and damages award violated his right to freedom of expression under article 10 of the European Convention on Human Rights. Article 10 states: “(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The European Court of Human Rights issued a unanimous decision. The main issue before the Court was whether the limitation to Savenko’s right to freedom of expression under article 10 of the European Convention was “necessary in a democratic society” [para. 22].
The Russian government submitted that the statement “Moscow courts are controlled by the mayor” had been extremely damaging for the mayor’s reputation, and that it had been uttered as a statement of fact, thus casting aspersions on the independence of the Russian judges. It added that Savenko’s remarks associated the mayor with an abuse of public office and could be seen as accusing him of a criminal offence which undermined the professional integrity of the mayor in the eyes of the public. The government argued that, given this, the damages were proportional according to the relevant provisions of the Civil Code, and they fulfilled the objective of preventing individuals from making unfounded and unsubstantiated public statements.
Savenko submitted that he had not accused the mayor of any offence, but had come to a reasonable conclusion – which any ordinary citizen would have arrived upon – by reviewing past claims lodged by the mayor and observing that every decision of the Moscow courts had been in his favour. Savenko maintained that his statement was his personal opinion which was not actionable in defamation. In addition, Savenko argued that the damages were greatly disproportionate, given the nature of the statement and the existing case-law; his financial situation as the father of two minor children; and his political status as the leader of an opposition movement. He submitted that such an excessively large award had a stifling effect on the criticism of public authorities in Russia.
The Court held that there had been an interference with Savenko’s rights under article 10, but that this interference was prescribed by law (as it was in line with article 152 of the Russian Civil Code) and pursued a legitimate aim of protecting the mayor’s rights and reputation. Accordingly, the Court acknowledged that all it needed to determine was whether that interference was “necessary in a democratic society” [para. 22]. With reference to the case of Krasulya v. Russia App. No. 12365/03, the Court set out the factors to be considered: “the position of the applicant, the position of the person against whom the criticism was directed, the context and object of the impugned statement, its characterisation by the domestic courts, and the sanction imposed” [para. 22].
In assessing the context in which Savenko’s statements had been made, the Court noted that he was an opposition political leader of a party which was seeking “to vindicate the right to freedom of assembly in Moscow” [para. 23] and he had made the statement in a general context while discussing the restrictions “imposed on citizens’ right to freedom of peaceful assembly” by Moscow authorities [para. 24]. It added that Savenko’s statement could be seen as a comment on the “excessive deference” shown by the judiciary to the executive [para. 24]. This was important because, as the Court noted, “[b]oth the exercise of political rights and the functioning of the justice system constitute matters of public interest, which are accorded a high level of protection under Article 10” and so there is a “particularly narrow margin of appreciation for suppressing such speech” [para. 24]. The Court noted that the object of Savenko’s statement was the Moscow judiciary – because it imputed a lack of independence to the judges – but that it was the mayor who sued for defamation. With reference to the case of Oberschlick v. Austria (no. 1) App. No. 11662/85, the Court stressed that “the limits of acceptable criticism are wider as regards a politician than as a private citizen” and found that the domestic courts had failed to consider the balance between the need to protect a politician’s reputation and to promote public debate [para. 25].
In respect of the form and content of the statement, the Court highlighted that Savenko had made the statement as part of a live radio broadcast which meant he had “no possibility of reformulating, refining or retracting it before it was made public” and that these types of statements must be afforded a “greater degree of exaggeration and could not be held to the same standard of accuracy of written assertion” [para. 26]. The Court recognized Savenko’s “indignation” at what he saw as an inability to lawfully vindicate his right to freedom of assembly, and acknowledged that his statement referred to his own and others’ experience of unsuccessful litigation against the mayor. The Court also noted that no Moscow courts had ruled against the mayor in any defamation matter, and concluded that theses experiences provided a “strong factual basis to [Savenko’s] strong reaction” [para. 26]. The Court held that Savenko was entitled to express his opinion in the manner and context he had – a public forum and on a matter of public interest – and found that, by not undertaking a balancing exercise or taking the mayor’s political position into account, the Moscow’s courts had not “examined the defamation claim … in conformity with the principles embodied in Article 10” [para. 26].
The Court examined Savenko’s argument that the damages award was disproportionate and stated, with reference to Bladet Tromsø and Stensaas v. Norway [GC], App. No. 21980/93 and Kasabova v. Bulgaria, App. No. 22385/03, that “unpredictably large awards in defamation cases are considered capable of having a chilling effect on the freedom of expression and therefore require the most careful scrutiny” [para. 27]. The Court explained that the requirement that an award be “necessary in a democratic society” means that the damages “must bear a reasonable relationship of proportionality to the injury to reputation suffered” [para. 27]. It added, with reference to Independent News and Media and Independent Newspapers Ireland Limited v. Ireland, App. No. 55120/00 and Tolstoy Miloslavsky v. the United Kingdom (1995) 20 EHRR 442, that the Court is required to determine whether there were “adequate and effective domestic safeguards” to protect against disproportionate damages awards to ensure a “reasonable relationship of proportionality between the award and the injury to reputation” [para. 27].
In examining the damages award in the present case, the Court noted that it was high in both absolute and relative terms, commenting that it was much higher than other Russian defamation cases that had come before it and that the Government itself could only identify five cases over the previous ten years with comparable awards. It also remarked that the mayor had been granted the full amount of damages sought in this case and in at least two other cases. The Court criticized the Moscow City Court for not justifying the granting of the full amount sought by the mayor and for not allowing Savenko the opportunity to provide evidence of his own financial situation. The City Court had also awarded the mayor’s requested amount despite it being ten times the radio station’s available funds (of which it did have evidence). The Court also criticized the City Court for finding that the “suffering of an elected head of the executive had a much greater value than that of an ordinary citizen”, holding that the City Court’s approach was “incompatible with the Convention-compliant approach which establishes that prominent political figures, such as the Moscow mayor, should be prepared to accept strongly worded criticism” – especially when an impugned statement did not concern their private lives [para. 30]. The Court also assessed the impact of the damages award on Savenko, and commented that it constituted “many years’ income” and that the refusal of the courts to allow him to pay it in installments led to a further “punitive sanction being imposed on him” as he had not been allowed to leave Russia [para. 31].
Accordingly, the Court held that the failure of the Moscow courts to apply the standards embodied in article 10 and the disproportionate damages award constituted an infringement of article 10. The Court awarded Savenko €11,700 plus taxes in respect of pecuniary damage, and €7,800 plus taxes in respect of non-pecuniary damage.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment re-affirms how the limits of acceptable criticism are wider where a politician is concerned, and stresses that, while a politician’s right to reputation is important, this right cannot be protected at the expense of promoting open discussions on matters of public interest. The emphasis on the need for domestic mechanisms to operate to ensure that disproportionate damages awards are not granted in defamation cases also highlights the chilling effect large awards can have on the exercise of freedom of expression.
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