Defamation / Reputation
Niskasaari v. Finland
Closed Contracts Expression
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The European Court of Human Rights rejected a journalist’s application under Article 10 of the European Convention on Human Rights on the basis that the domestic courts had properly carried out the balancing exercise between freedom of expression and the right to privacy which includes reputation. The journalist had been convicted of defamation in respect of an article in which he reproduced only part of the statements made by a public figure. The Court reasoned that the Italian courts had carried out the balancing exercise between the competing rights in conformity with the criteria laid down in its jurisprudence and reiterated that the protection afforded to journalists by Article 10 of the Convention is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with responsible journalism.
On October 3, 2002, a journalist published in the Italian magazine “L’Espresso” an article titled “Heinous agreement between the Mafia and Forza Italia” (“Patto scellerato tra mafia e Forza Italia”). The article stated that between 1993 and 1994 a secret agreement was supposedly reached between an Italian political party, Forza Italia, and the Sicilian Mafia, in exchange for votes from the areas under the Sicilian Mafia’s control. In particular, the journalist described, inter alia, a meeting in which some members of Forza Italia , including a Mr. D.U., tried to convince a member of the military, Colonel R, to change his deposition about the above-mentioned agreement. The article concluded by suggesting that another figure of Forza Italia, Mr P., was physically present on the premises when the meeting occurred, specifically, it quoted part of a sentence extracted from the recorded statements made by Colonel R. to the Florence District Court prosecutors “On that occasion, as on others, Mr P. was also present in the chambers of Mr T.”
After the publication of the article, Mr. P. accused the journalist and the editor-in-chief of the magazine of defamation, in particular, that the applicant had implied that he was actively involved in the meeting described. Mr. P. claimed damage to his reputation. On October 15, 2008, the Rome District Court noted that, by placing the sentence between quotation marks, the applicant generated in the reader the understanding that it was an accurate representation of Mr. P’s recorded statement. However, the District Court also noted that the statement had not been quoted in its entirety. The complete statement, as replicated by the District Court in its judgment, reads as follows: “On that occasion, as on others, Mr P. was also present in the chambers of Mr T. Mr P.’s presence was, however, due to other reasons, linked to their common political activity and he was not present when the position of Mr D.U. in his criminal proceedings was discussed.”
The District Court held that the journalist could not rely on his right to impart information in order to justify his conduct because such a right is dependent on the precondition that the imparted information is accurate. In these circumstances, the District Court held that the incomplete quotation acquired a defamatory character and sentenced the journalist to eight months’ imprisonment (enforcement suspended), payment of a fine of 100 euros and of 20,000 euros in compensation.
The journalist appealed to the Rome Court of Appeal claiming that the impugned article had not been defamatory of Mr P., and that quoting the whole of Colonel R.’s statement had been unnecessary. He also contested the penalty imposed. In its judgment January 8, 2010, the Rome Court of Appeal upheld the reasoning of the District Court. In particular it reaffirmed that the contested passage in the article had clearly been of a defamatory nature, and that the applicant’s conduct had been deliberate. It added that the applicant should either have refrained from mentioning Mr P. at all or should have quoted the statement in its entirety in order to give an accurate account of the facts as related by the original source. It said that the fact that the applicant chose to refer to Mr P.’s presence without quoting the statement in its entirety proved his malicious intent. The Court of Appeal reaffirmed the applicant’s criminal liability accordingly. However, it found the penalty imposed by the District Court excessive, as regards the suspended prison sentence, and therefore replaced it with payment of a fine of 1,000 euros In all other respects it upheld the sentence imposed by the District Court.
The journalist subsequently appealed to the Italian Supreme Court on points of law, claiming that the Court of Appeal’s judgment lacked adequate and logical reasoning. The Supreme Court declared the appeal inadmissible in its judgment March 28, 2014, finding that the reasons put forward by both the District Court and the Court of Appeal were sound and sufficient.
The applicant claimed a breach of his right to freedom of expression, as provided by Article 10 of the European Convention on Human Rights (ECHR), in particular he claimed that the news relating to Mr. P.’s presence on the premises on the day when the meeting had been held was in the public interest. Moreover, he stated that, as a journalist, he was exercising his right to impart information and the influence on the reputation of Mr. P. was limited due to the fact that, at the time of publication, he was considered “a not entirely trustworthy individual” .
The Strasbourg Court acknowledged that the decision of the Italian courts constituted an interference with his right to freedom of expression. However, it reiterated that freedom of expression is not an absolute right but that it is subject to exceptions and, in this case, the aim of the conviction was to protect “the reputation or rights of others.” Regarding the requirement that the limitation of freedom of expression should be “necessary in a democratic society,” the Court analysed whether the Italian courts had struck a fair balance between freedom of expression and the protection of reputation as provided by Article 8 of the ECHR. The Court said that “an attack on a person’s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life”.
The Court considered that the article, concerning a relationship between politicians and a criminal organisation, addressed a topic relevant to the public and, therefore, was covered by a high level of protection leaving a narrow margin of appreciation for national authorities. Moreover, it should be also taken into consideration that Mr. P, as a member of parliament and therefore a public figure, “had to display a greater degree of tolerance towards criticism and public scrutiny.” However, the seriousness of the statements was relevant to assess the prejudice to Mr P.’s right to protection of reputation.
The Strasbourg Court agreed with the domestic courts that, by quoting only a part of the statements, the article had lead readers to believe that Mr P. was present and involved in the meeting mentioned in the article. Moreover, the domestic courts also found that the applicant’s conduct was deliberate and that it had severely damaged Mr P.’s reputation and honour. The Court went on to emphasize that “while the press plays an essential role in a democratic society and its duty is to impart information and ideas on all matters of public interest, journalists are nevertheless subject to duties and responsibilities”. It said that the protection afforded to journalists by Article 10 of the Convention is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with responsible journalism.
For these reasons, the Court found no reason to disagree with the rulings of the Italian courts. Further, regarding the nature and severity of the sanction, it said that although criminal sanctions could have a chilling effect on journalism, the 1,000 euros fine and 20,000 euros compensation to the injured party were moderate. In conclusion, the Court unanimously found that a fair balance was struck at the domestic level between the competing rights, and that the national courts provided sufficient and relevant reasons in justifying the necessity of the interference in the applicant’s freedom of expression. It therefore rejected the application as manifestly ill-founded.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts expression by upholding a journalist’s conviction for defamation on the basis that the national courts properly balanced the competing rights of freedom of expression and privacy in circumstances where the journalist, by only quoting part of a statement, failed in his duty to report accurately and therefore forfeited his right to protection under Article 10.
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