Defamation / Reputation, Political Expression
Nieto Marquez v. Las Igualadas
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The European Court of Human Rights ruled in favor of Turkish journalist and columnist Erbil Tusalp, finding his conviction for the publication of articles critical of then the Prime Minister Recep Tayyip Erdogan amounted to a violation of his freedom of expression. Tusalp had been found guilty of attacking the personal rights Erdogan in relation to two articles published in Birgün newspaper which alleged Erdogan had lied about public policy, had engaged in corruption and had psychological problems. The European Court ruled the civil judgments were in violation of Article 10 on the grounds that Tusalp’s remarks, while offensive or inelegant, were value judgments based on particular facts or events. The Court emphasized, however, that offensive language may “fall outside the protection of freedom of expression if it amounts to wanton denigration, for example where the sole intent of the offensive statement is to insult.” Here, the Court concluded that remarks contained in the articles were not merely personal attacks against the Prime Minister but were opinions on topics in the public interest.
On December 24, 2005, journalist and columnist Erbil Tusalp wrote an article, entitled “Stability,” for Turkish daily newspaper Birgün in which he criticized the Prime Minister Recep Tayyip Erdogan. He said: “Whether you like it or not stability is continuing. Every word that comes out of his mouth shocks, even if denied and corrected.” He then accused Erdogan of lying on domestic matters, “from national income to inflation to the budget.” He also said that the prime minister had given amnesty to his friends who were facing corruption charges.
On May 6, 2006, Birgün newspaper published another article by Tusalp in which he accused Erdogan of having psychological issues with hostile attitude towards academia, journalists, and opposition parties. “Having regard to the fact that he defames the birds in the air and the wolves in the mountains, he responds to criticisms with swearing, for him University professors are immoral, the opposition party meagre, journalists shameless . . .,” Tusalp wrote.
In 2006, Erdogan brought two civil actions against Tusalp and the publishing company before the Ankara Civil Court of First Instance on the grounds that the articles amounted to an attack on his personal rights. The court found in favor of Erdogan and ordered the defendant to pay compensation in the amount of 5,000 Turkish liras plus interest for each article. It reasoned that the articles went beyond the acceptable limit of criticizing public officials as they attacked personal rights.
In 2008, the Court of Cessation refused Tusalp’s request for hearing on both judgments.
Subsequently, Tusalp lodged two separate applications before the European Court of Human Rights, arguing that the civil judgments impermissibly interfered with his right to freedom of expression under Article 10 of the European Convention on Human Rights.
Tusalp contended that his articles were aimed at criticizing Erdogan in his official capacity as the Prime Minister who must be more tolerant to such criticisms rather than bringing civil lawsuits as a way of pressure on his journalistic function.
On the other hand, the government argued that the interference with Tusalp’s right to freedom of expression pursued the legitimate aim of protecting the reputation and rights of others recognized under Article 10 of the Convention. It also maintained that the remarks made in the articles went beyond the acceptable level of criticism. The Turkish government specifically referred to the Court’s case law, including Brasilier v. France, Application No. 71343/01 (2006) and Vides Aizsardzības Klubs v. Latvia, Application No. 57829/00 (2004), reiterating the notion that protecting reputation extends to politicians. [para. 34]
The first issue before the Court was whether the interference was proscribed by law. It held that the civil actions against Tusalp were pursuant to Article 49 of Turkey’s Code of Obligations.
The second issue was whether the interference pursued a legitimate aim recognized under Article 10 of the Convention. The Court found that the actions taken against Tusalp pursued the legitimate aim of protecting the reputation or rights of others, within the meaning of Article 10(2).
Lastly, the Court assessed whether the interference was “necessary in a democratic society,” which requires the determination of whether the action complained of corresponded to a “pressing social need” [para. 41] Specifically, “whether the reasons adduced by the national authorities to justify the interference were ‘relevant and sufficient’ and whether the measure taken was ‘proportionate to the legitimate aims pursued’” [para 42] (quoting Chauvy and Others v. France, Application No. 64915/01 (2004). Relevant to the present case, the Court reiterated its position on the press, noting that although the press must not overstep its boundaries, particularly with respect to reputation of others, its duty is to impart information and ideas and that “[j]ournalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation.” [para. 44]
As applied to Tusalp’s articles, the Court first found that while his remarks against the Prime Minister could be considered as offensive or inelegant, they had sufficient factual basis because they were “mostly value judgments based on particular facts, events or incidents which were already known to the general public.” [para. 47] Second, the Court underscored that Article 10 of the Convention applies not only to favorable forms of expression, but also “those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society.’” [para. 48] Offensive expression, however, is not protected under the Convention “if it amounts to wanton denigration, for example where the sole intent of the offensive statement is to insult.” [para. 48] Here, the Court found Tusalp’s strong criticisms concerned current state of affairs, including government corruption and its intolerance towards opposing views rather than mere personal attacks against Erdogan. It concluded that the domestic courts of Turkey overstepped their margin appreciation and the judgments were disproportionate to the legitimate aim of protecting the Prime Minister’s personal reputation.
Accordingly, the Court found Turkey in violation of Article 10 of the Convention.
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