Defamation / Reputation
Johnson v. Steele
Closed Expands Expression
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Krisztián Ungváry is a historian who had been convicted of for defamation, along with his publishers, for an article in which he had accused a Constitutional Court judge of having been an active party member and an “official contact” for the state security services before Hungary’s democratic transition. The European Court of Human Rights found that this violated Ungváry’s right to freedom of expression, holding that the domestic courts had failed to take the public interest in the debate around past collaborators of the security services into account and that they had wrongly categorized Ungváry’s accusations as statement of fact. The European Court also held that publishers cannot be expected to scrutinize the veracity of claims made by an established historian in a report published by them; to do so would counter-act the ability of the press to act as the watchdog of democratic society.
Krisztián Ungváry is a Hungarian historian researching 20th century Hungarian history with a focus on state security. In 2007, he published an article in a weekly cultural-political magazine about the role played by state security in relation to the student movements of the 1980s. He referred to Mr. K., who by then had been elected as a Constitutional Court judge, as an important “official contact” of the state security services in the 1980s. He distinguished Mr. K. from actual agents but referred to him as a keen informant who demanded “hard-line policies”. In the magazine’s next issue a statement by Mr. K. denying the allegations was published. A week later Mr. Ungváry reiterated his statements in a television interview in which he also referred to Mr. K. as “trash”, and he again described Mr. K. as an “official contact” in a later book and in an online interview.
Mr. K. filed a defamation action against Ungváry as well as against the magazine’s publishers. In February 2009 the Budapest Regional Court found for him, ruling that Mr. K’s personality rights had been violated through the magazine article as well as in the book and in the television interview. The magazine publishers were held jointly liable for publishing the study. On appeal, the Budapest Court of Appeal dismissed Mr. K’s action, holding that the impugned statements were value judgments with sufficient factual background. Mr. K. petitioned the Supreme Court, and it overturned the Court of Appeal’s judgment holding that Ungváry’s statements were false and defamatory. Ungváry and the publishers were ordered to pay jointly and severally 2,000,000 Hungarian Forints (approximately 7,000 EUR) damages and 3,300 EUR legal costs, whilst Ungváry was separately ordered to pay another 1,000,000 Hungarian Forints (approximately 3,500 EUR).
The Court held, by four votes to three, that Ungváry’s right to freedom of expression had been violated; it held unanimously that the publishers’ right to freedom of expression had been violated.
At stake was whether or not the defamation award had been “necessary in a democratic society”. The Court emphasized the important role of the press in a democratic society, but also stated that the right to freedom of expression is not unrestricted. The Court held that journalists have to follow the principles of responsible journalism even when they contribute to debates on issues of public interest, explicitly stated that the media has to “refrain from pure sensationalism” [para. 42].
The Court noted that the study was a mostly factual description of the events of the student movements of the 1980s. The Court held that as a public figure, Mr. K. had to tolerate that a historian made would offer public criticism of his role as a party official in the 1980s, and that he had also used the press to speak out against these findings. Concerning the nature of the allegations made, the Court recalled that “an assumption as to the reasons and possible intentions of others is a value judgment” [para. 52]; and, furthermore, that “the term “official contact” is a wide one, capable of evoking in those who read it different notions as to its content and significance” [para. 52]. It therefore held that the statement that Mr. K. as a party secretary had acted as an “official contact” was a “fact-related value judgment” [para. 58].
The Court went on to state that Ungváry’s statements had “exceeded the limits of journalism, scholarship and public debate” [para. 53] – but doubted that the defamatory content of these speculations was not proven sufficiently. The Court emphasized that Mr. K. had produced reports and that these had been available to the authorities at the time, even if he did not provide the reports explicitly to the authorities. Furthermore, the Court held that the domestic courts had failed to take into consideration that the Ungváry’s statements were “made in the context of the broader presentation of the workings of the oppressive mechanism of a totalitarian regime” [para. 55]. During the domestic proceedings, the Hungarian courts had demanded a high level of accuracy concerning the truth of the allegations, which the European Court held to be inappropriate; it stated that the standard of proof demanded from journalists and historians describing immoral conduct cannot be the same as that applied in criminal proceedings. The Court went on to hold that since many allegations concerning Mr. K.’s role had turned out to be true, the domestic courts had failed to apply “the most careful scrutiny” when balancing his personality rights against the freedom of the press [para. 57].
The Court further emphasized the strong public interest in the subject matter of the articles, noting that many questions concerning the Communist regime were still subject of ongoing public and scientific debate in Hungary. The Court reiterated that “it is an integral part of freedom of expression to seek historical truth” [para. 63] and emphasized that in a democratic society, those holding elected positions – including Constitutional Court judges, who in Hungary were elected by Parliament – “must accept that their past public and political conduct remains open to constant public scrutiny” [para. 64].
Ungváry had obtained the information from archival research and presented it as his scholarly position. While his choice of words had been excessive, he had nevertheless refrained from sensationalism. Mr. K. had had the opportunity to react in the magazine’s next issue and further rectifications had been published upon his request. The Court further stated that the damages awarded had been excessive and were liable to have a chilling effect on the right to freedom of expression.
Concerning the second applicant, the publishers, the Court held that “[i]n order to enable the press to exercise its ‘watchdog’ function, it is important that the standards of liability of publishers for publication be such that they shall not encourage censorship of publications by the publisher.” [para. 74] Since the state archives from which Ungváry had obtained his information were accessible only to historians, there had been no opportunity for the publisher to verify the truth of the impugned statements. Moreover, the Court held that “there was no reason for the [publishers] to call into question the accuracy of an article written by a historian specialized in the affairs of the State security” [para. 75].
The Court therefore found that the second applicant had published Ungváry’s article in good faith and line with the rules of journalistic ethics. Its conviction for defamation therefore violated the right to freedom of expression.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court strengthened the notion that opinions expressed in a debate concerning the recent history of a country are entitled the highest level of protection reserved for political speech and that elected officials including judges have to tolerate public scrutiny of their past conduct. As regards publishers, the Court stated that they cannot be expected to question the findings of a study written by a well-established historian prior to publication and warned of the chilling effect of holding publishers strictly liable for claims made in their publications.
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.
The decision is binding on the State party to the case – Hungary – and provides an authoritative interpretation of the meaning of Article 10 in cases such as this for other European countries. The Court’s ruling that publishers should not be held liable for claims made by respected authors is novel.
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