Defamation / Reputation
Johnson v. Steele
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The European Court of Human Rights found no violation of the right to freedom of expression in a case brought by a book publisher that had been ordered by the German courts to pay 10,000 EUR damages to an individual who had been referred to as a “presumed member” of the mafia in a book. The impugned statement only appeared on one page of the book published by the company, and the allegation was based on an internal report of the Federal Office of Criminal Investigations. The European Court of Human Rights found no reason to interfere with the view of the national courts, which had found that the publisher failed to comply with journalistic duties and obligations.
The case arose from a book that had been published by the applicant company (a German publishing house), and written by Petra Reski. The book was entitled “Mafia”, and dealt with the mafia’s ties to Germany. For instance, the book recounted a mass murder that had taken place in front of an Italian restaurant in Duisberg in 2007, which was supposed to be the culmination of a vendetta between two families from an organized crime group from Calabria, Italy called ‘Ndrangheta.
In one part of the book, an Italian businessman residing in Germany (referred to in the judgment as S.P.) was named in full. Among other allegations, the passage inferred that S.P. was a “presumed member of the ‘Ndrangheta” and noted that he was mentioned in a report of the Federal Office of Criminal Investigation (FOCI) from 2000. This report and another FOCI report from 2008 were relied on to make the allegation about presumed membership. Neither of these reports had been made public at the time of publication. In 1997, during a television interview, S.P. denied any membership of, or connection to, the ‘Ndrangheta.
Following publication of “Mafia” in 2008, S.P. applied to court for an injunction to stop the dissemination of the passages that were allegedly harming his reputation. The Munich Regional Court held that, although the book reported on issues that were of public interest, the author violated her journalistic duties. The Regional Court reasoned that the internal FOCI reports that were relied on were insufficient sources for the allegations presented in the book, as they were not intended to be made public. Notably, the Regional Court observed that the investigative authorities had not found there to be sufficient evidence to bring a prosecution or impose a sentence. Furthermore, the Regional Court stated that any reports on a suspicion should include reference to circumstances exonerating the individual under suspicion. The Regional Court also criticized the publisher for failing to give S.P. an opportunity to make a statement regarding the suspicion prior to publication.
The Munich Court of Appeal dismissed an appeal by the publishing house, holding that the book contained a serious allegation with regards to membership of the mafia and therefore seriously interfered with S.P.’s personality rights. The Court of Appeal found that the language adopted in the book did not allow an average reader to infer that S.P.’s membership could only be assumed vaguely. It found, instead, that the book created the impression that there was very strong suspicion that he was a member of ‘Ndrangheta. The Court of Appeal found that the research conducted by the author had not constituted sufficient proof to raise the “exceptionally grave suspicion” in the book. The Court of Appeal indicated that the author did not have to wait for the outcome of an investigation to report the corresponding suspicion, but the author could not ignore the fact that investigations initiated six or seven years ago had now come to an end without charges being brought.
Following issuance of the injunction, S.P. applied for 20,000 EUR damages to compensate for the harm caused to his personality rights. The Munich Regional Court agreed with the other decisions, but dismissed the application for damages on top of the injunction as ill-founded since the publishing house had not breached journalistic duties in a serious manner. The Court of Appeal, on the other hand, allowed the application and ordered the publishing company to pay 10,000 EUR since there was a serious violation of personality rights that could not be compensated in any other way. The Court of Appeal found the motivation of the author to be “commendable and honest”, but concluded that the dissemination of the impugned statements was grossly negligent. The Court of Appeal also noted that the injunction was not sufficient redress for S.P. since the injunction would not affect those who had already purchased the book.
The publisher appealed against this decision to the Federal Constitutional Court, which dismissed the appeal.
The publishing company filed an application to the European Court of Human Rights, claiming that the order to pay 10,000 EUR in damages was a violation of its right to freedom of expression under Article 10 of the European Convention on Human Rights. The applicant complained that the order was a limitation that was not necessary in a democratic society. In particular, the applicant argued that since the allegation came from reports of the FOCI, the author was justified in refraining from further research. The Government said that the allegations made in the book went beyond the information contained in the internal official reports. Moreover, the book did not explicitly make reference to the report as the source for the allegations. The Government maintained that the domestic courts acted within their margin of appreciation.
The European Court of Human Rights (Court) found no violation of the right to freedom of expression under Article 10 of the European Convention on Human Rights (Convention). The Court began by noting that it was satisfied that there was an interference with the right that was prescribed by law, and that the interference pursued the legitimate aim of protecting the reputation or rights of others. It was left for the Court to decide whether a fair balance had been struck by the domestic courts between the right to freedom of expression (Article 10 of the Convention), and S.P.’s right to protection of private life and reputation (Article 8 of the Convention). The Court noted that if the balancing conducted by the courts was in conformity with the Court’s case law, there would need to be strong reasons for it to substitute its view for that of the courts.
The Court applied the well-established criteria in its case-law for balancing the rights under Articles 10 and 8 of the Convention.
Contribution to a debate of public interest
The Court stated that this was an “essential criterion” in the balancing of the rights. [para. 40] The Court agreed with the domestic courts that the book contributed to a debate of public interest by informing the public about criminal organizations in Germany.
How well known is the person concerned and what is the subject of the report?
The Court observed that the domestic courts did not explicitly discuss this. However, the Court found that S.P. was a private individual, and was therefore deserving of particular protection of his right to private life.
Method of obtaining the information and its veracity
The Court reiterated that the protection afforded to journalists under Article 10 of the Convention when reporting on issues of public interest was subject to the proviso that they were acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism. The Court also noted that special grounds were required before the media could be dispensed of its obligation to verify factual statements that were defamatory of private individuals. Whether a source could be regarded as reliable and whether the media gave the persons defamed the opportunity to defend themselves were relevant to this assessment. The Court reiterated its previous observation that “the press should normally be entitled, when contributing to public debate on matters of public concern, to rely on the contents of official reports […] without having to undertake independent research.” [para. 46]
The Court noted that the allegation was presented as a presumption rather than a fact, but also noted that the domestic courts found that the author exaggerated the level of suspicion against S.P.. The Court agreed with the domestic courts that a distinction had to be made between “public official reports or official press releases and internal official reports.” [para. 48] The Court reasoned that although the latter could be an important source, they cannot exonerate a journalist from their obligation to base their publications on sufficient research (particularly where allegations are of a criminal nature). The Court could not find the domestic courts’ findings in this regard to be unreasonable.
The Court agreed with the domestic courts’ observations that S.P. should have been provided with an opportunity to defend himself, and noted the lesser urgency in printing a book when compared to press publications. The Court also accepted the findings of the domestic courts regarding the veracity of the information.
Prior conduct of the person concerned
The Court noted that this was only touched on by the domestic courts. Nonetheless, the Court observed that the previous television interview featuring S.P. did not deprive him of protection against subsequent allegations.
Content, form and consequences of the publication
The domestic courts found that the way in which S.P. was described in the book conveyed a strong suspicion against him, even though it was not proved that any serious consequences followed the book’s publication. Taking these circumstances into account, the Court did not find it unreasonable that the domestic courts found the publishing company to have “overstepped the limits of responsible journalism”. [para. 56]
Severity of the sanction imposed
The Court noted that the case did not concern the imposition of the injunction, but rather the award of damages against the publishing company. The Court noted that the Court of Appeal awarded less than it had been asked for, and it was less than an amount awarded in a similar case. The Court also agreed with the Government’s argument that a printed retraction would have been ineffective redress. It also observed that the order did not constitute censorship or a deterrent because of the economic position of the publishing company.
In light of the above, the Court could find no strong reasons to substitute the conclusion reached by the domestic courts. Therefore, there had not been a violation of the right to freedom of expression under Article 10 of the Convention.
Dissenting opinion of Judge Tsotsoria
Judge Tsotsoria believed that there had been a violation of Article 10 of the Convention for a number of reasons. Firstly, the article was of public interest. Secondly, S.P.’s alleged membership with the mafia was presented as a presumption and not as a fact. Thirdly, relying on an internal official report did not impose a duty upon a journalist to conduct further research. Finally, the author acted in good faith when writing the book. In light of this, Judge Tsotsoria believed the Court should have substituted its view for that of the domestic courts and “deeply regret[ted] [the Court’s] troubling departure from the prevailing understanding of the case-law of [the] Court”. [p. 18]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts freedom of expression by imposing a requirement on journalists to conduct further research when relying on internal official reports from investigative authorities. Such an obligation could deter journalists from reporting stories that have come from a leaked official document containing allegations that are not easily verified through further research.
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