Defamation / Reputation, Press Freedom, Privacy, Data Protection and Retention
Bloomberg LP v. ZXC
Closed Expands Expression
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The European Court of Human Rights found that defamatory information published in good faith and published in the public interest does not violate an individual’s right to reputation protected by Article 8 of the Convention. The applicant, Mr. White filed an application against the State claiming that the Swedish courts failed to protect his reputation against the defamatory articles published by two leading newspapers – Expressen and Aftonbladet. The articles accused him of involvement in criminal offences, including the murder of Olof Palme, the Swedish Prime Minister. The Court found that freedom of the press grants recourse to a degree of exaggeration and provocation. Any restrictions to the right must be construed strictly and established convincingly. In the present case, the journalists had taken steps to verify the information and presented balanced views, including statements from the applicant and third parties rejecting the allegations. Since the press had acted in good faith and the publication concerned matters of public interest, the public interest in publishing the information outweighed the applicant’s right to reputation.
On November 29, 2002, the applicant Mr. White, a British national filed a case against the Kingdom of Sweden under article 34 of the Convention before the Court. He argued that the national courts had refused to protect his right to reputation by holding that newspaper articles accusing him of murder were not defamatory. This violated his rights under Article 8 of the Convention.
In the autumn of 1996, Expressen and Aftonbladet- the two leading newspapers in Sweden, published articles accusing the applicant of involvement in various criminal offences, including the murder of Swedish Prime Minister Olof Palme, in 1986. The articles also included opinions from third parties rejecting the allegations and statements from the applicant, denying the allegations.
On September 23, 1998, the applicant sued the newspapers for defamation under Sweden’s Freedom of the Press Act and the Criminal Code and sought compensation for mental suffering and pecuniary damage.
The district court put forth specific questions relating to the statements and photographs published in the articles before the jury. For all but six questions, the jury found the respondents not guilty of defamation. For the remaining six questions, the jury found that there was defamation of a normal degree.
In assessing the liability of the newspapers over the six statements, the district court acquitted the editors of the newspapers. It held that while the statements alleged that the applicant was a criminal living a reprehensible lifestyle, the information was in public interest and was based on reasonable grounds of assertion. The nature of the quick-paced news industry constrained the possibility of checking the veracity of the statements.
The decision was upheld by the Svea Court of Appeal. The court of appeal held that although the statements were defamatory, they were justified because they discussed matters of public interest. The Supreme Court refused the applicant’s leave to appeal.
In a per curiam decision presided by Justice Costa, the Court held that there was no Article 8 violation.
The main issues for consideration before the court were first, whether the news articles amounted to defamation under Sweden’s Freedom of the Press Act and Criminal Code, and second, whether the Swedish courts had failed to provide sufficient remedy to the applicant.
The applicant argued that his right to privacy under Article 8 was violated because the courts failed to protect his reputation. The Government argued that there was no indication that the Government failed to give sufficient weight to the applicant’s rights under Article 8.
The Court held that since the lower courts had made a thorough examination of the case and balanced competing interests of the press under Article 10, there was no violation of Article 8.
Relying on Von Hannover v. Germany, App No. 59320/00 (June 24, 2004) the Court held that the State’s obligation to protect an individual’s private life does not prevent the State from interfering where necessary. The State enjoys a margin of appreciation in balancing competing interests of the individual and the public.
Recognising the value of free press in a democratic society, the Court cited Pedersen and
Badsgaard v. Denmark App No. 49017/99 (December 17, 2004) to hold that “journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation.” Although Article 10 is subject to exceptions, these exceptions have to be “construed strictly, and the need for any restrictions must be established convincingly.” [para 21]
However, the right of journalists to impart information is subject to them acting in good faith, based on facts and providing “reliable and precise information”, especially when it may defame an individual. This depends on the degree of defamation and the extent to which media may regard their sources as reliable [para 21].
In the present case, the court noted that the articles published by Aftonbladet and Expressen were defamatory. It was thus important to look at whether the journalists acted in good faith and verified factual allegations.
The court found that the journalists made sufficient efforts to verify the allegations by contacting their colleagues, state officials and representatives of various organisations. They acted in good faith as they attempted to verify the allegations and also published accounts of individuals who had rejected the allegations against the applicant. In fact, journalists at Expressen published the applicant’s interview and Aftonbladet had given him an opportunity to comment on the information, which indicated their good faith.
Nevertheless, the allegations tarnished the applicant’s reputation and disregarded his right to be presumed innocent until proven guilty. Therefore, it was necessary to assess whether the national courts had balanced the applicant’s right to reputation against the freedom of the press, in consonance with principles embodied in Article 8 and Article 10 of the Convention.
The court found that the Freedom of the Press Act and the Criminal Code are in conformity with standards of the Convention and the national courts had applied the domestic laws by weighing relevant considerations.
Evidence showed that the applicant was well-known among certain groups and could not be considered an ordinary person. Further, matters involving criminal investigations and the murder of the Prime Minister were matters of serious public interest and concern. “As such, there was little scope for restricting the communication of information on these subjects” [para 29].
The court noted that in the present case, the public interest in publishing the information outweighed the applicant’s right to the protection of reputation. The Swedish courts had comprehensively examined opposing interests in conformity with the Convention standards.
Therefore, the court concluded that the State did not fail to afford adequate protection to the applicant under Article 8 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment pronounced by ECtHR expands the expression as the court noted that publication of information by the newspapers in the public interest trumped the right to reputation of a public person.
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.
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