Defamation / Reputation
Johnson v. Steele
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The European Court of Human Rights found a violation of the right to freedom of expression where an editor had been convicted of insult and fined for publishing a harsh and highly critical article about local officials. Maciej Ziembiński, the proprietor and editor-in-chief of a local weekly newspaper in Poland, had published an article that was critical of a plan to introduce quail farming in the Radomsko District, and which used the words “numbskull”, “poser”, “dim-witted official”, and “dumb bosses” to describe local officials who were not explicitly named in the article. The Court’s majority viewed the article as a satirical piece that concerned a matter of legitimate public interest, and the remarks used by Mr. Ziembiński did not overstep the limits of acceptable exaggeration.
Beginning in March 2004, the Komu i Czemu local newspaper published a series of articles and columns that were critical of a local official’s plan to develop quail farming in the Radomsko District. Maciej Ziembiński, who was proprietor and editor-in-chief of the newspaper, penned an article describing the plan as “elegantly wrapped dung” that would not solve the unemployment problem in the region. The article referred to the local official who authored the plan as a “numbskull”, “poser” and “dim-witted official”, but the article did not expressly name him. The article also referred to his “bosses” as being “dull”.
The mayor of Radomsko District, the spokesperson of the district’s marketing department, and an employee of that department who had developed the quail farming project lodged a private bill of indictment against the applicant, accusing him of defamation committed through the mass media (Article 212 of the Civil Code). They alleged that the statements in the article had lowered them in public opinion and ultimately undermined the public confidence necessary for the discharge of their duties.
The Piotrkow Trybunalski District Court found Mr. Ziembiński guilty of insult committed through the mass media. The Piotrkow Trybunalski District Court reasoned that, despite the fact they were not named in the article, the government officials were easily identifiable given the earlier articles in the newspaper and the high amount of publicity that had been generated by the plan to develop quail farming in the region. While recognizing the journalist’s right to freely criticize public officials, the court found Mr. Ziembiński’s article to have amounted to a blatant abuse of freedom of speech and professional ethics. In its judgment, the Piotrkow Trybunalski District Court found that the “statements were rather harmful to the private prosecutors’ perception of their dignity, and such, in the court’s view, was the defendant’s intention. By using insulting words in respect of the district officials, Maciej Ziembiński intended to derive satisfaction from doing them moral harm” (Article 216 of the Civil Code). This amounted to the offence of insult, but could not be classified as defamation as the statements did not lower the officials in public esteem. The Piotrkow Trybunalski District Court opined that it would be disproportionate to impose a prison sentence in this case, and instead ordered Mr. Ziembiński to pay a fine of approximately 2,630 euros. He was also ordered to pay approximately 499 euros in costs to the private prosecutors and the State Treasury.
Following the dismissal of his appeal by Piotrkow Trybunalski Regional Court, Mr. Ziembiński lodged an application with the European Court of Human Rights complaining that his conviction for insult had violated his right to freedom of expression under Article 10 ECHR.
In a majority decision, the European Court of Human Rights (Court) found a violation of Article 10 ECHR.
The Court first held that Mr. Ziembiński’s conviction and fine amounted to an interference with the exercise of his right to freedom of expression, but it found that the interference was prescribed by law and pursued the legitimate aim of protecting the reputation of others. Thus, the only remaining question for the Court was whether the interference was “necessary in a democratic society” and whether the domestic courts had struck a fair balance between the protection of freedom of expression as enshrined in Article 10 ECHR and the protection of the reputation of those against whom the allegations were made under Article 8 ECHR.
The Court went on to find that the article was satirical in nature and criticized a project that was a matter of legitimate public interest. As a result, any restrictions imposed on the article had to be “strictly construed”. [par. 40] The Court also took into account that one of the private prosecutors was the mayor of the district, with regard to whom the limits of acceptable criticism were wider. The other two private prosecutors were civil servants who were also subject to wider limits of acceptable criticism, but the Court noted civil servants do not knowingly lay themselves open to public scrutiny the way politicians do.
The Court was particularly critical of the domestic courts’ failure to sufficiently take into account the satirical nature and ironic undertones of the article. The Court highlighted that “the use of sarcasm and irony is perfectly compatible with the exercise of a journalist’s freedom of expression.” [para. 44] They reiterated that “while any individual who takes part in a public debate of general concern – like the applicant in the instant case – must not overstep certain limits, particularly with regard to respect for the reputation and rights of others, a degree of exaggeration or even provocation is permitted; in other words, a degree of immoderation is allowed.” [para. 44] In this case, the Court decided not to take a position in relation to each specific remark in the article. Instead, it found little difficulty in reaching the conclusion that the remarks, in the context of the article, fell within the limits of admissible exaggeration.
In assessing the proportionality of the interference, the Court took into account the nature and severity of the penalty imposed on Mr. Ziembiński. The Court reiterated that while “the use of criminal-law sanctions in defamation cases is not in itself disproportionate,” they must not “dissuade the press or others who engage in public debate from taking part in the discussion of matters of legitimate public concern.” [para. 46] Here, the Court found the imposition of 2,630 euros along with costs to be disproportionate.
Based on the foregoing reasons, the majority of the Court found a violation of Article 10 ECHR.
Judges Wojtyczek and Kūris dissented with the Court’s majority opinion. The judges initially criticized the Court for taking the place of a domestic court in determining what words are beyond the limits of acceptability in that particular society. The judges reasoned that the margin of appreciation for the Court is narrower than domestic courts when making a determination of this kind, for the domestic courts “are, and always will be, peerlessly better equipped than this Court to judge what is insulting to a native speaker.” [par. 5] The judges were also critical of the majority judgment because it seemed to give articles that are classified as “satirical” or of “legitimate interest” a privilege that absolved the author of any responsibility for the words or phrases used in the articles. The judges even went so far as to doubt the majority’s classification of the article as satire. The judges also criticized the Court for not analyzing each specific remark made in the article, and for failing to take any position on the issue of journalistic ethics. The judges concluded that they could not accept the finding of a violation of Article 10 ECHR in this case, and expressed their concern that the majority judgment “sends a clear message to Polish society that [the relevant insults in this case] will be considered, by this Court, as acceptable in public debate in the future.” [par. 33]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the European Court of Human Rights expands freedom of expression by recognizing that a journalist’s freedom of expression can include recourse to sarcasm and irony, and domestic courts should take these factors into account when deciding whether they are justified in imposing a measure against a journalist for publishing satirical and ironic articles of public interest.
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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