Case study 60 - Article 10 of the ECHR

(defamation)

Mr B. is a journalist for daily newspapers and a local radio in Rome.

On 20 November 2000, he wrote an article for the daily newspapers entitled “Corruption in the Parliament” in which he exposed a series of frauds allegedly committed by Mr G., member of the opposition party in the Parliament. He obtained this information from a person whom, according to the applicant, had previously supplied him with information on the activities of various companies. The source gave him information that the member of the Parliament in question was offered a car to ensure the privatisation of a chemical company.

The information was unsolicited and was not given in exchange for any payment. The applicant maintained that he had no reason to believe that the information derived from a stolen or confidential document.

On 15 November 1989, intending to write an article invoking this information, he telephoned Mr G. to check the facts and seek his comments on the information.

Mr G and the chemical company, initiated court proceedings against Mr B. on the basis of the Criminal Code, arguing that the information was defamatory. The company said that it could lead to the loss of customers.

Pursuant to a request of Mr G., the Court of First Instance ordered Mr. B. to reveal his sources. The journalist refused, alleging the confidentiality of the source and was sentenced to pay a fine of € 15.000.

The Court of First Instance held that Mr. B’s written and oral statements were defamatory in respect both of Mr G. and of the company and sentenced him to 3 years imprisonment and to pay damages to the plaintiffs in the amount of € 100.000 each.

The judgment was then upheld by the Court of Appeal and the Supreme Court.

Questions / problems:

What issues are arising in this case under the Article 10?

Answer to the case study:

What issues are arising in this case under the Article 10?

There are 2 main points which have to be considered:

• Order of the Court of First Instance to reveal the information sources (and following sentence of Mr B)

• Court proceedings (and the following sentence) against Mr B initiated by Mr G and the chemical company

• Order of the Court of First Instance to reveal the information sources (and following sentence of Mr B)

(based on ECHR case of Goodwin v. the United Kingdom, application number 17488/90, 27/03/1996 )

The court found the disclosure order requiring Mr Goodwin to reveal the identity of his source and the fine imposed upon him for having refused to do so, constituted a violation of Article 10 of the ECHR (“Freedom of expression”).

After examining the case, the Court concluded the measures impugned on applicant were “prescribed by law” (s. paragraphs 29–34 of the Goodwin judgement) and interference applied pursued a legitimate aim (s. paragraphs 35–36 of the Goodwin judgement). Considering the necessity of the interference in a democratic society the Court found there was not (paragraph 46):

(…) a reasonable relationship of proportionality between the legitimate aim pursued by the disclosure order and the means deployed to achieve that aim. The restriction which the disclosure order entailed on the applicant journalist's exercise of his freedom of expression cannot therefore be regarded as having been necessary in a democratic society, within the meaning of paragraph 2 of Article 10 (art. 10-2), for the protection of Tetra's rights under English law, notwithstanding the margin of appreciation available to the national authorities.

Accordingly, the Court concludes that both the order requiring the applicant to reveal his source and the fine imposed upon him for having refused to do so gave rise to a violation of his right to freedom of expression under Article 10 (art. 10).

(emphasis added)

• Court proceedings (and the following sentence) against Mr B initiated by Mr G and the chemical company

(based on “A guide to the implementation of Article 10 of the European Convention on Human Rights” – Human Rights Handbooks, No. 2)

- (Charge of) defamatory statements based on received information:

The good faith defence must be accepted in cases of defamation, which essentially concerns facts. If at the time of publication the journalist had sufficient reasons to believe that a particular piece of information was true, he/she should not be sanctioned. (…)

(…) a journalist should only be required to make a reasonable check to assume in good faith the accuracy of the news. Another argument in this respect concerns the absence of intent, on the part of the journalist, to defame the alleged victim. As long as the journalist believed the information to be true, such intent is lacking and therefore the journalist’s conduct may not be sanctioned under provisions prohibiting intentional defamation; intentional defamation is what all criminal laws provide for.

- Conviction of Mr B:

Following the Court’s principles, any internal law protecting by special or higher penalties, politicians and in general all high officials (…) against insult or defamation, in particular by the press, would be incompatible with Article 10. Where such provisions exist and are invoked by the politicians, the national courts must abstain from enforcing them. In exchange, the general legal provisions on insult and defamation could be relied upon. (…)

The national courts must also refrain from applying criminal sentences, in particular imprisonment. Such sentences endanger the very core of the freedom of expression and function as censorship for the entire media, hampering the press in its role of public watchdog.(emphasis added)

Where the honour and reputation of politicians conflict with the freedom of the press, the national courts must carefully apply the proportionality principle and decide whether the conviction of a journalist is a necessary measure in a democratic society, looking at the guidelines provided by the court.