Freedom of expression and defamation E-Book

Tarlach McGonagle

• Herausgeber: Council of Europe
• Kategorie: Geisteswissenschaft
• Sprache: Englisch
• Veröffentlichungsjahr: 2016

Seitenzahl: 153

Beschreibung

Freedom of expression and defamation: where do we draw the line? Freedom of expression is a fundamental freedom, one of the cornerstones of democracy in Europe, enshrined in various key texts, including the European Convention on Human Rights. But the boundaries between freedom to criticise and damaging a person’s honour or reputation are not always very clear. By defining public insults and defamation, the law can set limits on freedom of expression, which is neither absolute nor boundless. But how far can it go? This study examines the details of the European Court of Human Right’s case law on defamation. It explores a range of substantive and procedural issues that the Court has considered, and clarifies the concept of defamation, positioning it in relation to freedom of expression and public debate. It explains how overly protective defamation laws can have a chilling effect on freedom of expression and public debate, and discusses the proportionality of defamation laws and their application.

Leseprobe

FREEDOM OF EXPRESSION AND DEFAMATIONA study of the case law of the European Court of Human Rights

Tarlach McGonaglein collaboration with Marie McGonagle and Ronan Ó Fathaigh Edited by Onur Andreotti

Council of EuropeFacebook.com/CouncilOfEuropePublications

Acknowledgements

The authors are grateful to Onur Andreotti, Media and Internet Division, Council of Europe, for her very useful comments on earlier drafts of this study. They are also grateful to Patrick Leerssen and Rachel Wouda, both former research interns at the Institute for Information Law (IViR), for their helpful research assistance.

Executive summary

This study examines the voluminous case law of the European Court of Human Rights (“The Court”) relating to freedom of expression and defamation. It starts by clarifying the concept of defamation and positioning it in relation to freedom of expression and public debate. It explains how defamation laws that are overly protective of reputational interests and that provide for far-reaching remedies or sanctions can have a chilling effect on freedom of expression and public debate. The principle of proportionality in respect of defamation laws and their application is therefore very important when it comes to preventing such a chilling effect.

The importance of public debate for a democratic society, and the need to foster it, are constant values or aims of the Court’s case law concerning Article 10 (Freedom of expression) of the European Convention on Human Rights (“the Convention”). As a result, the Court takes a dim view of any interference with the right to freedom of expression that can have a chilling effect on the exercise of this right or on public debate. Given the important roles played by journalists, the media and others who contribute to public debate – either as public or social watchdogs or as purveyors of information and ideas, the Court is particularly wary of interferences with their right to freedom of expression.

This has led to the identification of various principles that facilitate journalists and the media (in particular) but also non-governmental organisations (NGOs), individuals and online intermediaries when they fulfil the democratic roles ascribed to them. Such principles include editorial freedom and possible recourse to exaggeration and provocation. This is does not, however, give them carte blanche to act as they will – their right to freedom of expression is governed by duties and responsibilities that are both general in nature and tailored to the specific characteristics and exigencies of their roles. This study explores how the Court has developed these principles, which are functionally relevant for the media and others who contribute to public debate, as well as the duties and responsibilities that shape the same principles. The constant interplay between freedom of expression and protection of reputation has resulted in a range of emphases and caveats, like the distinction between facts and value judgments (which is very important in defamation proceedings, as the truth of the latter is not susceptible of proof) and efforts made to verify information prior to publication. Whether the person targeted by the allegedly defamatory statement is a public figure is also a crucial consideration due to the importance of open discussion on matters of public interest.

Besides examining the granular details of the Court’s case law on defamation, the study also traces broader patterns in how the Court has applied these principles in practice. In doing so, it explores a range of substantive and procedural issues that have been considered by the Court in its relevant case law. The substantive issues include the scope of defamation (law), its application to different subjects, the responsibility and liability of different actors, and defences to defamation. The procedural issues include procedural safeguards, civil measures and remedies, and criminal sanctions.

Although a chilling effect can arise from any kind of interference with the right to freedom of expression, the Court has consistently held that prior restraint and criminal sanctions clearly have a chilling effect on freedom of expression and public debate, and should be used with great restraint, if at all. An examination of the necessity and proportionality of an interference – in light of the impugned expression’s contribution to public debate – is therefore essential. The following elements are taken into account and governed by free speech and proportionality principles: “the position of the applicant, the position of the person against whom his criticism was directed, the subject matter of the publication, characterisation of the contested statement by the domestic courts, the wording used by the applicant, and the penalty imposed on him”.1

The Court has consistently held that the nature and severity of sanctions are of particular importance when assessing the proportionality of an interference with the right to freedom of expression. It takes the view that criminal convictions inherently have a chilling effect on freedom of expression and very often finds – depending on the circumstances of the case – that even “moderate” fines or suspended prison sentences are disproportionate interferences and therefore contribute to or amount to violations of the right to freedom of expression.

Introduction

Background

The present study is a continuation of previous work on the relationship between the right to freedom of expression and defamation by the Media and Internet Division of the Council of Europe.

In 2012, the secretariat of the Steering Committee on Media and Information Society (CDMSI) prepared a “Study on the alignment of laws and practices concerning defamation with the relevant case-law of the European Court of Human Rights on freedom of expression, particularly with regard to the principle of proportionality”.[2] The study was itself an update and revision of the working document prepared by the CDMSI’s forerunner, the Steering Committee on the Media and New Communication Services (CDMC), published on 15 March 2006.[3]

The 2012 study investigates, among other things, the case law of the European Court of Human Rights (“the Court”) on freedom of expression in the context of defamation cases, and it reviews Council of Europe and other international standards on defamation. It contains information on the legal provisions on defamation in various Council of Europe member states. It also attempts to identify trends in the development of rules on defamation, both in national legal systems and in international law.

Structure and scope

The present study examines the voluminous case law of the Court relating to freedom of expression and defamation, but not the other focuses of the 2012 study. This shift of emphasis has facilitated an examination of the Court’s case law that is much more detailed than that of the 2012 study. As such, a different structure has been chosen, in order to organise the expanded material in an appropriate manner. It remains in line with the 2012 study, though, not least by retaining the principle of proportionality as one of its central focuses. It also draws on the original text of the 2012 study in places, as appropriate.

The study starts by clarifying the concept of defamation and positioning it in relation to freedom of expression and public debate. It explains how defamation laws that are overly protective of reputational interests and that provide for far-reaching remedies or sanctions can have a chilling effect on freedom of expression and public debate. The principle of proportionality in respect of defamation laws and their application is therefore very important when it comes to preventing such a chilling effect.

The study then identifies the key principles governing that relationship and traces patterns in how the Court has applied those principles in its case law dealing with defamation. In doing so, it explores a range of substantive and procedural issues that have been considered by the Court in its relevant case law. The substantive issues include the scope of defamation (law), its application to different subjects, the responsibility and liability of different actors, and defences to defamation. The procedural issues include procedural safeguards, civil measures and remedies, and criminal sanctions.

As the Court’s expansive jurisprudence on freedom of expression and defamation continues to grow, in both volume and complexity,[4] the main aim of this study is to provide a detailed, yet accessible, analysis of this body of jurisprudence.

Chapter 1Defining and positioning defamation

1.1. Freedom of expression

Article 10 of the European Convention on Human Rights (“The Convention”) is the centrepiece of the Council of Europe’s system for the protection of the right to freedom of expression. It reads:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 10 § 1 sets out the right to freedom of expression as a compound right comprising three distinct components: the freedom to hold opinions; the freedom to receive information and ideas; and the freedom to impart information and ideas. Article 10 § 1 also countenances the possibility for states to regulate audiovisual media by means of licensing schemes.

Article 10 § 2 then proceeds to delineate the scope of the core right set out in the preceding paragraph. It does so by enumerating a number of grounds, based on which the right may legitimately be restricted, provided that the restrictions are “prescribed by law” and are “necessary in a democratic society”. It justifies this approach by linking the permissibility of restrictions on the right to freedom of expression to the existence of “duties and responsibilities” that govern its exercise. The scope of those duties and responsibilities varies, depending on the “situation” of the person exercising the right to freedom of expression and on the “technical means” used.[5] The Court has tended to explore the nature and scope of relevant duties and responsibilities not through broad principles, but on a case-by-case basis. It tends to distinguish among different professional occupations, such as journalism, politics, education and military service. The relevance of such distinctions from the perspective of public debate will be explored in section 1.3, below.

Article 10, as interpreted by the Court, provides strong protection to the right to freedom of expression. The Court consistently describes the right as “one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment”.[6] As the Court affirmed in its seminal judgment in Handyside v. the United Kingdom, freedom of expression “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’” (§ 49). This principle creates the necessary space for robust, pluralistic public debate in democratic society. Section 1.3 explores the interplay between robust debate and reputational interests because, as the Court has pointed out, “in this field, political invective often spills over into the personal sphere; such are the hazards of politics and the free debate of ideas, which are the guarantees of a democratic society.”[7]

The Court has developed a standard test to determine whether Article 10 of the Convention has been violated. Put simply, whenever it has been established that there has been an interference with the right to freedom of expression, that interference must first of all be prescribed by law (that is it must be adequately accessible and reasonably foreseeable in its consequences). Second, it must pursue a legitimate aim, that is correspond to one of the aims set out in Article 10 § 2. For the purposes of this study, “the protection of the reputation or rights of others” is of central importance. Third, the interference must be necessary in a democratic society, that is, it must correspond to a “pressing social need” and be proportionate to the legitimate aim(s) pursued.

Under the margin of appreciation doctrine, which takes account of how the Convention is interpreted at national level, states are given a certain amount of discretion in how they regulate expression.[8] The extent of this discretion, which is subject to supervision by the Court, varies depending on the nature of the expression in question. Whereas states only have a narrow margin of appreciation in respect of political expression, they enjoy a wider margin of appreciation in respect of public morals, decency and religion. This dichotomy is usually explained by the long-established acceptance of the importance in a democracy of political expression in a broad sense and by the absence of a European consensus on whether/how matters such as public morals, decency and religion should be regulated. When exercising its supervisory function, the Court does not take the place of the national authorities, but reviews the decisions taken by the national authorities pursuant to their margin of appreciation under Article 10 of the Convention. Thus, the Court looks at the expression complained of in the broader circumstances of the case and determines whether the reasons given by the national authorities for the restriction and how they implemented it are “relevant and sufficient” in the context of the interpretation of the Convention. The Court has to “satisfy itself that the national authorities applied standards that were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts”.[9]

In examining the particular circumstances of the case, the Court takes the following elements into account: “the position of the applicant, the position of the person against whom his criticism was directed, the subject matter of the publication, characterisation of the contested statement by the domestic courts, the wording used by the applicant, and the penalty imposed on him”.[10] Each of those elements will be discussed below. Lastly, it is also worth noting that the “national margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its vital role of ‘public watchdog’”,[11] a consideration that “weigh[s] heavily” in the balancing exercise.[12]

Besides the margin of appreciation doctrine, three other interpretive principles espoused by the Court are of particular relevance for the right to freedom of expression. These are the practical and effective doctrine, the living instrument doctrine and the positive obligations doctrine. According to the practical and effective doctrine, all rights guaranteed by the Convention must be “practical and effective” and not merely “theoretical or illusory”.[13] Under the “living instrument” doctrine,[14] the Convention is regarded as a “living instrument” that “must be interpreted in the light of present-day conditions”.[15] This doctrine seeks to ensure that the Convention evolves with the times and does not become static or outdated. The positive obligations doctrine implies that it is not always enough for the state to simply refrain from interfering with individuals’ human rights: positive or affirmative action will often be required as well. Thus, notwithstanding the tendency to formulate states’ obligations in negative terms, in order to ensure that the rights enshrined in the Convention are practical and effective, states may have to take positive measures, “even in the sphere of the relations of individuals between themselves”.[16]

1.2. Definitions, purposes, delimitations, distinctions and balancing exercises

1.2.1. Definitions

The text of the Convention does not define the concept of “defamation”, nor has the Court been inclined to do so. The notion lends itself better to definition in national statutory law, although not all jurisdictions have opted to define it. Defamation is essentially a civil wrong (a tort or delict) committed by one individual against another or others, including in some circumstances a “legal person”. The nature of the wrong is the negative effect on, or harm to, a person’s reputation or good name. Reputation is not about self-esteem but rather the esteem in which others hold one. Thus, the act of defamation consists of making a false or untrue statement about another person that tends to damage his/her reputation in the eyes of reasonable members of society. The statement may consist of an allegation, an assertion, a verbal attack or other form of words or action. Such a statement may be made orally or in writing; may take the form of visual images, sounds, gestures and any other method of signifying meaning; may be a statement that is broadcast on the radio or television, or published on the Internet; or may be an electronic communication.

At the heart of defamation, therefore, is reputational damage.[17] A statement in any of the above senses may be hard-hitting or vituperative but it will not amount to defamation if it is in fact true, because a person is only entitled to a reputation that is based on truth. A statement will only amount to defamation if it is a false or untrue statement of fact about another person because only false or untrue allegations or assertions will damage the reputation a person deserves to enjoy among his or her peers or community. In some limited circumstances, a comment that cannot be supported by the underlying facts or is not reasonably based on the underlying facts may also amount to defamation. The Court has teased out these issues, inter alia in its judgment in Reznik v. Russia, a case arising out of defamation proceedings against the President of the Moscow City Bar:

for an interference with the right to freedom of expression to be proportionate to the legitimate aim of the protection of the reputation of others, the existence of an objective link between the impugned statement and the person suing in defamation is a requisite element. Mere personal conjecture or subjective perception of a publication as defamatory does not suffice to establish that the person was directly affected by the publication. There must be something in the circumstances of a particular case to make the ordinary reader feel that the statement reflected directly on the individual claimant or that he was targeted by the criticism. Those principles also apply in the sphere of television and radio broadcasting (§ 45).