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FIRST
SECTION
CASE OF ALITHIA PUBLISHING COMPANY LTD
&
CONSTANTINIDES v. CYPRUS
(Application
no. 17550/03)
JUDGMENT
STRASBOURG
22 May 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the
case of Alithia Publishing Company Ltd and Constantinides
v. Cyprus,
The European Court of Human Rights
(First Section), sitting as a Chamber composed of:
Christos Rozakis,
President,
Nina Vajić,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni, judges,
Myron Nicolatos, ad hoc
judge,
and André Wampach, Section Registrar,
Having deliberated in private on 29
April 2008,
Delivers the following judgment, which
was adopted on that date:
PROCEDURE
1. The
case originated in an application (no. 17550/03) against the Republic
of Cyprus lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Alithia Publishing Company Ltd, a company
registered in Cyprus, and Mr Alecos Constantinides, a Cypriot
national (“the applicants”), on 28 May 2003.
2. The
applicants were represented by Mr C. Pourgourides and
Mr A. Demetriades, lawyers practising in Limassol and
Nicosia, Cyprus, respectively. The Cypriot Government (“the
Government”) were represented by their Agent, Mr P. Clerides,
Attorney-General of the Republic of Cyprus.
- The applicants alleged,
in particular, that the defamation proceedings brought against them
had given rise to violations of their rights to freedom of thought
under Article 9 of the Convention and to freedom of expression under
Article 10.
4. By a
decision of 19 January 2006, the Court gave notice of the complaint
concerning Article 10 of the Convention to the Government. It also
decided, under Article 29 § 3 of the Convention, to examine the
merits of the application at the same time as its admissibility.
- Mr L. Loucaides, the judge elected in respect of
Cyprus, withdrew from sitting in the case (Rule 28 of the Rules of
Court) and the Government accordingly appointed Mr M. Nicolatos to
sit as an ad hoc judge (Rule 29).
- In their letter of 22 November 2006, the applicants
requested an oral hearing on the admissibility and merits of the
case. On the date of the adoption of the present judgment the Court
decided that a hearing would not be necessary (Rule 59 § 3 in
fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The first applicant,
Alithia Publishing Company Ltd, is registered under Cypriot law and
is the publisher of the daily morning newspaper Alithia. The
second applicant, Alecos Costantinides, is the editor-in-chief of
Alithia. He was born in 1930 and lives in Nicosia.
A. The impugned publications
- Between December 1992 and
31 January 1993 the first applicant published a series of twelve
articles written by the second applicant. These articles concerned
the conduct of Mr Aloneftis, who at the relevant time was Minister of
Defence of the Republic of Cyprus. The articles claimed that he had
been involved in a conspiracy with armaments traders for the
misappropriation of public funds.
- According to the
applicants, Mr Aloneftis, acting on behalf of the Government, was in
the habit of accepting more expensive armaments contracts in return
for generous commissions from certain armament traders. It was
alleged that he used these commissions to fund his gambling habit in
London casinos. It was further reported that Mr Aloneftis, while
betting in casinos in the company of his friends - the armaments
traders -, would discuss classified information concerning the
Republic's armament programme, and that this was how such information
had been divulged to the international press. It was also claimed
that he had instigated a bomb attack against the second applicant.
- In particular, in an
article of 15 January 1993, written by the second applicant, the
newspaper “revealed” that the Republic of Cyprus had
purchased a French armament system which was effectively useless,
given that the Cypriot Republic did not possess the equipment that
was necessary to maintain it. It was claimed that various officials
had received commissions of at least 10 million Cypriot pounds (CYP)
in respect of this purchase. The President of the Republic and the
Minister of Defence, amongst others, were well aware of the identity
of the beneficiaries, but journalists daring to investigate in such
matters should be very careful.
- A second article
published on the same date and entitled “People in hiding: a
reply to an anonymous article by Mr Aloneftis, Minister of
Defence”, the second applicant expressed his concern about the
fact that the Minister of Defence, who was “certainly”
aware of the individuals who were receiving commissions from the
purchase of armaments, did not denounce them to the relevant
authorities. It read: “such questions... [should be] addressed
to Mr Aloneftis, who is a connoisseur of ... casinos”. It was
added that, should the Attorney-General wish to proceed with a
criminal investigation into these matters, he should start with the
acts of those “who are gambling in casinos, laughing at us,
while we, the fools, are required to pay for their chips”.
- A subsequent article by
the second applicant, dated 16 January 1993 and entitled “The
Attorney-General and the clowns [μασκαράδες]”,
stated that the Minister of Defence, Mr Aloneftis, through an article
in another Cypriot newspaper, had had the “incredible nerve”
to request Alithia to name the suppliers of armament systems
who were paying commissions to State officials. The article read as
follows:
“Those names, however, were well known to
everyone, and firstly to the President of the Republic and the
Minister of Defence. The latter regularly appears in casinos
alongside the most important arms supplier, and attends receptions
given by another. No one attends receptions given by people whom he
does not know, or embarks on cruises in the yachts of strangers. The
Attorney-General should interfere where he ought to do so. There are
many clowns and crooks in this place, who are beyond the reach of the
short and crooked arm of the law.”
- The closing paragraphs
of the article read:
“The last time that our paper covered the great
feast hosted by defence officials, the Attorney-General had not been
invited. In fact, certain hit men were employed to terrorise our
newspaper and, to a certain extent, their attempt has been
successful. Cyprus is a small country and everyone knows what is
going on. Everyone is aware of the names that we were called on to
reveal. Everyone knows about the casinos. Everyone knows about the
bomb attack and the people who instigated it. So the clowns
(μασκαράδες)
should stop acting in a provocative [and] hypocritical manner.”
- In another article of 20
January 1993 the second applicant stated:
“According
to information from a serious source, at one stage an arms firm had
offered us [the Republic of Cyprus] 150 tanks. We did not accept the
offer because the tanks had been offered for free. Had we agreed to
take these tanks, there would have been no commissions - and then
what would happen to the casinos?”
- A further article by the
second applicant, dated 27 January 1993 and entitled “Aloneftis's
newspaper, casinos and missiles”, stated:
“A Cypriot newspaper, to which the Minister of
Defence Mr Aloneftis is transmitting
poppycock [σπερμολογίες,
literally, spermologies] against the newspaper Alithia,
published the following in its edition of 26 January:
'Recent publications, appearing on a daily basis for the
few last weeks in a morning daily newspaper, have prompted a
threatening statement from the Turkish Prime Minister Suleiman
Demirel. The Turks were particularly worried by information published
concerning the intention of the National Armed Forces to purchase
Exoset missiles.'
The above statement obviously concerns Alithia
and warrants a reply:
Alithia has never stated anything concerning
Exoset missiles. The reference to negotiations conducted by the
Republic of Cyprus for the purchase of Exoset missiles was published
in the foreign military journal Defence News approximately one
year ago and was mentioned in the newspaper Cyprus Mail some
days ago.
On the contrary, Alithia merely stated that it
would be foolish for the Republic of Cyprus to buy such missiles,
which are primarily launched from airplanes that we do not possess.
The Turks have therefore heard about the missiles from
elsewhere. And it is well known where Defence News obtained
its information. When our ministers gamble in casinos together with
various arms suppliers and become merry, they start shouting about
matters concerning missiles and rockets, and everyone can hear them.”
- A further short article
of the same day was entitled “Casinologists” and was
accompanied by a picture of Mr Aloneftis. It referred to an article
in another Cypriot newspaper reminding a well-known Cypriot
politician that the Cypriot electoral body was not a casino in Las
Vegas. It added that there was no need to refer to casinos in Las
Vegas since the London casino Maxim was closer. In this
respect, the Alithia article stated:
“You should ask Aloneftis and his team who will be
in a position to confirm this. Of course, Aloneftis would not know
how people exit from casinos in their underwear but he is well aware
of how you get in there”.
- On 28 January 1993, an
article entitled “Call 451313 and ask why the Minister of
Defence is entertaining himself with armament dealers”, stated:
“Mr Clerides' promotional film ... could invite
taxpayers to call Mr Vasiliou [President of the Republic at the time]
and ask him why his Minister of Defence is having fun in restaurants
alongside arms dealers, why he is playing Βanko
Punto with them in London casinos and why [he] always insists on
purchasing everything from those particular arms dealers.”
- Another article, of the
same date, called on the Minister of Defence to explain why Cyprus
had paid twice as much as Greece for an identical armament system.
The Minister was further called on to explain the exact nature of his
relations with a French company involved in the armaments trade
(Sofma).
- A further article of the
same date, written by the second applicant and entitled “Casinos
and Panties”, read:
“The Minister of Defence, Mr Aloneftis, ... is a
regular in casinos; the publisher of Alithia ... said...the
following about him:
'We saw him having fun in various night spots in Athens
alongside representatives of arms manufacturers; we saw him cruising
in their luxurious yachts; we saw him gambling with them in casinos'.
The reference to casinos.... is made in a literal sense
and refers to the London casino Maxim, where hundreds of
thousands of pounds are at stake, to the detriment of our defence...
When Alithia first reported on the issue of
enormous commissions being paid to State officials by arms dealers, a
year and a half ago, it was targeted by nocturnal assailants. As is
very well known, the orders behind this were issued from the London
casino. (In the meantime, we took our measures and would like to warn
such assailants, who dare to speak about morality, that we are not
affected by their new threats....).
- On 31 January 1993 the
second applicant stated, in an article entitled “Defence In and
Out”:
“The main interest of the Minister of Defence...
in recent years was not to improve the defence of Cyprus, but the
purchase of excessively expensive systems from Sofma at prices which
at times were seven times the price of similar and indeed better
systems. His goal was to spend as much as possible for well-known
reasons, and not that of the ensuring an effective ... defence...
The defence of Cyprus has accordingly been vested in the
hands of a foreign company, Sofma, while Cyprus's defence policy is
in reality being considered and developed at London's Maxim,
where all decision-making is taking place.
The defence of Cyprus in the hands of amateurs, and
Sofma has become a lucky game like banco punto, roulette or
black jack. And what we fools have not yet realised is that these
people are gambling with our own money...”
B. Proceedings before the District Court of Nicosia
- By originating summons
of 22 March 1993, Mr Aloneftis instituted civil proceedings for
defamation before the District Court of Nicosia. Mr Aloneftis
requested compensation for defamation as well as a court order
prohibiting further reporting of his conduct in a defamatory manner.
The trial took place before Judge Nathanael. It lasted for 18 months,
a period considered as extraordinary by the district court. The
defendants invited 26 witnesses to give oral evidence and at least 50
written exhibits and other pieces of documentary evidence were
admitted.
- The applicants accepted
during the trial that the contested publications were defamatory
toward the plaintiff. In particular, it was stated on their behalf
that the publications “were intensely defamatory toward the
plaintiff and injured, inter alia, his integrity, honesty,
reputation, personality, patriotism and good fame, and caused serious
injury and damage to his private, social and public life”.
Nevertheless, they argued that the publications were covered by the
defence of justification and fair comment and constituted a
legitimate exercise of their right to freedom of expression. In this
context, they maintained that their allegations concerning
Mr Aloneftis's conduct were true.
- On 29 November 1999
Judge Nathanael delivered the district court's judgment, by virtue of
which the applicants were found liable for defamation. In relation to
the defence of justification, the district court noted that where
this defence was raised, the burden of proof fell on the defendant to
show the accuracy of the facts referred to in a publication. Should
the defendant fail to discharge it, then this defence would fail even
in cases where a defendant honestly and reasonably believed that the
relevant statements were true.
- It was noted that the
defence of fair comment applied when a published statement
constituted a fair and reasonable comment on a matter of public
interest. The comment had to be made on the basis of facts that were
set out correctly and without malice. The defendant would bear the
burden of proof in showing that the facts on which the comment was
based were true and that the comment could be justified as one that
could have been made by a reasonable man. If the defendant succeeded
in establishing the fairness of the comment, then the burden would
shift to the plaintiff, who would have to show the existence of
malice on the part of the defendant. Judge Nathanael added that
“there would be a further limitation when a comment concerned a
person holding a public post and imputed to him immoral, dishonest or
corrupt behaviour, in which case a defendant would have to show the
truth of his allegations.”
- The testimony of the
first applicant's director and the second applicant demonstrated that
they had had no evidence or other sources in support of their
allegations at the time of publication. Their positions were further
undermined by the fact that the applicants had apologised to a
certain armaments dealer for their defamatory allegation that he had
been conspiring with Mr Aloneftis. The second applicant had been
found to be an unreliable and evasive witness. His testimony
demonstrated that there had been no research or other attempt to
verify most of the allegations made in the impugned publications.
Moreover, the second applicant had been entirely contradictory as to
whether any effort had been made to contact Mr Aloneftis prior to
publication. His evidence was rejected. The evidence of the first
applicant's director was also rejected: his allegations had been
found to be clearly unsubstantiated and showed his prejudice against
Mr Aloneftis.
- In relation to the award
of damages, Judge Nathanael took into account, inter alia, the
seriousness of the defamatory allegations and the complete lack of
evidence. He also considered that the overall behaviour of the
applicants at trial showed malice: they had insisted on the truth of
their defamatory publications and had pursued a defamatory campaign
against the plaintiff by a series of clearly defamatory and
unverified articles, which continued to be published even while the
proceedings were pending. On this basis an award of 30,000 Cypriot
pounds (CYP) [equivalent to approximately 51,258.04 euros (“EUR”)]
was made as ordinary damages in addition to an award of CYP 5,000
(equivalent to approximately EUR 8,543.01) for exemplary
damages.
C. Proceedings before the Supreme Court of Cyprus
- On 7 January 2000 the
applicants lodged an appeal against the district court's judgment
with the Supreme Court. In their grounds of appeal they challenged,
inter alia, the compatibility of Cypriot defamation law, as
set out in the Civil Wrongs Act Cap. 148 (see paragraph 35 below),
with the right to freedom of speech as guaranteed in the Constitution
of the Republic of Cyprus and the Convention.
- On 29 November 2002, the
President of the Supreme Court Pikis delivered the Supreme Court's
majority judgment, which upheld the district court's judgment and the
corresponding award of damages. It was noted that the applicants had
stated in their statement of defence, filed with the district court
that the publication of the impugned articles amounted to an exercise
of their right to freedom of expression and, as such, should have
been protected. On this basis, they argued before the Supreme Court
that they had explicitly raised the defence of qualified privilege in
their defence statement and that their plea had been ignored by the
first-instance court. The majority found that, given that the
applicants had not properly raised this defence in their pleadings,
the first-instance court had been correct not to examine it.
- There had been no
evidence presented in court supporting the applicants' allegations
and the lack of such evidence was even admitted by the second
applicant and the first applicant's director. The latter's testimony
had been rejected as unreliable. Despite the lack of supporting
evidence, the applicants had not presented their serious allegations
to Mr Aloneftis prior to publication, which was indicative of
their motives and their indifference as to the truth of the facts
presented and discussed in the articles. The articles not only
imputed to Mr Aloneftis the commission of criminal offences but had
disparaged his moral character by presenting him as an unscrupulous
criminal driven purely by self-interest. The lack of supporting
evidence and the seriousness of the defamatory allegations
demonstrated the existence of malice on the part of the applicants as
well as their intent to defame the plaintiff.
30. It was observed that the
defence of qualified privilege was based on the duty to transmit
information, correlated by the right to receive such information. Its
establishment depended on a number of factors concerning the nature
of the information in issue, the extent of any public interest in the
matter, the sources of such information, the measures taken to verify
the facts and whether the plaintiff had been requested to comment on
the allegations made in the publication. The protection of freedom of
expression entailed that the courts should not easily reach the
conclusion of lack of public interest over the subject-matter of a
publication. In cases of doubt, freedom of expression should be
favoured. The majority thus endorsed the House of Lords' leading
judgment in Reynolds v. Times Newspapers [2001] 2 AC 127,
at 205. However, it was considered that even assuming that the
defence of qualified privilege had been properly raised, in the light
of the circumstances of this case it would not have succeeded.
- Defamation as a tort
predated the enactment of the Constitution and it had therefore to be
examined whether the provisions of Cap. 148, concerning an action in
defamation, were compatible with Article 19 of the Constitution
protecting the right to freedom of expression (see paragraph
34 below). Cap. 148 constituted a justified limitation on the
right to freedom of expression since its provisions aimed to protect
the reputation of another. The limits on freedom of expression had to
be directly connected with the aim that rendered them legitimate and
the necessity requiring the protection of that aim. Whenever there
appeared to be conflict between two rights, the courts should take
into account in their balancing exercise that fundamental rights were
of equal importance. Reputation was considered to be an integral and
important part of the dignity of an individual which, once besmirched
by unfounded allegations, could be damaged forever. Its protection
was vital for the protection of the rights of individuals and was in
the public interest. Hence, the provisions of Cap. 148 did not run
counter to the Constitutional protection of freedom of expression.
- The defence of
justification ensured the essence of the right to freedom of
expression. However, it was conditional on the existence of good
faith on the part of a defendant in defamation proceedings. In the
present case, the facts on which the publications had been based were
inaccurate and the defendants had acted in flagrant disregard of the
requirement to verify the factual allegations they had published.
- Mr Justice Hadjihambis
delivered a dissenting opinion. He considered that the defence of
qualified privilege had been raised properly by the applicants in
their pleadings, since they had added therein that the action was
contrary to their free speech rights. Section 21 (1) of Cap.148
explicitly referred to the defence of qualified privilege in setting
out the balance that must be struck between freedom of expression and
the right to reputation. Under this provision, a publication would be
privileged only if it was made bona fide and did not exceed
what would be reasonable under the circumstances. In his view, given
that the first-instance court had not considered the relevant
defence, the Supreme Court should have ordered a re-trial of the
case.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
- In so far as relevant,
Article 19 of the Constitution of the Republic provides:
“(1) Every person has the right to freedom of
speech and expression in any form.
(2) This right includes freedom to hold opinions and
receive and impart information and ideas without interference by any
public authority and regardless of frontiers.
(3) The exercise of the rights provided in paragraphs 1
and 2 of this Article may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary
only in the interests of the security of the Republic or the
constitutional order, public safety, public order, public health,
public morals or for the protection of the reputation or rights of
others, or for preventing the disclosure of information received in
confidence or for maintaining the authority and impartiality of the
judiciary.”
B. Legislative provisions
- The Civil Wrongs Act
(Cap. 148) sets out the law of defamation. In so far as relevant,
section 18 (1) provides:
“A person publishes defamatory matter if he causes
the printing, writing, painting, effigy, gesturing, spoken words, or
other sounds or other means by which the defamatory matter is
conveyed to be dealt with, either by exhibition, reading, recitation,
description, delivery, communication, distribution, demonstration,
expression or utterance, or otherwise, so that the defamatory meaning
thereof becomes known.”
- The defences available
in an action for defamation are set out in Section 19 of the Civil
Wrongs Act which, in so far as relevant, provides:
“In an action for defamation it shall be a defence
-
(a) that the matter concerning which the complaint was
made was true:
Provided that where the defamatory matter contains two
or more distinct charges against the plaintiff, a defence under this
paragraph shall not fail by reason only that the truth of every
charge is not proved, if the defamatory matter not proved to be true
does not materially injure the plaintiff's reputation having regard
to the truth of the remaining charges:
(b) that the matter of which complaint was made was a
fair comment on some matter of public interest:
Provided that where the defamatory matter consists
partly of allegations of fact and partly of expression of opinion, a
defence of fair comment shall not fail by reason only that the truth
of every allegation of fact is not proved, if the expression of
opinion is a fair comment having regard to such of the facts alleged
or referred to in the defamatory matter complained of as are proved:
Provided further that a defence under this paragraph
shall not succeed if the plaintiff proves that the publication was
not made in good faith within the meaning of subsection (2) of
section 21 of this Act;
(c) that the publication of the defamatory matter was
privileged under sections 20 and 21 of this Act;
(d) that the defamation was unintentional under section
22 of this Act.”
- Section 21 addresses the
situation where a publication of defamatory matter is conditionally
privileged. In so far as relevant, it provides:
“(1) The publication of defamatory matter is
privileged, on condition that it is published in good faith, in any
of the following cases, namely:-
(a) if the relation between the parties by and to whom
the publication is made is such that the person publishing the matter
is under a legal, moral or social duty to publish it to the person to
whom the publication is made and the last-mentioned person has a
corresponding interest in receiving it or the person publishing the
matter has a legitimate personal interest to be protected and the
person to whom the publication is made is under a corresponding
legal, moral or social duty to protect that interest;
Provided that the publication does not exceed either in
extent or matter what is reasonably sufficient for the occasion.”
- Section 21 (2) provides:
“The publication of defamatory matter shall not be
deemed to have been made in good faith by a person, within the
meaning of subsection (1) of this section, if it is made to appear
either-
that the matter was untrue, and that he did not believed
it to be true; or
that the matter was untrue, and that he published it
without having taken reasonable care to ascertain whether it was true
or false; or
that, in publishing the matter, he acted with intent to
injure the person defamed to a substantially greater degree or
substantially otherwise than was reasonably necessary for the
interest of the public or for the protection of the private right or
interest in respect of which he claims to be privileged.”
- Section 21 (3) provides:
“In any action brought in respect of the
publication of any defamatory matter if such publication might be
privileged under the provisions of subsection (1) of this section,
and the defence of privilege is raised, the onus of proving that such
publication was not made in good faith shall be upon the plaintiff.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 9 AND 10 OF THE
CONVENTION
- The applicants
complained that the outcome of the defamation proceedings violated
their rights as guaranteed by Articles 9 and 10 of the Convention.
- The Court considers that
the applicants' complaint concerns essentially their right to freedom
of expression and will proceed to examine the case under Article 10
of the Convention, which provides:
“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.”
A. Admissibility
- In the view of the Court
the applicants' complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore
be declared admissible. Pursuant to Article 29 § 3 of the
Convention, the Court will now consider the merits of the applicants'
complaints.
B. Merits
1. Existence of interference
- The Court notes that it
is common ground between the parties that the judgments pronounced in
the libel proceedings constituted an interference with the
applicants' right to freedom of expression as protected by Article 10
§ 1.
2. Whether the interference was justified
- An interference entails
a violation of Article 10 if it does not fall within one of the
exceptions provided for in paragraph 2. The Court must therefore
examine in turn whether the interference was “prescribed by
law”, whether it had an aim that was legitimate under Article
10 § 2 and whether it was “necessary in a democratic
society”.
(a) Was the interference “prescribed
by law”?
i. The Government's submissions
- The Government did not
deal with this argument in their written submissions.
ii. The applicants' submissions
- The applicants did not
dispute that the District Court's judgment had a basis in national
law, namely the Law on Civil Wrongs (Cap. 148, see paragraph 35
above). However, they maintained that the relevant national law
failed to satisfy the foreseeability requirement because in their
view the test concerning the defence of qualified privilege, as
applied by the district court and Supreme Court in the present case,
was too vague and uncertain.
iii. The Court's assessment
- The Court reiterates
that, under its case-law, the relevant national law must be
formulated with sufficient precision to enable the persons concerned
- if need be with appropriate legal advice - to foresee, to a degree
that is reasonable in the circumstances, the consequences which a
given action may entail. A law that confers a discretion is not in
itself inconsistent with this requirement, provided that the scope of
the discretion and the manner of its exercise are indicated with
sufficient clarity, having regard to the legitimate aim in question,
to give the individual adequate protection against arbitrary
interference (see, for instance, the Tolstoy Miloslavsky v. the
United Kingdom judgment of 13 July 1995, Series A no. 316-B,
pp. 71 72, § 37; Goodwin v. the United
Kingdom, judgment of 27 March 1996, Reports of Judgments
and Decisions 1996-II, at § 31).
48. The Court observes that
qualified privilege is an exceptional defence intended to ensure free
communication without fear of litigation, even if that involves
making defamatory statements of fact which cannot be proved to be
true. It exempts newspapers from their ordinary obligation to verify
factual statements that are defamatory so long as they have, taking
into account all the relevant circumstances, acted in accordance with
the standards of “responsible journalism” (see Times
Newspaper Ltd v. the United Kingdom (dec.), no. 23676/03 and
3002/03, 11 October 2005).
- In previous cases, when
the Court has been called upon to decide whether to exempt newspapers
from their ordinary obligation to verify factual statements that are
defamatory of private individuals, it has exercised a discretion
after taking into account various factors, particularly the nature
and degree of the defamation and the extent to which the newspaper
could have reasonably regarded its sources as reliable with regard to
the allegations (Bladet Tromsø and Stensaas v.
Norway [GC], no. 21980/93, § 66, ECHR 1999-III). These
factors, in turn, require consideration of other elements such as the
authority of the source (Bladet Tromsø and Stensaas,
cited above), whether the newspaper had conducted a reasonable amount
of research before publication (Prager and Oberschlick v. Austria,
judgment of 26 April 1995, Series A no. 313, § 37), whether
the newspaper presented the story in a reasonably balanced manner
(Bergens Tidende and Others v. Norway, no. 26132/95, §
57, ECHR 2000-IV) and whether the newspaper gave the persons defamed
the opportunity to defend themselves (Bergens Tidende and Others
v. Norway, cited above, § 58). Hence, the nature of
such an exemption from the ordinary requirement of prior verification
of defamatory statements of fact is such that, in order to apply it
in a manner consistent with the case-law of this Court, the domestic
courts have to exercise a degree of discretion after taking into
account the particular circumstances of the case under consideration.
- In the view of the
Court, the consideration by the Supreme Court of the factors to be
taken into account in ascertaining whether the standards of
“responsible journalism” have been met had the effect of
limiting the scope of that discretion (see Times Newspaper Ltd v.
the United Kingdom, cited above). Moreover, these were the same
factors relied upon by the Court in determining whether a newspaper
should be exempted from its ordinary obligation to verify factual
statements that are defamatory of private individuals (see Bladet
Tromsø and Stensaas, cited above, § 66, and
McVicar v. the United Kingdom, no. 46311/99, § 84,
ECHR 2002 III). The Court does not accept that consideration of
such factors creates legal uncertainty.
51. Lastly,
the Court notes that the district court that heard and examined in
detail the applicants' evidence concluded that the applicants had
acted maliciously in that they had published their extremely
defamatory allegations without making sufficient effort to verify
them prior to publication, thus demonstrating the applicants'
indifference as to the truth of their statements. It also notes that
the Supreme Court agreed with these findings by the district court.
The applicants have failed to show any impropriety
in the sound reasoning and findings of the domestic courts that would
require the Court's intervention. On this basis, the Court considers
that the applicants should have realised that by publishing a whole
series of articles making seriously defamatory statements of fact,
which were based on dubious sources, without affording the person
defamed a reasonable opportunity to comment on them or, at least, to
attempt to put his side of the story, they might well be considered
to have failed to comply with the standards of “responsible
journalism” and that, as a result, they would not be able to
benefit from the defence of qualified privilege.
- In view of the above,
the Court does not consider that the interpretation of the relevant
law by the domestic courts in the present case has gone beyond what
could be reasonably foreseen in the circumstances. Nor does it find
any other indication that the law in question did not afford the
applicants adequate protection against arbitrary interference.
(b) Did the interference pursue a
legitimate aim?
- The Court notes that it
is common ground between the parties that the interference pursued
the legitimate aim of protecting the rights and reputation of others,
an aim which is consistent with the protection afforded to the right
to reputation under Article 8 of the Convention (see, inter alia,
Pfeifer v. Austria, no. 12556/03, § 35, 15
November 2007; White v. Sweden, no. 42435/02, § 19,
19 September 2006; Chauvy and Others v.
France, no. 64915/01, § 70,
ECHR 2004 VI; and Abeberry v.
France (dec.) no. 58729/00, 21
September 2004).
(c) Was the interference necessary to
achieve that aim?
i. The Government's submissions
- The Government noted
that the articles had levelled grave accusations against the
plaintiff and that the applicants had failed to establish in the
course of the domestic proceedings that they had acted in good faith.
The Court should not accept that the press should be immune from
defamation proceedings when reporting on the acts of politicians. The
protection of the limitation set out in Article 10 § 2
extended to politicians even when the latter were acting in their
official capacity. Thus, when reporting on the acts of politicians
and other public figures the press was not exempted from its ordinary
obligation to act in good faith and in a reliable manner so as to
provide information that was accurate. The obligation on journalists
to verify defamatory factual statements required them to rely on a
sufficiently accurate and reliable factual basis. There was a
relationship of proportionality between the seriousness of an
allegation and the reliability of the relevant factual basis: the
more serious an allegation, the more solid the factual basis would
have to be. Special grounds had to be shown before dispensing with
the above ordinary obligation to verify factual statements that were
defamatory.
- The domestic law did not
require a defendant to prove the truth of a value judgment. It only
required him to satisfy the courts that the comment was “fair”.
However, the defence of fair comment did not exonerate from liability
a defendant who had published a defamatory comment with intent to
injure the plaintiff to a substantially greater degree than was
reasonably necessary for the protection of public interest. The
defence of qualified privilege exempted a defendant from liability in
relation to factual statements or comments which, although
defamatory, had been published in “good faith” and in one
of the circumstances set out in the relevant domestic law. In the
absence of good faith, the privilege would not apply. This would be
the case where the factual statement or the factual basis of a
comment was untrue and where the defendant had published the
statement or comment without taking reasonable care to ascertain the
accuracy of its factual basis. The same would apply where a defendant
published a statement or comment with intent to injure the plaintiff
to a substantially greater degree than was reasonably necessary for
the protection of public interest.
- A successful plea of the
defence of qualified privilege would place the burden of proof on the
plaintiff to show that the factual statement was untrue and had been
published without reasonable care to ascertain its accuracy, or that
it was published with intent to injure the plaintiff to a
substantially greater degree than was reasonably necessary for the
protection of public interest. However, the placement of the burden
of proof on the plaintiff in this way would not exonerate a defendant
who had also raised the defence of justification from proving the
truth of his factual statements.
- The relevant
domestic-law provisions were not in any way incompatible with the
Convention requirements. They merely reflected the Court's case-law
concerning the duties and responsibilities of the press. The
applicants in the present case had based their allegations against
the plaintiff on inaccurate facts and published them without any
prior inquiry. Moreover, they proceeded with publication without
first bringing them to the attention of the plaintiff. They had
therefore denied him of any opportunity to present his own views on
the matter.
ii. The applicants' submissions
- The applicants
maintained that they had suffered a disproportionate interference
with their right to freedom of expression, contrary to Article 10 §
2. First, they contended that they were entitled to benefit from the
defence of qualified privilege because they had been acting within
the normal functions of journalists reporting on the public functions
of a public figure. They argued that, in the absence of malice, the
press was entitled to the protection of the defence of qualified
privilege in respect of all reports concerning matters in the public
interest and, in particular, the public functions of politicians.
This would effectively allow for the publication of information which
could not be shown to be accurate.
- Secondly, they argued
that the defence of fair comment as it had been interpreted by the
domestic courts had disproportionately required them to prove the
truth of their comments. In particular, in the view of the
first-instance judge, subsequently upheld by the majority of the
Supreme Court, when the defence of fair comment was raised in respect
of a defamatory publication that imputed immoral, indecent or corrupt
behaviour to a person holding a public post, the defendant should
prove the truth of his allegations. Thirdly, they contended that the
domestic courts had failed to acknowledge that Mr Aloneftis was not
only a public figure but also a politician and as such the press was
entitled to greater liberty in commenting upon his actions.
- Lastly, they argued that
the domestic courts' interpretation of the relevant domestic law and
their imposition of a requirement on the press to show that they had
taken sufficient measures to verify the accuracy of their
allegations, both as a condition for raising the defence of qualified
privilege and in reply to the claim of falsehood, had been
disproportionate. They contended that the presumption of falsity that
applies even in respect of articles reporting on the public functions
of a public figure and, especially, a politician placed a
disproportionate burden on the press. The latter were unjustifiably
required to prove the truth of their allegations by evidence which
could be successfully admitted in court.
61. In the view of the
applicants, the allegations made in their articles were based on
reliable sources and they had taken all reasonable measures to verify
the relevant facts prior to publication. They relied on extensive
documentary evidence and, in particular, on certain letters from
French armaments dealers and a Member of Parliament who, at the
material time, had been a member of the Parliamentary Committee on
Defence. They submitted that they had attempted to contact Mr
Aloneftis prior to publication but that he had been particularly
uncooperative and denied them the possibility of ascertaining his
position on their findings.
iv. The Court's assessment
- The fundamental
principles relating to this question are well established in the
Court's case-law and have been summarised as follows (see, inter
alia, Lindon and Others v. France [GC], nos. 21279/02
and 36448/02, § 45, 22 October 2007):
“Freedom of expression constitutes 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. Subject to paragraph 2 of Article 10, it 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. Such are the demands of pluralism, tolerance and
broadmindedness without which there is no “democratic society”.
As set forth in Article 10, this freedom is subject to exceptions,
which must, however, be construed strictly, and the need for any
restrictions must be established convincingly.
The adjective “necessary”, within the
meaning of Article 10 § 2, implies the existence of a “pressing
social need”. The Contracting States have a certain margin of
appreciation in assessing whether such a need exists, but it goes
hand in hand with European supervision, embracing both the
legislation and the decisions applying it, even those given by an
independent court. The Court is therefore empowered to give the final
ruling on whether a “restriction” is reconcilable with
freedom of expression as protected by Article 10.
The Court's task, in exercising its supervisory
jurisdiction, is not to take the place of the competent national
authorities but rather to review under Article 10 the decisions they
delivered pursuant to their power of appreciation. This does not mean
that the supervision is limited to ascertaining whether the
respondent State exercised its discretion reasonably, carefully and
in good faith; what the Court has to do is to look at the
interference complained of in the light of the case as a whole and
determine whether the reasons adduced by the national authorities to
justify it are “relevant and sufficient” and whether it
was “proportionate to the legitimate aim pursued”. In
doing so, the Court has to satisfy itself that the national
authorities applied standards which were in conformity with the
principles embodied in Article 10 and, moreover, that they relied on
an acceptable assessment of the relevant facts.
There is little scope under Article 10 § 2 of the
Convention for restrictions on freedom of expression in the area of
political speech or debate – where freedom of expression is of
the utmost importance ... – or in matters of public interest
... .
Furthermore, the limits of acceptable criticism are
wider as regards a politician as such than as regards a private
individual. Unlike the latter, the former inevitably and knowingly
lays himself open to close scrutiny of his every word and deed by
both journalists and the public at large, and he must consequently
display a greater degree of tolerance.”
- Article 10 of the
Convention does not, however, guarantee a wholly unrestricted freedom
of expression even in respect of coverage by the press of matters of
serious public concern. Where, as in the present case, there is
question of attacking the reputation of individuals and thus
undermining their rights as guaranteed in Article 8 of the Convention
(see, inter alia, Pfeifer v. Austria,
no. 12556/03, § 35, cited above), regard must be had
to the fair balance which has to be struck between the competing
interests at stake. Also of relevance for the balancing which the
Court must carry out in the present case is that, under Article 6 §
2 of the Convention, everyone has the right to be presumed innocent
of any criminal offence until proven guilty.
- The Court must weigh a
number of factors when reviewing the proportionality of an impugned
measure. In the instant case, the applicants accepted that their
allegations had been defamatory and the domestic courts found that
the applicants had made no effort to verify the allegations prior to
publication and, in fact, had acted maliciously. The Court notes that
the applicants had instigated a well-instrumented campaign against
the plaintiff by publishing a series of articles which made seriously
defamatory allegations about him. The allegations imputed to the
plaintiff amounted to a criminal offence. Moreover, while journalists
are entitled to recourse to a degree of exaggeration, or even
provocation, the applicants presented their defamatory allegations as
statements of fact rather than value judgments.
65. Under
the terms of paragraph 2 of Article 10, the exercise of freedom of
expression carries with it “duties and responsibilities”
which also apply to the press. By reason of these “duties and
responsibilities”, which are inherent in the exercise of
the freedom of expression, the safeguard afforded by Article 10 to
journalists in relation to reporting on issues of general interest is
subject to the proviso that they are acting in good faith in order to
provide accurate and reliable information in accordance with the
ethics of journalism (see Bladet Tromsø and Stensaas,
§ 65, cited above). The Court will examine whether there
were any special grounds for dispensing the applicants from their
ordinary obligation to verify factual statements that were
defamatory. In the Court's view, this depends in particular on the
nature and degree of the defamation at hand and the extent to which
the applicants could reasonably regard their sources as reliable with
respect to the allegations in question. The latter issue must be
determined in light of the situation as it presented itself to the
applicants at the material time, rather than with the benefit of
hindsight (see Bladet Tromsø and Stensaas, cited
above, § 66).
- The Court notes that the
domestic courts' imposition of a requirement on the press to act in
good faith in order to provide accurate and reliable information is
implicit in the protection of Article 10 of the Convention. This
would equally apply in respect of reports on matters of public
interest, even where such reports deal with the conduct of senior
public officials acting in their official capacity. The applicants in
the present case disputed the domestic courts' findings that they had
acted in malice. They maintained that they had taken all reasonable
steps to verify the accuracy of their statements prior to publication
and had relied on certain documentary evidence. They also contended
that they had attempted to contact Mr Aloneftis prior to the
publication of the series of articles. However, the district court
conducted an extensive analysis of the applicants' evidence and
concluded that the applicants had not in fact made sufficient effort
to investigate the matters they alleged in their reports or to obtain
and present the plaintiff's position on the relevant allegations. It
is crucial in this regard that the evidence of the first applicant's
director, as well as that of the second applicant, was dismissed as
unreliable and that both the district court and the Supreme Court
agreed that the applicants had acted maliciously. The Court does not
see any reason to depart in this respect from the well-reasoned
findings of the domestic courts, which are, in any event, better
placed to assess the credibility and reliability of the applicants'
evidence.
- Given the lack of good
faith on the part of the applicants, the Court does not find it
necessary to examine whether there were any special grounds in the
present case for dispensing the applicants from their ordinary
obligation to verify factual statements that were defamatory of
private individuals or, indeed, public officials.
- Lastly, as to the
complaint about the burden of proof, the Court considers that it is
not, in principle, incompatible with Article 10 to place on a
defendant in libel proceedings who wishes to rely on the defence of
justification the onus of proving to the civil standard the truth of
defamatory statements (see McVicar v. the United Kingdom,
cited above, § 87, and Steel and Morris v. the United
Kingdom, no. 68416/01, § 93, ECHR 2005 II).
- The Court points out
that, in accordance with its case-law, in order to assess the
justification of an impugned statement, a distinction needs to be
made between statements of fact and value judgments. While the
existence of facts can be demonstrated, the truth of value judgments
is not susceptible of proof. However, even where a statement amounts
to a value judgment, there must exist a sufficient factual basis to
support it, failing which a value judgment may be excessive (see,
inter alia, Lindon and Others v. France [GC], cited
above, § 55). The applicants relied on the defence of fair
comment, which required them to prove the alleged factual basis on
which their statements had been based. The Court considers that it is
not, in principle, incompatible with Article 10 to place the onus of
proving, to the civil standard, the truth of the factual basis on
which a value judgment was based.
- In the present case, the
relevant domestic law provided that where a publication was deemed to
be privileged, because special grounds required its communication,
the onus would be on the plaintiff to show that the factual statement
made had been untrue or that it had been published with intent to
injure him to a substantially greater degree than was necessary. This
is consistent with the Court's case-law concerning the circumstances
in which a defendant in libel proceedings may be exempted from its
ordinary obligation to verify factual statements that are defamatory
(see paragraph 49 above). However, the Court does not accept that a
defendant in libel proceedings who has failed, because he acted with
malice, to establish that his publication was privileged should be
exempted from showing the accuracy of such statements in trial.
Hence, the obligation on the applicants, who failed to establish that
their publications were privileged and relied on the defence of
justification, to prove that the allegations made in their articles
were substantially true on the balance of probabilities, constituted
a justified restriction on their right to freedom of expression under
Article 10 § 2 of the Convention, with the aim of protecting Mr
Aloneftis's right to his reputation.
- Consequently, as the
applicants acted in flagrant disregard of the duties of responsible
journalism and had thus undermined the Convention rights of others,
the interference with the exercise of their right to freedom of
expression was justified.
- In conclusion, there has
been no violation of Article 10 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the applicants' complaint
of a disproportionate interference with their right to freedom of
expression admissible;
Holds that there has been no
violation of Article 10 of the Convention;
Done in English,
and notified in writing on 22 May 2008, pursuant to Rule 77 §§
2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy
Registrar President
