Full case report
Ungvary v Hungary
Reference  ECHR 1229
Court European Court of Human Rights
Judge Guido Raimondi, President, Işıl Karakaş, Peer Lorenzen, András Sajó, Nebojša Vučinić, Helen Keller, Egidijus Kūris,
Date of Judgment 3 Dec 2013
Defamation – fact and comment – Article 8 – Article 10
The first applicant (A1) was a historian specialising in twentieth century Hungarian history. The second applicant (A2) was the publisher of the literary and political weekly Élet és Irodalom. On 18 May 2007, A2 published an article written by A1 which dealt with the actions of the security service against a spontaneous student peace movement (“Dialógus”) active in Pécs and elsewhere in the country in the 1980s. The article focused on the nature of reporting to the Party-state’s security system, which it suggested had been done through accidental, social or official contacts, rather than agents.
In the article, A1 referred to the role played by leaders of Pecs University in assisting the security operations, including that of Mr K. At the time of writing Mr K was a judge of Hungary’s constitutional court. At the time covered by the article, he had worked at Pecs University and as deputy secretary of the local party committee. His attitude in the Dialógus case was characterised as being that of a hardliner in comparison to other social contacts, and it was said that he had reproached a candidate in the Communist youth organisation’s elections for having been supported by Dialógus.
In its next issue of 25 May 2007, A2 published Mr K’s denial of the allegations. On 27 May 2007 A1 repeated some of the allegations in a TV interview. Mr K successfully brought proceedings against the applicants for a rectification and A2 published it on 22 February 2008.
The article was reproduced in full in a book co-authored by A1 in April 2008. In an interview published online in the same month, A1 called Mr K. “a party secretary writing mood reports”. Mr K filed a criminal complaint for libel against A1, for which A1 was acquitted.
Mr K also launched a defamation action against both applicants. The claim succeeded at first instance, the court finding for Mr K on the basis that the applicants had disseminated false and unproven statements tarnishing his reputation by maintaining that he had acted as a quasi-agent during the Communist regime, been an informant of and collaborated with the State security, reported to them and carried out their orders, and been a “hardliner” in 1983. The court also found that A1 had falsely interpreted Mr K.’s political criticism towards a candidate in the Communist youth organisation’s elections as an action motivated by the State security. Mr K was awarded damages.
On appeal the judgment was reversed and Mr K’s action dismissed. On Mr K’s petition for review, the Hungarian Supreme Court reversed the appeal court and upheld the first instance decision, holding that the article had contained defamatory and unsubstantiated statements, and that the applicants had been unable to prove the truth of them. Damages and costs were awarded.
The applicants lodged an application against the Republic of Hungary.
Was the finding of liability and award of damages against the applicants an infringement of Article 10 in the sense that it could not be said to be necessary in a democratic society?
(1) In respect of A1; or
(2) In respect of A2.
Declaring the application admissible and finding that there had been a violation of Article 10.
The Court noted a number of elements which were missing from the domestic courts’ assessment of the balance between the relevant rights and interests.
Regarding the careful scrutiny required in the distinction between facts and opinion, and regarding the evaluation of the factual basis of defamatory opinions, these included the facts that: the statements were made in regard to a public official; the intention behind the article as a whole was to demonstrate that collaboration meant cooperation without specific, express operational instructions from the State security; the standards applied when assessing someone’s past conduct in terms of morality are quite different from those required for establishing an offence under criminal law; and that many of the allegations regarding the involvement of Mr K. in the actions directed against the Dialógus movement had been proved true.
Regarding the proper balancing of personality rights and freedom of speech rights, these included the facts that: as to their contribution to a debate of general interest, the statements held against the first applicant concerned the recent history of Hungary and aimed at shedding new light on the functioning of the secret service and, in particular, its reliance on public and party officials; issues relating to the Communist regime were still open to on-going debate; Mr K was a public figure at the time the statements were made and they concerned his public behaviour in the past; A1 relied on archival research and could rely on uncontested facts relating to the operation of the security state; and that A1’s article presented a scholarly position and was written for a weekly literary magazine.
The domestic courts did not convincingly establish a proper balance between the personality rights of a public figure and A1’s right to freedom of expression. The latter was a right that served the general interest by furthering a debate on an issue of great public interest. The interference complained of was not necessary in a democratic society within the meaning of Article 10 (2).
The findings in regard to the lack of proper balance among rights at stake held true of A2 also. Further, the court observed that, in order for the press to be able to exercise its watchdog function, standards of liability for publication should be such that they should not encourage censorship of publications by the publisher. The consideration of a chilling effect related to this liability was relevant to finding the proper standard of care.
The decision gives extensive consideration to the distinction between fact and opinion, and to the careful scrutiny that this requires. But it is most notable for its application of the Axel Springer criteria, used to balance the right to freedom of expression against the right to respect for private life in privacy actions, to a defamation claim. Their value here is questionable: consideration of, for example, the contribution made by the publication to a debate of general interest, or of how well known the subject of the publication is, do not seem likely to help in assessing defamation claims.
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