Full case report
Flux & Samson v Moldova
Reference Application no. 28700/03
Court European Court of Human Rights
Judge Bratza (President), Casadevall, Bonello, Traja, Pavlovschi, Garlicki and Mijovic (Judges) and Early (Section Registrar)
Date of Judgment 23 Oct 2007
Human rights – Freedom of expression – Article 10, ECHR – Defamation – Value judgments – Requirement to prove truth – Balance – Public interest – Responsible journalism – Exaggeration and provocation – Dissemination of the statements of others
F, a newspaper, published an article describing S’s problems with her neighbour, C, a former Minister of Construction. The article stated in particular that “a former State official builds himself castles” and that he had become “rich off the back of the misery of others”. It also stated that: “one of [C’s] ‘attractive little houses’ was built next to [S’s] house” and “in order to extend his assets [C] destroyed [S’s] shed”. It also summarised documents which suggested that S had herself breached some of her legal obligations.
C brought a claim against F for defamation. F had published an apology but the court nevertheless ordered it to publish a retraction and pay damages and court fees. The courts found in particular that the repeated mention of C’s former position increased the harm to his reputation.
On appeal F argued that the statements were value-judgments and that there was no answer to the fact that S’s mother had confirmed her statements but the decision was upheld.
Whether there had been a violation of the applicants’ rights under Article 10 of the Convention (i.e. whether the accepted interference with those rights was ‘necessary in a democratic society’).
Unanimously finding a violation of Article 10:
The court noted that relief was ordered against F because it had been unable to prove the truth of its statements. Those statements were value judgments expressing the applicants’ opinion about the building activities of C, supported by a sufficient factual basis. Requiring F to prove the truth of the value judgments infringed freedom of opinion itself, which was a fundamental part of the right guaranteed under Article 10. Ignoring the evidence of S’s mother also meant that the domestic courts’ findings could not be justified as necessary in a democratic society.
The article was balanced as it presented both parties’ views, including suggesting that S had breached her legal obligations. F had therefore acted in accordance with the principles of responsible journalism, even if it had resorted to a degree of exaggeration or provocation. The article also raised issues of genuine public interest and conveyed the views of 3rd parties.
The central finding, a violation of Article 10 by reason of requiring value-judgments to be proven true, is of less interest than the Court’s subsequent comments relating to responsible journalism. The Court held that the newspaper had “acted in consonance with principles of responsible journalism” and reiterated that this is not incompatible with “a degree of exaggeration or even provocation”, which draws into question the significance of the ‘tone’ aspect of the Reynolds test. This is of course also germane to the developing ‘reportage’ defence recently discussed by the Court of Appeal in Charman v Orion and Roberts v Gable. Of further interest in this context are the Court’s comments that journalists should not be punished for the dissemination of the statements of others on matters of public interest.
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.