Reference: Applications nos. 21279/02 and 36448/02
Court: European Court of Human Rights
Judge: Rozakis (President), Wildhaber, Costa, Bratza, Zupanèiè, Lorenzen, Tulkens, Loucaides, Casadevall, Ugrekhelidze, Steiner, Garlicki, Hajiyev, Jaeger and Jebens
Date of judgment: 22 Oct 2007
Summary: Human Rights - Freedom of expression - Art 10, ECHR - Privacy - Art 8, ECHR - Fair trial - Art 6, ECHR - Defamation - Libel - Proportionality of damages and penalties - Value judgments and facts - Republication in the media
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Two of the applicants published a novel in 1998 which recounted the trial of a Front National militant who had committed a racially-motivated murder of a young North African immigrant. The novel was based on two real-life murders committed by Front National militants. The book questioned how far Le Pen, the party leader, might be held accountable. M. Le Pen succeeded in a defamation action brought against two of the applicants in 1999. Various defamatory allegations were republished as part of a petition by writers published in Liberation, for which €3381 damages and a fine of €2286 (the same as the original publication) were also awarded. Appeals in relation to the author/publisher and separate newspaper actions were dismissed by the Paris Court of Appeal and the Cour de Cessation. All three appealed to Strasbourg.
Whether the criminal convictions and damages for defamation amounted to a violation of Article 10 rights, and whether the Paris Appeal Court had been sufficiently independent to avoid a violation of Article 6.
Dismissing the appeal by a majority,
(1) As the novel had a basis in real events, the applicants were required to show that the defamatory value judgments made had a ‘sufficient factual basis’ and were properly verified.
(2) Political figures are expected to show a much higher degree of tolerance when exposed to criticism.
(3) Although M. Le Pen was an extreme public figure, the inflammatory tone of the allegations against him which were endorsed and adopted by the applicants, overstepped the ‘permissible limits.’
(4) The penalties awarded in favour of M. Le Pen were moderate and not disproportionate.
(5) There was no violation of Article 6.
As with von Hannover v Germany this important decision from the Grand Chamber of European Court of Human Rights will send a chill through newspaper offices. At least some Strasbourg Judges are indicating that they are no longer likely to be the friendly saviours of the press. Whilst this decision accords with the defences of fair comment and Reynolds qualified privilege in English defamation law it is notable for the split in the Court and the powerful concurring opinion of Judge Locaides. Judge Locaides sounds a loud warning bell to the press by stating that the hitherto sancrosanct view that the freedom of the press is of itself important in a democratic society should no longer be treated as justifying an infringment of an individual’s article 8 rights without regard to the value of the speech said to be infringed. The Judge considered that the paramountcy of freedom of expression has been over -emphasised by Strasbourg and is not in line with a proper reading of the Convention.