Reference: Application no. 37751/07
Court: European Court of Human Rights
Judge: Bratza, Garlicki, Mijovi, Bjrgvinsson, ikuta, Poalelungi, Niemi, Early
Date of judgment: 6 Jul 2010
Summary: Defamation - Freedom of expression - Article 10, ECHR
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The Applicant was convicted of aggravated defamation following the publication of a book in which the Applicant asserted “[i]n any event, the senior tax inspector [A.] committed perjury fully knowingly and intentionally. But why not as her husband is the public prosecutor [X.]. who works for [name of the office]”. Five thousand copies of the book were printed, of which about a thousand copies had been given away by the end of August 1999. She was sentenced to four months’ conditional imprisonment and ordered to pay 5,000 Euros to the tax inspector. On 27 September 2004 the Applicant appealed to the Vaasa Appeal Court, claiming, inter alia, that her rights under Articles 6 and 10 of the Convention had been violated and that the act in question had not constituted aggravated defamation. On 25 April 2006 the Appeal Court upheld the District Court’s judgment by a majority. It found that the interference with the Applicant’s right to freedom of expression had been necessary and proportionate. One of the judges did however find that the Applicant should be freed from the obligation to pay compensation as her criticism did not exceed the limits of what was acceptable for civil servants to endure in the exercise in the endure in the exercise of their official duties.
Whether the conviction for aggravated defamation infringed Article 10 of the Convention
Finding a violation of Article 10.
The Appellant’s conviction, the conditional prison sentence imposed constituted an interference with her Article 10 rights. Civil servants acting in an official capacity are, like politicians, subject to wider limits of acceptable criticism. Those limits may in some circumstances be wider with regard to civil servants exercising their powers than in relation to private individuals. It cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the same extent as politicians and should therefore be treated on an equal footing with the latter when it comes to the criticism of their actions. The book could be characterised as a polemical document or pamphlet attempting to contribute to a public debate. It mainly described the Applicant’s views about the actions of the tax authorities, including that of the named tax inspector. The imposition of a prison sentence for a defamation offence will be compatible with an applicant’s right to freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech or incitement to violence. The circumstances of the instant case – a classic case of defamation of an individual in the context of a debate on an important matter of legitimate public interest, namely the actions of the tax authorities – present no justification whatsoever for the imposition of a prison sentence. Such a sanction, by its very nature, will inevitably have a chilling effect on public debate. The severity of the sanctions imposed went beyond a “necessary” restriction of the Applicant’s freedom of expression.
Criminal law sanctions for defamation will not necessarily be a breach of Article 10, but a sentence of imprisonment will only be justified in the most exceptional circumstances.