Reference: Application no. 75088/01
Court: European Court of Human Rights
Judge: J-P Costa (President), Baka, Cabral Barreto, Turmen, Butkeyvich, Jociene, Popovich (Judges), Naismith (Registrar)
Date of judgment: 29 Nov 2005
Summary: Human rights - Freedom of expression - Art 10, ECHR - - Newspaper publication - Criticism of public appointment - Rival paper criticising article - Defamation - Libel - Whether sanctions necessary
The applicant (R) was a regional newspaper editor. He published an article suggesting that a public appointment was due to political cronyism. P, deputy editor of a rival regional paper, published a response accusing R’s paper of lying and calling on R to withdraw and apologise, “as he had so often and so humiliatingly been forced to” in other cases, due to “stupid” articles. R’s published reply in turn accused P of using “tactics typical of the mafia” to try and silence R’s paper, and deliberate suppression of facts. P’s complaint of these accusations led to R’s prosecution and conviction for criminal libel, and orders to pay a E900 fine or go to prison, and to pay P damages of E1,000. A domestic appeal having failed, R applied to Strasbourg alleging breach of Article 10.
(1) Was Art 10 applicable? (2) Were the measures taken necessary in a democratic society?
(1) Yes. The government’s argument to the contrary was rejected. (2) No. This was a polemical debate between journalists, but originated with a political question clearly of general interest. Moreover, the limits of permissible criticism are wide in respect of journalists. They cannot expect the same degree of protection as private persons, given their access to the media to express points of view and exercise rights of reply. P, having himself launched a polemic, should show the greatest tolerance. Both accusations complained of were in reply to an attack, and the mafia accusation was a value judgment. Penalising R did not represent a just balance between the rival interests. The domestic courts’ reasoning was relevant but insufficient to meet the standard set by Art 10(2). The modesty of the penalty was not the issue; its very fact was what counts, and it was disproportionate.
Libel spats between journalists have been rare, not often a great success (see, eg, Neil v Worsthorne), and no English court has yet had to deal with one post-Reynolds. This decision not only indicates how Reynolds privilege might apply in such a case, but has potentially wider implications for Reynolds privilege. The “polemic” all started with a political topic, a fact which carried weight with the European Court. But it degenerated into something of a general slanging match over journalistic standards. Domestically, there seems to have been no attempt to justify the accusations (a defence in Portuguese law), and the sanctions imposed were little more than a slap on the wrist. Yet the court still found this disproportionate, basing itself on the privileged position of the media, the high degree of tolerance they must show, and the fact this was a reply to an attack. Discouraging for a journalist wanting to use libel to settle scores – unless his rival throws the first stone.