Reference: Application No. 11039/02
Court: European Court of Human Rights
Judge: Bratza (President), Casadevall, Bonello, Maruste, Pavlovschi, Garlicki, Borrego Borrego (Judges), and O’Boyle, Section Registrar
Date of judgment: 11 Oct 2005
Summary: Human rights - Freedom of expression - Art 10, ECHR - Defamation - Libel - Freedom of the press - Reporting statements of others - Duty to prove - Necessary in a democratic society
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A newspaper published an article written by the applicant, S, about a road traffic accident, and the treatment of the victim by a particular police officer. It included statements made by a victim of the accident. The police officer brought an action against S and the newspaper for defamation. The District Court found in favour of the police officer, awarding him damages. The newspaper appealed. A regional court dismissed the appeal, holding that S had not proved the truth of her statements. The court did not make any note of the victim’s testimony in its judgment. On appeal, the Court of Appeal held that a limited number of statements were defamatory, and a retraction and damages were awarded. S complained to the European Court that her Art 10 rights had been violated by the judgment, because the article contained value judgments rather than facts, the officer was not identifiable and the quantification of damages was not explained by the Court.
Whether S’s Art 10 right to freedom of expression had been interfered with in a manner which was not necessary in a democratic society.
While civil servants must enjoy public confidence and should be protected from attack, this was a press article about a matter of public concern. The punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so. There were no such reasons here as the language used was moderate and there was no bad faith. Factual statements require proof of their truth. S’s evidence of truth was the victim’s testimony, yet this was ignored. In requiring her to prove the truth of her statements, while at the same time depriving her of an effective opportunity to adduce evidence and thereby attempt to establish their truthfulness, the Moldovan courts interfered with her right to freedom of expression in a manner which was not necessary in a democratic society.
While courts are entitled to require factual statements, and the factual basis of value judgments, to be proved true, they must take due consideration of any evidence presented to them in this regard. Here, the Moldovan courts’ failure to comment upon the victim’s testimony, while disregarding it entirely, was deemed fatal by the Strasbourg court. The judgment also contains some dicta of interest in relation to the reporting of third party statements, which may be relevant to the developing ‘reportage’ aspect of qualified privilege.