Reference:  EMLR 178; (2006) 42 EHRR 8
Court: European Court of Human Rights
Judge: Sir Nicolas Bratza P, Pellonpää, Casadeva, Maruste, Pavlovschi, Borrego Borrego & Fura-Sandström JJ
Date of judgment: 16 Nov 2004
Summary: Human rights - Freedom of expression - Criminal defamation - Prosecution of journalist - Article 10 ECHR - Whether necessary in a democratic society
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The applicant journalist wrote two articles in a regional daily newspaper describing the allegedly unprofessional behaviour of a surgeon, X. It was alleged that his behaviour had caused a death; in particular he was said to have been drunk or hungover while performing an operation in which a patient died. A criminal investigation had concluded that there was no evidence of criminality against the surgeon. The applicant was found guilty of intentional defamation “despite better knowledge” by the Vaasa Court of Appeal. The domestic courts found that the reporting was selective and the overall tone condemnatory. The applicant applied to the European Court of Human Rights, arguing that her conviction violated Article 10 ECHR. It was common ground that the conviction interfered with the applicant’s right to freedom of expression, but was an interference prescribed by law in pursuit of a legitimate aim within Article 10(2) ECHR.
Whether the applicant’s conviction for intentional defamation was “necessary in a democratic society” within Article 10(2) ECHR.
Finding a violation of Article 10 (Bratza P. dissenting)
(1) The articles raised serious issues affecting the public interest.
(2) Much of the article was derived from public police documents. Journalists have no general duty to verify such records.
(3) The domestic courts’ findings were not sufficient to justify the conviction. The reporting was “somewhat one-sided” and did not mention a decision not to press charges against X, but it did mention that an official Board had concluded no one was to blame. Journalists cannot be expected to act with total objectivity, but must be allowed some degree of exaggeration or even provocation.
(4) It was of considerable weight that X was not named and so was identifiable only to relatively few readers.
(5) Although X had been given no opportunity to comment before publication there had been some opportunity afterwards. The court could not find X had no chance to defend himself, or that there was a breach of journalistic ethics.
There was a strongly worded dissent from the President, the British judge Sir Nicholas Bratza. He found it “difficult to see” how the journalist’s conduct could be held in accordance with journalistic ethics, focusing on a failure to investigate fully, and the domestic courts’ findings that X was given “no possibility to comment in advance.” The decision was that of the majority however, and it contains much to comfort the media, and those seeking to argue Reynolds defences on their behalf. It throws new light on how Lord Nicholls’ criteria should be applied. The English Reynolds cases so far suggest, for example, that only in exceptional cases will an article be defensible if the subject is given no opportunity to comment beforehand.