Reference:  EMLR 491
Court: European Court of Human Rights
Judge: Rozakis P, Vajic, Kovler, Hajiyev, Spielmann, Jebens & Herndl JJ
Date of judgment: 14 Dec 2006
Summary: Defamation - Neutral Reportage - Adoption - Comment - Article 10 - Freedom of Expression
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The Applicant was the publisher of News Magazine in Vienna. On 30 June 2000 a letter appeared in the newspaper Kurier praising a decision by Vienna City Council to allow an exhibition highlighting the plight of asylum seekers. The letter contained criticism of certain FPÖ politicians calling them “spiritually depraved political upstarts” who “have [not] the slightest awareness of how embarrassing, dastardly and frequently absurd they are”. Proceedings were commenced by the politicians for defamation. Commenting on this legal action, on 7 September 2000, the Applicant’s magazine (“the Magazine”) published an article which set out the offending words from the letter in the context of a larger article critical of the politicians. The politicians sued the magazine. The domestic courts found the magazine liable for defamation on the basis that the article had adopted, at least in part, the content of the quotation and that the article as a whole was not neutral.
Whether the interference with the Article 10 rights of the Magazine was proportionate and necessary.
Finding an infringement of Article 10. The words that were republished by the Magazine had already been widely published when the original letter had appeared in the newspaper. The Magazine was therefore only assisting in the further dissemination of those words. The complainants were politicians who had laid themselves open to public scrutiny and a particularly strong justification was required before journalists could be punished for assisting in dissemination of remarks made in the context of an ongoing debate of public importance. As to the alleged lack of neutrality, although the article adopted a critical approach towards the defamation proceedings, the article did not step outside the bounds of acceptable comment on the court proceedings. A general requirement for journalists systematically and formally to distance themselves from the defamatory remarks of others was not reconcilable with the press’s role of providing information on current events, opinions and ideas.
In English law, the defence of fair comment (on facts stated and/or privileged report) would probably have protected the publication. The case is interesting for its affirmation of the principle from Thoma v Luxembourg (2003) 36 EHRR 21 that placing an obligation on journalists to distance themselves from the defamatory remarks of others is inconsistent with Article 10. In English law this tension is most likely to be felt in the context of neutral reportage. If Reynolds is a species of qualified privilege, it should be open to a newspaper to publish a report on a matter of public interest and then express its own view upon it, even where the final product is not “neutral”.