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SECOND
SECTION
CASE OF UJ v. HUNGARY
(Application
no. 23954/10)
JUDGMENT
STRASBOURG
19 July
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Uj v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
David
Thór Björgvinsson,
Dragoljub
Popović,
Giorgio
Malinverni,
András
Sajó,
Guido
Raimondi,
Paulo
Pinto de Albuquerque,
judges,
and Françoise
Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 28 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 23954/10)
against the Republic of Hungary lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Hungarian national, Mr Péter Uj (“the applicant”),
on 22 April 2010.
2. The
applicant was represented by Mr L. Baltay, a lawyer practising in
Gyál. The Hungarian Government (“the
Government”) were represented by Mr L. Höltzl, Agent,
Ministry of Public Administration and Justice.
3. The
applicant alleged that his prosecution for criticising the quality of
a certain type of wine amounted to a breach of his right to freedom
of expression.
- On
15 June 2010 the President of the
Second Section decided to give notice of the application to
the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1969 and lives in Budaörs.
- On
2 January 2008 the applicant, a journalist, published an article in a
column entitled “Opinion” of a national daily paper. The
subject of the article was the quality of a well-known Hungarian wine
variety, a product of T. Zrt, a State-owned corporation, which was,
in the applicant's view, bad and its popularity with Hungarian
consumers unjustified. The article contained the following passage:
“On nine out of ten occasions, it is a product of
T. Zrt, available below
1,000 [Hungarian forints] per bottle,
that represents the world's best wine region, the Hungarian National
Pride and Treasure... [and that could make me cry]. Not only because
of the taste – although that alone would easily be enough for
an abundant cry: sour, blunt and over-oxidised stuff, bad-quality
ingredients collected from all kinds of leftovers, grey mould plus a
bit of sugar from Szerencs, musty barrel – but because we are
still there ...: hundreds of thousands of Hungarians drink [this]
shit with pride, even devotion... our long-suffering people are made
to eat (drink) it and pay for it at least twice ([because we are
talking about a] State-owned company); it is being explained
diligently, using the most jerk-like demagogy from both left and
right, that this is national treasure, this is how it is supposed to
be made, out of the money of all of us, and this is very, very good,
and we even need to be happy about it with a solemn face. This is how
the inhabitants (subjects) of the country are being humiliated by the
skunk regime through half a litre of alcoholised drink.
And once again, I would remind everybody of how people
were whining back then, saying that foreigners were coming to destroy
[T.], buy up the market and make everything multinational and
alien-hearted; and then it turned out that those foreigners made
gorgeous wine, just like some lucky, resolute and very talented
Hungarian family wineries, that they tried to make [T.] world-famous
again, because this was their business interest (profit, ugh!); while
we as a community are trying to destroy their achievements using
State money, lest something finally could be a success. ...”
- T.
Zrt filed a criminal complaint against the applicant. On 2 June 2009
the Budapest II/III District Court convicted him of defamation
(rágalmazás). The court held that the criticism
expressed in the applicant's article went beyond the boundaries of
journalistic opinion and amounted to stating a fact susceptible of
harming the reputation of the producer of the wine variety in
question. The court refrained from imposing a sentence for a
probationary period of one year.
- On
appeal, on 5 November 2009 the Budapest Regional Court reversed this
judgment, holding that the incriminated statement was a value
judgment and that therefore the applicant was to be convicted for
libel (becsületsértés) under section
180(1)b of the Criminal Code. The court held that although the
applicant was entitled to express his opinion about the wine in
question, by characterising it as “shit” – an
expression unduly insulting – he had infringed the producer's
right to a good reputation. The court reduced the sanction to a
reprimand.
- On
10 May 2010 the Supreme Court upheld the applicant's conviction and
sentence.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that his conviction
represented an infringement of his right to freedom of expression as
provided in Article 10 of the Convention, which reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent states from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government did not dispute that there had been an interference with
the applicant's right to freedom of expression. They argued however
in essence that the impugned expression was so offensive that the
applicant's prosecution had corresponded to a pressing social need.
In any event, his case had finished with only a reprimand;
consequently, the interference could not be considered
disproportionate.
- The
applicant submitted that he did not dispute that
the interference was lawful and pursued a legitimate aim. He argued
nevertheless that his conviction was not necessary in a democratic
society, given that he was a journalist, the impugned statement was a
value judgment concerning a matter of public interest, and the case
concerned the reputation of a State-owned corporation.
- The
Court notes that it has not been disputed by the Government that
there has been an interference with the applicant's right to freedom
of expression. It reiterates that an interference with the
applicant's rights under Article 10 § 1 will infringe the
Convention if it does not meet the requirements of paragraph 2 of
Article 10. It should therefore be determined whether it was
“prescribed by law”, whether it pursued one or more of
the legitimate aims set out in that paragraph and whether it was
“necessary in a democratic society” in order to achieve
those aims.
- The
Court observes that the lawfulness of the measure complained of was
based on section 180(1)b of the Criminal Code. It is therefore
satisfied that it was “prescribed by law”, and this has
not been disputed by the parties. Moreover, it accepts that the
interference pursued a legitimate aim, namely the protection of the
reputation or rights of others, which again has not been in dispute
between the parties. It remains to be determined whether the
interference was “necessary in a democratic society”.
- The
test of “necessity in a democratic society” requires the
Court to determine whether the interference complained of
corresponded to a “pressing social need”. The Contracting
States have a certain margin of appreciation in assessing whether
such a need exists, but it goes hand in hand with European
supervision, embracing both the legislation and the decisions
applying it, even those given by an independent court. The Court is
therefore empowered to give the final ruling on whether a
“restriction” is reconcilable with freedom of expression
as protected by Article 10
(see, among many other authorities,
Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V;
Association Ekin v. France, no. 39288/98, § 56,
ECHR 2001-VIII). There is little scope under Article 10 § 2
of the Convention for restrictions on political speech or on debate
on questions of public interest (see Sürek v. Turkey (no. 1)
[GC], no. 26682/95, § 61, ECHR 1999-IV). Although freedom
of expression may be subject to exceptions, they must be narrowly
interpreted and the necessity for any restrictions must be
convincingly established (see Observer and Guardian v. the
United Kingdom, 26 November 1991, § 59, Series A no. 216).
- The
Court's task in exercising its supervisory function is not to take
the place of the competent domestic courts but rather to review under
Article 10 the decisions they have taken pursuant to their margin of
appreciation (see Fressoz and Roire v. France [GC], no.
29183/95, § 45, ECHR 1999-I). This does not mean that the
supervision is limited to ascertaining whether the respondent State
exercised its discretion reasonably, carefully or in good faith; the
Court looks at the interference complained of in the light of the
case as a whole, including the content of the statement held against
the applicant and its context (see News Verlags GmbH & CoKG v.
Austria, no. 31457/96, § 52, ECHR 2000-I).
- In
particular, the Court must determine whether the reasons adduced by
the national authorities to justify the interference were “relevant
and sufficient”, and whether the measure taken was
“proportionate to the legitimate aims pursued” (see
Chauvy and Others v. France, no. 64915/01, § 70, ECHR
2004-VI). In doing so, the Court has to satisfy itself that the
national authorities, basing themselves on an acceptable assessment
of the relevant facts, applied standards which were in conformity
with the principles embodied in Article 10 (see Zana v. Turkey,
25 November 1997, § 51, Reports of Judgments and Decisions
1997-VII). Article 10 is applicable not only to “information”
or “ideas” that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb; such are the demands of that pluralism,
tolerance and broadmindedness without which there is no “democratic
society” (see Oberschlick v. Austria (no. 1), 23 May
1991, § 57, Series A no. 204).
- The
Court would add that offence may fall outside the protection of
freedom of expression if it amounts to wanton denigration, for
example where the sole intent of the offensive statement is to insult
(see, e.g.
Skałka v. Poland, no. 43425/98, § 34,
27 May 2003); but the use of vulgar phrases in itself is not decisive
in the assessment of an offensive expression as it may well serve
merely stylistic purposes. For the Court, style constitutes part of
the communication as the form of expression and is as such protected
together with the content of the expression.
- The
Court furthermore stresses the essential role which the press plays
in a democratic society. Although it must not overstep certain
bounds, in particular in respect of the reputation and rights of
others, its duty is nevertheless to impart – in a manner
consistent with its obligations and responsibilities –
information and ideas on all matters of public interest (see, among
many other authorities, Scharsach and News Verlagsgesellschaft v.
Austria, no. 39394/98, § 30, ECHR 2003-XI). Journalistic
freedom also covers possible recourse to a degree of exaggeration, or
even provocation (loc. cit.).
- In
the present case, the Court observes that the impugned criminal
charges were pressed by a company which undisputedly has a right to
defend itself against defamatory allegations. In this context the
Court accepts that, in addition to the public interest in open debate
about business practices, there is a competing interest in protecting
the commercial success and viability of companies, for the benefit of
shareholders and employees, but also for the wider economic good. The
State therefore enjoys a margin of appreciation as to the means it
provides under domestic law to enable a company to challenge the
truth, and limit the damage, of allegations which risk harming its
reputation (see Steel and Morris v. the United Kingdom,
no. 68416/01, § 94, ECHR 2005-II; Kuliś and Różycki
v. Poland, no. 27209/03, § 35, ECHR 2009 ...).
However, there is a difference between the commercial reputational
interests of a company and the reputation of an individual concerning
his or her social status. Whereas the latter might have repercussions
on one's dignity, for the Court interests of commercial reputation
are devoid of that moral dimension. In the instant application, the
reputational interest at stake is that of a State-owned corporation;
it is thus a commercial one without relevance to moral character.
- The
Court notes that the expression used by the applicant is offensive.
Nevertheless, the subject matter of the case is not a defamatory
statement of fact but a value judgment or opinion, as was admitted by
the domestic courts. The publication in question constituted a
satirical denouncement of the company within the context of
governmental economic policies and consumer attitudes (see paragraph
6 above). Taking the above facts into account, the Court finds that
the applicant's primary aim was to raise awareness about the
disadvantages of State ownership rather than to denigrate the quality
of the products of the company in the minds of the readers. The
opinion was expressed with reference to government policies
concerning the protection of national values and the role of private
enterprise and foreign investment. It dealt therefore with a matter
of public interest.
- The
Court considers that the domestic courts failed to have regard to the
fact that the press had a duty to impart information and ideas on
matters of public interest and in so doing to have possible recourse
to a degree of exaggeration or even provocation, or in other words to
make somewhat immoderate statements (see Mamère v. France,
no. 12697/03, § 25, ECHR 2006–XIII, and Dąbrowski
v. Poland, no. 18235/02, § 35, 19 December 2006). For
the Court, the wording employed by the applicant was exaggerated but
made in a public context; the expression used is, regrettably, a
commonly used one in regard of low-quality wine and its vulgarity
thus constituted a forceful part of the form of expression.
-
The Court finds that the above considerations are important in
assessing the proportionality of criminal-law based interference with
Article 10 of the Convention, but were not examined by the
domestic courts. It finds that, in the absence of considering the
above factors which are preponderant in the present case, the
domestic authorities could not establish that the restriction was
proportionate.
- In
view that of the fact that the necessity for the interference has not
been not convincingly established by the domestic authorities, the
Court cannot but conclude that there has been a violation of Article
10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant made no damages claim.
B. Costs and expenses
- The
applicant claimed 3,580 euros (EUR) for the
costs and expenses incurred before the Court. This amount corresponds
to 35 hours of legal work billable by his lawyer as per the
time-sheet submitted at an hourly rate of EUR 100 and additionally to
EUR 80 of clerical costs.
- The
Government did not comment on this claim.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being
had to the documents in its possession and the above
criteria, the Court considers it reasonable to award the full
sum claimed, i.e. EUR 3,580.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application
admissible;
- Holds that there has been a
violation of Article 10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 3,580 (three thousand five hundred and
eighty euros), plus any tax that may be chargeable to the applicant,
in respect of costs and expenses, to be converted into Hungarian
forints at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 19 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
