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FOURTH
SECTION
CASE OF AQUILINA AND OTHERS v. MALTA
(Application
no. 28040/08)
JUDGMENT
STRASBOURG
14
June 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 Aquilina and Others
v. Malta,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Sverre
Erik Jebens,
Päivi Hirvelä,
Ledi
Bianku,
Zdravka Kalaydjieva,
Nebojša
Vučinić, judges,
David Scicluna, ad hoc
judge,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 24 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28040/08) against the Republic
of Malta lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by three Maltese nationals, Mr Victor Aquilina, Ms
Sharon Spiteri and Dr Austin Bencini (“the applicants”),
on 29 May 2008.
- The
applicants were represented by Dr Stefan Frendo, a lawyer practising
in Valletta. The Maltese Government (“the Government”)
were represented by their Agent, Dr Silvio Camilleri, Attorney
General.
- The
applicants alleged that they had suffered a breach of their right to
freedom of expression.
- On
12 October 2009 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1). In addition to the parties'
submissions, observations were received from the third party who had
brought the impugned proceedings against the applicants (“Dr
A.”), and to whom the President had given leave to intervene as
an interested party (Article 36 § 2 of the Convention and
Rule 61 § 3).
- Mr V. De Gaetano, the judge elected in respect of
Malta, was unable to sit in the case (Rule 28 of the Rules of Court).
The President of the Chamber accordingly appointed Mr David Scicluna
to sit as an ad hoc judge (Rule 29 § 1(b)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1942, 1973 and 1954 respectively and live in
Malta. When the facts that gave rise to the complaint occurred, the
first applicant was the editor of the newspaper “The Times
of Malta”, the second applicant was a court reporter for
the said newspaper and the third applicant was the registered
newspaper's printer.
A. Background of the case
- On
20 June 1995 a bigamy case, in which the accused was represented by
Dr A., was to be heard before the Court of Magistrates. Dr A. was
called a number of times but he failed to appear. The accused
explained that there had been trouble between them in view of
requests for excessive fees which he was unable to pay. According to
the second applicant, the presiding magistrate repeatedly expressed
his intention in open court to find Dr A. in contempt of court.
Indeed, in the chaotic atmosphere in the courtroom, the second
applicant heard the magistrate find Dr A. to be in contempt of court.
According to the second applicant, she subsequently attempted to
verify this fact through the records of the proceedings, but both the
magistrate and the court deputy registrar had already left their
chambers. She therefore verified what she had heard with another
reporter present in the courtroom. He confirmed her version.
- A
decision of the same date in the relevant bigamy proceedings referred
to the fact that Dr A.'s client's request to replace his lawyer at
that stage of the proceedings verged on contempt of court. However,
in view of the circumstances as explained to the court, the case was
adjourned.
- On
21 June 1995, the Times of Malta newspaper published a report
entitled 'Lawyer found in Contempt of Court'. It reported, inter
alia, that Dr A. had been found guilty of contempt of court for
failing to appear before a magistrate hearing the final stages of a
bigamy case.
- On
the same day Dr A. called the second applicant and protested
vigorously about the article. Subsequently, the second applicant
proceeded to verify the information by checking the record of the
proceedings. However, the relevant information was not registered
therein. In consequence on 22 June 1995 the newspaper published a
report entitled 'Lawyer Not Found in Contempt of Court' which
reproduced the relevant record of the proceedings and stated that
“any inconvenience caused to Dr A. is regretted”.
B. Defamation proceedings
- Nonetheless,
on the same day, Dr A. brought civil proceedings for defamation under
Part III of the Press Act (actions arising from press offences). The
applicants pleaded, inter alia, that the publication was
privileged under section 33 (d) of the Press Act (see Relevant
domestic law below), that it was not libellous, that mitigation in
accordance with section 28 (2) of the Press Act should be applied in
view of the apology published on the following day and that the third
applicant had not read the report prior to its publication (see
Relevant domestic law).
- By
a decision of 13 June 1997, the court, while acknowledging that the
record of the case did not cover the entire proceedings, allowed the
applicants to present evidence. On 24 February 1998, in his
testimony, the prosecutor in the bigamy case explained that Dr A. had
not appeared at the hearing. The prosecutor
related that he had tried to keep the magistrate calm and was nearly
found guilty of contempt himself because he was playing defence
lawyer. The prosecutor stated that, at that moment, the magistrate
dictated a minute, which he thought was directed towards him, that if
he opened his mouth he would himself be found in contempt of court.
He had also understood, at that moment, that the magistrate found Dr
A. to be in contempt of court because he did not appear. The
prosecutor reiterated that, at that moment, the magistrate was very
angry and that he understood that he had found Dr A. guilty of
contempt. When asked whether the impugned article reflected what
really went on in the court room, the prosecutor replied “effectively
it reflects what happened in court in short”. He continued to
say that while much more was said in the court room, at that time,
the phrase in the article “the magistrate found Dr A. to be in
contempt of court” reflected the impression he had had as
to what effectively happened at that moment in time.
- On
5 November 1999 the <<Civil
Court>> found against
the applicants. It rejected the applicants' first two above-mentioned
defence pleas. In its presentation of the facts the court recalled
the above mentioned evidence. It, however, found that the article did
not coincide properly with what had happened, in particular in its
heading, since, as appeared clearly from the minutes of the hearing,
it was not true that the plaintiff was found guilty of contempt of
court. Thus, the publication was not a fair report of the
proceedings. Consequently, it could not be considered privileged. The
court went on to note that the defendants tried to diminish their
blame for their incorrect reporting by proving that the hearing had
been chaotic. It was for this reason that the journalist
misunderstood what had happened. The defendants had further shown
that the prosecutor too had misunderstood what had happened, as he
had also understood that the plaintiff had been found guilty of
contempt. In the court's view, however, this merely highlighted the
need for the reporter to verify her information. The reporter's
interest in publishing information was legitimate. However, it could
not be more important than someone's reputation. The statement that
Dr A. had been found to be in contempt of court surely harmed his
reputation as it incited the supposition that he had not fulfilled
his duties as a lawyer. Thus, it found the statement in question to
be defamatory and taking account of the fact that they had published
an apology and that the printer had not read the report at issue, it
ordered the applicants to pay, in solidum, 300 Maltese liras
(MTL – approximately 720 euros (EUR)) in damages with interest
and costs, but limiting the third applicant's responsibility to MTL
150 (approximately EUR 360) plus interest.
- The
applicants appealed and Dr A. cross-appealed.
- On
27 June 2003 the Court of Appeal rejected both appeals, reiterating
that the statement had not reflected the truth and adding that when
the statement was in itself injurious, mischievous intent (“animus
injurandi”) was presumed.
C. Constitutional proceedings
- On
31 May 2004 the applicants brought constitutional redress
proceedings, claiming that they had published a faithful version of
what went on in the courtroom and that the above-mentioned judgments
breached their right to freedom of expression. Despite the
applicants' opposition, Dr A. was allowed to intervene in the
proceedings.
- On
24 May 2007 the Civil Court (First Hall) found against the
applicants.
- While
extensively reiterating the principles derived from the Court's
case-law, the Civil Court noted that during the defamation
proceedings it was established that the fact reported had not been
true, and that the applicants had a duty to verify the relevant
information. Upon examination of the record of the defamation
proceedings, the Civil Court in its constitutional jurisdiction
concluded that the domestic courts' conclusions had not been
unreasonable. The fact that the applicants had published an apology
was of little relevance, if any, if the information published in the
first place was false. In such circumstances it was not unreasonable
for the courts to protect Dr A.'s reputation and limit the
applicants' right to freedom of expression.
- On
4 June 2007 the applicants appealed. On 16 January 2008 the
Constitutional Court rejected the applicants' appeal. It held that a
journalist had to assume responsibility for what he or she decided to
publish. If an item was presented as fact then the journalist must be
able to prove it. Even if acting in good faith, the press may only
publish facts and not what appears to it to be fact. Had the second
applicant verified the record of the proceedings she could have
avoided misinforming the public. Citing the Court's case-law, the
Constitutional Court held that, while it was not for them to
establish the veracity of the facts at issue, the domestic courts'
judgments in favour of Dr A. had not infringed the applicants' rights
under Article 10. The public had a duty to be informed of true and
verified facts, in good faith, as was to be expected from
professional journalism.
II. RELEVANT DOMESTIC LAW
- Section
28 of the Press Act, Chapter 248 of the Laws of Malta, relates to
damages for defamatory libel. Subsection 2, in so far as relevant,
reads as follows:
“In any case to which this article applies, the
defendant may, in mitigation of damages, prove that he made or
offered to make an apology to the plaintiff for such defamation
before the commencement of the action for damages or, as soon
afterwards as he had an opportunity of doing so where the action
commenced before there was an opportunity of making or offering such
apology:
Provided that the defendant shall not be allowed to
adduce such proof in mitigation of damages if he has raised a plea of
justification in terms of section 12.”
- According
to section 33 (d) of the Press Act, in so far as relevant, the
following are privileged publications, in that no action shall lie in
respect of them:
“Publications of reports of any proceedings in a
court of justice in Malta provided such reports are fair reports of
the proceedings and the publication of such reports or proceedings is
not prohibited by law or by the court...”
-
Article 518 of the Criminal Code, Chapter 9 of the Laws of Malta,
reads as follows:
“The acts and documents of the courts of criminal
justice shall not be open to inspection, nor shall copies thereof be
given, without the special permission of the court, except by or to
the Attorney General, by or to the parties concerned or by or to any
advocate or legal procurator authorised by such parties; but any act,
which is pronounced in open court, shall be open to inspection by any
person, and copies thereof may be given on payment of the usual fee:
Provided that a procès-verbal
and any depositions and documents filed therewith shall be
open to inspection, and copies thereof shall be given, only at the
discretion of the Attorney General and on payment of such fees as may
be prescribed by the Minister responsible for justice ....”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicants complained that the domestic courts' judgments finding
them guilty of defamation and fining them breached their rights under
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
Government did not contest the admissibility of the application.
- 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
1. The applicants' submissions
- The
applicants complained that the judgment of the Civil Court in its
ordinary jurisdiction and subsequently that of the Court of Appeal
violated their right to freedom of expression. They claimed that the
fact that the second applicant actually heard the presiding
magistrate find Dr A. guilty of contempt of court gave her the right
to publish this as a fact which reflected the reality of what
happened on the day of the hearing of the bigamy case. Thus, the
subsequent award of civil damages which the applicants were ordered
to pay constituted an interference which was not necessary in a
democratic society.
- The
relevant judgments had been based on the fact that the records of the
proceedings did not mention the contempt charge, notwithstanding that
such records did not reproduce the entirety of what happened in court
proceedings. Limiting publications to the information contained in
such records would in itself be an interference, especially since the
records of criminal cases were not as a rule available to reporters.
- They
argued that the Constitutional Court judgment had acknowledged the
ordinary courts' reasoning, ignoring the fact that journalists
generally report what appears to have happened, that the second
applicant had verified her version with another reporter, that this
was corroborated by a prosecuting officer, and that she had acted in
good faith, in line with accepted journalistic practices.
- The
article published the following day comprised the entire records of
the case so that readers could have a full picture of what had
happened, namely that Dr A. had been orally sanctioned but that this
was not reflected in the record of the proceedings. The
Constitutional Court had inappropriately expected the second
applicant to know the legal procedures regarding contempt of court
and to second-guess what she had heard. Moreover, the applicants had
proved that the words “contempt of court” had been used
in the hearing in respect of Dr A. and the fact that no proceedings
ensued could not amount to a finding that the original statement was
false, with the repercussions that ensued for the applicants. The
Constitutional Court itself had acknowledged that the proceedings
were not confined to what was reproduced in the minutes. Thus, their
conclusion that the statement was false was untenable. The second
applicant was solely reporting in the article what had happened in
the courtroom at the relevant time. Her understanding of the event
was further confirmed by a colleague, as was often done in practice.
She could not have known at the time that the Maltese courts would
not follow up the charge.
- The
applicants further submitted that eyewitness as opposed to hearsay or
second-hand information was not subject to verification and did not
require confirmation. The present case amounted to pure and simple
journalistic reporting of public events, such as, in the case at
issue, court proceedings, as they occurred, and not investigative
journalism.
2. The Government's submissions
- The
Government submitted that the interference with the applicants'
rights under Article 10 was in accordance with the law, namely the
Press Act and was necessary in a democratic society.
- The
second applicant had ignored her journalistic responsibility and
failed to verify, by consulting the relevant court records, the
accuracy of what she thought she had heard. She limited herself to
verifying the alleged facts with a colleague, which according to the
Government further proved her uncertainty about the events. Since, in
reality, Dr A. had never been found to be in contempt of court, her
publication, amounting to a statement of fact and not a value
judgment, proved to be false. The Government clarified that any
pronouncement that Mr X. had been found guilty of contempt of court
would have been mentioned in the records of the case, which is the
best method of verification. Moreover, the applicants had access to
the records (Article 518 of the Criminal Code). Indeed, the second
applicant obtained these records the following day. The applicants
consequently published an apology acknowledging that the statement
was not true. Its falsity was further confirmed by the domestic
courts. Thus, it was pointless to continue alleging that the initial
statement was true. It was clear that the second applicant's
erroneous allegations were only a result of her reluctance to wait to
verify her information in order to publish before her competitors.
Moreover, the statement at issue was not one in the general interest
since it concerned a private individual.
- In
consequence, the Maltese courts had maintained the requisite balance
between Dr A.'s undoubted interest in protecting his professional
reputation and the rights of the applicants. While finding the report
to be defamatory they had reduced the amount of damages in view of
the newspaper's apology and rectification of facts. In consequence,
it could not be said that the domestic courts' reasoning was not
relevant and sufficient and that the interference was not necessary
in a democratic society for the protection of the rights of others.
3. The third party intervener
- The
third party intervener, Dr A., submitted that the fact that the
magistrate and registrar had already left the courtroom proved that
the second applicant had procrastinated in verifying her allegations.
The witness produced in court had been young and inexperienced and
the domestic courts dismissed the evidence. The fact remained that he
had not been found to be in contempt of court. It should have been
logical for the journalist that a person could not be found guilty of
contempt of court in his absence and without a penalty being imposed.
- In
view of the possible repercussions on his reputation, and the
applicants' failure in their duty and responsibilities, the court's
well-reasoned decision ordering the applicants to pay him civil
damages had been proportionate and necessary in a democratic society.
4. The Court's assessment
- The Court notes that it is common ground between the
parties that the judgments pronounced in the defamation action
constituted an interference with the applicants' right to freedom of
expression as protected by Article 10 § 1. The Court reiterates
that an interference breaches Article 10 unless it was “prescribed
by law”, pursued one or more of the legitimate aims referred to
in Article 10 § 2 and was “necessary in a democratic
society” to attain such aim or aims (see Times
Newspapers Ltd v. United Kingdom (nos. 1 and 2),
no. 3002/03 and 23676/03, § 37, ECHR 2009 ...).
(a) Prescribed by law
-
It is not contested that the interference was prescribed by law,
namely the Press Act.
(b) Legitimate aim
- The
Court considers that the interference pursued the legitimate aim of
protecting the reputation or rights of others, within the meaning of
Article 10 § 2.
(c) Necessary in a democratic society
i. General principles
- 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, and
Association Ekin v. France, no. 39288/98, § 56, ECHR
2001-VIII).
- 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 power of
appreciation (see Fressoz and Roire v. France [GC], no.
29183/95, § 45, ECHR 1999-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,
among many other authorities, Zana v. Turkey, 25 November
1997, Reports 1997-VII, pp. 2547-48, § 51).
-
In order to assess the justification of an impugned statement, a
distinction needs to be made between statements of fact and value
judgments in that, while the existence of facts can be demonstrated,
the truth of value judgments is not susceptible of proof. The
classification of a statement as a fact or as a value judgment is a
matter which in the first place falls within the margin of
appreciation of the national authorities, in particular the domestic
courts (see Prager and Oberschlick v. Austria, 26 April
1995, § 36, Series A no. 313).
- A
constant thread running through the Court's case-law is the
insistence on the essential role of a free press in ensuring the
proper functioning of a democratic society. Although the press must
not overstep certain bounds, regarding in particular protection 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, including those relating to the administration of
justice (see De Haes and Gijsels v. Belgium, judgment of 24
February 1997, Reports 1997-I, pp. 233-34, § 37). Not
only does the press have the task of imparting such information and
ideas; the public also has a right to receive them. Were it
otherwise, the press would be unable to play its vital role of
“public watchdog” (see Thorgeir Thorgeirson v.
Iceland, judgment of 25 June 1992, Series A no. 239, p. 27,
§ 63, and Bladet Tromsø and Stensaas v. Norway
[GC], no. 21980/93, § 62, ECHR 1999-III).
-
The Court reiterates that the protection of the right of journalists
to impart information on issues of general interest requires that
they should act in good faith and on an accurate factual basis and
provide “reliable and precise” information in accordance
with the ethics of journalism (see, for example, Fressoz and
Roire, § 54; Bladet Tromsø and Stensaas,
§ 58, and Prager and Oberschlick, § 37, all
cited above). Under the terms of paragraph 2 of Article 10 of
the Convention, freedom of expression carries with it “duties
and responsibilities”, which also apply to the media. Moreover,
these “duties and responsibilities” are liable to assume
significance when there is a question of attacking the reputation of
a named individual and infringing the “rights of others”.
Thus, special grounds are required before the media can be
dispensed from their ordinary obligation to verify factual statements
that are defamatory of private individuals. Whether such grounds
exist depends in particular on the nature and degree of the
defamation in question and the extent to which the media can
reasonably regard their sources as reliable with respect to the
allegations (see, among other authorities, McVicar v. the United
Kingdom, no. 46311/99, § 84, ECHR 2002-III, and Bladet
Tromsø and Stensaas, cited above, § 66).
ii. Application to the present case
- In
the present case, the applicants were found to have defamed a named
individual. The domestic courts considered the impugned article as
containing a factual allegation. The Court agrees with the domestic
courts that the applicants, by entitling the impugned article “Lawyer
found in Contempt of Court” gave readers the impression that it
was a fact that Dr A. had been found guilty of contempt of court.
- The
Court further notes that a lawyer's behaviour in the exercise of his
profession, particularly during court proceedings held in public, is
a matter of public interest. In this context, whether the second
applicant had the means to verify the facts and whether she abided by
her duty of responsible reporting are relevant factors.
- The
Court observes that the allegation of fact made by the applicants was
susceptible of proof and that the applicants were indeed allowed to
claim this defence and present evidence to this effect (see,
conversely, Castells v. Spain, 23 April 1992, § 47,
Series A no. 236). However, the domestic courts considered that Dr A.
had not in fact been found guilty of contempt of court. The Court
notes that the second applicant drew her conclusion from what she had
seen and heard, namely the statements of the magistrate during the
court proceedings, which it has not been disputed were chaotic. It
observes that the presiding magistrate had at least stated that the
circumstances verged on contempt of court. Finding a lawyer in
contempt of court was an action within his power in such
circumstances and was not an unreasonable response in view of defence
counsel's failure to appear on the appointed day and without having
informed the court that he would not attend the hearing. Moreover,
two individuals present in the court room heard, independently of
each other, the magistrate find Dr A. to be in contempt of court.
Indeed, the prosecutor present in the same courtroom confirmed the
second applicant's version on oath during the defamation proceedings.
More importantly, during the defamation proceedings not a single
witness was produced to assert that the magistrate had not found Dr
A. to be in contempt of court. Dr A. himself had not presented any
such evidence and since he was not present at the hearing, he was in
no position to contradict that statement. Indeed, all the evidence
heard, apart from the court record, clearly suggested that Dr A. had
been found to be in contempt of court.
-
In the instant case, the record of the proceedings did not mention
that Dr A. was found to be in contempt of court. Records of
proceedings are usually brief minutes of the res gestae, and
as acknowledged by the domestic courts (see paragraph 12 above) they
do not contain a detailed record of all that takes place during
proceedings. Thus, while such record is certainly important for the
purposes of a court case, it cannot be considered the sole source of
truth for other purposes, including court reporting. To limit court
reporting to facts reproduced in the records of proceedings, and to
bar reports based on what a journalist has heard and seen with his or
her own eyes and ears, as corroborated by others, would be an
unacceptable restriction of freedom of expression and the free flow
of information. While there may be a presumption that the official
record of court proceedings is complete and accurate, such a
presumption may be rebutted by other evidence of what occurred during
the course of the proceedings. It follows that in a conflict between
the records of the case and the sworn evidence of witnesses who have
no personal interest in the case, a court should not discard the
sworn evidence a priori. This is even more true where, as here, there
is no apparent conflict since the record of the proceedings is silent
on the matter in issue.
- In the present case, the Court attaches importance to
the fact that, even if not reflected in the record of the
proceedings, the second applicant's contention that the magistrate
had found Dr A to be in contempt of court was expressly confirmed by
the evidence of the prosecutor in the bigamy case, who stated that
the second applicant's article was a true summary of what had
occurred at the hearing. The Court is struck by the fact that,
although this evidence was plainly relevant and came from an
independent eye-witness to the events in question, little or no
attention appears to have been paid to it by the Civil Court in the
defamation proceedings. In particular, there is no indication in the
judgment of the Civil Court as to whether the prosecutor was found by
the court to be an unreliable or unconvincing witness. The Court
considers that to require the applicants to prove the truth of the
statements made in the article, while at the same time disregarding,
or giving no reasons for rejecting, the evidence called by the
applicants to establish their truth, is not consistent with the
requirements of Article 10 of the Convention (see, mutatis
mutandis, Flux and Samson v. Moldova, no. 28700/03, §
25, 23 October 2007, and Jerusalem v. Austria, no. 26958/95,
§ 45-46, ECHR 2001 II).
- Moreover,
the Court finds no reason to doubt the second applicant's
account that she attempted to verify her perception of what
had taken place in the court room (see paragraph 7 above). For the
Court, such a course of action would be entirely in line
with best journalistic practices. In the circumstances of the present
case, the second applicant could not reasonably have been expected to
take any further steps, especially since news is a perishable
commodity and to delay its publication, even for a short period, may
well deprive it of all its value and interest (see, for example,
Observer and
Guardian v. the
United Kingdom, 26
November 1991, § 60, Series A no. 216; and
Association Ekin v.
France, no.
39288/98, § 56, ECHR 2001-VIII). The Court further notes
that the applicants published an apology (see paragraph 10 in
fine) two days
after the publication of the impugned article. Bearing in mind these
considerations, the Court finds that the second applicant had at all
times acted in good faith and in accordance with her duty of
responsible reporting (see, mutatis
mutandis, Tønsbergs Blad A.S. and Haukom v. <<Norway>>,
no. 510/04, § 101, ECHR 2007 III).
- Having
regard to the foregoing, the Court considers that in taking their
decisions the domestic courts overstepped their margin of
appreciation and the judgments against the applicants and the ensuing
award of damages were disproportionate to the legitimate aim pursued.
It follows that the interference with the applicants' exercise of
their right to freedom of expression cannot be regarded as necessary
in a democratic society for the protection of the reputation and
rights of others.
- There
has accordingly 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
- Assuming
that a judgment finding a violation of Article 10 in the present case
would render the domestic court judgment unenforceable, the
applicants claimed EUR 11,646.87 in respect of non-pecuniary damage.
They requested that this sum be apportioned among the applicants,
namely 50% of the amount to the second applicant who bore the
greatest damage and the remainder between the first and third
applicant.
- The
Government submitted that a finding of a violation would constitute
sufficient just satisfaction. In any case, the amounts claimed were
unjustified and exaggerated.
- The
Court reiterates that under its case-law a sum paid as reparation for
damage is only recoverable if a causal link between the violation of
the Convention and the damage sustained is established. Thus, in the
present case, the award of damages which the applicants have to pay
to Dr A. pursuant to the domestic court decision could be taken into
account (see, mutatis mutandis, Thoma v. Luxembourg,
no. 38432/97, § 71, ECHR 2001 III). However, the Court
notes that the applicants have not made a claim in this respect. The
Court considers, however, that the applicants have suffered
non-pecuniary damage as a result of the domestic courts' judgments,
which were incompatible with Convention principles. The damage cannot
be sufficiently compensated by a finding of a violation. The
particular amount claimed by the applicant is nevertheless excessive.
Making its assessment on an equitable basis, the Court awards the
applicants EUR 4,000, jointly, plus any tax that may be chargeable on
that amount.
B. Costs and expenses
- The
applicants also claimed EUR 2,995 for the costs and expenses incurred
before the domestic courts (as per attached bill of costs) and EUR
4,500 for those incurred before the Court.
- The
Government did not comment on these claims.
- 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, notably the
fact that the applicants did not submit any evidence substantiating
the claims incurred in the Convention proceedings, the Court
considers it reasonable to award the sum of EUR 4,000 covering costs
under all heads.
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 applicants, jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention:
(i)
EUR 4,000 (four thousand euros) in respect of non-pecuniary damage;
(ii)
EUR 4,000 (four thousand euros) in respect of costs and expenses;
(iii)
plus any tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 14 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
