Some clarity in defamation case-law

On 11 February 2010, the European Court of Human Rights released an interesting judgment in an art. 10 defamation case, Fedchenko v. Russia (no. 2). The case concerned a conviction for defamation of Mr. Fedchenko, the editor of a regional newspaper, after an article had been published in his newspaper in which allegations of mismanagement were made against the Head of a regional Department of Education.

The judgment contains several interesting elements. However, here I will only discuss it in light of the standards of proof required from defendants in defamation cases. In this context, the Court traditionally makes a division between statements of fact and value judgments, the first being susceptible to proof, while the latter are not. The case-law of the Court in general is a bit sketchy in this respect. The Court has in the past sometimes demanded complete proof of factual allegations, while it at other times has found varying degrees of “a sufficient factual basis” to suffice. In Fedchenko v. Russia (no. 2), the Court sheds some light in this respect by clearly advocating the use of lenient standards of proof in certain circumstances.

The Court was for instance very lenient on Mr. Fedchenko and the authors of the publication when discussing the newspaper’s mentioning of “the dismissal of uncooperative members of staff”, while the journalists writing the article only knew of the dismissal of one member of staff, who was one of the co-authors of the article. Nonetheless the Court held that even though the authors failed to present any evidence of other dismissals “their reference to the “dismissal of uncooperative members of staff” may be regarded as an exaggeration not exceeding the boundaries of the protection afforded by Article 10” (§ 52). Also for other factual allegations made in the newspaper article the Court established that a sufficient factual basis was present. In coming to this conclusion, the Court referred to the earlier publication of a similar article in a different newspaper. This publication apparently released the applicant and the authors of the contested article of the duty to carry out their own research. Instead, the Court considered that they were acting in good faith by relying on the facts as presented in the other newspaper.

Several elements appear to have guided the Court in coming to the conclusion that lenient standards of proof should be applied in the instant case. A first is the importance of the subject matter of the publication. The Court described this subject matter as an issue of serious public concern. Secondly, a new addition to the Court’s case-law can be found in the explicit statement that “the defendant in a defamation case concerning criticism of a public official’s performance of his duties may not be required to prove the truth of all his factual assertions. This would but stifle public debate on matters of genuine public concern.” (§ 56). A bit further in the judgment, the Court also holds that “effective criticism is impossible without reference to specific figures and persons. Holding otherwise would mean extinguishing the essence of the right to public debate over matters of public concern and turn it into a purely fictitious concept.” (§ 59). Both paragraphs are not only interesting for their strong defence of freedom of expression, they are also particularly valuable since they add a transparency to the Court’s reasoning that is often missing in defamation cases.

By Stijn Smet