April 28, 2010
On 30 March 2010 the European Court of Human Rights released its judgment in the case of Petrenco v. Moldova. The case concerned a newspaper article in which negative remarks were made about the applicant’s competence as a historian. The article further alleged that the applicant, a university professor and Chairman of the Association of Historians, had achieved his professional status due to cooperation with the Soviet secret services (KGB). The facts of the case were thus similar to those of an earlier case, Petrina v. Romania (14 October 2008, App. No. 78060/01), concerning a newspaper article alleging the involvement of the applicant with the former Romanian secret service Securitate.
In both cited cases, the person concerned instituted defamation claims at the domestic level. However, since those claims failed when it came to the assessment of the allegations of cooperation with the secret services, the applicants invoked a violation of art. 8 in front of the European Court of Human Rights.
I personally find these types of cases interesting, because they hold the possibility of offering further insight into the Court’s reasoning on the right to reputation under art. 8 and on the conflict that exists between the right to freedom of expression and the right to reputation in defamation cases.
Especially after Karakó v. Hungary I pay careful attention to each case brought under art. 8 to discover in which direction the Court is heading with the right to reputation. Karakó implied that a certain threshold of gravity needed to be met before a statement could be considered to be sufficiently damaging to a person’s reputation so as to bring art. 8 into play. Interestingly enough, in Petrenco v. Moldova the Court does not refer to such a threshold. The Court simply states that “the present case engages the State’s positive obligations arising under Article 8 to ensure effective respect for the applicant’s private life, in particular his right to respect for his reputation” (§ 52). However, that need not be interpreted as implying that the threshold test does not apply. It could also be taken to mean that the threshold was so clearly met that the Court did not find it necessary to clarify why art. 8 applied. Support for this argument could be found in the reference in Karakó to the earlier cited case of Petrina v. Romania as one of the cases from which the Section judging Karakó concluded that a minimum threshold existed. Nonetheless, and especially in light of the persistent inconsistency and lack of clarity in the Court’s defamation case-law, it is disappointing to note that the Section in question did not spend more time on this question.
As to the question of the conflict between the right to reputation and the right to freedom of expression, the Court’s previous case-law has offered mixed results. In the majority of defamation cases judged since the art. 10 case Chauvy and others v. France – the case generally taken to definitively introduce the right to reputation under art. 8 ánd to recognize the existence of a conflict between the right to freedom of expression and the right to reputation in defamation cases – the Court does not identify the conflict, nor does it use any language that indicates how the conflict was resolved. In that respect, Petrenco, like most defamation cases brought under art. 8, does slightly better. The Court first refers to “the fair balance to be struck between the competing interests, in this case, the applicant’s right to protection of his reputation and the right of the newspaper and S.N. to freedom of expression” (§52) and in its concluding paragraph holds that “the reasons advanced by the domestic tribunals to protect the newspaper and S.N.’s right to freedom of expression were insufficient to outweigh the applicant’s right to respect for his reputation” (§ 68). It is worth noting that in this case, as in many other cases in which a conflict between human rights arises, the Court uses both the words “right” and “interest” in referring to the conflict. My personal assessment was until recently that the Court does this on purpose, tending to prefer interests over rights whenever it uses the balancing metaphor, presumably because it feels uncomfortable speaking of a balance between different Convention rights. However, when comparing the two quotes above – one speaking of interests, the other of rights – they clearly both use balancing language, the main difference being that in the first quote the word balance is used explicitly. Could it be that I have been reading too much into the use of “right” and “interest” by the Court? Perhaps it is more a question of tradition, the Court sticking to specific standard sentences in the redaction of its judgments. Sentences such as “the fair balance to be struck between the competing interests”. Such referral to interests does not assist in creating transparency as to the resolution of conflicts between Convention rights. In my personal opinion, demoting the human rights involved to interests diminishes their principled value as trumps over, yes, mere (state) interests.
On the examination of the facts the Court eventually found a violation of art. 8 in Petrenco v. Moldova because the newspaper had published the KGB allegations without any proof. Since it concerned a statement of fact of a grave nature, the Court was of the opinion that it was “not appropriate to make reference to the margin for provocation or exaggeration permitted to newspapers generally where articles concern public figures. The present case concerned a distorted presentation of reality, for which no factual basis whatsoever had been shown by the author. By implying that the applicant had collaborated with the KGB as though it were an established fact when it was mere speculation on the part of the author, the article overstepped the limits of acceptable comments” (§ 66).
I will leave the discussion on the reasoning of the Court in this and similar defamation cases, and especially the debate on the apparent impact of the right invoked by the applicant on the resolution of the conflict – and thus the outcome of the case – for a future post.
As for my personal opinion on the subject, I fully agree with Judge David Thór Björgvinsson’s statement in his dissenting opinion that “refuting the impugned publication through the instrument of public debate is the most appropriate form of reply in a democratic society”. If a statement is false, what better way exists of defending oneself than by proving its falsity through public channels? Especially when these are readily available to the person concerned, as was undoubtedly the case for the applicant in Petrenco.
For further, elaborate, reading on the conflict between the right to freedom of expression and the right to reputation in the case-law of the European Court of Human Rights, I would like to refer to my upcoming publication on this subject in the American University International Law Review (publication expected in the first quarter of 2011).