Political speech under threat?

In the case of Fleury v. France of 11 May 2010, the European Court of Human Rights held that the freedom of expression of a politician, member of the opposition on municipal level, had not been violated by his criminal conviction for defamation of a public official, the mayor of the municipality.

The ruling of the Court in this case baffled me. Quite frankly, I do not agree with the judgment, nor do I understand it as it does not seem to fit into the extensive protection the Court offers to political speech. In that context, it is all the more remarkable that the judgment has been ruled unanimously. I have heard people describing the section that passed this judgment, the Fifth Section, as being one of the more conservative sections of the Court. I have also heard people argue that, upon examination of the case-law of the Court, it becomes apparent that this section hardly ever finds a violation against France. Could there lie an element of truth in this strong statement? This case would surely suggest so. And if that is the case, it is unacceptable and quite damaging to a Court that is expected to offer consistency throughout its jurisprudence and is regarded by many – also inside the Court itself – as playing a vital role in the harmonization of human rights protection in Europe.

In Fleury v. France the applicant, a member of the opposition at the municipal level, had been the victim of a violent attack by a member of the majority. The latter had been found guilty and was convicted. The applicant had requested that mention would be made of these events in the municipal bulletin, but his request was refused. His political party, a local party called “Vivre ensemble”, had consequently distributed a document throughout the municipality in which it denounced the censure and the manner in which the mayor and the majority governed the municipal affairs (the relevant extracts of the document are posted at the bottom of this post).  The mayor filed a criminal complaint against the applicant for defamation of a public official. The applicant was found guilty for having alleged that the mayor had embezzled funds and had not respected the rules for the attribution of public tenders. The domestic courts ruled that the applicant, despite having adduced evidence, had not established the truth of the allegations. The courts moreover held that the defamatory acts were all the more grave since they were directed at the mayor in his public capacity and because they emanated from a member of the municipal council, whose statements would appear more credible to the audience of the document. The applicant was sentenced to a fine of € 4,000, damages to the amount of € 2,000 and € 1,000 in costs and expenses.

After having read the facts, I was confident the Court would find a violation of art. 10. Sure, the reputation of the mayor was at stake, but his reputation would be granted a relatively minor protection due to his capacity as a politician, who is expected to tolerate greater criticism than a private individual. Moreover, the speech emanated from another politician and clearly constituted political speech. It would thus be granted strong protection by the Court. This should arguably be even more the case for members of the opposition since they voice concerns that aim to counteract abuse of power by the majority (the Court itself stated “des ingérences dans la liberté d’expression d’un membre de l’opposition […]commandent à la Cour de se livrer à un contrôle des plus stricts”). Moreover, the document did not contain any strong language, was not offensive or insulting and was expected to receive the leniency the Court generally exhibits towards a certain extent of provocation of exaggeration, which is inevitably present in political discourse. Last, but certainly not least, the subject matter of the document was clearly one of public interest. To sum up, the case did not evidence any deliberate personal attack on the reputation of the mayor, but concerned genuine political speech in the general interest.

Not surprisingly, the Court commenced its reasoning by summing up exactly the above features. This made me even more confident that it would find a violation. Clearly, in this case the reputation of the mayor could not possibly outweigh the freedom of expression of the applicant. Yet it did. The Court took a drastic turn in § 47. It reasoned that the current case should be distinguished from Brasilier v. France because the statements contained in the document had not been made in the context of a debate of public interest and because the mayor had not been the object of a criminal investigation. At this point, it was clear that the Court was going to twist things around in order to not find a violation. This became even clearer in the next paragraphs on the proof of the statements. The Court established first that it is sometimes, and also in this case, difficult to distinguish between statements of facts and value judgments, but that even the latter can be considered excessive if completely deprived of a factual basis. It then went on to establish that the domestic courts had examined the evidence adduced by the applicant, but that they had not considered the facts to be established. Subsequently, the Court assimilated the reasoning of the national courts that the defamatory acts were all the more grave since they were directed at the mayor in his public capacity and because they emanated from a member of the municipal council, whose statements would appear more credible to the audience of the document. It concluded its reasoning by finding that the penalty imposed on the applicant was not disproportionate, despite being “relatively important”. Thus, the Fifth Section held unanimously, there had been no violation of art. 10.

I do not follow the reasoning of the Court. I would contest each and every argument it used to find in favor of the government. Firstly, simply because there was no ongoing debate, that does not mean that issues of public interest could not be addressed. Someone should always start the debate and who is better placed to take up this role in the political context than the opposition? Arguably, the document should have been awarded additional protection, precisely because it pointed towards an issue of general interest that could/should form the subject of public debate. Secondly, I find the Court’s application of the standards of proof test accompanying the distinction between statements of facts and value judgments highly questionable. First accepting that the distinction between value judgments and statements of facts is sometimes difficult to make – thus appearing to apply the standard of “(sufficient) factual basis” – and then referring to the national courts’ findings that the facts had not been established, is a clear contradiction. The Court ignores the fact that the applicant had adduced evidence before the national courts, but that this evidence was not deemed sufficient by the national courts because it had not established the truth of the allegations. This is an application of the “truth” test and not of the “(sufficient) factual basis” test. Generally, the Court completely obliterates such reasoning by the national courts. Thirdly, I do not accept that the statements were all the more damaging because they were addressed to the mayor in his official capacity. What then is left of the increased level of criticism a politician should tolerate? It becomes an empty shell if this type of reasoning is accepted. Moreover, the mayor should easily be able to contradict the statements made by making use of the democratic forum to which he has full and direct access. This is all the more true in the municipality in question, which counts around 4,000 inhabitants. Surely the mayor could be expected to argue the falsity of the allegations to the inhabitants of his town without resorting to criminal complaints. Finally, I find the acceptance by the Court of the national courts’ argument that the statements are more damaging when coming from a member of the municipality itself downright dangerous. Apparently members of the opposition should be afraid of which type of statements they can make about municipal affairs. The connection to a “chilling effect”, reference to which is pervasive in art. 10 case-law, is easily made. A similar argument could be made for the nature and severity of the penalty. Usually the Court is skeptical of criminal convictions involving high fines for defamation of a politician. Not in this case.

I hope this judgment is not – as we would say in Dutch – the rotten apple in the basket, liable to spoil the whole bunch and that it does not mark the beginning of difficult times for political speech.

_________

Extract of the document in question:

« La dernière page du bulletin municipal est réservé à l’expression de l’opposition … Démocratiquement, selon le bon vouloir de monsieur le Maire, de la censure, et suivant la fantaisie des dates.

Que dire des commissions inexistantes ou annulées (…). Notre absence dans le dernier bulletin municipal est le constat de la convivialité particulière de monsieur le Maire envers ce qu’il appelle « l’opposition. »

Notre groupe s’interroge sur les manipulations de nos chers dirigeants qui « crochent un peu trop dedans » et semblent oublier qu’ils ne sont pas seuls : ex-commission d’appel d’offres du 17 septembre 2002 dont les règles ont été bafouées.

Présence du 1^er adjoint qui n’a pas hésité à diriger la séance alors qu’il ne fait pas partie de la commission.

Cet adjoint imposant que l’on ne tienne pas compte de l’entreprise la moins disante (50 % moins chère).

(…)

Que penser de l’ordre du jour du conseil municipal du 17 novembre 2002 avec le souhait de monsieur le Maire de voir Monsieur [L.] représenter la commune au sein de Nava. Pourquoi cette précipitation Monsieur le Maire ? Pourquoi cette association a-t-elle droit aux largesses de la municipalité sans aucun vote de la commission des finances qui offre un repas où seule la centaine d’intimes de la majorité est invitée ?

Enfin, le comble est la capacité de monsieur le Maire à cacher la vérité et à passer sous silence les mots qui pourraient fâcher. Dans le bulletin d’octobre 2001, on pouvait lire l’Hôtel des Bains une franche discussion du Maire et de l’adjoint à l’urbanisme avec le promoteur a permis d’aboutir à un accord. A ce jour, le bâtiment est en voie de livraison sans balnéo, sans restaurant, sans bar et sans parking (…). Le compte-rendu du conseil municipal et l’article de presse du 11 septembre 2002 démontrent la mauvaise foi de monsieur le Maire (…).

Nous regrettons que Monsieur le Maire ne mette pas en pratique ses propres conseils de recherches d’économie en ayant procédé à une augmentation maximale des indemnités versées aux élus, alors que certains cumulent avec [d’autres indemnités] (…). Nous savons que le rôle d’élu n’est pas toujours facile. Nous regrettons que certains aient besoin de se montrer agressifs et colériques. »