Today, we are pleased to announce a guest post by Dragoş Bogdan* and Mihai Selegean**. Their post on the consequences of the defamation case Petrina v. Romania (14 October 2008, App. no. 78060/01) represents a welcome addition to some of our own posts on the Court’s defamation case-law. More information on the authors, who we thank warmly for their interesting contribution to our blog, can be found at the bottom of the post. Naturally, as is the case with all posts on our blog, the views expressed in the contribution reflect the personal opinion of the authors.
The Petrina Judgment raises several serious questions with respect to the interpretation and the implementation of the Convention, as follows:
– It transforms the right of the Member States to sanction the excessive exercise of the freedom of expression (in accordance with Article 10) into an obligation to sanction (according to Article 8 ) and
– It annihilates the margin of appreciation of the Member States as a result of the way in which it defines the conditions that give rise to the positive obligation of the States to sanction the abusive exercise of the freedom of expression (in particular the burden of proof and the factual basis)
1) The situation before Petrina
Before the Petrina Judgment, the Court’s case-law based on Article 10 authorized an intervention of the State in the freedom of the press on certain conditions and depending on certain “parameters”: lack of a minimum factual basis, non-observance of the duty of care, lack of good-faith, over passing the boundaries of the admissible criticism etc. If the conditions and pertinent parameters were gathered, then the scope of protection of Article 10 reached its limits and the State was authorized to intervene: it could intervene in a lawful way and impose a certain sanction on the journalist (by fully observing the proportionality principle). In exchange, it was not obliged to do it: the ECHR case-law did not constraint the State in taking such a measure.
In the Petrina case, in the context of a public debate on the project of law concerning the access to the files of the former Securitate, some journalists called the Plaintiff (who was a the time a prominent politician) a former collaborator of Ceausescu’s secret police – relying on the fact that during the communist regime he had occupied high positions in the Ministry of Foreign Affairs, as well as on the similar accusations which had been circulating in the political environment since the early 90’s. The criminal complaint lodged by the Applicant was dismissed by courts.
3) Questions raised by the Petrina case
A. The Member States should have a certain margin of appreciation
The Petrina Judgment does more than simply applying the positive obligation established in Von Hannover to a totally different hypothesis (politician + important debate on an issue of general interest). In Petrina, the Court simply transforms the possibility of intervention offered by Article 10 to the State in a true positive obligation for the State: ever since this Judgment, the State must intervene from the moment the pertinent parameters that define the limit of the scope of protection of Article 10 have been met, otherwise it fails to observe the positive obligation which is incumbent on it based on Article 8 (so to speak, “Article 8 “begins” where Article 10 ends” – see Paragraph 39 of Petrina Judgement).
However, in our opinion, an essential condition – especially in such a delicate domain – must be fulfilled: the European control must be accompanied by a margin of appreciation of the State.
The problem appears the moment the margin of appreciation is practically annihilated by the set of parameters used by the Court in order to define the scope of protection of Article 10 and that of Article 8, respectively. If the Court uses exactly the same parameters to accept an intervention of the State by virtue of Article 10 and to impose a State intervention based on Article 8, there is no room left for the margin of appreciation of the State. In order to observe both Article 8 and Article 10, the latter must fully follow down to the smallest detail the judgment and parameters fixed by the Court.
However, even if judges use the same parameters, they risk not to find the same balance that the Court will find (after four, five – or even 10 years like in the Petrina case – of procedure before the Court). Thus, if they do not manage to go on the very narrow path of the “correct” solution they risk to fall in the precipice of the violation of Article 8 (to the right) or in the abyss of the violation of Article 10 (to the left). The right balance then becomes an expression that comes very close to the proper meaning of the term…
B. The concrete use of the parameters pertinent to striking a balance between the two Conveniton rights in Petrina case
This is not only a question of principle, which touches the burden of proof, but also a question of content of the notion of “sufficient factual basis“.
Regarding the burden of proof, the journalists’ obligation to provide a factual basis concretely translates into a certain distribution of the burden of proof: they are the ones who must bring the proof of a certain factual basis. Thus, after Petrina, a Member State can no longer adopt principles that are more favourable to the free discussion of issues of public interest as is the case, for example, in the United States. In the United States, it is the politician who must prove not only that the information was false, but also that the journalist was aware about the false character of the information or, at least, that he had published it by guiltily neglecting to check whether it was true or false (actual malice doctrine – “knowledge that the information was false” or that it was published “with reckless disregard of whether it was false or not”). If a Member State wants to offer an enforced protection to the freedom of expression by adopting a similar doctrine, it can no longer do it, after the Petrina Judgment. In other words, the principles whereby the Supreme Court of the United States protects the freedom of the press systematically violate the European Convention of the Human Rights.
Concerning the notion of “sufficient factual basis”, the Court, in the Petrina Judgment, seems to be relying on a much more restrictive interpretation of this notion as compared to the classical case-law on Article 10. We recall: the Plaintiff had been a Secretary of State at the Foreign Affairs Ministry during the communist regime; this information was not contested by the Plaintiff. And yet, under the dictator Ceausescu, this high position, involving very tight relations with the Foreign policy, could not be filled by anyone and in any conditions. Those who had occupied this position had strong connections with the regime. Of course this by itself is not enough to establish that the Plaintiff had been a collaborator of the Securitate, but it can be considered, at least in the circumstances of the case (it was not possible to determine who had collaborated and who had not collaborated because the archives were not accessible to the public or the journalists), that it represented a sufficient factual basis. The Court found that there was not a single indication “regarding the potential adherence” of the Plaintiff to the said organisation.
If, in matters related to politicians and issues of general interest tackled by the press, the requirements of the Court are so high, then what will happen in the case of a simple individual and issues which are not related to the general interest? Let’s hope that the future case-law on the conflict between free speech on issues of public interest and protection of reputation of politicians will strike a more judicious balance.
* Dragoş Bogdan has worked as a judge in Romania and as an in-house lawyer within the Registry of the ECtHR. Author of numerous books and articles on the ECtHR’s case-law, he is currently a lawyer and a trainer on Human Rights at the National Institute of Magistracy and at the National Institute for Lawyers.
** After graduating law school, Mihai Selegean started to work as a lawyer of the Romanian government in proceedings brought before the European Court of Human Rights. Since 2002, he has been teaching human rights at the Romanian School for judges and prosecutors in both initial and continuous training. He has contributed to the publication of several books and articles on human rights on the Romanian market. Currently, he is working as in-house lawyer for a Romanian bank.