November 01, 2010
Does a right to reputation exist under the European Convention on Human Rights? And when does such a right exist? Keeping Pfeifer v. Austria (15 Nov. 2007) in mind, those may appear to be redundant questions. But they are not.
I will discuss these questions in light of the recent judgment of the European Court of Human Rights in the case of Polanco Torres and Movilla Polanco v. Spain, a typical defamation case. In broad terms the facts of the case are as follows. A newspaper published an article alleging involvement of Mrs. Polanco Torres with a company that allegedly engaged in unlawful transactions. Her husband, a judge, was also mentioned by name in the newspaper article. Both Mrs. Polanco Torres and her husband instituted proceedings for the protection of their honour, but lost. Mrs. Polanco Torres and her daughter, acting on behalf of her in the meantime deceased father, instituted proceedings in Strasbourg under article 8 ECHR, claiming violation of their right to reputation.
Before proceeding with the case, a brief overview of the evolution concerning the right to reputation is in order. Art. 8 ECHR does not explicitly mention a right to honour or reputation, unlike for instance art. 17 of the International Covenant on Civil and Political Rights. Art. 10 ECHR does refer to reputation as one of the legitimate aims that might justify interference with freedom of expression. However, it does not do so by granting rights status to reputation, instead speaking of “protection of the reputation or rights of others”. Thus, it is not surprising that in the first defamation case brought under art. 10 ECHR, Lingens v. Austria (8 July 1986), the Court denied the Government’s argument that the case concerned a conflict between Convention rights, holding that “there is … no need in this instance to read Article 10 (art. 10) in the light of Article 8 (art. 8)”. However, over the following decades, matters slowly changed and with the art. 10 case of Chauvy and others v. France (29 June 2004) and the art. 8 case of Pfeifer v. Austria, the right to protection of reputation was established as a Convention right under art. 8 ECHR. From Pfeifer: “a person’s right to protection of his or her reputation is encompassed by Article 8 as being part of the right to respect for private life”.
I am not convinced this was the right move to make for the Court. I am personally sceptical as to whether reputation is an interest strong enough to warrant protection by the Convention, especially when considering that it will naturally conflict with freedom of expression. Reputation and expression are each other’s natural ‘enemies’. It is generally through expression that one damages another’s reputation. It is thus somewhat logical that national legislation provides for an action, in the form of defamation suits, to be taken by the person who considers his reputation to be damaged by an expression. But why can it not stop there? The person concerned has a means to protect his reputation. Why should such protection be extended by granting reputation Convention right status? I am not convinced that compelling reasons exist for a right to reputation to be included in the Convention.
In my opinion, this is also an issue with which the Court struggles. Since Pfeifer v. Austria there have been attempts to weaken the protection of reputation under the Convention. A first attempt can be found in Karakó v. Hungary (28 Apr. 2009), where the Court established that “reputation has only been deemed to be an independent right sporadically and mostly when the factual allegations were of such a seriously offensive nature that their publication had an inevitable direct effect on the applicant’s private life.” and that “the purported conflict between Articles 8 and 10 of the Convention, as argued by the applicant, in matters of protection of reputation, is one of appearance only. To hold otherwise would result in a situation where – if both reputation and freedom of expression are at stake – the outcome of the Court’s scrutiny would be determined by whichever of the supposedly competing provisions was invoked by an applicant.” I and others have argued elsewhere that, while Karakó definitely has its merits, such statements go against the wide variety of cases in which the Court has recognised both the right to reputation and the existence of a genuine conflict between freedom of expression and the right to reputation.
However, now reading Polanco Torres, I think the point of the Chamber in Karakó might have been to get a debate started on the place of the right to reputation within the Convention and, more particularly, on whether granting such a right should not be limited to the most serious cases. Polanco Torres, ruled by a different Chamber than Karakó, attempts to connect the judgments of Chauvy, Pfeifer and Karakó in a logical manner. The judgment refers to both Chauvy and Pfeifer to confirm that the right to protection of reputation is indeed part of the right to respect of private life. However, it then makes the bridge to Karakó by stating “Encore faut-il que les allégations factuelles soient suffisamment graves et que leur publication ait des répercussions directes sur la vie privée de la personne concernée. Pour que l’article 8 entre en jeu, la publication pouvant ternir la réputation d’une personne doit constituer une atteinte à sa vie privée d’une gravité telle que son intégrité personnelle soit compromise.” The Court here introduces a threshold requirement for article 8 to actually apply: article 8 only comes into play if the publication constitutes a direct attack on a person’s private life of such a gravity as to compromise her personal integrity. The crucial element here is the reference to personal integrity. The Court thus links back to the arguments raised by the Chamber in Karakó, basing itself on the finding that “Concerning the question whether or not the notion of “private life” should be extended to include reputation as well, the Court notes that the references to personal integrity in the Von Hannover judgment reflect a clear distinction, ubiquitous in the private and constitutional law of several Member States, between personal integrity and reputation, the two being protected in different legal ways.”
If one takes Karakó and Polanco Torres as an indication of the direction in which the Court is heading with the right to reputation – which is far from obvious – the questions raised in the beginning of this post should be answered as follows: yes, there is a right to reputation, but not always. Only when the publication in question compromises the personal integrity of the person concerned. When exactly the latter threshold is met, will need to be revealed in subsequent case law. For now, Karakó provides an example where the threshold was not met and Polanco Torres one where the threshold was met. Regrettably, in neither case the Court clarifies why the threshold was (not) met. Especially Polanco Torres is vague, the Court limiting itself to ruling that “ces imputations factuelles, concernant des opérations irrégulières avec de l’ « argent noir », étaient d’une gravité telle que l’intégrité personnelle des intéressés pouvait être lésée”. Apart from the reference to “black money” (as in illegally obtained), there is no explanation why the personal integrity of the applicants might have been compromised by the publication. Hopefully the Court will offer more transparency in future cases. It is a bit disappointing to first read the Court’s admirable attempts in Polanco Torres to make sense of the issues it is clearly struggling with, to then realise it does not clarify why its newly developed test was met.
Another, more principled, question I have asked myself is whether the introduction of a threshold for the determination of the scope of the right to reputation is actually a good idea. Of course, thresholds are not new in the Court’s case law. The most obvious other example is the threshold applicable under article 3: treatment only amounts to torture, inhuman treatment or degrading treatment if a certain threshold is met. But I do not think this is the same thing as imposing a threshold in the case of the right to reputation. In ill-treatment cases the test is applied to determine whether the material acts actually constituted ill-treatment. In the case of reputation, on the other hand, the threshold is applied directly to the right: it only exists if the person’s personal integrity is compromised. Thus, one is left with a situation where in some situations one enjoys a right to reputation and in others not. Intuitively, this does not make a whole lot of sense to me. If one recognises the existence of a right to reputation, it would rather make sense to say that a person has this right in all cases, but because there is no damage to her personal integrity (which is also a vague notion) or because the impact on her reputation is minimal, the right has not been violated. The threshold would thus, in my opinion, figure better at the stage of the proportionality assessment. In this sense it is also relevant that art. 3, unlike art. 8, does not provide for a limitation clause.
Based on the foregoing, (part of) the Court appears to be going for the middle ground: not abolishing the right to reputation (which might be perceived as too radical a switch of position), but instead limiting the situations in which article 8 can be invoked (which would still imply the Court – or at least part of it – considers it went too far with Pfeifer). As a result it is left with the – to me – strange situation in which it has to say: “sometimes individuals have a right to reputation under the Convention and sometimes they do not”.
However – again however, all of this sure is tricky! – if one were to take a look at cases like Hatton and others v. The United Kingdom and López Ostra v. Spain, perhaps my intuition is not justified. After all, also in those cases the Court introduces a threshold test into article 8 to determine when environmental pollution and noise disturbances cause an interference with the right to respect for the home and/or private life. But it would go too far to conclude from those cases that the Court recognises a right to (a clean, quiet and/or healthy) environment, a right not protected under the ECHR. Instead, the right that has been interfered with in the cases mentioned is always the right to respect for the home and/or private life, not some separate right developed by the Court under article 8, like the right to reputation has been. So even keeping the ‘environment cases’ in mind, I feel uneasy about applying a threshold for the existence of a Convention right. Or perhaps I am reading Polanco Torres wrongly. Or Hatton and López Ostra.
All in all, I do understand the predicaments of the Court. In personal discussions on whether or not there should be a human right to reputation, I have had the biggest difficulties sticking to my position that there should not be when the other persons engaged in the discussion referred to the most damaging of publications, “ruining a person’s life”. In the end I am not sure yet what the best course of action is: completely denying human rights status to reputation or limiting that status to the most serious cases (through inclusion of a threshold in the scope of the right or through the application of such a threshold in the proportionality assessment).
If you made it all the way down to the bottom of my way too lengthy post and you still want more, no problem! For an excellent – and even more extensive! – overview on the right to reputation, see the analysis in two parts on the Inforrm’s Blog, here and here.