February 08, 2016
By Valeska David
At the end of 2014, when deciding on the admissibility of a case brought by Stalin’s grandson, who sued a newspaper and the author of an article for defamation of his grandfather, the ECtHR stated that the heir of a deceased person could not claim a violation of the latter’s article 8’s rights since they are non-transferable. Less than two years later, however, the recent judgment in Genner v. Austria (Application no. 55495/08) seems to cast a shadow of doubt on that principle. Furthermore, this judgment brings about interesting questions on what can and cannot be said about a public figure who has just passed away. Before turning to these questions, let’s first examine the facts of the case.
Facts and judgment
Mr Genner, who worked for an association which offers support to asylum seekers and refugees, published a statement on the association’s website on 1 January 2007 about the Minister for Interior Affairs (“L.P”), who had unexpectedly died the previous day. It commented: “The good news for the New Year: L.P., Minister for torture and deportation is dead.” After referring to several individual stories of asylum seekers, the text stated, in particular, that the Minister had been “a desk criminal just like many others there have been in the atrocious history of this country” [this was regarded as a comparison to the Nazis]. It also added that she had been “the compliant instrument of a bureaucracy contaminated with racism” and that “no decent human is shedding tears over her death”. The late Minister’s widower filed a private prosecution for defamation against Mr Genner, which resulted in his conviction and sentence to a fine of 1,200 euros. The Strasbourg Court found no violation of his right to freedom of expression.
This post will not offer a conclusive view on the adequacy/legitimacy of regulations which afford legal protection to the reputation of deceased persons by allowing family members to file lawsuits for defamatory expressions against their deceased relative. Instead, the lines that follow will only flag some uncertainties left by Genner v. Austria. The first one relates to the way the Court frames the case as one of competing rights. The second one concerns the weight to be accorded to the timing and ‘propriety’ of offensive opinions made against a politician right after she or he has passed away.
Whose and which conflicting rights?
Recalling the principles established in its case law, the Court states in Genner: “there is no doubt that Article 10 § 2 enables the reputation of others – that is to say, of all individuals – to be protected” (§32, emphasis added). In this case “the interference did pursue the aim of the protection of “the reputation or rights of others”, namely those of L.P. and the close members of her family ‒ in particular her husband.” (§ 41, emphasis added). The Court further regards the applicant’s statement as “likely to cause considerable damage to the late Minister’s reputation” (§ 44, emphasis added) and as “an attack on the core of personality rights” (§ 45, emphasis added). So, what do all these references to the late Minister’s reputation mean? Is the Court abandoning the principle that personal rights covered by article 8 ECHR can only be enjoyed by living persons?
Let’s first assume that is not the case. So, an alternative option is to understand that the Court may be concerned with the protection of a person’s interests after his or her death. This is something familiar to most legal systems. Respect for the deceased’s wishes on issues of inheritance, organ donations and burial rites attest to this. We must therefore admit that people may have an interest in having their reputation unharmed after they pass away and, more importantly, protecting this by law is a legitimate choice. However, does such interest amount to a human right guaranteed by the ECHR? (This is quite a different thing!) If we interpret the above-mentioned paragraphs as giving ‘yes’ as answer, then you will feel disappointed when you do not find any supporting argument in the judgment for such a contested conclusion. If by contrast we stick to the idea that the deceased’s reputation is a legitimate interest (or a legal right) but not a convention right, then there would be no real conflict between rights. In that case, freedom of expression should, in principle, take precedence over the interests of those who are no longer alive.
Thus, a better approach for dealing with the case is the protection of the living relatives’ rights. More concretely, their own right to reputation or right to be protected against distress or identity injury which falls under the scope of the right to private life (Article 8 ECHR); an interpretation already endorsed by the Court in Putistin v. Ukraine. In Genner, the Court appears to take this road in a couple of paragraphs (see §§35 and 41) where it refers to its case law on the rights of the deceased’s family and situates the rights of L.P’s close relatives and particularly of her husband, as standing in tension with the applicant’s freedom of expression. Here we do enter the terrain of convention rights and therefore of a (real) conflict of rights. Unfortunately, however, this line of argumentation was not really developed in the judgment. The Court did not only mix this reasoning with the protection of the deceased’s reputation, as already explained. It neither elaborated on the damage experienced by the widower and his family. One may wonder, for instance, whether a potential or presumed harm of the relatives sufficed to justify a restriction to freedom of expression, or was it necessary to prove that the family members experienced an actual direct harm? The next part deals with this question.
On insult, grief and timing
As a matter of relevant principles established by its case-law, the Court recalled in Genner that: “regardless of the forcefulness of political struggles, it is legitimate to try to ensure that they abide by a minimum degree of moderation and propriety” […] “If the sole intent of a particular form of expression is to insult a person, an appropriate sanction would not, in principle, constitute a violation of Article 10 of the Convention” (§36 emphasis added). It is interesting to observe that the “minimum degree of moderation and propriety” requirement had so far been applied in relation to “content [that] is such as to stir up violence and hatred,” (non-protected speech) as the Court found in Sürek v. Turkey (No 1) and (more debatably) in Lindon, Otchakovsky-Laurens and July v. France. Yet, no similar finding of incitement to violence or hatred was made in Genner. Also worth noting is the Court’s reference to the legitimacy of sanctions imposed upon the expression of insults, which is a standard developed in the context of attacks on the judiciary, where a specific justification for sanctions exists. In fact, it is the special position of the judiciary as guarantor of the administration of justice which explains the need to protect the public confidence in their work against “unfounded attacks.” In providing this special protection, the Court had previously also taken into account the difficulties that judges may have in replying to criticism, given their duties of discretion. One may thus ask how helpful standards articulated under such different circumstances are to those prevailing in Genner v. Austria?
Having said this, what is clear is that both the timing and offensive nature of the applicant’s statement in the face of the family´s grief were determinant. As to the timing, the Court holds that this “intensified the impact of the words used … [which were] published within the immediate period of her family’s grief and was likely to cause considerable damage to the late Minister’s reputation.”(§ 44) As to the content, it adds: “The statement was an expression of satisfaction with the sudden death of L.P […] To express insult on the day after the death of the insulted person contradicts elementary decency and respect to human beings [references omitted] and is an attack on the core of personality rights” (§ 45). Thus, unlike cases such as John Anthony Mizzi v. Malta; Editions Plon v. France and Hachette Filipacchi Associés v. France where the lapse of time between the death of a politician/civil servant and the publication of offensive statements/photographs was assessed from the viewpoint of the damage caused to close relatives, in Genner such assessment remained rather focused on the late Minister’s reputation. Of note, the applicant’s apology to L.P’s family, published in a newspaper, was accorded little weight. Finally, the Court considered that the applicant’s serious offensive comparisons to the Nazis lacked a “particularly solid factual basis” (§ 46, emphasis added), which suggests that a “sufficient factual basis” for value judgments was not enough.
The applicant’s statement was certainly tasteless or insensitive, morally reprehensible, if you want. But considering that exaggerated, offensive and shocking language is protected by article 10, particularly when expressed with a view to criticising a politician on a matter of public interest, the conclusions reached by the Court are not precisely self-evident. Actually, reading the judgment made me wonder how we would apply the Court’s analysis to other similar, but perhaps more heated, scenarios. For instance, let’s take the cases of Augusto Pinochet and Margaret Thatcher. In December 2006 thousands of people went on the street to celebrate Pinochet’s death in the most open and cheerful way you can imagine. The media was immediately filled with comments, cartoons and articles containing quite a number of insults for him. Similarly, when Thatcher died in 2013 countless offensive statements spread all over the place. If you google her name + “dead” you still find, for instance, a website saying “Yes! Margaret thatcher is dead. This Lady’s not returning. How are you celebrating?” Surely all the insults, hateful comparisons and expressions of satisfaction with the death of these two politicians eroded their ‘good name’ and aggravated the sorrow of their families. But fair enough, both relatives and supporters also had ample opportunity to reply to those harsh value judgments. My point here of course is not to draw any kind of parallel between these two politicians or between them and the deceased Minister L.P. Far from that, my aim is just trying to understand how we should assess the timing and insult elements when justifying a conviction for defamation of a recently deceased public figure.
So all in all, Genner v. Austria leaves us with a number of questions about what can and cannot be expressed in the aftermath of the death of a politician. Does the ECHR protect the reputation of the deceased or does it rather protect the rights of the surviving relatives? How to assess the timing and the offensive nature of opinions? When does an apology or the possibility of reply remedy the injure? What is a sufficient factual basis and what makes it ‘particularly solid’? Let’s hope that future judgments will offer clarification.
 Yakovlevich Dzhugashvili v. Russia, App. no. 41123/10, (dec.) 9 December 2014, §§ 23-24.
 On the relevance of identifying “genuine conflicts of rights” see Smet, Stijn (2014) Resolving conflicts between human rights: a legal theoretical analysis in the context of the ECHR (Doctoral dissertation) Ghent University, Faculty of Law, Ghent, Belgium, pp. 83-98.
 Case of Putistin v. Ukraine, App. no. 16882/03, Judgment of 21 November 2013, § 33. See also, Jelševar and Others v. Slovenia (dec.), App. no. 47318/07, 11 March 2014.
 Kincses v. Hungary, App. no. 66232/10, 27 January 2015, §§ 32- 34; Skałka v. Poland, no. 43425/98, 27 May 2003, § 34.
 Prager v. Austria, App. No. 15974/90, 26 April 1995, §34.