August 09, 2017
By Stijn Smet, Melbourne Law School. Stijn is Postdoctoral Research Fellow at the ARC Laureate Program in Comparative Constitutional Law and co-editor with Eva Brems of the new volume When Human Rights Clash at the European Court of Human Rights: Conflict or Harmony? (OUP, 2017)
Imagine, if you will, two scenarios. The first involves four NGOs writing a private letter to the highest authorities of a Bosnian city. “According to our information”, the NGOs state in the letter, the newly appointed Serbian director of a public radio station has displayed a problematic attitude towards Muslims and Bosniacs. Her past actions, the NGOs claim, “absolutely disqualify” her from being director of a multi-ethnic radio station. The NGOs further press upon the authorities the “hope that you will react appropriately”. It turns out, however, that the factual allegations made in the NGOs’ letter are all incorrect or (grossly) exaggerated.
Now picture the second scenario: the very same letter is published in three daily newspapers.
Both scenarios seem rather different. It would make sense, then, to apply distinct free speech standards to both. They might even call for opposite solutions. Not so, says the Grand Chamber of the ECtHR in Medžlis Islamske Zajednice Brčko and Others v Bosnia and Herzegovina. In a complex judgment marked by contorted reasoning, the Court equates NGOs to the press. The Court also suggests that it ultimately does not matter all that much whether wrong factual allegations are made in private letters or disseminated publicly.
A complex and contingent set of circumstances
When a Serbian woman (Ms M.S.) is selected as new director of a multi-ethnic public radio station in the Brčko District in Bosnia and Herzegovina, four Bosniac and Muslim NGOs are concerned. But it is not simply the director’s ethnicity that worries them. Rather, the NGOs have received information from within the radio station and heard rumours in the city about Ms M.S.’s previous attitudes towards Muslims and Bosniacs. The NGOs decide to direct a private letter to the highest authorities of the Brčko District, arguing that the reported attitudes “absolutely disqualify” Ms M.S. as director of a multi-ethnic public radio station. Their letter references four specific allegations, preceded by an “According to our information”:
The problem is – and this would generate enormous complexity in the ECtHR’s judgment – during defamation proceedings all four allegations are confirmed to be false, unverified or (grossly) exaggerated. The newspaper statement, it turns out, was not made by Ms M.S. at all. Ms M.S. did remove a Ramadan calendar from a wall in the radio station, because it was not a “work-related announcement”. But she did not tear it to pieces. Ms M.S. also did not cover the coat of arms of Bosnia and Herzegovina. Instead, she placed an invitation card featuring the coat of arms of the Republika Srpska in one of its corners. And there was no evidence for the NGOs’ claim on the ban of the song.
In their letter, then, the four NGOs relied on unverified rumours (the newspaper interview and the song) and exaggerated incidents on which they had received insider information (the calendar and the coat of arms). This would ultimately cost the NGOs their case in Strasbourg. For although they (i) labelled their letter as “private”, (ii) clearly stated that the behaviour imputed to Ms M.S. was “[a]ccording to our information” and (iii) seemed to be calling on the authorities to investigate the matter by expressing their “hope that you will react appropriately to our letter”, the Strasbourg Court would rule that the NGOs’ domestic liability for defamation did not violate their freedom of expression.
An important contingent factor, seemingly beyond the NGOs’ control, is that their letter was published in three daily newspapers. It is entirely unclear who leaked the letter to the press. The Strasbourg Court, in any event, proceeds on the assumption that it was not the NGOs. The Court is careful not to impute any direct responsibility on the NGOs for the public dissemination of the letter. Indirectly, however, publication of the letter must have played a role. Indeed, as dissenting Judge Kūris points out, “it is likely that this case … would have never existed” if the letter had not been picked up by the press. I return to this point below. First, I discuss the Court’s decision to piece together disparate strands of case law in its ruling.
A (redundant?) Herculean attempt at bringing together multiple strands of case law
In deciding the NGOs’ case, the ECtHR brings together five strands of its existing case law (leading judgments are between brackets, as cited by the Court):
The majority ends up rejecting the relevance of its case law on whistle-blowing (to this, dissenting Judges Sajó, Karakaş, Motoc and Mits respond that the case involved at least “quasi-whistleblowing”). Even so, it still has to put together a complicated puzzle of disparate guiding factors and criteria from the remaining four strands of case law. Once the puzzle has been laid out, no fewer than eight criteria structure the Court’s balancing exercise:
Now, as my past research on balancing by the ECtHR shows, I am all for multi-factor structured balancing tests. But this might be pushing it. Not so much due to the sheer number of criteria, but because the Court cannot resist the urge to shuffle around and add to its balancing criteria in free speech cases (see also Bédat v. Switzerland; Delfi AS v. Estonia). Although the sets of balancing criteria the Court set out in Axel Springer and Von Hannover (No. 2) are still fairly recent, long gone seems the aspiration that they would bring simplicity to the Court’s case law on balancing Articles 8 an 10 (for contrasting views on the ECtHR’s defamation case law and Axel Springer in particular, see chapters by Leto Cariolou and Dirk Voorhoof in this book).
In Medžlis Islamske Zajednice Brčko, the Court could have avoided yet another compilation exercise, leading to yet another multi-factor balancing test being set loose in its already intricate free speech case law. The Court could have followed the various dissenting opinions’ emphasis on the private nature of the letter. The Court could have applied its Zakharov line of case law to find that the NGOs did not overstep the limits of acceptable criticism of a civil servant on matters of public concern. But this, of course, would not have led to the majority’s (desired) outcome. In that sense, the Court’s judgment in Medžlis Islamske Zajednice Brčko makes most sense, to me at least, when read as a post-hoc rationalisation of the majority judges’ personal attitudes towards the factual allegations made in the letter.
Do hard cases make bad law? Or does contorted reasoning make for bad case law?
Judge Kūris paraphrases Oliver Wendell Holmes Jr. in the opening sentence of his critical dissent: “It is often said that hard cases make bad law.” Judge Kūris goes on to argue that the majority judgment “is based on at least four fictions”. In my reading of the judgment, two factors (only the second of which is a fiction) are particularly determinative of the majority opinion. The first is the nature of the statements made in the letter. In their letter, the NGOs did not make direct allegations; and they seemed to primarily call on the authorities to look into the matter. But it remains the case that their letter contained factual allegations, not value judgments. And as it so happens, the ECtHR has proven rather critical of insufficiently supported factual allegations (see e.g. Lindon, Otchakovsky-Laurens and July v. France). It is not far-fetched, then, to suppose that the majority judges considered the NGOs’ incorrect and exaggerated factual allegations utterly unacceptable. Categorical unacceptability of the allegations is certainly the undercurrent running through the majority judgment. This explains why, to the majority, it is ultimately irrelevant that the allegations were expressed in private correspondence.
The majority judges’ sense of right and wrong, however, still stands in dire need of justification. And this is where post-hoc rationalisation and Judge Kūris’s fictions come in. Only by equating the four NGOs to the press and imposing on them the same kinds of free speech duties that apply to the press, could the majority sustain the outcome of the case. A crucial passage in the majority judgment sees the majority nimbly switching track from free speech rights to free speech responsibilities. In this passage, the majority briefly notes that the NGOs “were playing the role of social watchdogs, [and their activities] warrant similar Convention protection to that afforded to the press”. One would expect more free speech rights language to follow. Instead, what we get is the majority immediately shifting gears to free speech responsibilities: “In the context of press freedom, the Court has held that special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals.” The majority goes on to impose the same obligation directly on the four NGOs, although they have made private statements and even though they may have lacked the resources of the press (Judge Kūris makes the latter point particularly forcefully in his dissent).
In a bizarre move, the majority even imposes higher free speech duties on the NGOs than on the press. The majority insists that the advocacy role of the NGOs – “act[ing] as representatives of the interests of particular segments of the population” – “increased their duty to verify the accuracy of the information before they reported it to the authorities” (emphasis added). This strikes me as just plain wrong. Surely the local authorities receiving the letter knew that the NGOs were not ‘objective’ and ‘neutral’ observers, but had a direct stake in the game. And presumably the authorities took their allegations – such as they were – with a grain of salt, viewing them at best as reasons to look into the matter for themselves. The most incomprehensible passage of the Court’s judgment, however, involves the majority implying that the NGOs should have given Ms M.S. “the opportunity to comment on the allegations” before bringing them to the attention of the authorities. Insisting on a right to reply makes quite a bit of sense when factual allegations of wrongdoing are published in the press. But it makes hardly any sense to impose similar preconditions on the reporting of perceived wrongdoing in a private letter to the authorities.
I see no better way to conclude this comment than by going back to Judge Kūris and Oliver Wendell Holmes Jr.. After he notes in his dissent that “[i]t is often said that hard cases make bad law”, Judge Kūris goes on to claim that “[a]s a consequence of this hard case, we have bad law.” It seems to me, however, that the complex factual constellation of the case is not what made for bad law. Rather, the majority’s contorted reasoning has brought it into being.
 The Brčko District is a self-governing district, generally heralded as one of the multi-ethnic “success stories” of post-war Bosnia and Herzegovina (although qualitative research suggests that at “the grassroots level”, tensions may not be buried too far beneath the seemingly harmonious surface).
 The letter also criticized – correctly – the composition of the selection panel. Contrary to the Brčko District’s own regulation, the panel had not been sufficiently diverse (it had been composed of three Serbs, one Croat and one Bosniac).
 These are all paraphrased, with the words within citation marks being literal quotes from the letter.
 In noting that the NGOs had not given Ms M.S. the opportunity to comment on the allegations, the majority references a passage in Bergens Tidende and Others v. Norway. But it takes this passage entirely out of context. In the cited paragraph of Bergens Tidende, the ECtHR had found that the subject of the allegations in that case “was invited to comment on the allegations made in the interviews with the newspaper”.
 Dissenting Judges Sajó, Karakaş, Motoc and Mits describe the majority’s equating of both situations as “inappropriate”.