The European Court & Defamation of the Dead: searching for clarity

By Jonathan McCully (Media Legal Defence Initiative / Columbia Global Freedom of Expression)

On 28 November 2017, in MAC TV v. Slovakia, the European Court of Human Rights (European Court) found a violation of the right to freedom of expression under Article 10 of the Convention where the Broadcasting Council of Slovakia had fined a television programme for showing a lack of respect to the dignity of the President of Poland following his death in a tragic plane accident. The case is one of the few where the European Court has considered the human rights implications of controversial stories following the death of an individual. However, it leaves much to be desired in terms of clarifying the status of “defamation of the dead” laws under the Convention.

The Judgment of the European Court

The case of MAC TV v. Slovakia concerned a television programme that was broadcast on 12 April 2010, two days after the death of the President of Poland (Lech Kaczynski). The programme contained a segment that critically discussed the political views of the late President.

On 14 September 2010, the Broadcasting Council of Slovakia imposed a 5,000 euros fine on the applicant television company for contravening its duty to respect the dignity of the late President under Section 19(1)(a) of the Broadcasting and Retransmission Act. The Broadcasting Council focussed on two sentences of the segment – “I am sorry, but I do not pity the Poles. I envy them.” In its decision, the Broadcasting Council was critical of the “lack of regret” shown by the television company, and described its content and manner of reporting as “sub-standard”. The Supreme Court and Constitutional Court of Slovakia later upheld the decision of the Broadcasting Council. The Constitutional Court determined that the television segment not only expressed sarcasm and criticism of the late President’s political policies, but also conveyed a positive attitude towards his death.

In its judgment, the European Court recognised that the decision of the Broadcasting Council amounted to an interference that was “prescribed by law”, namely the Broadcasting and Retransmission Act. However, when confronted with the question of whether measures imposed for the purpose of protecting a deceased person’s reputation pursue a “legitimate aim” under Article 10(2) of the Convention, the European Court decided that it was not necessary to reach a general conclusion on such a point. In other words, the European Court left the question open as to whether defamation laws that seek to protect the reputation of a deceased individual per se can amount to legitimate restrictions under Article 10(2) of the Convention.

Instead, the European Court went on to find that the interference in this case was not “necessary in a democratic society”. Firstly, the European Court reiterated that very strong reasons are required to justify restrictions on political speech, and that the limits of acceptable criticism are drawn more widely as regards politicians than they are as regards a private individual. On this occasion, the television segment addressed a matter of public and political interest, and concerned a public figure and politician who was subject to wider limits of acceptable criticism. Secondly, the European Court was particularly critical of the domestic authorities’ failure to take into account the wider context of the segment, deciding to predominantly focus on two lines of the commentary. It then concluded that, taking into account the fact that the thrust of the piece was about the late President’s policies, the segment could not be understood to constitute “a gratuitous personal attack on, or insult to Lech Kaczynski.” The European Court noted that some of the phrasing may have been strong, but the statements did not overstep the acceptable level of exaggeration permitted in journalistic work.

Perhaps most interesting was the European Court’s observation in relation to the proceedings adopted in the case. The European Court reasoned that

“the Broadcasting Council commenced the administrative proceedings against the applicant company on its own motion. The latter did not act upon the request of the late President’s close relatives or upon a demand by Polish people or authorities that Lech Kaczynski’s personality rights in that respect be protected. It was the Broadcasting Council’s own initiative to apply the Broadcasting Act in order to protect the dignity of the deceased President.” [para. 56]

This seems to throw into doubt the ability of regulatory bodies to use their own initiative to find breaches of their codes in cases concerning defamatory statements of deceased individuals.

 Previous Case Law relating to “Defamation of the Dead”

Since 2013, the European Court has considered a number of cases that related to the reputations of deceased individuals. In Dzhugashvili v. Russia, the European Court held that Article 8 rights (including right to reputation) are non-transferable upon the death of an individual. [para. 24] Nevertheless, in its early cases on the issue, the European Court indicated that the right to respect for private life under Article 8 of the Convention could be affected by publications that were defamatory of an individual’s deceased relative.

In such cases, the European Court required that the Article 8 rights of living family members be “directly affected” by the publication before the right would be engaged (Putistin v. Ukraine, par. 37). In Kunitsyna v. Russia, the European Court reasoned that the publication should make the “ordinary reader feel that the statement reflected directly on the [living family member], or that he was targeted by the criticism.” [para. 42] Together, these cases suggested that there was no positive obligation on Contracting States to protect the reputations of deceased persons per se.

However, the jurisprudential water has been slightly muddied by two recent European Court judgments that implied that a deceased person’s reputation was a “civil right” and a “core personality right” of the deceased person (Madaus v. Germany, para. 15; Genner v. Austria, para. 45). This has given rise to calls for the European Court to clarify whether the Convention protects the reputation of the deceased, or whether it only protects the rights of surviving relatives. The case of MAC TV v. Slovakia provided the European Court with a good opportunity to provide some clarity as it was a case only concerning allegations of an attack on the dignity and reputation of a deceased person, and did not include allegations of collateral damage to the Article 8 rights of family members.

Conclusion

It is unfortunate that the European Court did not make use of the opportunity presented to it to clarify its position on “defamation of the dead”. Nonetheless, it is noteworthy that it did not apply the judgments in either Madaus v. Germany or Genner v. Austria when reaching its decision. Perhaps this is an indication that these cases are not going to be followed closely in the future.

The European Court’s case law on “defamation of the dead” has given rise to some commentary suggesting that Contracting States have a positive obligation to protect the Article 8 rights of individuals where there has been an attack on the reputation of their deceased relatives’ reputations. However, this does not necessarily mean that the Convention requires law reform, in countries such as Ireland and the United Kingdom, to introduce “defamation of the dead” causes of action.

Despite the mixed signals sent by the European Court in recent judgments, the jurisprudence of the European Court has previously indicated that Article 8 of the Convention will only be engaged in cases of defamatory statements against dead individuals where such statements have “directly affected” the Article 8 rights of living family members. Such cases will be relatively exceptional in nature. Furthermore, the rights of the family members in such cases may be sufficiently protected by other laws that already exist to protect the Article 8 rights of living persons, such as the tort of misuse of private information in the United Kingdom (see Editions Plon v. France and Hachette Filipacchi Associés v. France). Nevertheless, questions will still be asked about to what extent the Convention protects the reputations of deceased persons until the European Court reaches a more comprehensive and clear conclusion on the issue.

Laws that zealously protect the reputation of deceased persons can create a considerable “chilling effect” on freedom of expression. This “chilling effect” can be felt most strikingly in relation to press and academic freedom. In the United Kingdom, the death of controversial public figures has resulted in watershed moments for the press to report on stories that they had previously been unable to cover due to the threat of a defamation suit (see here and here). These stories would have arguably been suppressed for longer if those public figures’ reputations were similarly protected after their deaths. As has been observed by the Venice Commission,

“a person’s interest about his/her reputation after death bears an insufficient normative weight that can justify assigning to it a status of a human right of the recognition of a right to sue for defamation. Arguably, the interests of the living (in the current context their freedom of expression) should prevail over the reputation of the dead.”

Jonathan McCully is the Senior Legal Officer of the Media Legal Defence Initiative and Editor at Columbia Global Freedom of Expression. The Media Legal Defence Initiative filed an intervention in MAC TV v. Slovakia, which can be read here.