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. Continue reading

Tamiz v. UK: Google’s blog-publishing service is not liable for offensive comments

This guest post was written by Ingrida Milkaite (Ghent University)*

On 12 October 2017 the European Court of Human Rights (the Court, the ECtHR) decided on the liability of Google Inc. as an information society service provider for offensive comments posted below a blog post about Mr Payam Tamiz. His application filed under article 8 of the European Convention on Human Rights (ECHR, the Convention) was declared inadmissible.

Background and facts Continue reading

Insulting a politician right after her death: Does the ECHR protect the reputation of the deceased?

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.[1] 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.

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Yes Prime Minister!

This post is written by Dirk Voorhoof* and Rónán Ó Fathaigh**

In the case of Tuşalp v. Turkey, the European Court was asked to consider whether two defamation actions taken by the Prime Minister of Turkey against a journalist for protection of his personality rights were compatible with Article 10 of the European Convention.

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A Poll on Palomo Sánchez

We are pleased to be organising our first poll to ask our readers about their opinion!

The poll concerns the recent judgment of Palomo Sánchez v. Spain in which the Grand Chamber of the Court ruled that the Spanish courts had not failed their positive obligation to protect the freedom of expression of four employees who were dismissed by their employer for having insulted two of their co-workers and a member of management. The employees, who were also executive members of a trade union they had set up, were dismissed after they had published two articles and a cartoon in the union newsletter, severely criticising management and specifically denouncing two of their co-workers for having testified in favour of the company in proceedings the applicants had brought against it in the context of a social dispute. In its judgment the Grand Chamber held in particular that, due to their offensive and insulting character, the cartoon and articles overstepped the bounds of acceptable criticism of private individuals under article 10 ECHR. The Court held that the sanction of dismissal was not disproportionate and that article 10, read in the light of article 11, had not been violated.

Considering the crucial importance of Palomo Sánchez for trade union freedom of expression we are curious about the opinion of our readers on one particularly controversial aspect of the case and the judgment: the cartoon and its assessment by the Court.

Participate in our poll and find out what the other voters thought of it! Should you wish to clarify your response, do not hesitate to use the comment section below the post.

Translation from left to right (by Spanish native speaker): “Slurp, slurp, is everything going well, Mr. Garcia?”; “I already told you that you were FREED as long as you kept me well-served … SERVED!”; “Listen, this one has jumped the queue!”; “Shut up … or the “sucking” up will otherwise be over for us”.

Acquittal of Broadcaster for Criminal Defamation and Insult Violates Article 8

Today’s guest post was written by Rónán Ó Fathaigh, one of our colleagues at the Human Rights Centre. More information on Rónán can be found on the website of the Center for Journalism Studies of Ghent University, here.

 

Following the Mosley v. the United Kingdom judgment delivered by the Fourth Section of the European Court some time ago, it would seem appropriate to highlight a very surprising judgment delivered by the Third Section recently which held that there had been a violation of Article 8 where the Romanian courts had acquitted a broadcaster in criminal defamation and insult proceedings concerning statements made in a press release.

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Absence of prior-notification requirement does not violate Article 8: Mosley v UK

Guest post by Rónán Ó Fathaigh, PhD candidate at Ghent University. For more information on Rónán, find him here.


This week the Fourth Section of the European Court delivered its much anticipated judgment in Mosley v. the United Kingdom, which unanimously held that the absence of a prior-notification requirement on newspapers to give advance notice to a person before publishing private details does not violate Article 8.

The applicant in Mosley had successfully brought legal proceedings against a British newspaper for invasion of privacy over a series of articles which detailed the applicant’s sexual encounter with a number of prostitutes. It was also alleged that the applicant had engaged in Nazi role play during the sexual encounter. The articles had been based on a clandestine recording, and the video was made available on the newspaper’s website. The domestic courts found that there had been no Nazi element to the sexual activities, and held there had been a violation of the applicant’s right to privacy, awarding £60,000 in damages.

Having been successful in the domestic proceedings, the applicant took the unusual step of making an application to the European Court. The applicant argued that the award of damages was not an adequate remedy for a violation of privacy, and that the only effective remedy would have been an injunction to prevent publication. It was argued that the failure of the United Kingdom to impose a legal duty upon newspapers to give prior-notification to a person before publishing private details was a violation of its positive obligations under Article 8. It was argued that such a duty would provide a person with the opportunity to seek an injunction to prevent publication.

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Freedom of Expression and the Right to Reputation: Human Rights in Conflict

As part of our research project I have written a paper on the conflict between freedom of expression and the right to reputation in the defamation case law of the European Court of Human Rights. The paper, based on an analysis of over 120 judgments and entitled “Freedom of Expression and the Right to Reputation: Human Rights in Conflict”, has now been published in the American University International Law Review, Vol. 26, No. 1, 183-236.

The article is available on the website of the journal. It’s free of charge, so if you are interested, get it while it’s hot! Direct link: here.

Comments on the article, below this post or via e-mail, are more than welcome!

The abstract:

Ever since the European Court of Human Rights has recognised the existence of a right to protection of reputation under the European Convention on Human Rights, a conflict between Convention rights arises in defamation cases. In such situations of conflict between human rights, their indivisibility requires that both rights carry a priori equal weight. Yet, the research conducted for this article indicates that the Court engages in preferential framing and incomplete reasoning when attempting to resolve the conflict between freedom of expression and the right to reputation in its defamation case law. In order to pre-empt such preferential framing and to improve the reasoning of the Court, the article proposes a theoretical model for the resolution of conflicts between human rights. The defamation jurisprudence of the Court is critically analysed through the lens of this model. The article demonstrates how the model might prove to be a useful tool to improve the legal reasoning of the Court in defamation cases.

Contradictions in Defamation Cases

Before its holiday break, the European Court of Human Rights released two judgments in defamation cases, Novaya Gazeta V Voronezhe v. Russia and Sofranschi v. Moldova. Both cases concern allegations of abuse and irregularities. While both judgments contain good elements, in my opinion they also reveal faulty reasoning on the part of the Court. Most interestingly, the judgments contradict each other on some crucial points. Thus one judgment provides alternatives to the shortcomings of the other.

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The Right to Reputation under the European Convention on Human Rights

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.

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Petrina v Romania – serious issues of interpretation and implementation of the Convention

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)

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Of Rights and Interests

On 30 March 2010 the European Court of Human Rights released its judgment in the case of Petrenco v. Moldova. The case concerned a newspaper article in which negative remarks were made about the applicant’s competence as a historian. The article further alleged that the applicant, a university professor and Chairman of the Association of Historians, had achieved his professional status due to cooperation with the Soviet secret services (KGB). The facts of the case were thus similar to those of an earlier case, Petrina v. Romania (14 October 2008, App. No. 78060/01), concerning a newspaper article alleging the involvement of the applicant with the former Romanian secret service Securitate.

In both cited cases, the person concerned instituted defamation claims at the domestic level. However, since those claims failed when it came to the assessment of the allegations of cooperation with the secret services, the applicants invoked a violation of art. 8 in front of the European Court of Human Rights.

I personally find these types of cases interesting, because they hold the possibility of offering further insight into the Court’s reasoning on the right to reputation under art. 8 and on the conflict that exists between the right to freedom of expression and the right to reputation in defamation cases.

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