The decision of the Court of Human Rights in Novaya Gazeta v Russia ( ECHR 251) is an interesting reminder of the requirement of journalistic responsibility even in the context of public interest articles about politicians. The case concerned a domestic libel judgment in favour of a Regional Governor based on an article containing a value judgment. It was, nevertheless, held to have been justified under Article 10(2) as there was insufficient factual basis for the statement made. The article had not been written responsibly.
The Court drew atttention to the “added importance” of monitoring compliance with journalistic ethics in a world where the individual is “confronted with vast quantities of information” .
The applicants were the publisher of “Novaya Gazeta”, a newspaper with a circulation of 500,000 copies and a journalist, Mr G Borodyankiy, working for the newspaper. In November 2006 the newspaper published an article by the journalist entitled “Personalities received loans” describing fraudulent schemes used to obtain loans of €147 million from a particular bank. It mentioned a number of individuals, including Mr RM, a politician and businessman from Kazaskhstan, who had significant business interests in the Omsk region.
The article said of Mr RM
“It would be inconceivable for anyone to achieve such success in our region without the benevolence (благоволение) of the Governor [Mr P.] who has held senior public office in Kazakhstan for more than twenty years. And this biographical fact of [Mr P.], naturally, has linked the republic [of Kazakhstan] and the [Omsk] region ever closer with ‘fraternal bonds’”.
Mr P brought libel proceedings. “Novaya Gazeta” did not respond and then sought an adjournment without giving reasons. This application was refused. The trial took place and the Court held that the article characterised Mr P’s actions as “aimed at providing certain businessmen and commercial organisations with privileges and as and abuse of his powers to further the interests of certain individuals“. The Court awarded €1,600 in non-pecuniary damages and ordered the publication of rectification of the statements complained about.
In 2008 the applicants lodged an application with the Court of Human Rights, complaining that the domestic judgment against them was a violation of their rights under Article 10.
The Court of Human Rights noted that the domestic judgment was an interference with the applicants’ Article 10 rights which was prescribed by law and had the legitimate aim of protecting Mr P’s reputation . The question was whether the interference was “necessary in a democratic society” – that is, justified by a pressing social need and proportionate to the legitimate aim pursued .
The Court noted that, beyond doubt, the article dealt with a matter of signficant public interest and that, in commenting on it, the press was fulfilling its role as “public watchdog”. A certain degree of journalistic exaggeration, provocation and immoderate language had to be tolerated . Furthermore, Mr P was an important political figure and knowingly laid himself open to close scrutiny by journalists and the public .
However, the Court noted that
“Article 10 does not guarantee wholly unrestricted freedom of expression to the press, even with respect to coverage of matters of serious public concern. While enjoying the protection afforded by the Convention, journalists must, when exercising their duties, abide by the principles of responsible journalism, namely to act in good faith, provide accurate and reliable information, objectively reflect the opinions of those involved in a public debate, and refrain from pure sensationalism” 
In response to the applicants’ contention that statements made constituted “value judgments”, the Court pointed out that
“Even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for that statement, since even a value judgment without any factual basis to support it may be excessive” 
It went on to say that “generally known facts”, basic verification or independent research was a “minimal factual basis” for statements containing value judgments. It went on to say
“These considerations play a particularly important role nowadays, given the influence wielded by the media in contemporary society: not only do they inform, they can also suggest by the way in which they present the information how it is to be assessed. In a world in which the individual is confronted with vast quantities of information circulated via traditional and electronic media and involving an ever-growing number of players, monitoring compliance with journalistic ethics takes on added importance” 
As a result, the Court accepted the conclusion of the domestic Russian courts that the words complained of suggested some degree of involvement by Mr P in the fraudulent schemes and, as a result, harmed his reputation. As the sanctions imposed were proportionate there was no violation of Article 10.
This case is a useful reminder that public interest journalism must, nevertheless, comply with basic standards of responsibility. Although, as the court emphasised, the press plays a vital role as “public watchdog” its freedom to comment on the activities of politicians is not entirely unfettered. Even “comments” or, to use the Court’s terminology, “value judgments”, require a factual substratum. Those facts must be true or at least have been the subject of proper processes of verification.
The problem in this case appears to have been that the link between the claimant in the libel proceedings, Mr P, and the businessman involved in the fraud was entirely speculative. In those circumstances, the sanctions imposed by the domestic court were justified under Article 10(2).