Case Law, Strasbourg: Ion Cârstea v. Romania, Breach of positive obligation to protect the right to reputation – Hugh Tomlinson QC

25 11 2014

republicaIn the case of Ion Cârstea v. Romania (Judgment of 28 October 2014) the Third Section of the Court of Human Rights held that dismissal of the applicant’s domestic defamation proceedings was a violation of the positive Article 8 obligation to protect his right to reputation.

Background

On 8 September 2001 a local newspaper, Republica Oltenia, published an article entitled “Feature story on sex-blackmail professor” concerning the applicant, a university professor.

The article described in detail an incident in his sex life 19 years before and accusing him of bribery, blackmail, child sex abuse and sexual deviance.  The article was illustrated by two photographs showing a man and a woman naked and having sex. The man’s face was not visible.  The applicant’s name was handwritten on the photographs.

The applicant brought criminal defamation proceedings before the national courts against the journalist and editor-in-chief of the newspaper, claiming compensation for serious damage to his reputation.

On 27 June 2002 the Craiova District Court acquitted the two  defendants. It decided that they had not intended to defame the applicant, since they had merely brought to the public’s attention certain facts mentioned by other people, with whom the applicant did not have a good relationship.  They said that it was not clear whether the person photographed was the applicant.

On 8 April 2005, the Craiova District Court rejected the applicant’s claim for compensation. Quoting the Court’s case-law on freedom of expression, the District Court held that the applicant was a public figure and was hence exposed to criticism. The court also held that the defendant had not intended to defame the applicant, as he had just published information that he had collected from other people, such as students, professors, and so on.

Finally, in November 2005, the applicant’s appeal on points of law was dismissed as ill-founded, on the ground that the article, although  defamatory, had been written to draw attention to the behaviour of a public figure, a university professor, and to expose what was going on backstage in a higher education institution.

Judgment

The Court noted that the publication was one which affected the applicant’s reputation.  Article 8 extended to matters relating to reputation and the positive obligation of the State to ensure effective respect for private life was engaged.

It was necessary to consider the balance between the right to freedom of expression and the right to respect for private life.  An initial essential criterion was the contribution of the published material to a debate of general interest.

The Court noted that the domestic courts did not make a serious assessment as to whether the entire material published contributed to a debate of general interest, or whether what was published was true.

The Court considered that

“the act of making such serious accusations against a person identified by their name and occupation, such as the applicant, involves an obligation on behalf of the journalist to provide a sufficient factual basis for his statements The Court had previously attached serious importance to whether the domestic courts analysed whether the journalist concerned had obtained his information legally, verified it with the applicants before publishing and whether he had also given the applicants the right to reply within the same article” [35]

In the current case the domestic courts automatically regarded the journalist’s sources as credible and assumed that he had acted in good faith.  No material was produced to the domestic courts to support the allegations made and no witnesses testified that the applicant was involved in the activities described”. [35]

In relation to the question of whether the applicant was a “public figure”, the Court said

“The role or function of the person concerned and the nature of the activities that form the subject matter of the article constitute another important criterion, which relates to the previous one. In this connection, the Court has previously held that a fundamental distinction needs to be made between reporting factual matters capable of contributing to a debate in a democratic society, such as those relating to politicians in the exercise of their official functions, and reporting details of the private life of an individual who does not exercise such functions, with the sole aim of satisfying public curiosity … In the latter case, freedom of expression calls for a narrower interpretation” [36]

In the present case the applicant was a university professor unknown to a wider public.

The Court concluded that there was little doubt that the article and photographs seriously prejudiced the applicant’s honour and reputation and were harmful to his psychological integrity and private life.  The domestic courts did not carefully balance freedom of expression and the right to respect for private life.  As a result, there was a violation of Article 8.

The Court awarded the applicant €4,500 as compensation for non-pecuniary damage.

Comment

Although it is a relatively new development the positive obligation” to protect reputation is now well established in the Court’s case law. The “right to reputation” was read into Article 8 in 2004 (see generally, my post on the blurring of the boundaries between privacy and reputation). The State’s positive obligations under Article 8 to ensure effective respect for the applicant’s private life was already well established and this was extended to the right to protect reputation.  The applicable principles were similar to those involving negative obligations: there had to be a fair balance between the competing interests.

There have, however, only been a relatively small number of decisions concerning the positive obligation to protect reputation. The first of these was Pfeifer v Austria (Judgment of 15 November 2007), followed by Petrina v Romania (Judgment of 14 October 2008), Petrenco v Moldova (Judgment of 30 March 2010) and, more recently, Popovski v. The former Yugoslav Republic of Macedonia (Judgment of 31 October 2013), Someşan and Butiuc v. Romania (Judgment of 19 November 2013) and Lavric v. Romania ([2014] ECHR 44) and Jalbă v. Romania (Judgment of 18 February 2014).

As in the Lavric case (see my comment here), the present case was a particularly clear example of a failure by the domestic courts properly to address the issues in a defamation action.   Extremely serious allegations were made in circumstances where the “ethics of journalism” had not been complied with: no attempt to verify or put the allegations to the applicant.  The fact that the applicant was a public official could not justify the publication of serious unverified allegations.

The case is another reminder that the right to reputation and the right to freedom of expression need to be carefully balanced in every case and a range of factors have to be taken into account. The Court of Human Rights requires what the English Court have called an “intense focus” on all the circumstances in order to decide where the balance lies between competing fundamental rights.


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