Case Law, Strasbourg: Braun v Poland, The same Article 10 standards apply to everyone involved in public debate – Hugh Tomlinson QC

4 12 2014

Grzegorz BraunIn the case of Braun v Poland (Judgment of 4 November 2014), the Fourth Section of the Court of Human Rights found that the domestic courts had violated Article 10 by applying stricter standards to a commentator than were applied to journalists.  The same standards of “responsibillity” should be applied to all participants in general interest public debates.

Background

The applicant is a film director, historian, and author of press articles often commenting on current issues. On 20 April 2007, in the course of a radio debate he said

“… among the informers of the [communist-era] secret political police is Professor [J.M.] – this information confirms the theory that among those who speak out the most against lustration are people who have good reasons for doing so.”

On the same day the applicant accused JM of being an “informant” on television.  The matter attracted widespread media comment.

A special commission at JM’s university subsequently concluded that the documents did not lead to the unequivocal conclusion that he had been a collaborator.

JM brought civil proceedings against the applicant.  In July 2008, the Warsaw Regional Court found in favour of JM, ordering the application to pay 20,000 zlotys to charity and to publish an apology in six national and regional newspapers, on three national TV channels and on the radio station where the original broadcast was made.

According to the domestic courts, the main question to be considered was whether the statement that JM was an informer was true.  The Court examined extensive evidence, including from the applicant and JM and various former secret service agents.  The court concluded that there were no documents confirming that JM had agreed to be a collaborator or actively co-operated with the secret services [16].

The applicant unsuccessfully appeal to the Court of Appeal and the Supreme Court.  The appeals were rejected although the Supreme Court amended the text of the apology and confined it one national newspaper and the radio station.

The Supreme Court noted that a journalist’s actions would not be illegal if they were in the public interest and he had acted with due diligence.  However, it considered that this approach did not apply to the applicant whose statement had been made in a private capacity and he did not have a socially necessary duty to inform.  Making an untrue statement that breached personal rights was illegal.

Judgment

The Court reiterated the importance of freedom of expression as an essential foundation of democratic society and the limited scope under Article 10(2) for restrictions on political speech or on debate on questions of public interest [36] to [37].

There was clearly an interference with the applicant’s Article 10 rights and this was prescribed by law and for a legitimate aim. The question was, therefore, whether the interference was necessary in a democratic society.

The court noted that to call someone a secret collaborator with the communist-era security services carries a negative assessment of his behaviour in the past and is an attack on his good name.  It reiterated that the right to protection of reputation is protected by Article 8 [44]

The Court emphasised that it did not have to decide whether the applicant, in fact, had sufficiently accurate and reliable information to justify the allegations made. This was a matter for the domestic courts but those courts had to apply Article 10 standards of freedom of expression.

The Court was in no doubt that

“the applicant in the case under consideration had clearly been involved in a public debate on an important issue (see Vides Aizsardzības Klubs v. Latvia, no. 57829/00, § 42, 27 May 2004)” [50].

As a result, the domestic court was wrong to require the applicant to prove the truth of his allegations:

“It was not justified, in the light of the Court’s case-law and in the circumstances of the case, to require the applicant to fulfil a standard more demanding than that of due diligence only on the ground that the domestic law had not considered him a journalist” [50].

The domestic courts, by following such an approach, had effectively deprived the applicant of the protection afforded by Article 10.

The reasons relied on by the domestic courts were not “relevant and sufficient under the Convention” and, as a result, there was a violation of Article 10 of the Convention.

Comment

This case is a very clear statement of the principle that, under the Article 10 case law, those who engage in public debate on matters of general interest are not required to prove the truth of allegations which they make.  It is sufficient for them to show that they acted “in good faith” and responsibly.

Although the case law refers to conduct being assessed in terms of providing information “in accordance with the “ethics of journalism” this case re-emphases that the protection for statements made in debates of general interest is not confined to “journalists” (however that term is defined).

Non-journalistic participants in such debates are, presumably, held to analogous standards.  These usually include an obligation to take steps to verify factual allegations before they are made.  As the Grand Chamber said in Bladet Tromsø and Stensaas v Norway ((2000) 29 EHRR 125),

“special grounds are required before a newspaper could be dispensed from its ordinary obligation to verify factual statements that were defamatory of private individuals. The question whether such grounds existed depended in particular on the nature and degree of the defamation in question and the extent to which the newspaper could reasonably regard its sources as reliable with respect to the allegations” [66]

This approach is consistent with that taken by the English Courts in the development of the Reynolds defence  -which was not confined to journalists.  Similarly, the new statutory defence of Publication on a matter of Public Interest” under section 4 of the Defamation Act 2013 applies to any statement “on a matter of public interest”, regardless of the status of the publisher.

The Braun case confirms, once again, the high degree of protection provided to public interest speech by the Court of Human Rights and the high standards which are applied to domestic decision making when such speech is sanctioned.


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