Case Law, Strasbourg: Pinto Pinheiro Marques v. Portugal, Public authorities, criminal libel and a mistake of law – Hugh Tomlinson QC

25 01 2015

Montemor-o-VelhoIn the case of Pinto Pinheiro Marques v. Portugal (Judgment of 22 January 2015, only in French) the First Section of the Court of Human Rights held that libel conviction of the applicant for damaging the reputation of a municipal council was a violation of Article 10.

The interesting feature of the judgment is that the Court accepted that the protection of the reputation of a public authority was a legitimate aim under Article 10.  There was a violation because the conviction was not “prescribed by law” and was not, in any event, proportionate.

Background

Mr Pinto Pinheiro Marques (“the Applicant”) is a historian and the chairman of a cultural association.  He had signed an agreement with the Montemor-o-Velho Municipal Council (“the Council”) regarding publication of the works of Alfonso Duarte, a poet from the region. An initial volume was published in 2003. In 2005 the Council published another book about the poet’s work.

The Applicant considered that the council had acted wrongfully in publishing the book on its own initiative, had an article published in a regional newspaper complaining about the Council’s conduct.  He said that it had shown contempt for the publishing agreement.  He said that, although the publication had been presented as being published by the local authority the ISBN number of the book showed it had been published by a private company for profit.  He said that the Council had “engaged in falsification”. He said that there should be an investigation as the Council were mixing public money and private interests.

The Council made a criminal complaint against the Applicant for insulting a legal entity exercising public authority. The Court held that if the ISBN was that of private company this was a simple error which had been corrected.  The Court found the applicant guilty of defamation.  It said that he “knew or ought to have known” that the statement the the Council had “engaged in falsification” undermined the Council’s reputation.

The Applicant was sentenced to 290 day-fines – amounting to a total of €2,320 – and ordered to pay €1,000 in damages to the municipal council and to have published at his own expense a notice in the regional press reporting the conviction.

The Coimbra Court of Appeal dismissed an appeal by the Applicant in November 2008,  It held that the Council’s right to protection of its reputation prevailed over the Applicant’s right to freedom of expression.  It held that he had not acted in good faith and had sought, with malicious intent, to harm the Council’s image.

Judgment

It was common ground that the Applicant’s conviction constituted an interference with his Article 10 rights [32].  There was, however, an issue as to whether the conviction was “prescribed by law”.  The Court noted that Article 10(2) not only required that the impugned measure should have a legal basis in domestic law and that the law had to be accessible and predictable [33].

The Court noted ([36]) that Article 187 of the Penal Code criminalizes spreading false facts that would “affect the credibility, prestige or confidence owed to a corporation, institution, corporation, body or service performing a public function”  but that this does cover value judgments affecting the honour of public institutions (see [22]).

The Court noted that the Applicant had, correctly, drawn attention to an error in the ISBN for the book.  As a result, his actions did not fall within Article 187: he had not spread any “false facts”.  As a result, Article 187 was not a sufficient basis for his conviction which was, therefore, not “prescribed by law”.

The Court accepted that “protection of the credibility and prestige of [the Council] and public confidence in this institution was a legitimate aim” under the Convention [41]

However, the Applicant was undoubtedly taking part in a debate of general interest [42]

Furthermore, insofar as the Applicant was questioning the motivation or intentions of the Mayor these were value judgments, not allegations of fact. They were expressions of personal opinion and akin to value judgments [43].

Moreover, the Court emphasized that the limits of acceptable criticism of a public institution were wider than in relation to a private citizen or a politician [44]

As a result, in any event, the Applicant did not exceed the limits of acceptable criticism under Article 10 [45]

In any event, the criminal fine imposed on the Applicant was manifestly excessive [46].

For all these reasons, there was a violation of Article 10.

A claim under Article 6 was dismissed on the ground that the Applicant had failed to exhaust domestic remedies.

Judges Berro-Lefevre (Monaco) and Steiner (Austria) – the President and Vice-President of the Section – gave a concurring opinion.  In this they agreed with the outcome but took the view that the Court should not have gone behind the findings of fact of the domestic court.  They would have preferred to find an interference solely on the grounds of proportionality.

Comment

The finding of a violation in this case is unsurprising.  There are, however, two striking points about the judgment.

The first is the fact that the Court did not take a much shorter route to a finding of violation.  This was a prosecution for criminal libel in relation to a public body and it might be thought that a law allowing such a prosecution was, of itself, incompatible with Article 10.  Although the Applicant did not take this point the Court could have done so of its own motion (applying the so-called jura novit curia principle – see MM v United Kingdom [150]).  It did not, however, do so. Instead the Court expressly accepted that the protection of the reputation of a public authority is a legitimate aim under Article 10 and implicitly accepted that this aim could properly be served by criminal proceedings.

This is, of course, contrary to the position in English domestic law.  Criminal libel has been abolished and, following the decision in Derbyshire County Council v Times Newspapers [1993] AC 534, public authorities cannot sue in libel.   The question as to whether public authorities should be permitted to sue for libel is a controversial ones.  We had a series of three posts on this issue in 2011 by Raymond Youngs,  “Should public bodies be allowed to sue in defamation?”, Part 1 – England the ECHR;  Part 2 – Comparison between England and Germany, and Part 3 – Critique of English Position.  His conclusion was that the present position in English law was  unsatisfactory. The Derbyshire decision was partly justified on Article 10 grounds however it appears that Article 10 permits libel proceedings by public authorities after all.

The second striking feature of the case is the Court’s decision that the Portuguese courts had made a mistake of domestic law and that, as a result, the decision was not prescribed by law.  The judgment is not entirely clear on the point but the Penal Code requires an absence of good faith.  The Applicant in this case clearly believed (on reasonable grounds) that his allegations were correct.  it is therefore unsurprising on the facts that the Court concluded that the decision was wrong in Portuguese law.  Nevertheless, as the concurring judges point out, this approach is contrary to the usual approach of the Court of Human Rights.  It shows that, although the Court of Human Rights says that it is not an appeal court of “Fourth Instance” it is prepared to intervene when it is plain that the domestic courts have got the application of their own law wrong.

Hugh Tomlinson QC is the joint author of the Law of Human Rights, 2nd Edn, 2009, and an editor of Inforrm

 

 


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