Case Law, Strasbourg: Almeida Leitão Bento Fernandes v. Portugal, No violation of Article 10 in ‘roman à clef’ case – Hugh Tomlinson QC

27 03 2015

Torre de MoncorvoIn the case of Almeida Leitão Bento Fernandes v. Portugal (Judgment of 12 March 2015)(available only in French), the First Section of the Court of Human Rights held that the a libel conviction and award of damages against an author whose novel was held to have libelled members of her husband’s family did not violate Article 10.

Background

The applicant, Maria de Fátima Almeida Leitão Bento Fernandes, wrote a novel called the Palace of Flies under the pen name Bento Xavier.  She edited this herself and had a hundred copies printed.  These were distributed free to relatives and friends.

The novel tells the story of a family who came from the north of Portugal and emigrated to the United States. In the preface to her book Ms Fernandes thanked the people who had inspired her, while stating that the facts narrated in her novel were the product of her imagination and that any resemblance with actual facts was purely fortuitous.

The novel’s characters and plot were essentially depicted as follows. One of the characters, António Baptista, emigrated to the United States and made his fortune there. He married three times. Two daughters were born of his first marriage to Brígida: Inocência and Aurora. Inocência married Floro and Aurora married Rogério. Two daughters were born of the marriage between Aurora and Rogério, one of whom was called Beatriz. Floro and Inocência had several children, including a daughter called Imaculada. Brígida was portrayed as a loose woman who was unfaithful to her husband, António. It was said that Floro had done his son out of his money, visited prostitutes, had extra-marital affairs and died of Aids. His wife, Inocência, was described as an ambitious, extravagant, tight-fisted, mean, avaricious and calculating woman who abandoned him on his death bed and had an affair with Floro’s brother. Aurora was portrayed as a coarse-looking woman with bad breath. Rogério, an agent of the secret police under Salazar’s regime, was described as having had about a hundred political opponents imprisoned. His daughter, Beatriz, was portrayed as debauched and licentious woman and a bad mother. Imaculada was depicted as a woman of loose morals who would stop at nothing to get rich, including killing her father (Floro).

The uncle, aunt, cousin, mother and sister of Ms Fernandes’ husband (“the complainants”) lodged a criminal complaint against her for libel, claiming that the novel related to their family history and damaged the family’s reputation.

On 12 July 2004 the domestic court issued a decision not to prosecute Ms Fernandes. However, following an appeal lodged by the complainants the case was remitted to the Torre de Moncorvo Criminal Investigation Court, which committed Ms Fernandes for trial.

On 26 March 2010 she was convicted of libelling the complainants and tarnishing the honour of two deceased members of the family. The Torre de Moncorvo Criminal Investigation Court found that the characters in the novel were “exact replicas” of Ms Fernandes’ in-laws and, in weighing her right to freedom of expression against the right of the complainants to respect for their private life, held that the applicant had tarnished their honour.

The applicant was sentenced to a cumulative sentence of 400 day-fines corresponding to the sum of €4,000, and ordered to pay €53,500 in damages to the complainants, namely, € 1,000, € 2,500 and €10,000 to her husband’s uncle, aunt and cousin respectively, and € 20,000 to her mother-in-law and sister-in-law. Ms Fernandes unsuccessfully appealed to the Court of Appeal.

Ms Fernandes complained to the Court of Human Rights that there had been a violation of her Article 10 rights.

Judgment

The Court noted that the novel is a form of artistic expression that falls within the scope of application of Article 10 of the Convention in that it allows the public to participate in the exchange of information and cultural, political and social ideas of all kinds [40].

It was clear that there had been an interference with Ms Fernandes’ Article 10 rights and this was prescribed by law and for the legitimate aim of protecting the reputation or rights of others.

The question therefore was whether the interference was “necessary in a democratic society”. The question was whether a fair balance had been struck between the right of the applicant to freedom of expression and the right of members of her husband’s family to respect for their private life.

The Court said that it was appropriate

to take into account the fact that the novel is a form of artistic expression which, although likely to reach a readership over a longer period of time, usually aimed at a public narrower than the print media [48]

There was a conflict between Article 10 and Article 8 rights and the outcome could not depend on which right was being invoked before the Court.  The margin of appreciation was the same in both instances [49]

In this case the novel had a limited distribution, mainly in the circle of Ms Fernandes and her in laws,  especially in their hometown, Torre do Moncorvo.  The domestic court first considered whether the narrated facts and value judgments made by the applicant could be regarded as defamatory.  It held that they were.

The crucial question was whether there was a link between the characters of the disputed novel and the complainants. The domestic court concluded that

“the characters of Aurora, Rogerio, Beatriz, Inocência, Imaculada, Antonio Floro had striking similarities to respectively aunt, uncle, cousin, mother, sister and father dead and grandfather of the husband of the applicant” [54].

The domestic court weighed the competing interests and held that the applicant had exceeded the limits of freedom of artistic creation by disregarding the complainants’ right to respect for their private lives.

The Court noted that

“the domestic courts have always sought to balance, on the one hand, the right of the applicant to freedom of expression and on the other hand, the plaintiffs’ right to respect for their private life .. the conviction in this case is based on relevant and sufficient reasons, and there is no reason to depart from the analysis that conducted the national courts” [57]

The nature and severity of the penalties imposed were not disproportionate to the aims pursued.  The court had taken into account the financial situation of the applicant.

In the circumstances, the interference with the applicant’s right to freedom of expression was not disproportionate and there was no violation of Article 10 of the Convention.

Comment

This is, at first sight, a remarkable decision. The Court of Human Rights found that there was no violation of Article 10 despite a criminal conviction and an award of substantial damages in relation to defamation by a roman à clef.

However, on the facts the decision is understandable.  The domestic court was clearly of the view that the novel in question was a thinly disguised offensive defamatory attack on family members and was recognisable as such by readers in the local community in which it was published.

The Government drew attention to the fact that the applicant had chosen to publish the book in the home town of her in laws, a small town where everyone knows each other and where news travels fast, so the novel acquired a wide reputation locally.

The Court did not interfere with the domestic decision because the Portuguese courts had carried out a proper balancing exercise between the rights to freedom and expression and reputation. The decision was within their margin of appreciation.

It is also noteworthy that the Court of Human Rights saw no difficulty with the finding that the honour of two deceased members of the family had been impugned by the novel.

The unstated lesson is, perhaps, that Article 10 will provide little protection for those who seek to use freedom of expression as a cloak for deliberate, hurtful, defamatory attacks, whether or not they are dressed in the guise of fiction.


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