Case Law, Strasbourg: Kapsis v Greece, Calling an Actress “Completely Unknown” is Not Defamatory – Ed Klaris & Alexia Bedat

23 01 2017

ta-nea-20120210The Greek courts were wrong to hold the director of a Greek newspaper and one of its journalists liable for describing an actress recently appointed to an advisory board as “completely unknown”. The Court of Human Rights so decided on 19 January 2017 in Kapsis and Danikas v. Greece (application no. 52137/12)(available only in French).

Background  

In December 2004, the Greek daily newspaper Ta Nea published an article on the appointment of an actress (referred to in the judgment as “P.M.”) to the subsidies advisory board of the Ministry of Culture’s Theater Department, stating:

Treating today’s politics like a board game, the government had awarded a number of positions on its Theatre Department committees to its mates. The very well known K.V., the safe right wing bet G.S., and the completely unknown P.M. […] But do not judge in haste. […] Lack of interest and ignorance are a thousand times better than the half-wit of elitist friends.  

P.M. brought an action for damages, claiming to have been the “victim of insults” and a violation of her “personality rights”. The Greek courts found in P.M.’s favor, holding that the words “completely unknown” went beyond legitimate criticism and that the journalist could have expressed his opinion on her appointment without them. By using such terms, the journalist had sought to damage P.M.’s reputation, cast doubts on the actress’s “moral and social status” and revealed his disdain for her. The Greek courts praised P.M. for her contributions to the theater and foreign cultural perceptions of their country and ordered the paper to pay P.M. €30,000 in damages.

The defendants applied to the Court of Human Rights arguing that the domestic judgment violated their free speech rights under Article 10. 

Judgment

To be justified under Article 10(2), the interference with the right to freedom of expression must be “proportionate to the legitimate aim pursued”, meet a “pressing social need”, be “necessary in a democratic society”. The Greek defamation judgment, the Court held, was none of the above.

The Court began by reminding the role of the press as a “watchdog” in a democratic society. Journalistic freedom, as such, must allow for a degree of exaggeration, and even provocation.

First, the statement “completely unknown”, read in its context, was not a fact, but a value judgment not subject to proof. Nor was it completely devoid of factual basis since P.M. had never assumed a public function. In any event, the Court held, the article was more of a “column on back-room politics” than a news story, characterized by the caustic tone typical of such columns.

Second, the domestic courts had failed to read the statement in its context to determine the journalist’s intent. The Court noted the words “completely unknown” had actually been followed by quite favorable comments. Had the Greek courts considered the statement in its full context, they might have reached a different conclusion. Instead, they addressed the statement as a stand-alone assertion that P.M. was “not known by a wide circle”.

The role of domestic courts is not, the Court recalled, to impose on journalists a particular style in which to exercise their right to criticize, however sarcastic or harsh the criticism may be. Their role, rather, is to examine whether the context of the case, the public interest and the journalist’s intent justified the use of such language (the Court cited the judgment in I Avgi Publishing and Press Agency S.A. et Karis c. Grèce (application no. 15909/06)).

Third, P.M. had been appointed as a member of an advisory board of a government department and would thus serve a quasi-political function, making her more than just a “mere private individual”. As such, the Court reasoned, the article contributed to a debate of general interest and only referred to P.M. in this “public” function. P.M. should have expected her nomination to be closely examined by the press, even criticized. Political invective, the Court held, often spills into the personal sphere: “such are the hazards of politics and the free debate of ideas, which are the guarantees of a democratic society”. Consequently, the words used by the journalists could not be described as “gratuitous offenses”.

Finally, in assessing damages, the Greek courts had failed to consider the defendants’ financial situation and had imposed a sanction that would inevitably discourage journalists from joining the discussion on current affairs.

The judgment is the second decision this month upholding the importance of political speech. On 12 January 2017, the Court reminded that freedom of political expression under Article 10 trumps reputation in Lykin v. Ukraine (application no. 19382/08) (see previous post). Here, the Court has left no doubt: sanctions imposed on journalists for expressing criticism of appointed public officials will be submitted to strict scrutiny.

Ed Klaris is the founding partner of Klaris Law PLLC. Alexia Bedat is an Associate at the firm.

 

 

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24 01 2017
daveyone1

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