In a judgment handed down on 22 October, the European Court of Human Rights (ECHR) has determined that the right to reputation should always have been considered to be safeguarded by Article 8 of the European Convention on Human Rights. The case arose from a novel published in France entitled “Jean-Marie Le Pen on Trial” in respect of which Mr Le Pen and his National Front party brought defamation proceedings in France against the writer and publisher of the book.

The serious and murderous allegations against Le Pen and the National Front were found to be factual, defamatory and unproven. Upholding the defamation claims, the Paris Criminal Court noted that:

“Whilst Article 10 of the Convention ... recognises, in its first paragraph, that everyone has the right to freedom of expression, that provision states, in its second paragraph, that the exercise of this right, carrying with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society for the protection and reputation of others.”

After an appeal by the writer and publisher in the French Court of Appeal failed, the matter went to the ECHR where the both defendants claimed that their Article 10 freedom of expression rights had been breached by the decision of the French court.

The ECHR began again by reminding itself of the importance of freedom of expression in a democratic society, that exceptions should be “construed strictly”, and that politicians must “display a great degree of tolerance”.

The ECHR considered, however, that the French Court of Appeal had “made a reasonable assessment of the facts in finding that to liken an individual, although he be a politician, to the ’chief of a gang of killers’, to assert that a murder even when committed by a fictional character was ’advocated’ by him, and to describe him as a ’vampire who thrives on the bitterness of his electorate, but sometimes also in their blood’ oversteps the permissible limits in such matters.”

The ECHR concluded by a majority of 13 to 4 that there had been no violation of Article 10. There were dissenting judgments from four judges who considered that the expressions contained in the book were “value judgments which have an established factual basis”.

Notwithstanding the obviously unattractive subject of the novel, one of the judges felt sufficiently strongly on these issues to add an individual opinion.

Judge Loucaides’ opinion is so important that it warrants quoting at length, and may indicate recognition on the part of the ECHR that some of its past decisions may have gone too far in protecting the right of freedom of expression at the expense of the rights of reputation enshrined in Article 8. The judgment strikingly points to “some adverse consequences resulting from over-protection of freedom of expression at the expense of the right to reputation”. As the judge observed:

“The suppression of untrue defamatory statements, apart from protecting the dignity of individuals, discourages false speech and encourages the overall quality of public debate through a chilling effect on irresponsible journalism... The prohibition of defamatory speech also eliminates misinformation in the mass media and effectively protects the right of the public to truthful information. Furthermore, false accusations concerning public officials, including candidates for public office, may drive capable persons away from government service, thus frustrating rather than furthering the political process.

The right to reputation having the same legal status as freedom of speech as explained above is entitled to effective protection so that under any circumstances, any false defamatory statement, whether or not it is malicious and whether or not it may be inevitable for an uninhibited debate on public issues or the essential function of the press, should not be allowed to remain unchecked.

One should not lose sight of the fact that the mass media are nowadays commercial enterprises with uncontrolled and virtually unlimited strength, interested more in profitable, flashy news than in disseminating proper information to the public, in controlling government abuse or in fulfilling other idealistic objectives. And although they may be achieving such objectives incidentally, accidentally, or occasionally even deliberately, they should be subject to certain restraint out of respect for the truth and for the dignity of individuals. Such restraint should include the duty to investigate defamatory allegations before rushing into print and the obligation to give an opportunity to the persons affected by their defamatory stories to react and give their own version. Furthermore, they should remain legally accountable to the persons concerned for any false defamatory allegations.  Like any power, the mass media cannot be accountable only to themselves. A contrary position would lead to arbitrariness and impunity, which undermine democracy itself.”

In a direct challenge to the Reynolds jurisprudence in the UK, Judge Loucaides places striking emphasis both on the importance of truth and on the importance of powerful media organisations being accountable to those against whom they make false defamatory allegations. It is interesting to hear such views expressed by a European judge when recourse is so often had by the media to European jurisprudence to justify their immunity from liability for false and defamatory allegations. If this signals a change of direction in European jurisprudence then the UK courts will be obliged to follow suit.

Jonathan Coad

Defamation & Privacy

See also:

THE RIGHT TO LIBEL FURTHER EXTENDED:  CHARMAN v ORION

REYNOLDS DEFENCE IS REVIEWED BY THE HOUSE OF LORDS: JAMEEL v WALL STREET JOURNAL

COURT OF APPEAL HOLDS THE LINE AGAINST "BIG BROTHER" ON INDIVIDUAL RIGHTS: GALLOWAY v THE TELEGRAPH