Information Note on the Court’s case-law 255
Judgment 14.10.2021 [Section I]
Freedom of expression
Sanctioning of journalist in summary proceedings under the Election Code for publishing untrue statements about a local government election candidate: no violation
Facts – The applicant is a local journalist and editor of a free monthly newsletter in the village of Bulkowo. He was found liable for defamation in summary proceedings instituted under Article 111 of the Election Code by G.G., a politician and a candidate for the post of mayor of the municipality of Bulkowo, in respect of statements made in two editions of the newsletter published during the local election campaign in 2014. Inter alia, the applicant and the trade union which had published the newsletter were jointly ordered to publish an apology and to pay the equivalent of EUR 2,500 to a charity. The applicant unsuccessfully appealed.
Law – The domestic decisions against the applicant and the sanctions imposed constituted interference by a public authority with his right to freedom of expression which had been prescribed by Article 111 of the Election Code and pursued the legitimate aim of protecting the reputation or rights of others – namely G.G. as a candidate in local elections. It also served to protect the integrity of the electoral process and thus the rights of the voters. As to whether the interference was “necessary in a democratic society” the Court found as follows.
Free elections and freedom of expression, particularly freedom of political debate, formed the bedrock of any democratic society. The two rights were inter-related and operated to reinforce each other. It was thus particularly important that in the period preceding an election, opinions and information of all kinds were permitted to circulate freely. This principle applied equally to national and local elections. At the same time the Court recognised the importance of protecting the integrity of the electoral process from false information that affected voting results, and the need to put in place the procedures to effectively protect the reputation of candidates
As a politician holding public office and a candidate in elections, G.G. had inevitably and knowingly laid himself open to public scrutiny. Article 10 did not, however, guarantee wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern and of political figures. As found by the domestic courts, the statements in question had been to a large extent statements of fact and the claimant had proved on the basis of material evidence, that they had been untrue. The applicant, however, had failed to produce any evidence before them in support of the veracity of his statements, indicate the sources of his information and explain why they had been accurate. Nor had he contested the first-instance court’s conclusions on appeal. Likewise, in the proceedings before the Court, he had failed to specify his sources, demonstrate that he had acted with due diligence and that the research done by him before the publication of the untrue statements of fact had been in good faith and complied with the ordinary journalistic obligation to verify a factual allegation.
Further, the domestic courts had balanced the two conflicting interests at stake, namely the interest of all participants in election campaigns in being able to use every mean possible to influence voters, and the right of a candidate to be protected from untrue allegations. The first instance court had emphasised the duties of the press to report in a diligent manner and on the basis of facts whilst the appellate court had noted that even value judgments had to be based on sufficient facts. The Court thus considered that the reasons adduced by the domestic courts for sanctioning the applicant had been relevant and sufficient within the meaning of its case-law.
It could not be said that the very use of summary proceedings provided by the Election Code had been in violation of Article 10. Proceedings of this type were conducted within very short time frames and were aimed at ensuring the proper conduct of the election campaign by preventing infringements of the candidates’ personal rights, which were capable of affecting the outcome of the elections. The provision of such a summary remedy during periods of election campaigns, whether at local or national level, served the legitimate goal of ensuring the fairness of the electoral process and as such should not be questioned from the Convention standpoint. At the same time, such a remedy should not result in the undue curtailment of the procedural guarantees afforded to the parties to such proceedings. The Court was not persuaded, however, that the circumstances of the instant case amounted to a lack of procedural fairness and equality that could give rise to an issue under Article 10.
Lastly, as the applicant had not submitted details of his personal financial situation, the Court was unable to assess whether the award against him had been excessive and imposed a disproportionate burden on him. It was also unclear what amount had actually been paid by him given the fact that he had been found jointly liable with the trade union.
Consequently, and given the State’s margin of appreciation in applying the summary procedure under the Election Code, the interference complained of had been proportionate to the legitimate aim pursued within the meaning of paragraph 2 of Article 10.
Conclusion: no violation (unanimously).
(See also Pedersen and Baadsgaard v. Denmark [GC], 49017/99, 17 December 2004, Legal Summary; Kwiecień v. Poland, 51744/99, 9 January 2007, Legal Summary)