Last Updated on January 11, 2022 by LawEuro
Information Note on the Court’s case-law 258
January 2022
Freitas Rangel v. Portugal – 78873/13
Judgment 11.1.2022 [Section IV]
Article 10
Article 10-1
Freedom of expression
Journalist’s unjustified and disproportionate conviction and sanctioning for statements on well-known legal entities at public Parliamentary Commission hearing: violation
Facts – The applicant was a renowned journalist in Portugal. He was convicted of the criminal offence of insulting a legal entity on account of statements he had made about the Professional Association of Judges and the Professional Association of Public Prosecutors at a hearing before the Parliamentary Commission on Ethics, Society and Culture concerning freedom of expression and the media in Portugal. He was also sentenced to a fine of EUR 6,000 and ordered to pay EUR 25,000 to each of the associations in respect of non-pecuniary damage.
Law – Article 10: The applicant’s conviction had amounted to an “interference” with the exercise of the applicant freedom of expression which was “prescribed by law” and had pursued the legitimate aims of the protection of the reputation or rights of others as well as the maintaining the authority of the judiciary. The main question therefore that arose was whether the interference had been necessary in a democratic society. The Court replied in the negative.
The applicant had made the impugned statements while giving his opinion on freedom of expression and the media and how these were influenced by the political and economic classes. He had alleged that the associations had shared confidential information with journalists to advance their political objectives. Those issues were matters of general interest to the community and discussing them before Parliament formed part of a political debate, a field where a high level of protection of freedom of expression would normally be accorded, with the authorities thus having a narrow margin of appreciation. Further, since the parliamentary session had been open to the public and journalists had been present, it was unsurprising that his statements had been widely disseminated in the media in the days following his speech. He had also been interviewed immediately after the session by a journalist who had been present during his speech and the next day had given a follow-up interview reiterating his position.
Both associations were reputable and well-known professional associations which were frequently invited to present their views before Parliament on legal proposals in matters connected to the functioning of justice. The domestic courts had assumed that the applicant had made only statements of fact which he had known were false and defamatory towards those associations. However, most of his statements had consisted of his personal opinions, the truthfulness of which was not susceptible of proof. The only statement of fact at issue was his claim as to the sharing of confidential information which could be considered as speaking in a more general way about the information sharing by the two organisations. Albeit possibly an exaggerated and thus unfortunate formulation, his comments could be interpreted as an illustration of a broader societal critique regarding the judiciary’s inappropriate intervention as a whole in politics and the media; a subject of public interest which he believed to have been true.
The protection of the reputation of a legal entity did not have the same strength as the protection of the reputation or rights of individuals. Further, although not an elected representative, the applicant, being an invited expert presenting his views before a parliamentary commission, should have been afforded an elevated level of protection, as was the case for parliamentary and political speech. Notwithstanding, the Lisbon Court of Appeal had based its decision solely on the right to the associations’ good name and reputation, without duly taking into account or examining in detail the Court’s case-law criteria. Lastly, besides the deterrent effect of the criminal fine imposed, which had not been modest, the compensation amounts had been disproportionate to any potential damage caused to the reputation of the associations. Sanctions of this severity could have a chilling effect on the exercise of freedom of expression of persons called upon to participate in discussions on general public interest matters and institutions.
Consequently, the domestic courts had failed to provide relevant and sufficient reasons to justify the interference with the applicant’s right to freedom of expression and had exceeded the margin of appreciation afforded to them regarding limitations on public interest debates. Further, there had been no reasonable relationship of proportionality between the restriction on his right and the legitimate aim pursued.
Conclusion: violation (unanimously)
Article 41: EUR 31,500 in respect of pecuniary damage.
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