Last Updated on March 15, 2022 by LawEuro
Information Note on the Court’s case-law 260
March 2022
Judgment 15.3.2022 [Section III]
Article 10
Article 10-1
Freedom of expression
No legitimate aim for civil defamation proceedings against a media outlet, seeking to protect “reputation” of a public authority as such and unrelated to any economic activity: violation
Facts – The applicant company is an Internet media outlet. It was sued in civil defamation proceedings by the Administration of the Volgograd Region – an executive authority of a constituent entity of the Russian federation – following the publication of an article containing an interview with a third party and criticising certain actions of the Administration. The District Court found in favour of the Administration. The applicant company was ordered to publish a retraction of several statements and the operative part of the court judgment on the website. It appealed unsuccessfully.
Law – Article 10: The judgment of the District Court, upheld on appeal, had constituted an interference with the applicant company’s right to freedom of expression, which had been prescribed by law. The Government submitted that the impugned interference had pursued the legitimate aim of “the protection of the reputation and rights of others”.
The ambit of the “protection of the reputation … of others” clause was not restricted to natural persons and there existed a legitimate interest in protecting the commercial success and viability of companies, for the benefit of shareholders and employees, but also for the wider economic good (see Steel and Morris v. the United Kingdom). However, those considerations were inapplicable to a body vested with executive powers and which did not engage as such in direct economic activities.
In previous, relevant Court judgments against Russia concerning Article 10 complaints stemming from defamation proceedings, there had been an absence of a dispute between the parties regarding the existence of a legitimate aim and the Court had focused on the assessment of proportionality of an interference (see most recently Margulev v. Russia and Kommersant and Others v. Russia, concerning proceedings brought by the body of the executive of a constituent entity of Russia). In the present case, the parties had contested whether the interference complained of had pursued a legitimate aim within the meaning of Article 10 § 2. There was also growing awareness of the risks that court proceedings instituted with a view to limiting public participation brought for democracy. Furthermore, there was a power imbalance between the claimant and the defendant in the present case. In view of the foregoing, it was apt to establish in the present case whether the interference complained of had been in pursuance of the legitimate aim of the “protection of the reputation of others”.
The Court considered that, by virtue of its role in a democratic society, the interests of a body of the executive vested with State powers in maintaining a good reputation essentially differed from both the right to reputation of natural persons and the reputational interests of legal entities, private or public, that competed in the marketplace. The last relied on their good reputation to attract customers, with a view to making a profit, while the first existed to serve the public and were funded by taxpayers. To prevent abuse of powers and corruption of public office in a democratic system, a public authority’s activities of all kinds had to be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion.
Indeed, shielding bodies of the executive, which had the ability to respond to any adverse allegations in the “court of public opinion” through their public relations capabilities, from media criticism by way of according them protection of their “business reputation”, might seriously hamper freedom of the media. That executive bodies be allowed to bring defamation proceedings against members of the media would place an excessive and disproportionate burden on the media and could have an inevitable chilling effect on the media in the performance of their task of purveyor of information and public watchdog.
It followed that civil defamation proceedings, brought in its own name, by a legal entity that exercised public power might not, as a general rule, be regarded to be in pursuance of the legitimate aim of the protection of the reputation of others under Article 10 § 2. That did not exclude that individual members of a public body, who could be “easily identifiable” in view of the limited number of its members and the nature of the allegations made against them, might be entitled to bring defamation proceedings in their own individual name (see Thoma v. Luxembourg).
In the present case, the claimant in the domestic defamation proceedings was the highest body of the executive of the Volgograd Region. It was hardly conceivable that it had had an interest in protecting its commercial success and viability, be it for the benefit of shareholders and employees or for the wider economic good that would warrant legal protection. Nor could it be said that its members had been “easily identifiable”, given the scale of its operations: in 2010 the population of the Volgograd Region had exceeded two and a half million. In any event, the defamation case had been brought on behalf of the legal entity as such, not any of its individual members.
Accordingly, the civil defamation proceedings instituted by the Administration of the Volgograd Region against the applicant company had not pursued any of the legitimate aims enumerated in Article 10 § 2.
Conclusion: violation (unanimously).
Article 41: no claim made in respect of damage.
(See also Thoma v. Luxembourg, 38432/97, 29 March 2001, Legal Summary; Steel and Morris v. the United Kingdom, 68416/01, 15 February 2005, Legal Summary; Romanenko and Others v. Russia, 11751/03, 8 October 2009; Margulev v. Russia, 15449/09, 8 October 2019, Legal Summary; and Kommersant and Others v. Russia, 37482/10 and 37486/10, 23 June 2020)
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