Last Updated on July 5, 2022 by LawEuro
Information Note on the Court’s case-law 264
July 2022
Drousiotis v. Cyprus – 42315/15
Judgment 5.7.2022 [Section III]
Article 10
Article 10-1
Freedom of expression
Insufficient reasons and disproportionate damages award in defamation action against journalist for newspaper article on high-ranking attorney in the Law Office of the State: violation
Facts – The applicant, a journalist, was found liable for defamation in civil proceedings brought by S.P., a high-ranking attorney in the Law Office of the Republic of Cyprus, in respect of an article he published in the national daily newspaper “Politis” concerning the extension of S.P.’s term of service for one year beyond retirement age. The applicant and the publishing house were ordered, inter alia, to pay damages jointly and/or severally to S.P. in the amount of EUR 25,000 plus statutory interest. The applicant unsuccessfully appealed. While the first instance court proceedings were pending, S.P. was appointed to the position of Deputy Attorney General.
Law – Article 10: The domestic courts’ judgments had constituted an “interference” with the applicant’s right to freedom of expression which had been prescribed by law and pursued the legitimate aim of protecting the reputation or the rights of others. The Court found, however, that the interference had not been “necessary in a democratic society”.
The case concerned a conflict of the right to respect for the applicant’s right to freedom of expression under Article 10 and S.P.’s right to the protection of his reputation under Article 8. The article had made direct reference to S.P., had presented him as a sycophant and had commented negatively on the extension of his service. The characterisations given to S.P. had been capable of tarnishing his reputation and causing him prejudice in his professional and social environment. They thus attained the requisite level of seriousness and could harm S.P.’s rights under Article 8.
(a) Whether the impugned article contributed to a debate of general interest – It had been natural that the extension of S.P.’s service would be subjected to scrutiny by the press. It had been a matter of public interest and had given rise to considerable controversy and political debate. It had been the subject of other publications and commentaries which, inter alia, had considered the decision to be a scandal. There was therefore little scope for restrictions under Article 10 § 2.
(b) The status of S.P. – S.P. could be compared to a public figure on account of a combination of factors: namely, his high position in the Law Office of the Republic of Cyprus, the fact that he had aspired to become the next Attorney General and at the time of the article’s publication was being considered for the post, as well as his systematic participation in public debates through his publications in the press and his books with political content. As result, in this context, he had to be be considered to have inevitably and knowingly entered the public domain and laid himself open to close scrutiny, to which he ought to have shown a greater degree of tolerance.
(c) The nature of the offending remarks and their factual basis – The applicant had heavily criticised the extension of S.P.’s service, as he had believed that no good reason had been provided for the extension and that it had taken place, without the knowledge of S.P.’s superior, the Attorney General, in the context of a broader political exchange between the President of the Republic of Cyprus and the President of Parliament. It appeared from publications at the time that other persons in the political sphere had expressed similar concerns, albeit in a less exaggerated manner. Hence, the admittedly strong and coarse expressions of the applicant had to be read within this broader context.
The applicant had used a caustic and ironic style with harsh expressions aimed at stirring controversy, provoking the public and attracting its attention. The domestic courts had concentrated heavily on the tone of the article and the excessiveness of the expressions used without, however, affording adequate importance to other relevant factors that had to be considered when undertaking their balancing exercise between the competing rights at stake. In particular, despite acknowledging that S.P. had been a person in the public sphere and that the extension of his service had been a matter of public interest, they had not really incorporated those factors in their assessment and had not considered the article against the general background at the time it had been written. Further, there was no indication that the article had been published in bad faith, or that the domestic courts had considered it as such. Moreover, the expressions used in the article had been essentially made up of value judgments and not concrete statements of fact.
Although the applicant had endeavoured during the domestic proceedings to explain the factual basis of his allegations, this aspect had not been sufficiently elaborated upon by the domestic courts. Indeed, in the circumstances, and given the information available at the time, in particular earlier publications on the issue which the applicant had relied upon, the Court could not conclude that the impugned expressions had been without factual basis. Consequently, the reasons provided by the domestic courts to justify the interference, albeit relevant, had not been sufficient.
(d) The severity of the sanction imposed – The amount that had been awarded in respect of damages had been disproportionate to the aims pursued. It had been unusually high in absolute terms. Further, it was difficult to accept that any presumed or potential injury to S.P.’s reputation had been of such a level of seriousness as to justify an award of that size especially considering that during the proceedings, S.P. had been appointed to the position of Deputy Attorney General. While this appointment had been subsequent to the article’s publication, it might constitute an indication as to the concrete extent of the damage that S.P. suffered to his reputation and status. Although the amount had been paid in full by the publishing house and not the applicant, at the time the judgment had been rendered, he had been personally liable to pay the amount, either alone or jointly with the publishing house. Such an award, given its magnitude, might, discourage open discussion of matters of public concern and the fact that the publishing house eventually chose to pay the amount in full could not alter this finding.
Conclusion: violation (unanimously).
Article 41: EUR 12,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed (the applicant having failed to submit evidence that he was bound to repay any amount to the publishing company).
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