Last Updated on November 21, 2019 by LawEuro
Information Note on the Court’s case-law 233
October 2019
Margulev v. Russia – 15449/09
Judgment 8.10.2019 [Section III]
Article 10
Article 10-1
Freedom of expression
Failures in examination of civil defamation case brought by administrative entity in reaction to criticism about works on historical monument: violation
Article 34
Victim
Author of impugned statements in published interview admitted as third party, albeit without own claim, to civil defamation proceedings against newspaper: victim status upheld
Facts – The applicant was head of a community-based non-governmental organisation (NGO) created to help preserve Tsaritsyno, an architectural complex in the south of Moscow that has the status of a museum and comprises an English landscape garden.
In 2007 a newspaper published an article, entitled “Tsaritsyno is not going to survive the winter”, which reported in a critical tone on the ongoing restoration works that were being funded by the City Council of Moscow. The article suggested that the works had adversely affected the old English landscape garden. The article also contained various quotes by the applicant, whom the newspaper had interviewed, such as “… People have been deprived of their historical and cultural heritage. … The restoration of Tsaritsyno is the desecration of a historical monument…”
The Moscow City Council lodged a statement of claims for defamation against the newspaper’s editorial board, alleging that those statements had tarnished their business reputation. The City Council sought the retraction of these statements. The applicant successfully applied to be admitted to the proceedings as a third party, albeit without lodging independent claims.
The first-instance court considered the impugned statements as statements of facts, whose veracity the defendant had failed to prove. The newspaper’s editorial board was ordered to publish, at their expense, a retraction in another newspaper (since in the meantime their own production had been suspended). The appellate court upheld that judgment in a summary fashion.
Law – Article 10:
(a) Interference/Victim status
(i) Applicant’s procedural position – Under domestic law, the status of third party to proceedings might be granted – even if that party had not lodged independent claims regarding the object of a dispute – where “the judgment may affect the third party’s rights and obligations vis-à-vis the claimant or defendant”. By admitting the applicant to the defamation proceedings as a third party, the domestic courts had tacitly accepted that his rights might have been affected by their outcome. The Court accepted this interpretation.
(ii) Applicant’s aims at stake – The applicant claimed before the Court that the domestic courts’ judgments ordering a retraction of his statements disseminated in the newspaper had restricted the opportunities for sharing and spreading his published opinion regarding the restoration works of the Tsaritsyno museum complex. This matter was clearly of importance to the general public, who had a vested interest in preserving cultural heritage.
(iii) Conclusion: victim status upheld – The applicant has made out a prima facie case of interference with his freedom of expression; he thus could be said to have been “directly affected” by the proceedings to which he was a party.
(b) Legitimacy of the aim pursued – While prepared to assume that such aim was legitimate, the Court emphasised that the City Council’s mere institutional interest in protecting its “reputation” did not necessarily attract the same level of guarantees as that accorded to “the protection of the reputation … of others” within the meaning of Article 10 § 2 of the Convention (see, mutatis mutandis, Uj v. Hungary, no. 23954/10, 19 July 2011, Information Note 143; and Kharlamov v. Russia, no. 27447/07, 8 October 2015, Information Note 189).
(c) Necessity “in a democratic society” – Firstly, the applicant had made the impugned statements in his capacity as head of an NGO. When an NGO drew attention to matters of public interest (as had been the case here), it might be characterised as a social “watchdog” warranting similar protection under the Convention as that afforded to the press.
Secondly, no problem relating to the ethics of journalism or to the good faith of the said NGO could be discerned here. Indeed, the statements decrying the restoration works in issue had been presented as the opinion of a third person interviewed by the newspaper and had clearly been attributed to the applicant.
Thirdly, the domestic courts had limited themselves to finding that the impugned statements had tarnished the City Council’s business reputation, and that the defendant had not proved its veracity. It transpired from the following elements that they had failed to apply the relevant Convention standards:
– essential role of the press in a democratic society: No account was taken of: the defendant’s position, as the editorial board of a newspaper, and that of the applicant, as the representative of an NGO; the presence or absence of good faith on their parts; the position of the claimant as a public authority; the aims pursued by the defendant, in publishing the article, and by the applicant, in making the impugned statements; whether the impugned article had addressed a matter of public interest or general concern; or the relevance of information regarding the quality of the restoration works in issue, in relation to concerns about the preservation of cultural heritage.
– distinction between statements of fact and value judgments: The domestic courts had not drawn a clear distinction between these two categories of statements. They had also disregarded the requirements of a resolution of the Supreme Court, under which value judgments were not actionable by way of a retraction claim, as used in the present case. In any event, the distinction between statements of fact and value judgments was of less significance where the impugned statement was made in the course of the debate on a matter of public interest and where representatives of civil society and journalists should enjoy wide freedom to criticise the actions of a public authority, even where the statements made might lack a clear basis in fact.
– balancing exercise between the concurring rights: The domestic courts appeared to have tacitly assumed that interests relating to the protection of reputation prevailed over freedom of expression in all circumstances. They had failed to consider that the claimant in the defamation proceedings was a public authority, which as such should accept wider criticism. They had also expressly rejected the defendant’s argument that the City Council had not even been named in the impugned statements, whereas the existence of an objective link between the impugned statement and the party suing in defamation was a requisite element for proportionality.
The domestic courts had thus failed to provide relevant and sufficient reasons to justify the interference in question. Had they done so, strong reasons would have been needed by the Court to substitute its view for theirs. In the absence of such a balancing exercise at national level, it was not incumbent on the Court to perform a full proportionality analysis.
Conclusion: violation (unanimously).
Article 41: EUR 3,000 in respect of non-pecuniary damage.
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