EHRM, 01-12-2009, nr. 5380/07

The test of ‘necessity in a democratic society’ requires the Court to determine whether the interference complained of corresponded to a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V; Association Ekin v. France, no. 39288/98, § 56, ECHR 2001-VIII).

The Court's task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their margin of appreciation (see Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; the Court looks at the interference complained of in the light of the case as a whole, including the content of the statement held against the applicant and its context (see News Verlags GmbH & CoKG v. Austria, no. 31457/96, § 52, ECHR 2000-I).

In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were ‘relevant and sufficient’, and whether the measure taken was ‘proportionate to the legitimate aims pursued’ (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI). In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see, among many other authorities, Zana v. Turkey, judgment of 25 November 1997, Reports of Judgments and Decisions 1997-VII, pp. 2547–48, § 51).

The Court furthermore stresses the essential role which the press plays in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart — in a manner consistent with its obligations and responsibilities — information and ideas on all matters of public interest (see, among many other authorities, Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 30, ECHR 2003-XI). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (loc. cit.).

The Court notes that the applicant participated in a public debate about the erection of a statue commemorating Pál Teleki, former Prime Minister of Hungary. In his view, revisionism of the role of Teleki and a public apology for his acts, as advocated by Mr B.T., was part of ‘Jew-bashing’. In the ensuing proceedings, the domestic courts had to decide whether the statements made by the applicant actually concerned the plaintiff B.T., and whether they were factual and defamatory. Assessing the statements in the context of the whole article written by the applicant, the Court of Appeal held that the impugned expression could be seen as relating to the plaintiff personally, whereas the Supreme Court reaffirmed that ‘the impugned statement — which was made, in general terms, with regard to the right-wing (extreme right-wing) press — could also be considered to concern the plaintiff’. The Court consequently considers that the reference to the plaintiff's person was present but indirect (see also paragraph 21 above).

The Court has next to establish to what extent the restriction on the applicant's freedom expression for the sake of indirectly protecting the reputation of Mr B.T. satisfied the requirements of necessity and proportionality. To that end, the Court will consider the nature of the statement, the resulting damage, the character of the debate, and the respective positions of the applicant and the plaintiff in that debate.

The Court notes that the Hungarian courts eventually qualified the applicant's statement as one of fact, which put Mr B.T. in a false light. The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts (Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 76, ECHR 2004-XI). However, that classification should not preclude the protection of freedom of expression by being unreasonable or arbitrary.

The Court reiterates that, while the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. Where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive (see, for instance, Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001-II; De Haes and Gijsels v. Belgium, 24 February 1997, Reports of Judgments and Decisions 1997-I, § 47; Oberschlick v. Austria (no. 2), 1 July 1997, Reports 1997-IV, § 33). As the Court has noted in previous cases, the difference lies in the degree of factual proof which has to be established (see Scharsach and News Verlagsgesellschaft, cited above, § 40).

The Court notes that the applicant's argument contained a factual statement describing Mr B.T. as someone active in embellishing Pál Teleki's historical role. It appears from the circumstances of the case that this activity was not in dispute before the domestic courts. However, the Court considers that this statement of fact was a value-laden one. By indirectly referring to Mr B.T.'s published views, the applicant argued that the apology of a politician with well-known anti-Semitic convictions amounted to objective participation in the process, ongoing in the extreme-right wing press, of the trivialisation of his racist policies — a phenomenon labelled ‘Jew-bashing’.

Consequently, the Court cannot fully endorse the domestic courts' findings that the dispute concerned a pure statement of fact; such a conclusion would restrict the protection due under Article 10 of the Convention. The Court is satisfied that the conclusions advanced by the applicant cannot be considered excessive or devoid of factual basis, given Mr B.T.'s apologetic treatment of Pál Teleki — which was referred to by the applicant in his article and not denied by Mr B.T. before the courts — and in view of the role which Pál Teleki played in the enactment of anti-Semitic legislation in Hungary.

The Court furthermore notes that the applicant — a historian who had published extensively on the Holocaust — wrote the impugned article in the course of a debate concerning the intentions of a country, with episodes of totalitarianism in its history, to come to terms with its past. The debate was thus of utmost public interest (cf. Feldek v. Slovakia, no. 29032/95, ECHR 2001-VIII; Azevedo v. Portugal, no. 20620/04, §§ 26 to 34, 27 March 2008; Riolo v. Italy, no. 42211/07, §§ 63 to 73, 17 July 2008).

It therefore considers that this publication deserves the high level of protection granted to the press in view of its functions. In this connection the Court refers to the summary of its established case-law on press freedom in the case of Scharsach and News Verlagsgesellschaft (cited above, § 30). It reiterates that there is little scope under Article 10 § 2 for restrictions on political speech or on the debate of questions of public interest (see, among many other authorities, Feldek, cited above, § 74). The Court is also mindful of the fact that the plaintiff B.T. was the author of articles widely published in the popular daily press as part of that debate. He thereby voluntarily exposed himself to public criticism. The Court notes that the applicant's disagreement with Mr B.T.'s views was formulated in indirect terms. However, it considers that even harsh criticism in the present context would be protected by Article 10 of the Convention, whether expressed directly or indirectly.

The Court further recalls that the nature and severity of the sanction imposed are also factors to be taken into account when assessing the proportionality of the interference under Article 10 of the Convention (see, for example, Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV; Lešník v. Slovakia, no. 35640/97, § 63, ECHR 2003-IV). In the present case, it is true that the applicant was subjected to civil-law, rather than criminal, sanctions. However, it considers that the measure imposed on the applicant, namely, the duty to retract in a matter which affects his professional credibility as a historian, is capable of producing a chilling effect. In this connection, the Court emphasises that the rectification of a statement of fact ordered by a national court in itself attracts the application of the protection guaranteed by Article 10 of the Convention.

Having regard to the foregoing considerations, the Court finds that the Court of Appeal and the Supreme Court did not convincingly establish any pressing social need for putting the protection of the personality rights of a participant in a public debate above the applicant's right to freedom of expression and the general interest in promoting this freedom where issues of public interest are concerned. The reasons adduced by those courts cannot be regarded as a sufficient and relevant justification for the interference with the applicant's right to freedom of expression. The national authorities therefore failed to strike a fair balance between the relevant interests.

Accordingly, the interference complained of was not ‘necessary in a democratic society’ within the meaning of Article 10 § 2 of the Convention.

There has accordingly been a violation of Article 10 of the Convention.