EHRM, 28-03-2017, nr. 51706/11

Firstly, the applicant explained the background to the conflict between her and M.U. which had prompted their statements in the media. She submitted that on 27 April 2000 the Municipality of Kostrena had taken a decision authorising the company to collect parking fees in all the parking lots located on the territory of the Municipality. However, it had soon become apparent that the land on which certain of the parking lots (Žurkovo and Viktor Lenac) had been built or planned was not owned by the Municipality but by third parties. The applicant, as the director of the company, had therefore notified the Municipality that the collection of parking fees and the carrying out of some other projects (such as the construction of a dry dock marina) on such land could not commence until the property issues had been resolved, that is until the Municipality had become the owner of the land.

The Municipality had promised to resolve the property issues but they had still not been dealt with to the present day. Since M.U., the municipal mayor at the time, had advised her that the Municipality would be registered as the owner of the land forming the Viktor Lenac parking lot in a matter of days, the applicant had agreed to start collecting parking fees from that lot. However, that had resulted in two civil proceedings (for repayment of parking fees and for a declaration of ownership) with the owner of the parking lot (see paragraphs 19–20 above), both of which the company had lost. The applicant had stopped charging parking fees for that land as soon as the company had been sued to repay the fees it had collected.

When therefore at the end of 2005 M.U. had started to put pressure on the applicant to collect parking fees at Žurkovo Bay, the applicant had refused because that car park had also been located on land owned by third parties and not by the Municipality (the applicant supplied an extract from the land register to that effect). In reaction to her refusal, M.U. had criticised her in the media (see paragraph 7 above) by saying that she had not been doing her job properly because:

The applicant submitted that Kostrena was a small community where she, as a public figure, had been known to all its inhabitants. She had therefore had to defend herself against M.U.'s public criticism and explain that the company had in fact been stagnating because of the unresolved property issues (see paragraphs 27–28 above) and not because of her alleged incompetence. She had also stated that if anyone considered that she had not been doing her job properly, the authorities could come to the company and check her work, a statement which had been her defence to M.U.'s false and groundless accusations. The applicant emphasised that her statements could not be taken in isolation from those of M.U.

The applicant also argued that she had made the impugned statements in good faith, only with a view to denying the false accusations against her, and that by doing so she had exercised her right of reply (correction) guaranteed by Article 38 § 4 of the Constitution (see paragraph 22 above). She added that she had not had any other means of replying to M.U.'s groundless criticism. In particular, even though she had lodged two criminal complaints against M.U. on different grounds, there had been no grounds to do so in respect of charging for parking at the Žurkovo Bay parking lot because she had resisted the pressure he had put on her to apply those charges (see paragraph 30 above). Likewise, there had been no grounds for lodging a criminal complaint about charging for parking at the Viktor Lenac lot because the applicant had stopped levying those charges as soon as her company had been sued by the company which owned it (see paragraph 29 above).

The applicant argued that the true reason for her dismissal had been that she had disobeyed the mayor, who had realised that as long as she was director of the municipal utility company the Municipality would not earn the income he had expected from the unlawful projects he had intended to carry out through the company. He had therefore used the applicant's statements to the media and his position as chairman of the General Meeting to remove her from her post as director.

The applicant also pointed out that even though the main aim of her statements had been to deny M.U.'s accusations rather than to point to irregularities in the running of the company, the information she had given in reply had been of public interest. Furthermore, that information had been accurate, fair and authentic. In particular, her statement that collecting parking fees was unlawful before the issue of ownership had been resolved had been a true fact. The applicant could not see how disclosing that information to the public, which had not been a business secret, with a view to denying publicly made false accusations against her, could have harmed the company's business reputation, or why disclosing such information constituted an important fact that had rendered the continuation of her employment impossible.

The Government admitted that the applicant's dismissal on account of her statements to the media had amounted to an interference with her freedom of expression. However, they argued that the interference had been in accordance with the law, had pursued a legitimate aim, and had been necessary in a democratic society.

The Government noted that the applicant had been summarily dismissed because of statements she had made in the media which had suggested that the company she had headed had been charging for parking illegally, and because she had publicly urged the prosecuting authorities to examine the legality of the company's operations. The Supreme Court had considered the applicant's dismissal lawful because those statements had tarnished the business reputation of KD Kostrena, the company of which she had been the director, which had been a particularly important fact in terms of section 107 of the Labour Act (see paragraph 23 above) and which had meant that her employment at the company could not continue.

In view of that, the Government argued that the decision to dismiss the applicant had been lawful because it had been based on section 107 of the Labour Act (see paragraph 23 above), and had sought to protect the reputation and the rights of others, namely the business reputation of KD Kostrena. That interference had also been ‘necessary in a democratic society’, having regard to the criteria established in the court's case-law (the Government cited Heinisch v. Germany, no. 28274/08, ECHR 2011 (extracts), and Balenović v. Croatia (dec.), no. 28369/07, 30 September 2010), that is:

As regards the applicant's motive, the Government argued that there was no dispute about the fact that she had made the impugned statements in reaction to the previous media statements by M.U., who had been the municipal mayor and the chairman of the company's General Meeting. He had publicly criticised the quality of her performance as the director of the company by stressing that the company had stagnated under her leadership, an opinion which he had illustrated by mentioning some of her business decisions which he had considered unsound (see paragraph 7 above). In other words, when making the impugned statements and revealing the alleged unlawful activities of the company she had headed, the applicant had been motivated exclusively by a wish to protect her public image rather than by a genuine concern for the company's business interests or the interests of those who used its services. For that reason the present case should not be regarded as a so-called whistle-blower case, nor should her detailed explanation for the origin of her conflict with M.U. (see paragraphs 28–30 above) be of any relevance. In that connection the Government referred to the court's case-law (see Guja v. Moldova [GC], no. 14277/04, § 77, ECHR 2008) under which acts motivated by a personal grievance or personal antagonism did not justify a particularly strong level of protection under Article 10 of the Convention.

As regards the authenticity of the information she had disclosed, the Government submitted that not a single State authority (the State Attorney's Office, domestic courts or the State Audit Office) had ever established any instance of unlawfulness in relation to KD Kostrena's charging for parking, let alone that it had constituted a criminal offence, as insinuated by the applicant in her statements to the press. In particular, the two sets of civil proceedings referred to by the applicant (see paragraphs 19–20 and 29 above) were still ongoing. The Government also noted that the applicant had offered no evidence of such alleged unlawfulness before the courts that had decided on the lawfulness of her dismissal. In the Government's view those allegations thus remained nothing but arbitrary and unproven assertions detrimental to the business reputation of the municipal utility company. That view was further reinforced by the fact that in her observations to the Court the applicant had not even attempted to explain why she had believed that the prosecuting authorities should have intervened over the allegedly unlawful charging for parking. On the contrary, she had submitted that there had been no grounds to lodge a criminal complaint in that regard (see paragraph 32 above). That suggested that the applicant had been aware that no crime had been committed but had nevertheless called for the intervention of the prosecuting authorities. That further meant that she had deliberately misled the public to believe that the company she had headed had been involved in criminal activities.

As regards the availability of other effective, but more discreet, means of remedying the alleged wrongdoing, the Government, referring to the applicant's motives set out above (see paragraph 38), argued that the proper channel for defending her rights and reputation had been to bring a civil action against M.U. rather than publicly insinuating that criminal activities were being carried by the company and drawing it, through no fault of its own, into the public debate she had had with him. In that way the applicant would have protected her public image (as well as the public interest, if any, see paragraph 34 above and paragraph 42 below) without any risk to her employment (see section 108 of the Labour Act, cited in paragraph 23 above).

As regards the damage suffered by the company, the Government noted, firstly, that the Court had itself held that even State-owned companies could have an interest in their own commercial viability (see Heinisch, cited above, § 89). Therefore, even though KD Kostrena primarily provided public utility services (see paragraph 6 above) that did not mean that it had no commercial interests to protect, which could be jeopardised by tarnishing its business reputation. That was especially so because, apart from public utility services, the company also provided some commercial services (such as leasing sports facilities) and as such competed on the open market. Tarnishing its business reputation could therefore lead to difficulties in charging for the public utility services and to reduced interest in its commercial services. The Government stressed that the applicant's statements insinuating that the company had been engaged in criminal activities had been particularly harmful for its business reputation and, consequently, for its commercial interests because she had been the company's director and as such, in the eyes of the average reader, a trustworthy source of information.

Lastly, as regards the public interest involved, the Government did not deny that the public had an interest in knowing if public utility companies engaged in criminal activities. However, they reiterated their view that the applicant had not acted bona fide (see paragraphs 38–39 above). Moreover, the Government found it difficult to imagine what public interest would have been served by the applicant's obviously false insinuations about the company carrying out criminal activities, where even the applicant herself had known that no crime had been committed (see paragraph 39 above).

In conclusion, the Government submitted that the applicant, by making the above-mentioned unproven allegations in the media which had been harmful for the business reputation of the company she had headed, had breached her duty of loyalty towards the company as her employer. Her only motivation for doing so had been to protect her own interests in the public debate with the mayor of the municipality, which had been the company's sole shareholder. In his media statements M.U. had criticised the applicant only for unsound business decisions rather than for any unlawfulness in doing business, meaning she had not needed to defend herself. The applicant had indisputably had the right to publicly deny media allegations which harmed her reputation, or institute the relevant proceedings, or do both of those things. However, in response to M.U.'s criticism the applicant had picked as her ‘weapon of choice’ in the public debate the alleged unlawful charging for parking, which she had also mentioned as being of interest to the prosecuting authorities. That was how she had involved the company of which she had been the director in her media debate with the mayor, causing harm to its business reputation. That was also why she had been dismissed from her job, a measure which, albeit severe, had not been disproportionate in the circumstances and which had therefore been ‘necessary in a democratic society’, it being understood that no employer should tolerate being slandered in public by its employees.

For those reasons, the Government asked the Court to find no violation of Article 10 of the Convention.

The Government conceded that the applicant's dismissal on account of her statements to the press had constituted an interference with her right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention (see paragraph 35 above). The Court, having regard to its case-law (see, for example, Heinisch, cited above, §§ 44–45; Balenović, cited above; and Wojtas-Kaleta v. Poland, no. 20436/02, § 42, 16 July 2009), sees no reason to hold otherwise.

The Court further notes that the Supreme Court in its judgment of 6 October 2009 (see paragraph 16 above) considered the applicant's dismissal lawful because, by her statements in the press, she had harmed the reputation of KD Kostrena, the company of which she had been the director. As held by the Supreme Court, those statements had constituted an important fact making the continuation of her employment impossible and had therefore been grounds for summary dismissal under section 107(1) of the Labour Act (see paragraphs 16 and 23 above).

That being so, the Court therefore accepts that the interference was prescribed by law and that it pursued the legitimate aim of protecting the reputation or rights of others, namely the business reputation and interests of KD Kostrena (see, mutatis mutandis, Balenović, cited above).

Having established that the interference with the applicant's freedom of expression in the present case was lawful and pursued a legitimate aim, the only question for the Court to determine is whether that interference was ‘necessary in a democratic society’.

The general principles in the court's case-law on the requirement of necessity in a democratic society in the context of Article 10 of the Convention are summarised in Perinçek v. Switzerland ([GC], no. 27510/08, § 196, ECHR 2015 (extracts)) and Europapress Holding d.o.o. v. Croatia (no. 25333/06, § 54, 22 October 2009).

The applicant argued (see paragraphs 31–32 above) that she had made the impugned media statements in the exercise of her constitutionally guaranteed right of reply. She added that she had acted primarily with a view to responding to what she had seen as groundless criticism of her in the same newspaper by another officer of the same company, namely the chairman of its General Meeting, who had also been the municipal mayor. In that connection the Court reiterates that the right of rectification or of reply, as an important element of freedom of expression, falls within the scope of Article 10 of the Convention (see Kaperzyński v. Poland, no. 43206/07, § 66, 3 April 2012, and Melnychuk v. Ukraine (dec.), no. 28743/03, ECHR 2005-IX). This flows from the need not only to be able to contest untruthful information, but also to ensure a plurality of opinions, especially in matters of general interest (ibid.). At the same time, the restrictions and limitations of the second paragraph of Article 10 are equally pertinent to the exercise of that right (see Melnychuk, cited above).

The Government argued (see paragraph 37 above) that those restrictions and limitations, especially the requirement that they must be ‘necessary in a democratic society’, should in the present case be viewed in the light of the criteria developed by the Court in its case-law concerning freedom of expression in the workplace (see, among many other authorities, Guja, cited above, §§ 69–96; Heinisch, cited above, §§ 62–92; Balenović, cited above; Wojtas-Kaleta, cited above, §§ 41–53; and Fuentes Bobo v. Spain, no. 39293/98, §§ 43–50 , 29 February 2000), namely having regard to:

The Court, however, considers that the present case is different from those cases in one crucial respect. In particular, the Court cannot disregard the fact that the applicant made the impugned statements only after she had herself been criticised in the media by the chairman of the company's General Meeting. It is true that ‘a duty of loyalty, reserve and discretion’ normally prevents employees from publicly criticising the work of their employers (see, for example, Wojtas-Kaleta, cited above, § 43, 16 July 2009, and Guja, cited above, § 70). However, in the present case it was another officer of the company, namely the chairman of the company's General Meeting, who had been the first to resort to the media and had publicly criticised the applicant's work. The Court considers that in such specific circumstances it could not have been expected of the applicant that she should remain silent and not defend her reputation in the same way. To do so would overstretch her duty of loyalty, contrary to Article 10 of the Convention which, inter alia, requires that an employee's freedom of expression is secured against unreasonable demands of loyalty by his or her employer (see Predota v. Austria (dec.), no. 28962/95, 18 January 2000, and Rommelfanger v. Germany, no. 12242/86, Commission decision of 6 September 1989, Decisions and Reports (DR) 62, pp. 151 and 161).

This means in addition that several of the criteria relied on by the Government concerning freedom of expression in the workplace (see paragraphs 37 and 51 above) are either inapplicable or of limited relevance to the present case.

In particular, since the right of reply is the right to defend oneself against public criticism in the same forum where the criticism was published (see, implicitly, Kaperzyński, cited above, loc. cit.) the Court finds irrelevant the Government's arguments that the applicant had other effective, but more discreet, means of protecting her reputation, and that she was motivated exclusively by the wish to protect her public image rather than to inform the public of matters of general concern (see paragraphs 38 and 40 above).

Furthermore, as regards the damage suffered by the company (see paragraph 41 above), the Court accepts that the applicant's statements could have been harmful for the business reputation of the company.

In that connection the Court also notes that in circumstances such as those in the present case it has to take into account the role played by M.U., who made the statements critical of the applicant and who was an officer of the company whose business reputation was allegedly hurt by her reply. For example, in the case of Nilsen and Johnsen v. Norway ([GC], no. 23118/93, ECHR 1999-VIII) the applicants had been punished for statements they had made as representatives of police associations in response to certain reports publicising allegations of police misconduct. The Court, in finding a violation of Article 10 of the Convention, took into account, inter alia, the harsh criticism initially voiced by the plaintiff, holding that the applicants had therefore not been entirely unjustified in claiming that they had been entitled to ‘hit back in the same way’ (ibid., § 52).

As regards the public interest involved in the disclosed information, the Court reiterates first of all that the right of reply not only protects the reputation of the person exercising it, but also ensures a plurality of opinions, especially in matters of general interest (see paragraph 50 above and the cases cited therein). The Court further considers that the operation of a municipal public utility company is a matter of general interest for the local community. The Court therefore agrees with the applicant that even though the main aim of her statements had been to deny M.U.'s accusations rather than to point to irregularities, the information she gave in reply was of public interest (see paragraph 34 above).

However, even in a debate on matters of serious public concern, there may be limits to the right to freedom of expression. Therefore, in exercising her right of reply the applicant had to act within the bounds set for the protection of the reputation and the rights of others (see paragraph 47 above). What is in issue is whether the applicant exceeded the limits of permissible criticism (see, mutatis mutandis, Nilsen and Johnsen, cited above, § 47).

This issue is closely linked with another criterion, relied on by the Government, concerning the authenticity of the information disclosed. The Government seemed to argue (see paragraph 39 above) that by urging the prosecuting authorities to check her work the applicant had gone too far in defending her reputation as that invitation had implied that the company she headed was engaged in unlawful and criminal activities.

As regards the alleged unlawful collection of parking fees, the Court notes that the applicant did not expressly state in the impugned article that the company had been collecting parking fees ‘unlawfully’ or ‘illegally’. Rather, she stated that the company had been charging for parking on land which was not owned by Kostrena Municipality (see paragraph 8 above). The Government did not seem to call into question the fact that the company had indeed been collecting fees from the parking lots at issue. Likewise, apart from submitting that the relevant proceedings were ongoing (see paragraph 39 above), the Government did not challenge the fact that those parking lots had been located on someone else's land. That being so, and having regard to the information in the land register (see paragraphs 19 and 30 above), the Court considers that the applicant's statement concerning the collection of parking fees did not contain factual inaccuracies.

However, having regard to the applicant's observations (see paragraph 34 above), where she expressly stated that collecting parking fees had been unlawful, the Court is ready to accept that that was the message she had intended to convey by stating in the impugned article that the company had been charging for parking on land not owned by the municipality. Even though both parties seem to agree that that was a statement of fact (see paragraphs 34 and 39 above), the Court disagrees because the use of the adjective ‘unlawful’ suggests that the applicant was merely drawing an inference from the facts discussed above (see the preceding paragraph). The Court reiterates that drawing inferences from existing facts is generally intended to convey opinions, and is thus more akin to value judgments (see Stojanović v. Croatia, no. 23160/09, § 69, 19 September 2013). Therefore, the applicant's statement implying that the company had been unlawfully charging for parking is to be seen as a value judgment which had a sufficient factual basis because it could reasonably be argued that collecting parking fees on someone else's land was unlawful.

Lastly, the Court considers that that statement was directly relevant to the aim she had intended to achieve by her public declaration, namely to defend her professional reputation against what she saw as groundless criticism by M.U. In particular, the applicant tried to explain that the company had not been stagnating because of her unsound business decisions but because of unresolved property issues the municipality should have dealt with. More specifically, she had wanted to explain how those unresolved issues had prevented her from raising income for the company by charging for parking at the parking lots in question.

As regards the Government's argument that the applicant had insinuated that the company had been engaged in criminal activities, the Court finds it useful to repeat her exact words, as reported in the article of 27 September 2009. The applicant stated, in particular (see paragraph 8 above): ‘Given that my work has been called into question I demand an audit of KD Kostrena, and the involvement of [the prosecuting authorities].’ That sentence, taken together with the general defensive tone of her other statements in the same article, cannot, in the court's view, leave an impression in the mind of the average reader that the company was involved in criminal activities. That statement holds true if for no other reason than that the applicant, being the company's director, would otherwise have effectively implicated herself in such activities. On the contrary, reading the impugned article, and that sentence in particular, leaves the impression that the applicant was so firmly persuaded that there was nothing wrong in the way she had been running the company that she was even ready to submit to an audit and an investigation by the prosecuting authorities with a view to definitively dispelling any uncertainty in that respect. Therefore, contrary to the Supreme court's view, which was reiterated by the Government (see paragraphs 16 and 42–43 above), the Court does not find that the applicant insinuated that what, in her view, had amounted to unlawful charging for parking by the company had also constituted a criminal offence.

For those reasons (see paragraphs 50–63 above), the Court considers that the applicant's statements in reply to those of M.U. were not disproportionate and did not exceed the limits of permissible criticism. Accordingly, the Court finds that the interference with the applicant's freedom of expression in the form of her summary dismissal was not ‘necessary in a democratic society’ for the protection of the business reputation and the rights of the company she headed.

This finding obviates the need to further examine the nature and severity of the sanction imposed, namely the applicant's dismissal, as factors to be taken into account when assessing the proportionality of the interference (see, for example, Europapress Holding d.o.o., cited above, loc. cit.).

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