Mladina D.D. Ljubljana v Slovenia (European Court of Human Rights, Chamber, Application No 20981/10, 17 April 2014)
A Slovenian publisher was successfully sued for defamation for an article criticising a politician for his speech opposing legal recognition of same-sex partnerships. The company claimed that the Slovenian courts’ award of damages against it violated its right to freedom of expression. The European Court of Human Rights found a violation of the right to freedom of expression, as there was a sufficient factual basis for the statements, and in the context of the debate and article as a whole, the criticism could be seen as strong disagreement with the politician’s views, rather than merely an offensive personal insult.
The applicant was a Slovenian company that published a weekly magazine called Mladina.
In June 2005, the company published an article in Mladina about the parliamentary debate preceding the adoption of a law on same-sex civil partnerships. Politicians from the Slovenian National Party (SNP), including a representative named S.P., had argued against legal recognition of same-sex partnerships.
The article summarised the parliamentary debate, and commented on and quoted from S.P.’s speech almost in its entirety, as well as describing S.P.’s accompanying imitation of a homosexual man:
…But the biggest victims of this law would be the children of such a marriage: ‘Just imagine a child whose father comes to pick him up from school and greets him with “Heeeeey, I’ve come to take you hooooome! Have you got your coat on yet?’ He [S.P.] accompanied this brilliant remark with a coffeehouse imitation which was probably supposed to clearly illustrate some orthodox understanding of a stereotypically effeminate and mannered faggot, whereas in reality [what it illustrated was] just the typical attitude of a cerebral bankrupt who is lucky to be living in a country with such a limited pool of human resources that a person of his characteristics can even end up in Parliament, when in a normal country worthy of any respect he could not even be a janitor in the average urban primary school.
S.P. claimed that this commentary in the article was offensive, and successfully sued the company for defamation in the Slovenian domestic courts. S.P. was awarded the equivalent of 2,921.05 EUR in damages and the company was ordered to publish the introductory and operative part of the judgment in its magazine.
The company lodged an application against the Republic of Slovenia with the European Court of Human Rights, alleging that its right to freedom of expression had been violated.
Decision of the Slovenian courts
The domestic courts dismissed the company’s arguments that the article should be considered political satire. It was held that the statements in the article were an offensive assessment of S.P.’s intelligence and personal characteristics.
The Slovenian Constitutional Court found that even assuming S.P.’s speech had been offensive to homosexuals (contrary to the lower courts’ findings) that did not justify the company’s personal attack. In such cases sharper criticism might be permissible, but only if there was a sufficient factual basis for it. The Constitutional Court considered that there was no substantive connection between S.P.’s speech and the assessment of his intellectual abilities, so the criticism was not justified.
The domestic courts considered that the article did not contribute to socially responsible public discussion, and ultimately held that a fair balance had been struck between the company’s freedom of expression and S.P.’s personal dignity.
It was not disputed at the European Court of Human Rights (ECtHR) that the domestic courts’ decisions amounted to an “interference” with the exercise of the company’s right to freedom of expression under article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The ECtHR therefore considered whether the interference was justified under article 10(2) of the Convention, as a limitation prescribed by law and necessary in a democratic society, in pursuit of one or more of the legitimate aims set out in article 10(2). As the interference was clearly prescribed under Slovenia’s defamation laws for the legitimate aim of protecting “the reputation or rights of others”, the ECtHR’s reasoning focused on the necessity of the interference with reference to the reasons adduced by the domestic courts.
The starting point for the ECtHR was that the impugned remarks were made in the context of a political debate on a question of public interest, where few restrictions are acceptable under article 10(2). The ECtHR noted that politicians are required to be more tolerant to criticism than private individuals, and that journalistic freedom also covers recourse to a degree of exaggeration or even provocation.
Though the ECtHR noted that in the absence of any factual basis, value judgments could exceed the boundaries of permissible criticisms, it found that there was a sufficient factual foundation for the critical commentary in this article.
The ECtHR attributed greater significance than the Slovenian courts to the context in which the critical statements were made, including S.P.’s own provocative comments. It therefore characterised the nature of the criticism differently to the domestic courts.
Given the article’s detailed description of S.P.’s speech and conduct, and the context of an intense debate, the ECtHR considered that the critical remarks could be seen as an expression of strong disagreement, even contempt for S.P.’s position, rather than a factual assessment of his intellectual abilities. The ECtHR also disagreed with the Slovenian courts about S.P.’s imitation of a homosexual man, which the ECtHR said may be regarded as ridicule promoting negative stereotypes. The ECtHR considered that the impugned statement merely matched S.P.’s evocative and exaggerated style and therefore did not amount to a gratuitous personal attack.
Given these findings, the ECtHR concluded that the Slovenian courts had not convincingly established any pressing social need or justification for placing the protection of S.P.’s reputation above the applicant company’s right to freedom of expression and the general interest in promoting freedom of expression where issues of public interest are concerned.
The interference was therefore not “necessary in a democratic society” and violated article 10 of the Convention. The company was awarded the 2,921.05 EUR back in pecuniary damages, as well as costs and expenses.
Australia has no national charter of human rights and therefore no express right to freedom of expression equivalent to that found in article 10 of the European Convention which could found an independent right to bring legal action. However, freedom of expression has some protection in section 15 of Victoria’s Charter of Human Rights and Responsibilities, and the implied freedom of political communication under the Australian Constitution.
Australian domestic laws limit freedom of expression in a whole range of areas, including defamation laws, misleading and deceptive conduct, and the topical area of racial vilification laws. Australia’s uniform defamation laws, introduced in 2006, are quite favourable to plaintiffs.
The issue of balancing freedom of expression with other rights is a hot topic under the current Australian Government. Attorney-General George Brandis has made clear the Government’s intentions to advance a “freedom agenda”, focusing on “traditional rights and freedoms”, including freedom of expression. The Attorney-General stated: “You cannot have a situation in a liberal democracy in which the expression of an opinion is rendered unlawful because somebody else… finds it offensive or insulting.”
However, to date the Government’s efforts to remove unreasonable limitations on freedom of speech have focused not on defamation laws, but on proposals to reform the Racial Discrimination Act 1975 (Cth). The exposure draft of the proposed amendments to the Racial Discrimination Acts can be found here.
The decision can be found at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-142424
Louise Brown is a solicitor at King & Wood Mallesons and former secondee lawyer at the Human Rights Law Centre.