Balancing Freedom of Expression and the Right to Privacy
Erdoğan v Turkey [2009] ECHR 39656/03 (13 January 2009) The European Court of Human Rights recently found that the Government of Turkey, having ordered lawyer Ayhan Erdoğan to pay compensation for remarks that he made against a public figure during court proceedings, had breached Mr Erdoğan's right to freedom of speech in violation of art 10 of the European Convention on Human Rights.
Article 10 of the Convention guarantees the right to freedom of expression, including the freedom to 'impart information and ideas without interference by public authority and regardless of frontiers' (art 10(1)), subject to such restrictions and penalties as are 'prescribed by law and are necessary in a democratic society… for the protection of the reputation or rights of others' (art 10(2)).
Facts
The applicant, Erdoğan, is a practising lawyer residing in Istanbul. Erdoğan's client, along with 136 others, had been dismissed from his employment and had brought an action against the Municipality which resulted in an order that he be reinstated. In spite of this, the workers were either not reinstated or reinstated for one day before being dismissed again. Erdoğan was alleging that the mayor of the Ümraniye district in Istanbul was attempting to fill vacancies at the Municipality without reinstating his client and the other dismissed workers, as ordered by the court. While administrative proceedings against the Municipality were still pending, the office of the mayor ran a competition in the Akit newspaper to fill the available posts and, it was alleged, only distributed editions of the newspaper containing this competition to associations affiliated with the Refah party, of which the mayor was a member.
Erdoğan filed an action on behalf of his client in the Istanbul Administrative Court. In a written submission to the court, he referred to the mayor as a cruel person (zalim) and a bigot (yobaz) with no regard for the rule of law (hukuk tanımaz). The mayor's office in turn brought an action against Erdoğan for the damage he had allegedly incurred as a result of the applicant's attack on his honour and integrity. Erdoğan defended the action on the grounds that his statements had not been a personal attack but rather mere observations, made in the course of his duties as an advocate, as to the proven conduct of the mayor, his administration and the now banned Refah party. The mayor maintained that Erdoğan's accusations were unfounded, insulting and an attack on his personal rights which transgressed the standards and boundaries of objective debate. The court found in favour of the mayor and ordered Erdoğan to pay a significant sum of compensation. The decision was maintained several times on appeal before the applicant instituted proceedings before the European Court of Human Rights.
Decision
The Government argued that its interference with Erdoğan's right to freedom of speech was permitted by art 10(2) of the Convention. The Government referred to domestic provisions in the Code of Obligations and the Civil Code of Turkey which confer a right to bring a civil action on individuals whose personal rights are violated, thus arguing that the penalties imposed on Erdoğan and/or the restrictions on his right to freedom of speech were 'prescribed by law'. The Government argued that the interference had been necessary with reference to Turkey's 'margin of appreciation' (at 19). Moreover, the Government argued that its interference was legitimately aimed at protecting the rights and reputation of others, in particular the mayor.
Erdoğan maintained that his words were not a personal attack but rather observations of fact. For example, he illustrated his statement that the mayor had no regard for the rule of law by pointing out that he had refused to comply with court orders to reinstate the dismissed workers. Importantly, Erdoğan emphasised that his comments had not been disseminated in the press, but rather filed as part of defence submissions in domestic courts.
The question for the Court was whether, on the facts of the case as a whole, a fair balance was struck between the need to protect the reputation and rights of the mayor against the need to protect Erdoğan's freedom of expression. The Court held that there had been a violation of art 10 and in particular that the Turkish domestic courts had erred in omitting to set Erdoğan's remarks within the context and form in which they were expressed.
The Court underscored the importance of considering the circumstances surrounding Erdoğan's statements. It confirmed its view that the limits of acceptable critical comment are wider when the subject thereof is a public figure, since they inevitably and knowingly expose themselves to public scrutiny. Further, the Court had regard to the 'special nature' of the legal profession and confirmed that alongside certain obligations, officers of the court may enjoy certain privileges such as 'latitude regarding arguments used in court' (at 26).
The Court identified as a factor of particular importance the distinction between statements of fact and value judgments. Although the Court did not expressly agree with Erdoğan's argument that his remarks were mere observations, whereas facts can be proven, the Court confirmed that even 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 statements' (at 24). It was held that Erdoğan's comments were value judgments, thus one can infer that the truthfulness of Erdoğan's accusations as to the mayor's conduct was a relevant consideration to the Court. Importantly, Erdoğan's value judgments were conveyed in a medium where his client's rights were 'naturally to be vigorously vindicated' (at 29).
The Court held that Erdoğan's remarks could not be construed as a gratuitous personal attack in the context of judicial proceedings in which he was acting in his capacity as a legal representative. Although the Court held that Erdoğan's comments were clearly of a nature to discredit the mayor, it reiterated that the mayor was not a private individual but a public figure. Moreover the negative impact of Erdoğan's words on the mayor's reputation would be limited, since they were confined to a courtroom rather than, for example, being voiced to the media.
The Court weighed Erdoğan's interest in voicing his criticism and in pleading his client's case against the mayor's interest in being protected against personal insult. The Court held that the interference with Erdoğan's freedom of expression was not based on sufficient reasons to show that it was 'necessary in a democratic society' and therefore that there had been a violation of art 10 of the Convention.
Relevance to the Victorian Charter
This decision is relevant to ss 7, 13 and 15 of the Charter. On the one hand, s 15 states that everyone has the right to 'hold an opinion without interference' (s 15(1)) and the freedom to 'impart information and ideas of all kinds' (s 15(2)). However this right is subject to 'lawful restrictions reasonably necessary to respect the rights and reputation of other persons' (s 15(3)). Moreover, freedom of expression must be balanced against co-existing rights such as that not to have one's privacy unlawfully or arbitrarily interfered with (s 13(a)) or one's reputation unlawfully attacked (s 13(b)). In addition, each right in the Charter may 'be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society…' (s 7(2)).
This case is an example of how the judiciary must endeavour to balance the competing rights of freedom of expression and privacy/reputation. Although at first glance the right to freedom of expression may seem curbed by competing rights or interests, it is important to note that both art 10 of the Convention and s 7 of the Charter emphasise the need to establish that an interference with freedom of expression must be necessary or justified in a democratic society – and ultimately that is why the case against Erdoğan ultimately failed.
Briohny Coglin is a lawyer with Minter Ellison