Flux and Samson v Moldova  ECHR 28700/03 (23 October 2007)
The European Court of Human Rights has held that judicial decisions in defamation proceedings brought against a Moldovan newspaper interfered with its right to freedom of expression, and more specifically its right to disseminate public opinion on a matter of public interest. The decision addressed the permissible limitations on the right to freedom of expression in the context of a potentially defamatory publication.
Flux, the applicant newspaper, published an article based on a story by the mother of Aurelia Samson, the second applicant. The article described problems that Ms Samson had experienced with her neighbour, described by the Court as ‘GC’, the former State Minister of Construction. The article included statements such as ‘a former State official builds himself castles’, ‘the neighbours say that he rents them to earn a fortune’ and ‘through various methods he forced the elderly who lived in the same neighbourhood to leave their houses in exchange for paltry sums of money’. The article included GC’s comments in relation to the allegations and a summary of several supporting documents that GC had provided to Flux.
GC brought court proceedings against Flux claiming damages in defamation. Before the first instance Court gave judgment, Flux published an apology to GC at the request of GC and the second applicant.
The Buiucani District Court found in favour of GC and ordered Flux to publish a retraction and pay damages and costs. This decision was made on the basis of Flux’s apology, the fact that information in the article was held not to ‘coincide with the truth’ and that the article repeatedly mentioned GC’s former ministerial post, causing harm to GC when it could not be shown that he had used his former position in any illegal way. The judgment was upheld on subsequent appeals.
Flux submitted a complaint to the European Courtalleging a violation of art 10 of the European Convention, which provides the right of freedom of expression subject to restrictions that are prescribed by law and ‘necessary in a democratic society’.
The parties accepted that there had been an interference with Flux’s freedom of expression and that this interference was ‘prescribed by law’. The matter before the Court was therefore whether the interference was ‘necessary in a democratic society’.
TheEuropean Courtheld that the decisions of the Moldovan courts violated art 10 of the Convention on the basis that they did not correspond to a pressing social need and were therefore not necessary in a democratic society. In reaching this conclusion, the Court addressed the following factors:
- the article contained value-judgments and opinions in relation to which Flux could not be expected to prove the truth;
- the published opinions were not without factual foundation;
- the article was balanced and presented both parties’ views, meaning that Flux had acted in good faith and consistently with principles of responsible journalism;
- the article raised issues of genuine public interest in addressing alleged abuses by a former State official; and
- any residual harm to GC’s reputation was removed by Flux’s publication of the apology.
The Court also reiterated the generally accepted statement that ‘punishment of a journalist for assisting in the dissemination of statements made by another person… would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so’. The Court held that such ‘strong reasons’ did not exist in the current case and awarded pecuniary and non-pecuniary damages and costs in favour of Flux.
Implications for the Victorian Charter
This decision has potential significance in relation to the interpretation and application of s 15 (right to freedom of expression) and s 7 (permissible limitations) of the Charter. By operation of s 32(2) of the Charter, the decision may also inform the interpretation and application of the Defamation Act 2005 (Vic) and the defamation provisions of the Wrongs Act 1958 (Vic).
In relation to section 7 of the Charter, the decision affirms the principle that human rights should only be restricted to the extent that such restriction can be justified in a democratic society and in pursuit of a ‘pressing social need’ (see also s 7(2)(b) of the Charter). The decision promotes freedom of expression in the publication of opinions founded in fact, presented in a balanced manner and disseminated in circumstances where the relevant issues are of public importance.
The decision is available at http://www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/HUDOC+database.
Kellie Simmonds, Human Rights Law Group, Mallesons Stephen Jaques