CEDH · CASELAW;CLIN;ENG — 19 octobre 2017

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KG v. Germany - 35030/13 Judgment 19.10.2017 [Section V] Article 10 Article 10-1 Freedom of expression Publisher ordered to pay damages to individual it had referred to as a presumed member of the mafia: no violation Facts – The applicant company, a book-publishing house, had been ordered to pay EUR 10,000 in damages to a person referred to, in a book that it had published, as a presumed member of the mafia. The company had based the relevant passage on, inter alia , an internal report of the Federal Office of Criminal Investigations. The domestic courts considered that the applicant company had not complied with its duty to carry out thorough research and had seriously interfered with the personality rights of the person in question. Before the European Court the applicant company, alleged that the order to pay damages had infringed its right to freedom of expression. Law – Article 10: The question before the Court was whether a fair balance had been struck between the freedom of expression of the applicant company and the right to the protection of private life and reputation of the person in question. The relevant criteria to be considered in the context of balancing those competing rights were: the contribution to a debate of public interest; the degree to which the person affected was well known; the subject of the news report; the method of obtaining the information and its veracity; the prior conduct of the person concerned; the content, form and consequences of the publication; and the severity of the sanction imposed. In particular, as regards the method of obtaining the information and its veracity, the Court reiterated that the safeguard afforded by Article   10 to journalists in relation to reporting on issues of public interest was subject to the proviso that they were acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism. Special grounds were required before the media could be dispensed from their ordinary obligation to verify factual statements that were defamatory of private individuals. Whether such grounds existed depended in particular on the nature and degree of the defamation in question and the extent to which the media could reasonably regard their sources as reliable with respect to the allegations. The latter issue had to be determined in the light of the situation as it presented itself at the material time and required, in turn, consideration of other elements such as the authority of the source, whether a reasonable amount of research had been conducted before publication, whether the persons defamed had been given the opportunity to defend themselves and the urgency of the matter. The press should normally be entitled, when contributing to public debate on matters of legitimate concern, to rely on the contents of official reports or on information provided by a press officer at the public prosecutor’s office without having to undertake independent research. However, the domestic court found that the applicant company had exaggerated the level of suspicion conveyed by the internal official reports and had been unable to prove the presented high level of suspicion by means of additional facts. The domestic courts had also pointed out that the reports of the Federal Office of Criminal Investigation had not been meant for publication and could therefore not exonerate journalists or authors from their journalistic duty to carry out their own research. A distinction had to be made between public official reports or official press releases and internal official reports. While journalists could rely on the former without further research, the same could not be held for the latter. Both categories of sources had to be clearly identified and the information taken from them should not be presented in an exaggerated way. That held particularly true in regard to reports concerning allegations of criminal conduct, where the right to be presumed innocent was at issue. The domestic courts’ conclusion that the applicant company had not provided sufficient evidence to corroborate the allegation was not unreasonable. The domestic courts had carefully balanced the competing rights concerned, in conformity with the criteria laid down by the Court’s case-law, and had attached fundamental importance to the veracity of the message conveyed. In the circumstances and having regard to the margin of appreciation enjoyed by the domestic courts when balancing competing interests, there were no strong reasons for the Court to substitute its view for that of the domestic courts. Conclusion : no violation (six votes to one). (See also Couderc and Hachette Filipacchi Associés v.   France [GC], 40454/07, 10   November 2015, Information Note 190 ; and Von Hannover v.   Germany (no.   2) [GC], 40660/08 and 60641/08, 7   February 2012, Information Note   149 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes