CEDH · CASELAW;CLIN;ENG — 5 novembre 2020

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Greece - 73087/17 Judgment 5.11.2020 [Section I] Article 10 Article 10-1 Freedom of expression Suspended prison sentence imposed on journalist, in disregard of Convention standards, for calling a school headmaster “neo-Nazi” in reply to his publicly expressed views: violation Facts – The applicant is a journalist. He was convicted for insult through the press after publishing a local newspaper article responding to a blogpost of B.M., the headmaster of a local high school at the relevant time. He appealed against his conviction unsuccessfully. Law – Article 10 The applicant’s conviction had amounted to an “interference by public authority” with his right to freedom of expression which had been “prescribed by law” and pursued the legitimate aim of “protecting the reputation or rights of others”. The case concerned a conflict of concurring rights: on the one hand, respect for the applicant’s right to freedom of expression and on the other, B.M.’s right to respect for his private life. In particular, the applicant’s article had referred to B.M. and presented him as being a theoretician of the far-right political party Golden Dawn and called him a “neo-Nazi”. Examining the two references as a whole, these characterisations had not only been capable of tarnishing B.M.’s reputation, but also of causing him prejudice in both his professional and social environment. Accordingly, the accusations had attained the requisite level of seriousness as could harm B.M.’s rights under Article 8 of the Convention. (a) Contribution to a debate of public interest The applicant in his article had sought to share information on an article which had recently been posted by B.M. on the Polytechnic uprising of 1973 (a student demonstration which had contributed to the end of the military dictatorship in Greece; the date in question is celebrated as a school holiday). Therefore, the views of B.M. on the matter, who had referred to it as “the ultimate lie” at a time when he had been the headmaster of a local high school, had been capable of giving rise to considerable controversy. The applicant’s article reporting B.M.’s views as expressed on his blog accordingly concerned a matter of public interest and the applicant, as a journalist, had a right to impart information on the matter. The domestic courts had not examined the article taken as a whole, but rather focused on the characterisations used by the applicant, detached from the context, and therefore had failed to include any considerations in their assessment as regards the contribution of the applicant’s article to a matter of public interest. Even though they acknowledged that he had had a legitimate interest in informing the public, they had failed to draw any conclusions from that. (b) How well known is the person concerned, his prior conduct and the subject of the article B.M. had been a civil servant, namely the headmaster of a local high school and as such, enjoyed certain protection. However, he had regularly posted his views on political matters on personal blogs. The domestic courts had not explicitly addressed the fact that the applicant, although not comparable to a public figure having regard to his activity of headmaster, had still exposed himself to journalistic criticism by the publicity he had chosen to give to some of his ideas or beliefs, some of which had been likely to give rise to considerable controversy. The special duties and responsibilities incumbent on teachers, who are a symbol of authority for their students in the field of education, also applied to a certain extent to their activities outside of school. (c) The way in which the information was obtained and its veracity The Court recalled that terms such as “neo-fascist”, and “Nazi” did not automatically justify a conviction for defamation on the ground of the special stigma attached to them and that the generally offensive expressions “idiot” and “fascist” might be considered to be acceptable criticism in certain circumstances; nor could calling someone a fascist, a Nazi or a communist in itself be identified with a factual statement of that person’s party affiliation. The applicant’s article had referred to B.M.’s views as posted on his blog and as such, the method used to obtain the information reported had not been questioned. As regards the veracity of the statements included in the report, the domestic courts had correctly classified the characterisations used by the applicant, “well-known neo-Nazi headmaster” and “theoretician of the entity ‘Golden Dawn’”, as value judgments. However, the domestic courts had failed to assess whether these value judgments had been supported by factual background on the basis of the articles previously posted by B.M. (d) The content, form and consequences of the publication The language used by the applicant could have been considered provocative and the article had been caustic, containing rather serious criticism; however, there were no manifestly insulting language in the remarks. The presentation of a press article and the style used in it was a matter of editorial decision, on which it was not in principle for it, or for the domestic courts, to pass judgment. While journalistic freedom was not unlimited, in the present case, neither the impugned statements nor the article seen as a whole could be understood to have been a gratuitous personal attack on, or insult to B.M. Finally, there had been insufficient information before the Court to enable cognisance or examination of the article’s consequences. (e) The severity of the penalty imposed The applicant had been sentenced to a three-month suspended prison sentence. The circumstances of the instant case, a classic example of criticism of a person known in the local community in the context of a debate on a matter of public interest, had presented no justification for the imposition of a prison sentence. Such a sanction, by its very nature, would inevitably have a chilling effect on public discussion, and the notion that the applicant’s sentence had in fact been suspended did not alter that conclusion, particularly as the conviction itself had not been expunged. (f) Conclusion In sum, the domestic courts had failed to make an assessment in accordance with the criteria established in the Court’s case-law and had thereby failed to pay heed to the essential function that the press fulfils in a democratic society. They had failed provide relevant and sufficient reasons to justify the impugned interference. Accordingly, the interference had not been “necessary in a democratic society”. Conclusion: violation (unanimously). Article 41: EUR 1,603 in respect of pecuniary damage; EUR 10,000 in respect of non-pecuniary damage. (See also Bodrožić v. Serbia, 32550/05, 12 June 2009, Information Note 120 ; Axel Springer AG v. Germany [GC] , 39954/08, 7 February 2012, Information Note 149 ; Guide on Article 10 of the European Convention on Human Rights )   © 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