CEDH · CASELAW;CLIN;ENG — 17 juillet 2007

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Italy - 30278/04 Judgment 17.7.2007 [Section II] Article 10 Article 10-1 Freedom of expression Conviction of a journalist for defamation in respect of an article   setting out allegations by a man on trial who sought to use the press to persuade the public of his innocence: violation   Facts : The applicant, a journalist at the weekly magazine Oggi , had written an article   about M.G., a dancer and choreographer who ran a dance academy and stood accused of rape and abuse of young pupils at the academy. The article   reported M.G.’s fears that the accusations against him were the result of his professional activities and his opposition to what he called a “powerful local business committee”. The article   explained that M.G. had submitted an application for subsidies, but that his application had disappeared and the complaint for theft he had subsequently lodged had not been followed up. The article   went on to explain that the brother-in-law of the manager of a rival dance academy, who had been awarded the subsidies M.G. had applied for, was the head of the town’s prosecution service, and mentioned his name. The following issue of Oggi published a different version of the story: that of the principal public prosecutor, M.S., who had lodged a complaint for libel. He claimed that the article   gave the reader the impression that he had taken advantage of his position to dismiss M.G.’s complaint for theft, helped the rival dance academy and trumped up charges to remove M.G. from the scene. The applicant was found guilty of defamation through the medium of the press, aggravated by the fact that he had insulted the State legal service. He was fined and ordered to pay interim compensation, but the conviction was not entered in a criminal record. M.G. was acquitted. Before the Court of Cassation the applicant pleaded, to no avail, that he had done nothing but report M.G.’s version of events, without endorsing it or supplying any false information. Law : The accuracy of the main facts reported in the article   was not at issue. The applicant had based the story on a video tape recorded by M.G. and on the documents in the criminal proceedings against M.G. The journalist had discharged his obligation to verify the accuracy of the facts reported in his article. True, he had omitted to mention that M.S.   had had no power to have M.G.’s complaint of theft dropped, but a journalist writing for a widely read magazine could not be expected to explain all the technical details of the judicial proceedings he referred to. The article   was presented as an account of an interview with M.G., in which M.G. set out his arguments, which were by their very nature subjective, in an attempt to persuade the readers of his innocence. While the applicant had endorsed M.G.’s allegations, at least in part, and had not formally distanced himself from them, he had expressed no value judgment concerning the human or professional qualities of Principal Public Prosecutor M.S., whose name had been mentioned only once in the article, without any suggestion that he was responsible for the bringing of proceedings against M.G. or that he was a member of the "business committee" which had allegedly sought to harm him, and he had clearly stated that the public prosecutor in charge of the proceedings was not M.S. So while it did contain an element of provocation, the article   could not be regarded as a gratuitous personal attack on M.S., and it stuck fairly closely to the facts. In addressing such topics as the administration of justice, judicial institutions, the world of politics and private interests, the article   had addressed matters of general interest. M.S. had promptly been given the opportunity to present his version of events, to dispel any suspicions and give the public the opportunity to compare the two accounts. The interim compensation the applicant had been ordered to pay (EUR 12,911 together with the director of the magazine) had been immediately enforceable. This sum was a down-payment pending the total compensation that might be awarded in separate proceedings the injured party might wish to bring, which could substantially increase the court costs and compensation the applicant might have to pay. The sentence had not been “necessary” to protect the reputation or rights of the complainant. Conclusion : violation (five to two). Article   41 – Pecuniary damage: monetary award commensurate with the compensation, fine and court costs incurred by the applicant in the trial for defamation. Non-pecuniary damage: finding of a violation sufficient.   © 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