CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 21 septembre 2010

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Spain (application no. 34147/06)     THE COURT CONFIRMS THAT A NEWSPAPER ARTICLE DID NOT BREACH THE RIGHT OF A SENIOR JUDGE OF CANTABRIA AND HIS WIFE TO PROTECTION OF THEIR HONOUR   No violation of Article 8 (right to private life) of the European Convention on Human Rights     Principal facts   The applicants, Elisa Polanco Torres and Emma Movilla Polanco, are two Spanish nationals who live in Santander. They are respectively the wife and daughter of C.M., who died in 1998. C.M. was President of the Civil and Criminal Division of the Cantabria Higher Court of Justice. Mrs   Polanco Torres is acting in her own name and Ms   Movilla Polanco is acting on behalf of her father.   At the relevant time criminal proceedings were in progress against the President of the Autonomous Community of Cantabria before the division of the Cantabria Higher Court of Justice of which C.M. was President. On 19 May 1994 an article in the national daily newspaper El Mundo accused Elisa Polanco Torres (identified by name as the wife of C.M.) of involvement in unlawful dealings with the company Intra. El Mundo based its report on floppy disks received from an anonymous source and purportedly containing Intra’s accounting data. The data had disappeared from the company, which had brought criminal proceedings against its accountant and had dismissed him. El Mundo had verified with that accountant that the accounts were genuine and quoted him using quotation marks. He confirmed that the financial transactions at issue had been unlawful and that transfers of funds had not been declared by the company to the tax authorities. The article also contained a statement by Mrs Polanco Torres categorically denying any links with the company Intra. She stated that the fact she appeared in the accounts of the company in question was probably the result of a “manoeuvre” by the President of the Autonomous Community of Cantabria with the aim of discrediting her husband C.M. The full article also appeared the same day in the newspaper Alerta .   C.M. and his wife Mrs Polanco Torres brought proceedings for the protection of their honour against the company that published the daily newspaper El Mundo , its director, its chairman and the journalist who had written the article. In a judgment of 6 May 1996 Madrid District Court no. 17 partly upheld their application, finding that there had been an unlawful interference with the right of C.M. and Mrs Polanco Torres to respect for their honour. The court took the view that the journalist had not checked his sources, because he had based his information purely on the accountant’s statements, without any additional checks. The publisher of El Mundo , its director, and the journalist were ordered to pay 4,000,000 pesetas (24,040.50 euros) in damages and to publish the judgment in the newspaper. On appeal, in a judgment of 5 February 1998, the Audencia Provincial upheld the judgment in full. In August 1998 C.M. died. On 11 April 2000 the Supreme Court also upheld the judgment.   El Mundo ’s publisher and director, together with the journalist who had written the article, lodged an amparo appeal with the Constitutional Court. On 27 February 2006 the Constitutional Court upheld that appeal and quashed the judgments of the courts below. It found that the journalist had used all “effective” possibilities to verify the information, having confirmed the authenticity of the impugned accounts with the source of information that was the most reliable on that question: the former accountant of the company Intra. Departing from the decisions it set aside, it observed that the accountant’s dismissal did not cast doubt on his reliability and that the question whether the information had been obtained lawfully did not arise in those proceedings. In addition, the Constitutional Court took into account the fact that the journalist had included in his article the denial by Mrs Polanco Torres.   The lower courts also found against the newspaper Alerta for breaching the fundamental rights of C.M. and Mrs Polanco Torres, but the amparo appeal lodged by the publishing company was, by contrast, declared inadmissible in a decision of 16 November 2000. The Constitutional Court based this decision in particular on the fact that, unlike the journalist from El Mundo , Alerta had not made any efforts to verify the information it reported but had simply copied it from El Mundo .     Complaints, procedure and composition of the Court   Relying in particular on Article 8, the applicants alleged that in finding in favour of El Mundo the Spanish courts had infringed their right to protection of their honour and good reputation. They further alleged a breach of Article 14 (prohibition of discrimination) taken in conjunction with Article 8, on account of the fact that the amparo appeal lodged by El Mundo had been allowed, whereas Alerta ’s appeal had been dismissed.   The application was lodged with the European Court of Human Rights on 3 August 2006.   Judgment was given by a Chamber of seven judges, composed as follows:   Josep Casadevall (Andorra), President , Elisabet Fura (Sweden), Boštjan M. Zupančič (Slovenia), Alvina Gyulumyan (Armenia), Ineta Ziemele (Latvia), Luis López Guerra (Spain), Ann Power (Ireland), judges , and also Santiago Quesada , Section Registrar .     Decision of the Court     Complaint concerning the alleged breach of the applicants’ right to respect for their private life (Article 8)   In view of the gravity of the allegations in the El Mundo article, concerning unlawful transactions involving “dirty money”, the Court had to ascertain whether Spain had fulfilled its “positive obligation” to protect the honour and reputation of Mrs Polanco Torres and her husband. To that end it had to take into account not only their right to respect for their private life, but also the right of journalists to freedom of expression.   The Court first noted that the El Mundo article undoubtedly concerned a subject of general interest for its Spanish readers: Mrs Polanco Torres was referred to as the wife of a senior judge, who was precisely identified in the article.   In view of the fact that precisely designated individuals were directly targeted in the article, the journalist who wrote it had a duty to ensure that it had a sufficient factual basis.   In that connection the Court first noted, like the Constitutional Court, that the article had the characteristics of a neutral report (especially as the accounting data had been verified with the accountant and as a denial by the person accused was published, thus presenting readers with the two opposing versions of the facts). The Court then examined the essential question whether the journalist had acted in good faith and whether he had fulfilled the obligation – incumbent on all journalists –- to verify a factual statement. It noted that the journalist, by verifying the authenticity of the accounting data with the former accountant of the company Intra, had used all “effective” possibilities to verify his information. In addition, before publishing the article, he had contacted Mrs Polanco Torres to give her the opportunity to comment on the information at issue. As the Constitutional Court had rightly observed, that showed that the journalist had fulfilled his obligation of diligence. The Court further accepted, like the Constitutional Court, that the accountant’s dismissal and the criminal proceedings against him had not called into question the reliability of his statements, and that the question of the lawfulness of the means by which the information had been obtained was not relevant in determining whether there had been a breach of the right to respect for private life (the journalist not having been charged with any criminal offence).   Lastly, the Court took the view that the journalist from El Mundo had sufficiently verified the veracity of the factual allegations contained in his article. The Constitutional Court had put forward sufficient grounds in finding that the journalist’s right to impart information in the general interest had to be given more weight, than the applicants’ right to the protection of their reputation and honour.   By six votes to one, the Court held that there had therefore been no violation of Article 8.   Complaint concerning the discrimination allegedly sustained by the applicants (Article 14 in conjunction with Article 8)   The Court observed that the two cases before the Constitutional Court, respectively concerning El Mundo and Alerta , even though they had related to the same allegations and the same allegedly defamed persons, were not comparable. Unlike El Mundo , Alerta had not verified its sources but had simply reproduced the article from El Mundo without disclosing its origin to the reader. That point had been crucial in the Constitutional Court’s decision concerning Alerta . For the same reason, the Court accepted that the difference in treatment between the two cases had not been discriminatory. It thus declared that complaint inadmissible as manifestly ill-founded.     ***   The judgment is available in French only. This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on its Internet site . To receive the Court’s press releases, you can subscribe to the Court’s RSS feeds .   Press contacts [email protected] / +33 3 90 21 42 08 Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) Emma Hellyer (telephone : +33 3 90 21 42 15) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Nina Salomon (tel: + 33 (0)3 90 21 49 79)     The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Articles   43   and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on the day the request is rejected. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.