Disproportionately high compensation against a newspaper and its editor-in-chief for an article that baselessly accused the government of corruption. Violation of freedom of expression
JUDGMENT
Azadliq and Zayidov v. Azerbaijan 30.06.2022 (app. no. 20755/08)
SUMMARY
The applicants, a newspaper and its editor-in-chief, published two articles about a former advisor to the President (T.A.) and his relatives, accusing them of corruption. T.A. brought an action for damages for defamation against the two applicants, who were ordered to pay him approximately €36,000 and €22,500 respectively for moral damage.
In examining the state’s interference with the applicant’s right to freedom of expression, the ECtHR found that the articles made no reference to any source of the factual information on which they were based. It had not been proven or claimed that any independent investigation had been carried out or that any attempts had been made to check any official records, and indeed one particular claim had been based on hearsay. Therefore, the applicants could not be said to have complied with the relevant standards of due diligence and to have acted in good faith in providing ‘reliable and accurate’ information.
However, no reasoning had been given by the national courts justifying the proportionality of the measures taken against the applicants. In addition to the retraction and apology order, the domestic courts had ordered the applicant newspaper and its editor to pay damages that were disproportionately high given the poor financial situation of the newspaper and the applicant’s income. The Court held that the national courts had not provided reasons justifying the severity of the penalties imposed on the applicants, which did not appear to have a reasonable relation of proportionality to the legal aim pursued.
Consequently, the ECtHR found that there was a violation of freedom of expression (Article 10 of the ECHR). It held that the finding of infringement was in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicants but awarded them €1,500 in costs.
PROVISION
Article 1o
PRINCIPAL FACTS
The applicants are a newspaper published in Azerbaijan, Azadlıq, and its then editor-in-chief, an
Azerbaijani national, Ganimat Salim oglu Zayidov, who was born in 1963 and currently lives in
Strasbourg. The applicants, published two articles about a former aid to the President (T.A.) and his relatives, accusing them of corruption. T.A. lodged a successful civil defamation claim against both applicants, who were ordered to pay approximately EUR 36,000 and EUR 22,500 respectively to T.A., in respect of non-pecuniary damage. The applicants appealed unsuccessfully up to the Supreme Court.
The case concerns a civil defamation claim against the newspaper and its editor-in-chief in
connection with articles about alleged corrupt activities of a government official – a former aid to
the President.
Relying on Article 10 (freedom of expression) of the European Convention on Human Rights, the
applicants complain that there was an unjustified and disproportionate interference with their right
to freedom of expression since the domestic courts found that the articles were defamatory towards
a public official and ordered them to publish a retraction and pay the claimant compensation for
damages caused to his reputation.
THE DECISION OF THE COURT…
Article 10:
The domestic courts’ rulings against the applicants and the sanctions imposed had constituted an interference by the State with the applicants’ right to freedom of expression. It had been prescribed by law and pursued the legitimate aim of protecting the reputation or rights of others, in this case T.A. The Court therefore had to determine whether the interference had been “necessary in a democratic society”:
The articles in issue had concerned a matter of public interest, namely the general issue of alleged corrupt practices among government officials and persons connected to them. However, the article, having specifically named T.A., had directly accused him of having built or operated a “corruption machine” and having engaged in a certain “scale of corruption”. It had been repeatedly stated and insinuated throughout both articles that T.A., by means of corrupt practices, had either helped his relatives obtain various assets or engage in questionable business activities or had obtained such assets for himself by formally registering them in the name of other persons or had engaged in questionable business activities himself, again formally through other persons. The articles had mentioned many very specifically described properties and assets.
The statements found to have been defamatory had amounted largely to factual statements. Even if some of the expressions used in the article could qualify as “value judgments”, if assessed on their own and out of context, in the particular context of the articles in question, those phrases had merely been figures of speech constituting part of the very specific factual allegations (for example, referring to T.A. and his relatives as “blue whales” to describe the scale of alleged corruption). Those factual allegations had amounted to an assertion that T.A. had committed serious criminal offences, including embezzlement and corruption. Therefore, the applicants had been required under the Convention to provide a sufficient factual basis for such an assertion.
However, the articles had made no references to any sources of the factual information given. During the domestic court proceedings, the applicants had been unable to present any elements supporting their factual assertions or to demonstrate that they had had any reliable sources that had constituted a basis for them. It had neither been demonstrated nor alleged that any independent research had been conducted or that any attempts had been made to check any official records. While, in respect of one particular allegation relating to an alleged joint business, the applicants had noted that they had relied on “rumours”, they had not even attempted to take any steps to independently verify the reliability of those “rumours”. Neither had the text of the first article contained any proviso that the information given had been based on mere rumours: instead, the article had stated it unequivocally as a fact.
It had not been shown that even a minimal amount of fact-checking had been done in respect of any information given in the articles. It therefore could not be said that the applicants had complied with the relevant standards of due diligence and had acted in good faith in order to provide “reliable and precise” information. Such conduct by the applicants could not be considered compatible with the tenets of responsible journalism, especially considering the gravity of the factual assertions made in the articles. Those assertions had attained the level of seriousness capable of bringing into play T.A.’s rights under Article 8 and they had been damaging to his reputation. It had also not been shown that there had existed any special grounds in the present case dispensing the applicants from their obligation to verify those factual grounds.
The Court next turned to the manner in which the domestic courts, which had been called upon to strike a fair balance between the applicants’ Article 10 rights and T.A.’s Article 8 rights, had assessed the content and consequences of the publication and the veracity of the information provided. The reasoning had been quite brief and had not analysed various statements made in the articles separately and in extensive detail. Moreover, the relevant domestic law as it had stood at the material time had not distinguished between statements of fact and value judgments. However, in the particular circumstances of the present case, the courts’ reasoning, albeit brief, had been “relevant”, in that the courts had convincingly identified the impugned statements as factual assertions, and had found that the arguments adduced by the applicants had not demonstrated that they had acted with due diligence with those assertions, which had been damaging to T.A.’s reputation. The courts thus had provided certain reasons showing that there had been a pressing social need to take measures to protect T.A.’s reputation.
However, no reasoning had been given by the courts to justify the proportionality of the measures taken against the applicants, despite the issue being repeatedly raised by them.
In addition to ordering a retraction and apology, the domestic courts had ordered the applicant newspaper to pay approximately EUR 36,000 in compensation. Before the domestic courts, the newspaper had argued that the amount had been too high given the newspaper’s low circulation and low profits and its dire financial situation at that point in time. The second applicant had also been personally ordered to pay approximately EUR 22,500 in compensation. That sum had amounted at the relevant time to over nine times the average yearly salary and to more than forty times the minimum yearly salary in the country. In such circumstances, despite inconsistent submissions by the second applicant concerning his personal income, the Court accepted that the amount he had been ordered to pay in damages had been disproportionately high in relation to the average income in the country and to his personal income. The applicants had additionally argued that the total amount awarded to T.A. had in any event been too high in relation to T.A.’s own official income as a government official and, as such, disproportionate in relation to any potential damage caused to his reputation.
On the whole, the applicants had raised relevant arguments showing prima facie that the amounts awarded had been disproportionately high in the circumstances of the case. It had therefore been of the utmost importance for the domestic courts to examine whether sanctions of that severity could have a chilling effect on the exercise of freedom of expression by the press, which was called upon to participate in discussions of matters of general public interest. However, the domestic courts’ judgments had remained silent on the arguments raised by the applicants in that respect.
The domestic courts therefore had not provided reasons to justify the severity of the sanctions imposed on the applicants, which did not appear to have borne a reasonable relationship of proportionality to the legitimate aim pursued. They had thus failed to provide “sufficient” reasons to justify the interference with the applicants’ right to freedom of expression, which had accordingly not been “necessary in a democratic society”.
Conclusion: violation (unanimously).
Article 41: finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage; claim in respect of pecuniary damage dismissed (the amounts due to T.A. had not yet been paid by the applicants and the domestic law provided for a possibility of reopening domestic proceedings following a finding by the Court of a violation).
