Inaccurate and unreliable publication of information about a government official without evidence. Condemnation of the newspaper to damages. Freedom of expression was not breached
JUDGMENT
Khural and Zeynalov v. Azerbaijan 06.10.2022 (app. no. 55069/11)
SUMMARY
The case concerned the civil liability of the Khural newspaper for publishing defamatory statements
about a well-known high-ranking government official.
The Court noted in particular that, although the newspaper could claim to have a public “watchdog”
function, reporting on issues of high public interest, it also had a duty to act in good faith in order to
provide accurate and reliable information in accordance with the ethics of journalism. The Court
found that the newspaper had failed in its “duties and responsibilities” under Article 10 of the
Convention.
PROVISION
Article 10
PRINCIPAL FACTS
The first applicant, Khural, is a newspaper published in Baku. It has legal personality under
Azerbaijani law. The second applicant, Avaz Tapdig oglu Zeynalov, a founder and the editor-in-chief
of Khural, was born in 1970 and lives in Baku.
In May 2010 an article concerning a well-known high-ranking government official, the head of the
President’s Office, Ramiz Mehdiyev, and his alleged relationships with a prominent Azerbaijani poet,
Bakhtiyar Vahabzade, and with the former head of the executive authority in Sheki, Ashraf
Mammadov, was published in Khural. The article suggested that Mr Mehdiyev hated Mr Vahabzad
and had tried, without success, to prevent his being elected as a Member of Parliament in 2000; had
organised a riot against Mr Mammadov in Sheki because he had not prevented Mr Vahabzad’s reelection;
had tried to have Mr Vahabzad’s mandate as an MP called off; and had prevented him from
being commemorated following his death.
The following month, Mr Mehdiyev lodged a civil action against Khural arguing that the article
contained false statements damaging his honour, dignity, and professional reputation, and alleging
that the title of the article and certain extracts in particular were defamatory.
The first-instance court found that the allegations in the article were statements affecting
Mr Mehdiyev’s reputation and lacking any factual basis, that Khural had failed to submit any
evidence proving those allegations and that the article amounted to an abuse of the right to
freedom of expression. It ordered the newspaper to issue an apology, to refute the statements and
to pay 10,000 Azerbaijani Manat (AZN) (which at the time was equivalent to approximately
10,000 euros (EUR)) in respect of non-pecuniary damage, to be transferred to an orphanage as
requested by the plaintiff.
The newspaper appealed, arguing that by publishing the article it had performed its role of public
“watchdog”, reporting on topics of high public interest; that Mr Mehdiyev, who was a well-known
high-ranking government official, should have been more tolerant of criticism; that the statements
made in the article constituted value judgments and therefore no proof was required; and that the
article merely reproduced and commented on information that had been published earlier that
month in the Gundam Khabar newspaper.
The Baku Court of Appeal upheld the first-instance court’s judgment, and the Supreme Court
dismissed a subsequent cassation appeal as unfounded.
THE DECISION OF THE COURT…
The Court observed that the Khural newspaper possessed a legal personality as a registered media
entity and consequently had its own rights and responsibilities, distinct from those of its founder and
editor-in-chief. As the latter had not been a party to the domestic civil defamation proceedings and
had not claimed to be the author of the article, the domestic proceedings could not be said to have
affected him as a journalist. Therefore, the Court found that he was not a victim of the alleged
violation of Article 10, and rejected this part of the application.
In cases concerning a conflict between the right to reputation and the right to freedom of
expression, the Court reiterated that domestic courts were expected to perform a balancing exercise
between the two rights, applying the criteria established in the Court’s relevant case-law and basing
their decisions on relevant and sufficient reasons. Finding that the domestic courts had failed to
carry out the required balancing exercise between the newspaper’s freedom of expression and
Mr Mehdiyev’s rights and interests under Article 8 (right to respect for private and family life) of the
Convention, it did so itself, on the basis of the criteria generally applicable to the dissemination of
statements affecting private life by the media – namely, whether the article in question had
contributed to a debate of public interest, the degree of notoriety of the person affected, the
content and form of the statements made, the way in which the information had been obtained and
its veracity, and the nature and severity of the penalty imposed.
It found that the statements made in the article could be seen to contribute to a debate of public
interest because they were about issues such as parliamentary elections, and the person concerned, Mr Mehdiyev, as the head of the President’s Office, was a well-known high-ranking government
official. Given that he was a public figure, the limits on acceptable criticism of him were wider.
Whereas the Court acknowledged that some of the statements had been charged with subjective
feelings and emotions and could be deemed to be “value judgments”, the article had mainly referred
to specific dates, persons, and incidents, which the Court considered to be assertions of facts. It
observed that the newspaper had not demonstrated that it had checked them for truthfulness.
Although it could claim to have a public “watchdog” function, reporting on issues of high public
interest, the newspaper also had a duty to act in good faith in order to provide accurate and reliable
information in accordance with the ethics of journalism. The Court concluded that the newspaper
had failed in its “duties and responsibilities” under Article 10 of the Convention.
Regarding the nature and severity of the penalty imposed, the newspaper had not complained of its
severity before the domestic courts, nor contested the measures taken to enforce it. Moreover, no
documents had been submitted to the domestic courts or to the Court detailing its financial situation
at the time. Consequently, there was nothing to show that the penalty had undermined its financial
situation to such a degree and had led to its closure as claimed. Moreover, it appeared that Khural
had ceased its paper version only; its Internet version (www.xural.com) had remained active and had
continued to publish. Furthermore, according to an article on its website, the failure to publish a
paper version of Khural had been due to the lack of a publisher.
The Court concluded that there had been no violation of Article 10 of the Convention.
