The national courts ordered a journalist to pay a small amount as moral damage. No violation of the freedom of expression
JUDGMENT
Milosavljević v. Serbia 21.09.2021 (no. 2) (app. no. 47274/19)
SUMMARY
Freedom of expression, public figures and responsible journalism. Balancing the freedom of expression of the journalist and protecting the personality of the victim.
The plaintiff was ordered by a court order to pay, together with two other defendants, to the administrator of the city’s public cemetery the sum of 1,241 for non-pecuniary damage and expenses for insulting the personality suffered by the latter because in an article the plaintiff called him, among others “Smuggler with FERRE shoes who does not achieve the goals of the project he has undertaken”.
The applicant brought an action for breach of the right to freedom of expression.
The Court reiterated the firm principles that the Contracting States have a certain margin of appreciation in assessing the necessity and scope of any intervention in freedom of expression protected by Article 10 of the ECHR. He further clarified that despite the essential role of the press in a democratic society, paragraph 2 of Article 10 does not guarantee completely unrestricted freedom of expression even in matters of serious concern to the public.
The ECtHR found that Mr A. was a public figure and considered that the consequences of publishing the article on him were clearly quite detrimental to him. It therefore held that by awarding a small amount of damages a fair balance had been struck between the applicant’s freedom of expression on the one hand and the need to protect A.’s personality on the other, and concluded that the domestic courts’ decision did not infringe on expression of the applicant.
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Ranko Milosavljević, is a Serbian national who was born in 1960 and lives in
Kragujevac (Serbia).
The application concerns a civil defamation case brought against Svetlost, a weekly news magazine
based in Kragujevac, and the applicant, the magazine’s editor-in-chief, following publication in 2009
of an article alleging corruption in the management of the city’s cemetery.
The article itself, written by Ms B, a journalist employed with Svetlost, in so far as referred to by the domestic courts, reads as follows:
[1.] … [In connection with an earlier case allegedly involving the building of a family crypt in the centre of the Kragujevac cemetery by a local businessman referred to as Pharaoh,] … a case which greatly agitated the citizens [of Kragujevac] because of the digging up of multiple existing graves … [, CCU stated that all this was] … lawful and market-based!
[2.] Enforcing discipline against the dead and calling out the living for their debts, CCU, just like any other debt enforcer, started issuing threats of a most bizarre nature which this journalist cannot now convey … [for the sake of decency.]
[3.] If we were a State based on the rule of law and a civil society, this man would have to be removed from his position immediately for not being up to it, both as a person and professionally.
The domestic courts found that the article had damaged the honour and reputation of the cemetery’s director and
ordered the applicant and the other defendants to pay compensation plus costs in the amount of
approximately 1,241 euros.
Relying on Article 10 (freedom of expression), the applicant complains about being sanctioned for
the article’s publication, arguing that it contributed to a debate on a matter of public interest,
namely the functioning of a public burial company.
THE DECISION OF THE COURT…
Existence of an interference
It is not disputed between the parties that the final civil judgment rendered against the applicant, as an editor-in-chief, by the Kragujevac Appeals Court on 23 December 2020 amounted to an “interference by [a] public authority” with his right to freedom of expression (see paragraph 12 above; see also, mutatis mutandis, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, §§ 9 and 66, ECHR 2007‑IV, Orban and Others v. France, no. 20985/05, § 47, 15 January 2009, with further references, and Gutiérrez Suárez v. Spain, no. 16023/07, §§ 28 and 29, 1 June 2010, as regards the situation of authors as well as publishers, publication directors and editors responsible for their publications). It is, however, understood that the publication of Mr A’s photograph in the impugned article was not ultimately deemed to amount to a violation of his privacy by the said appellate court, which was why the applicant clearly suffered no interference with his freedom of expression on this account in particular.
An interference with one’s freedom of expression will infringe the Convention unless it satisfies the requirements of paragraph 2 of Article 10. It must therefore be determined whether it was “prescribed by law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” in order to achieve those aims.
(b) Whether the interference was prescribed by law
The Court notes that the legal basis for the adoption of the final civil judgement in question was, inter alia, the relevant provisions of the Public Information Act and the Obligations Act. The Court finds that these provisions were both adequately accessible and foreseeable, that is to say that they were formulated with sufficient precision to enable an individual – if need be with appropriate advice – to regulate his or her conduct (see, for example and among many other authorities, The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30, and Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, §§ 123-125, 17 May 2016; see also, in the Serbian context, Tešić v. Serbia, nos. 4678/07 and 50591/12, § 64, 11 February 2014). The Court, therefore, concludes that the interference at issue was “prescribed by law” within the meaning of Article 10 § 2 of the Convention.
(c) Whether the interference pursued a legitimate aim
In agreement with the position of the domestic courts, the Government argued that the interference in question had pursued the legitimate aim of “the protection of the reputation or rights of others”. The Court finds no reason to hold otherwise and accepts therefore that the interference with the applicant’s freedom of expression pursued one of the legitimate aims envisaged under Article 10 § 2 of the Convention.
(d) Necessary in a democratic society
Whether the article made a contribution to a debate of public interest
The public interest ordinarily relates to matters which affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree, especially in that they affect the well-being of citizens or the life of the community. This is also the case with regard to matters which are capable of giving rise to considerable controversy, which concern an important social issue, or which involve a problem that the public would have an interest in being informed about.
With this in mind, the Court considers that the published article in the present case clearly concerned an issue of public interest in so far as it referred to the functioning of a public burial company entrusted with the management of the Kragujevac City’s cemetery. The domestic civil courts, for their part, agreed with this by noting that there had been no justified interest for the public to be informed of Mr A’s private life but then going on to carry out an analysis of the allegations to do with the functioning of the public burial company.
(β) Whether Mr A can be considered a “public figure”
The Court reiterates that a distinction has to be made between private individuals and persons acting in a public context, as political or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures (see Minelli v. Switzerland (dec.), no. 14991/02, 14 June 2005; Petrenco v. Moldova, no. 20928/05, § 55, 30 March 2010; and Milisavljević, cited above, § 34) in respect of whom the limits of critical comment are wider, as they are inevitably and knowingly exposed to public scrutiny and must therefore display a particularly high degree of tolerance (see Kuliś v. Poland, no. 15601/02, § 47, 18 March 2008; Ayhan Erdoğan v. Turkey, no. 39656/03, § 25, 13 January 2009; and Milisavljević, cited above, § 34). Persons may, in this context, be considered as public figures based on, inter alia, their acts and/or position through which they have entered the public arena (see Kapsis and Danikas v. Greece, no. 52137/12, § 35, 19 January 2017, with further references), as well as in view of the institutional dimension and importance of their duties (see, for example, Chalabi v. France, no. 35916/04, § 42, 18 September 2008).
In their observations, both parties agreed that Mr A had been a “public figure” within the meaning of Article 10 of the Convention at the material time, as did the civil courts in their judgments rendered earlier. Given the above case-law on the issue and the fact that Mr A had in fact been responsible for the management and operation of an important public utility company, the Court finds no reason to disagree and concludes that as a public figure Mr A had to show, in general, a greater degree of tolerance than a private individual faced with criticism in a printed publication.
The consequences of the publication of the article in respect of Mr A
As already noted above, the right to protection of reputation is a right which is guaranteed under Article 8 of the Convention as part of the right to respect for private life.
Given the nature of the allegations concerning Mr A published in paragraphs 6 and 9 of the impugned article, the Court considers that the consequences of their publication were clearly sufficiently serious so as to attract the protection of Article 8 in respect of Mr A’s reputation. The domestic civil courts were, clearly, also of this opinion, having ruled that Mr A had in fact suffered a breach of his honour as well as his reputation.
The severity of the sanction imposed on the applicant
The nature and severity of the sanction imposed is also a matter of particular importance in assessing the proportionality of the interference under Article 10 § 2. The amount of any compensation awarded must likewise “bear a reasonable relationship of proportionality to the … [moral] … injury … suffered” by the plaintiff in question.
Turning to the present case, the Court considers that the final civil court judgment rendered against the applicant, ordering him, together with the other two respondents jointly, to pay an RSD equivalent of approximately EUR 1,241 for the mental anguish suffered and the costs incurred, plus statutory interest, cannot as such be deemed severe, particularly given the number of the respondents in question and the fact that the amounts awarded were never enforced against any of them.
Conclusion
In the light of the above considerations, the Court is of the opinion, particularly given some of the allegations contained in paragraphs 6 and 9 of the article, that a fair balance has been struck between the applicant’s freedom of expression, on the one hand, and Mr A’s interest in the protection of his reputation on the other. It finds therefore no need to substitute its views in this regard for those of the domestic courts.
It is further noted that despite the essential role of the press in a democratic society, paragraph 2 of Article 10 does not guarantee a wholly unrestricted freedom of expression even with respect to press coverage involving matters of serious public concern (see, for example, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999‑III, and Monnat v. Switzerland, no. 73604/01, § 66, ECHR 2006‑X). The protection afforded by Article 10 of the Convention to journalists, as well as to editors by implication, is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism.
In view of the foregoing, there has been no violation of Article 10 of the Convention.
