The response of an aggrieved regarding an article as a “tool” and “guardian” of freedom of expression
JUDGMENT
Eker v. Turkey 24-10-2017(no. 24016/05)
SUMMARY
Journalist article criticizing the Union of Journalists. A request from the Union of Journalists for the publication of its reply and a court order to publish it without holding a hearing. No violation of the right to be heard, as the procedure did not violate the verbal and public nature of the proceedings, nor were the legal issues very complex. The right of reply is a guarantee of the plurality of information, enabling all persons to be protected from certain statements or opinions disseminated by the media that could be harmful to their privacy, honor or dignity .
No violation of freedom of expression, given that the national courts have achieved a fair balance between freedom of expression and protection of the publisher’s reputation.
PROVISIONS
Article 10
Article 6 § 1
PRINCIPAL FACTS
The applicant, Mustafa Eker, is a Turkish national who was born in 1971 and lives in Sinop (Turkey). At the relevant time he was the publisher of the local newspaper Bizim Karadeniz, which was circulated in Sinop.
In February 2005 Mr Eker published an editorial entitled Yolunuz açık olsun (“May your road be smooth”) in which he criticised the Sinop journalists’ association, alleging that its actions contradicted its main objective and that it was no longer fit for its intended purpose. The president of the association, taking the view that Mr Eker’s article had undermined his dignity and that of the other leaders of the association, sent a reply correcting the article, but Mr Eker refused to print it in his newspaper.
THE DECISION OF THE COURT
Article 6 § 1 (right to a fair trial)
1. Lack of a hearing
The Court reiterated that the public character of proceedings constituted a fundamental principle enshrined in Article 6 § 1 of the Convention, but that the obligation to hold a public hearing was not absolute. It also noted that the right of reply was an integral part of the Turkish legal system, which provided for both parties to the dispute to lodge appeals (both the media outlet and the person wishing to have a reply published).
In this case the Sinop journalists’ association had applied to the Magistrate’s Court seeking publication of its reply; Mr Eker had been barred from participating in those proceedings under section 14 of Law no. 5187. However, it had been open to him to lodge an appeal with the Criminal Court. The Magistrate’s Court and the Criminal Court had examined respectively the association’s application for a publication order and Mr Eker’s appeal, on the basis of the case file and without holding a hearing. The issue to be determined by those courts was whether the association’s honour and dignity had been harmed and whether it was entitled to exercise a right of reply. Next, the courts had had to examine the content of the reply (to ensure that it did not contain anything that might amount to an offence and did not infringe the rights of others) and its form (to ensure that it was not longer than the article it was intended to correct).
The Court considered that these issues, which called for a textual and technical examination of the form and content of the reply, could be examined and determined adequately on the basis of the parties’ observations and the documents submitted by them. In the present case there had been no issues of credibility requiring oral presentation of evidence or cross-examination of witnesses. The Court noted in that connection that proceedings concerning the right of reply were conducted separately from any subsequent proceedings for defamation, during which the accuracy of the claims made could be tested in strict compliance with the adversarial principle. The aim of the rightof-reply proceedings at that stage was to ensure a balance between the criticism directed against an individual and the redress he or she sought.
Furthermore, proceedings concerning the right of reply under Turkish law came under an exceptional emergency procedure in which the Magistrate’s Court had to rule on applications for publication orders under the right of reply within three days, and the Criminal Court had three days in which to rule on any appeal against the publication order. Promptness was therefore a key element in proceedings concerning the right of reply, and this requirement for the domestic courts to deal swiftly with cases concerning the publication of a reply could be considered necessary and justifiable in order to enable untruthful information published in the media to be contested, and to ensure a plurality of opinions in the exchange of ideas on matters of general interest. The Court reiterated in that regard that news was a perishable commodity and that to delay its publication, even for a short period, might well deprive it of all its value and interest.
Accordingly, the Court found that in the present case, in the context of the proceedings concerning the right of reply, where the legal issues had not been especially complex and the domestic courts had been called upon to rule promptly, the fact that they had formed their opinion on the basis of the case file, without holding a hearing, did not breach the requirements of Article 6 § 1 regarding the oral and public nature of proceedings. There had therefore been no violation of Article 6 § 1 of the Convention on account of the lack of a hearing before the domestic courts.
2. Other complaints
The Court found Mr Eker’s remaining complaints under Article 6 § 1 of the Convention to be manifestly ill-founded and dismissed them pursuant to Article 35 §§ 3 and 4 of the Convention.
Article 10 (freedom of expression)
The Court considered that the publication of the journalists’ association’s reply had concerned the exercise of its freedom of expression. It also found that the requirement for Mr Eker to print a reply constituted interference with his right to freedom of expression. That interference had been prescribed by law2 and had pursued the legitimate aim of protecting the reputation and rights of others. The Court further specified that the aim of the right of reply was to afford all persons the possibility of protecting themselves against certain statements or opinions disseminated by the mass media that were likely to be injurious to their private life, honour or dignity.
As to whether the interference had been necessary, the Court reiterated that, in a democratic society, the right of reply was a guarantee of the pluralism of information that must be respected. In the present case Mr Eker had been required to publish a text from the Sinop journalists’ association responding to the criticisms made of its leaders. The text had given details of the association’s functioning and the work carried out by its members, and had provided answers to the questions raised by Mr Eker in his editorial. It had also contained criticism of Mr Eker and implied criticism of his professional integrity. However, the domestic judicial bodies had taken the view that the text in question had related to Mr Eker’s editorial and had not contained anything that might constitute an offence. In that regard the Court observed that when exercising its supervisory function, the Court’s task was not to take the place of the national courts but rather to review, in the light of the case as a whole, whether the decisions they had taken pursuant to their power of appreciation were compatible with the provisions of the Convention relied on.
In the present case, in the Court’s view, the domestic courts could be said to have struck a fair balance between Mr Eker’s right to freedom of expression and the right of the association in question to protection of its reputation. Although the reply had contained possibly disparaging remarks about Mr Eker, the Court considered that it had not overstepped the limits of permissible criticism. The tone of the reply, moreover, had been substantially similar to that used by Mr Eker in his editorial. Furthermore, the impugned publication order had been proportionate to the aim pursued, as Mr Eker had not been required to amend the content of his article. In addition, there had been nothing to prevent him from re-publishing his version of the facts. The Court therefore held that there had been no violation of Article 10 of the Convention(echrcaselaw.com editing).
