Time for Strasbourg to stop the abuse of criminal libel laws

Across Europe, criminal libel laws continue to be routinely abused to silence legitimate criticism. In its most extreme form, we see this happen in places such as Azerbaijan, where journalists are serving jail time; but in other countries, too, criminal libel laws are routinely employed against journalists. Because of the availability of prison sentences and often hefty fines, and the fact that a conviction will lead to a criminal record, these laws cast a long shadow and have a serious chilling effect on free speech.

One might have thought that the European Court of Human Rights, in its de facto role as a constitutional human rights court for Europe, would have picked up on this and have issued an unequivocal ruling stating that the use of criminal libel laws, particularly when prison sentences are available, violates the right to freedom of expression. It would be a useful ruling to issue. It has had appropriate cases before it.

Unfortunately, it has not done so. In a series of recent cases, it has come close though. In its recent decision in Gavrilovici v. Moldova (15 December 2009, Application no. 25464/05), the Court stated: "[T]he Court recalls that imposing criminal sanctions on someone who exercises the right to freedom of expression can be considered compatible with Article 10 “... only in exceptional circumstances, notably where other fundamental rights have been seriously impaired” (par. 60)

Similarly, in Bodrožić and Vujin v. Serbia (23 June 2009, Application no. 38435/05) the Court held: "[R]ecourse to criminal prosecution against journalists for purported insults raising issues of public debate, such as those in the present case, should be considered proportionate only in very exceptional circumstances involving a most serious attack on an individual’s rights (para. 39)"

And in its decision in Cumpănă and Mazăre v. Romania (17 December 2004, Application no. 33348/96), the Grand Chamber explained – in relation to the imposition of a prison sentence – that such exceptional circumstances might include “cases of hate speech or incitement to violence” (para. 115; see also Mahmudov and Agazade v. Azerbaijan, par. 50).

Also last year, the Court held in Długołęcki v. Poland (Application no. 23806/03, 24 February 2009) that “when a statement, whether qualified as defamatory or insulting by the domestic authorities, is made in the context of a public debate, the bringing of criminal proceedings against the maker of the statement entails the risk that a prison sentence might be imposed” (par. 47); and see again, mutatis mutandis, Mahmudov and Agazade v. Azerbaijan, (Application no. 35877/04, 18 December 2008) para. 51).

While all these statements are helpful, in none of these cases did the Court go so far as to state that criminal libel per se violates freedom of expression. It probably wasn't necessary for it to do so on the facts before it - but it would have been useful had the Court taken a step back, assessed its backlog of Article 10 cases, realised many of them concerned criminal libel convictions and entered a categorical judgment of principle.

What the Court has done is refer to the availability of civil law remedies when it has found that the imposition of criminal sanctions on speech violated Article 10. For example, in Mahmudov and Agazade v. Azerbaijan the Court took into consideration that the criminal sanction imposed in that case “was undoubtedly very severe, especially considering that lighter alternatives were available under the domestic law” (at para. 50). And in Lyashko v. Ukraine (Application no. 21040/02, 10 August 2006), the Court held: "[T]he dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media." (par. 41f) The latter is in fact the standard Castells v. Spain statement re-hashed and with some emphasis added - but the Court could have gone much further.

There are in fact numerous cases where the Court has held that the use of civil law remedies in defamation is to be preferred over criminal law remedies (see, for example, Fedchanko v. Russia, 11 February 2010, Application no. 33333/04; Krutov v. Russia, 3 December 2009, Application no. 15469/04; Lombardo and others v. Malta, 24 April 2007, Application no. 7333/06). In Raichinov v. Bulgaria (20 April 2006, application no. 47579/99), the Court stated that "the assessment of the proportionality of an interference with the rights protected thereby will in many cases depend on whether the authorities could have resorted to means other than a criminal penalty, such as civil and disciplinary remedies" (par. 50).

Similarly, in Kubaszewski v. Poland (2 February 2010, Application no. 571/04), the Court emphasised that “the party who felt offended had recourse to means of civil law which, in the Court's view, are appropriate in cases of defamation" (par. 45).

All of this is helpful - but it stops short of what's really needed: a categorical statement denouncing criminal libel as a violation of freedom of expression. It's always a case of so close, yet so far.

The time has now come for it to make that final step. Criminal libel violates freedom of expression. Look at the annual reports of the CPJ, RSF, Article 19 and dozens other free speech groups, domestic and international. Criminal libel laws are abused to restrict legitimate journalism. The European Court is in a position to do something about it - now do it.

The case of Makarenko v. Russia will be before the Grand Chamber selection panel soon and presents an ideal opportunity. My plea to the Panel: accept the case, and let the Grand chamber issue a suitably Grand judgment and rid the continent of one of the most abused pieces of law around.

ECHR - Article 8 and reputation

While looking for something entirely unrelated, I stumbled across the case of A. v. Norway where the Strasbourg court (uncharacteristically for a case involving Articles 8 and 10) has an attempt at legal reasoning to justify bringing reputation within the scope of the rights protected under Article 8:

"63. The case raises essentially an issue of protection of honour and reputation as part of the right to respect for private life under Article 8 of the Convention. This provision, unlike Article 12 of the 1948 Universal Declaration of Human Rights and Article 17 of the 1966 International Covenant on Civil and Political Rights of the United Nations, does not expressly provide for a right to protection against attacks on a person's “honour and reputation”. However, as the Court has stated on previous occasions, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological or moral integrity of a person (see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 22; Raninen v. Finland, judgment of 16 December 1997, Reports of judgments and Decisions 1997-VIII, § 63) and can sometimes embrace aspects of an individual's physical and social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I; for a more detailed summary of the case-law, see Pretty v. the United Kingdom, no. 2346/02, ECHR 2002-III, § 61).

64. In more recent cases decided under Article 8 of the Convention, the Court has recognised reputation (see White v. Sweden, no. 42435/02, § 26, 19 September 2006; and Pfeifer v. Austria, no. 12556/03, § 35, ECHR 2007-...) and also honour (see Sanchez Cardenas v. Norway, no. 12148/03, § 38, 4 October 2007) as part of the right to respect for private life. In Pfeifer (cited above, § 35), the Court held that a person's reputation, even if that person was criticised in the context of a public debate, formed part of his or her personal identity and psychological integrity and therefore also fell within the scope of his or her “private life”. The same considerations must also apply to personal honour. In order for Article 8 to come into play, the attack on personal honour and reputation must attain a certain level of gravity and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004-VIII).

65. The question is whether the State has achieved a fair balance between the applicant's “right to respect for his private life” under Article 8 and the newspaper's right to freedom of expression guaranteed by Article 10 of the Convention (see Pfeifer, cited above, § 44; see also Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004-VI, with further references). In examining this question, the Court will have regard to the State's positive obligations under Article 8 of the Convention to protect the privacy of persons targeted in ongoing criminal proceedings (see Principle 8 in the Appendix to Recommendation Rec(2003)13 of the Committee of Ministers to member States on the provision of information trough media in relation to criminal proceedings, quoted at paragraph 37 above). It will also have regard to the principles established in its case-law concerning the freedom of the press to impart information on a matter of public concern, including on ongoing criminal proceedings, and the right of the public to receive such information (see, amongst other authorities, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, §§ 68-71, ECHR 2004-XI).

66. Against this background, bearing in mind the particular nature of the conflicting interests and the importance of the interests at stake, the Court considers that the competent authorities in the respondent State should be accorded a wide margin of appreciation in assessing the need to protect the applicant's private life under Article 8 as opposed to that of safeguarding the newspaper's freedom of expression under Article 10."

This is quite interesting and one wonder what to make of the last line. Given the widespread abuse of libel laws to restrict legitimate criticism, it would be far more useful had the Court given clear guidance along the lines of "this conflict must be seen within the parameters set by Article 10" - ie any restriction imposed on speech must be justified as clearly and demonstrably necessary. No wishy-washy weighing of rights, that never works and would only encourage those who already use the libel laws as a cloak behind which to hide their corrupt activities...