Information Note on the Court’s case-law No. 96
April 2007
Lombardo and Others v. Malta - 7333/06
Judgment 24.4.2007 [Section IV]
Article 10
Article 10-1
Freedom of expression
Elected councillors and newspaper editor found guilty of libel and defamation for having asserted that the local council had ignored public opinion: violation
Facts: The first three applicants are Nationalist Party councillors elected to a local council, whereas the fourth one, Mr Zammit, is the editor of a local newspaper. In 2001 a dispute arose between the central government and the local council about a road project. The matter was brought before the domestic courts and gave rise to discussion in the local council and press. During a council meeting the applicants unsuccessfully tabled a motioncalling for a public meeting to be held about the project. Later in 2001 the first three applicants published an article in the local newspaper, referring to the disagreement about the project and stating that the council “had not consulted the public” and was “ignoring public opinion” on the matter. As a result, the council sued the applicants, in their capacity as authors and editor of the article, for libel and defamation. The applicants challenged that claim, arguing that the article amounted to fair comment in view of the rejection of their motion to hold a public meeting. In their opinion, the council’s efforts to examine the issues relating to the dispute had not involved public consultation. The Court of Magistrates found the article libellous and defamatory on the ground that the allegations of fact by the first three applicants had not been proved. On the contrary, public consultation had taken place from the outset: three public meetings had taken place between 1995 and 2001; an urban planner’s report had been made public; a questionnaire had been distributed to local residents and the Minister responsible for roads and the Director of the Department of Roads had spoken in public about their discussions with the local council. The Court of Magistrates further noted that Mr Zammit had been aware of the controversy, had believed the comments to be justified and had given the Local Council the opportunity to reply. The applicants were ordered to pay approximately EUR 4,800 in damages. The judgment was subsequently upheld on appeal, except for the damage award which was reduced to approximately EUR 1,400. The Civil Court rejected the applicants’ constitutional complaint, noting in particular that the amount of damages had been reduced and had been ordered as a result of civil rather than criminal proceedings. The Constitutional Court upheld that judgment.
Law: The parties disagreed as to whether that interference with the applicants’ freedom of expression had pursued the legitimate aim of protecting the reputation or rights of others. The Court considered that the latter, in exceptional circumstances, could justify a measure banning statements which had criticised the acts or omissions of an elected body such as a council. In the present case, the Court was prepared to assume that that aim could be relied on. The main issue was therefore whether the interference had been “necessary in a democratic society”. Freedom of expression was especially important for elected representatives, who drew attention to the electorate’s preoccupations and defended public interests. Moreover, the Court of Magistrates had acknowledged that the fourth applicant had believed the comments in the article to have been justified and had invited the local council to reply.
The limits of permissible criticism were wider for politicians than for a private citizen and were wider still with regard to a government. It followed that an elected political body such as a local council should also be expected to display a higher degree of tolerance to criticism. There was little scope for restricting political speech or debate on questions of public interest such as the subject matter of the applicants’ article. Moreover, political debate did not require unanimous agreement as to the interpretation of particular words. The rejection of the applicants’ motion had provided a sufficient factual basis for the allegation that the local council had not consulted the public so as to allow that allegation to be construed as a value judgment. Even assuming it had not been a value judgment, the interpretation given by the applicants was not manifestly unreasonable. The allegation concerning public opinion having been ignored was clearly a value judgment which was not susceptible of proof. Nothing showed that those value judgments had not been made in good faith and the distinction between statement of fact and value judgment was less important where the statements had been made in the course of a lively political debate.
The damages which the applicants had been ordered to pay represented a sanction which was likely to discourage the applicants from criticising the local council in the future. The applicants’ statement had not exceeded the acceptable limits of criticism and the domestic courts had overstepped the narrow margin of appreciation afforded to them to restrict discussion on matters of public interest. In sum, the interference had been disproportionate to the aim pursued and had not been “necessary in a democratic society”.
Conclusion: violation (unanimously).
Article 41 – EUR 1,460 in respect of pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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