Information Note on the Court’s case-law 208
June 2017
Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC] - 17224/11
Judgment 27.6.2017 [GC]
Article 10
Article 10-1
Freedom of expression
NGOs bound by requirement to verify factual statements defamatory of private individuals:no violation
Facts – The applicants, a religious community of Muslims and three NGOs of ethnic Bosniacs in the Brčko District, sent a letter to the highest district authorities, voicing their concerns about the procedure for the appointment of director of the multi-ethnic public radio station and alleging that an editor at the station, who had been proposed for the position, had carried out actions which were disrespectful of Muslims and ethnic Bosniacs. Soon afterwards, the letter was published in three different daily newspapers. The editor brought civil defamation proceedings. The applicants were held liable for defamation and ordered to retract the letter, failing which they were to pay compensation for non-pecuniary damage.
Before the European Court the applicants complained that their punishment violated their right to freedom of expression as guaranteed by Article 10.
Law – Article 10: The decisions of the domestic courts amounted to an interference with the applicants’ freedom of expression. The interference had been prescribed by law and pursued a legitimate aim, namely that of the protection of the reputation of others. The central issue before the Court was whether the interference was necessary in a democratic society.
Accusing the editor of being disrespectful in regard to another ethnicity and religion was not only capable of tarnishing her reputation, but also of causing her prejudice in both her professional and social environment. Accordingly, the accusations attained the requisite level of seriousness as could harm her rights under Article 8. Therefore the Court had to verify whether the domestic authorities had struck a fair balance between the two values guaranteed by the Convention, namely, on the one hand, the applicant’s freedom of expression protected by Article 10 and, on the other, the editor’s right to respect for her reputation under Article 8.
The applicants were not in any subordinated work-based relationship with the public radio which would have made them bound by a duty of loyalty, reserve and discretion towards it and as such, there was no need for the Court to enquire into issues central to its case-law on whistle-blowing. The Court shared the opinion of the domestic authorities that the applicants’ liability for defamation should be assessed only in relation to their private correspondence with local authorities, rather than the publication of the letter in the media, as it had not been proven that they had been responsible for its publication.
When an NGO drew attention to matters of public interest, it was exercising a public watchdog role of similar importance to that of the press and could be characterised as a social watchdog. In the area of press freedom, by reason of the duties and responsibilities’ inherent in the exercise of freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest was subject to the proviso that they were acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism. The same considerations applied to an NGO assuming a social watchdog function.
In balancing the competing interests involved, it was appropriate to take account of the criteria that generally applied to the dissemination of defamatory statements by the media in the exercise of its public watchdog function.
(a) How well-known was the person concerned and what was the subject of the allegations – By having applied for the post of the radio’s director and bearing in mind the public interest involved in the information contained in the letter, the editor had to be considered to have inevitably and knowingly entered the public domain and laid herself open to close scrutiny of her acts. In such circumstances, the limits of acceptable criticism were accordingly to be wider than in the case of an ordinary professional.
(b) Content, form and consequences of the information passed on to the authorities – An important factor was the wording used by the applicants in the impugned letter. They had not explicitly said that part of the information which they passed on to the authorities had emanated from other sources, such as radio employees. They had introduced their letter with the words “according to our information”, but had not clearly indicated that they had acted as messengers. Therefore they implicitly presented themselves as having direct access to that information and in those circumstances they had assumed responsibility for the statements.
Another important factor was whether the thrust of the impugned statements had been primarily to accuse the editor or whether it had been to notify the competent State officials of conduct which to them appeared irregular or unlawful. The applicants maintained that their intention had been to inform the competent authorities about certain irregularities and to prompt them to investigate and verify the allegations made in the letter. However, the impugned letter did not contain any request for investigation and verification of the allegations.
As to the consequences of the above accusations passed on to the authorities, there could be little doubt that when considered cumulatively and against the background of the specific context in which they were made, the conduct attributed to the editor was to be regarded as particularly improper from a moral and social point of view. The allegations cast her in a very negative light and were liable to portray her as a person who was disrespectful and contemptuous in her opinions and sentiments about Muslims and ethnic Bosniacs. The domestic courts had held that the statements in question contained defamatory accusations that damaged her reputation and the Court found no reason to hold otherwise. That the allegations were submitted to a limited number of State officials by way of private correspondence did not eliminate their potential harmful effect on the career prospects of the editor as a civil servant and her professional reputation as a journalist. Irrespective of how the letter reached the media, it was conceivable that its publication opened a possibility for public debate and aggravated the harm to her dignity and professional reputation.
(c) The authenticity of the information disclosed – The most important factor relevant for the balancing exercise in the case was the authenticity of the information passed on to the authorities. In the context of press freedom, special grounds were required before the media could be dispensed from their ordinary obligation to verify factual statements that were defamatory of private individuals. Similarly to newspapers, the applicants were bound by the requirement to verify the veracity of the allegations submitted. That requirement was inherent in the Code of Ethics and Conduct for NGOs.
The domestic authorities had held that there was an evident inconsistency between what the appellants had been told by the radio’s employees and what they had reported in the letter. The applicants, as NGOs whose members enjoyed a good reputation in society, were required to present an accurate rendering of the employees’ account, as an important element for the development and maintaining of mutual trust and of their image as competent and responsible participants in public life. The domestic courts had established that, contrary to what had been alleged, the editor had not been the author of comments reported in the weekly newspaper. The verification of that fact prior to reporting would not have required any particular effort on the part of the applicants.
The Court found no reason to depart from the findings of the domestic courts that the applicants had not proved the truthfulness of their statements which they knew or ought to have known were false and accordingly concluded that the applicants did not have a sufficient factual basis for their impugned allegations about the editor in their letter.
(d) The severity of the sanction – The domestic authorities had ordered that the applicants inform the authorities that they had retracted their letter, failing which they would have to pay EUR 1,280 jointly in respect of non-pecuniary damage. The amount the applicants were ordered to pay was not, in itself, disproportionate.
The Court discerned no strong reasons which would require it to substitute its view for that of the domestic courts and to set aside the balancing done by them. It was satisfied that the disputed interference was supported by relevant and sufficient reasons and that the authorities of the respondent State had struck a fair balance between the applicants’ interest in free speech, on the one hand, and the editor’s interest in protection of her reputation on the other hand, thus acting within their margin of appreciation.
Conclusion: no violation (eleven votes to six).
(See Zakharov v. Russia, 14881/03, 5 October 2006; Björk Eiðsdóttir v. Iceland, 46443/09, 10 July 2012, Information Note 154; Pedersen and Baadsgaard v. Denmark [GC], 49017/99, 17 December 2004, Information Note 70)
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This summary by the Registry does not bind the Court.
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