Information Note on the Court’s case-law 223
November 2018
Narodni List d.d. v. Croatia - 2782/12
Judgment 8.11.2018 [Section I]
Article 10
Article 10-1
Freedom of expression
Newspaper ordered to pay civil damages following publication of an article found to defame a judge: violation
Facts – The applicant company had been ordered to pay damages for defaming a judge in its weekly magazine. Two years prior to the publication of the article the judge in question had issued a warrant for the search of the applicant company’s premises, which the journalists at the magazine had considered to be in breach of their journalistic freedom. The judge again caught their attention when he attended a party to celebrate the opening of another newspaper started by a controversial local entrepreneur. That triggered the publication of the article which suggested that the judge had put himself in a situation of a potential conflict of interest, recalled the issuing of the search warrant two years before and argued that he should be “chained to the pole of shame”.
Law – Article 10: The case concerned the freedom of the press in criticising judges as to how they discharged their duties. A high level of protection of freedom of expression would normally be accorded where the remarks concerned a matter of public interest. However, regard had to be had to the special role of the judiciary in society. As the guarantor of justice, a fundamental value in a State governed by the rule of law, it had to enjoy public confidence if it was to be successful in carrying out its duties. It might therefore prove necessary to protect such confidence against gravely damaging attacks that were essentially unfounded, especially in view of the fact that judges who had been criticised were subject to a duty of discretion that precluded them from replying. Nevertheless they could be subject to personal criticism within the permissible limits, and not only in a theoretical and general manner. When acting in their official capacity they might thus be subject to wider limits of acceptable criticism than ordinary citizens.
The article in question had been intended to draw the attention of the public to issues concerning the functioning of the justice system. In order to distinguish between factual allegations and value judgments, it was necessary to take account of the circumstances of the case and the general tone of the remarks, bearing in mind that assertions about matters of public interest could, on that basis, constitute value judgments rather than statements of fact. The Court accepted the domestic courts’ finding that the article in question contained value judgments. However, because the domestic courts had found the article to be offensive and constituting a gratuitous personal attack on the judge, they had not further examined whether the value judgments contained in the article had had sufficient factual basis.
The Court dismissed the Government’s contention that the impugned article’s sole purpose had been to publicly discredit the judge in question. It was true that the article had been coloured by the journalists’ personal experience and discontent with that particular judge, however in the given circumstances that did not call into question the fact that the article concerned a matter of public interest. Although the article was caustic, containing rather serious criticism, exaggerations and a harsh metaphor, it was not insulting. The use of a caustic tone in comments aimed at a judge was not in principle incompatible with the provisions of Article 10 of the Convention.
The case concerned a situation in which a journalist – within the context of a debate on a matter of legitimate public interest – had expressed value judgments injurious to the reputation of a judge. The applicant company had been ordered to pay EUR 6,870 in non-pecuniary damage. It was difficult to accept that the injury to the judge’s reputation had been of such a level of seriousness as to have justified an award of that size. The size of that award might discourage open discussion of matters of public concern.
The interference with the applicant company’s freedom of expression had not been “necessary in a democratic society”.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See also Morice v. France [GC], 29369/10, 23 April 2015, Information Note 184)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy