FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 38681/08
by Christopher ROBERTS and Barry ROBERTS
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 5 July 2011 as a Chamber composed of:
Lech Garlicki, President,
Nicolas Bratza,
Ljiljana Mijović,
Sverre Erik Jebens,
Päivi Hirvelä,
Ledi Bianku,
Vincent A. De Gaetano, judges,
and Lawrence Early, Registrar,
Having regard to the above application lodged on 22 July 2008,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Christopher Roberts (“the first applicant”) and Mr Barry Roberts (“the second applicant”), are British nationals who were born in 1959 and 1956 respectively. The first applicant lives in Benfleet and the second applicant lives in Bexleyheath.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The background facts
3. The applicants are brothers and active members of the British National Party (“BNP”), a political party. At the time of the events in question, the first applicant, the London and Essex regional organiser for the BNP, was a potential candidate for the BNP in the London mayoral election due to take place in 2004. He was also a candidate for the BNP in the European elections in 2004 and in the United Kingdom general election of 2005. The second applicant was a candidate for the BNP in the 2001 and 2005 general elections.
4. On 9 March 2003 the applicants attended a BNP rally in London to promote the campaign for the London mayoral and local elections due to take place in 2004. Over GBP 1,000 in donations was collected during the rally.
5. Following the rally, in its March 2003 British Nationalist newsletter, the BNP published a report alleging that D. and R. had forcibly entered the first applicant’s home following the meeting of 9 March and stolen the collection money. In the article, headed “London ‘rally’ shambles”, it was reported:
“Last month a meeting to reinvigorate the party in London’s East End turned into a shambles. The meeting was hijacked by disruptive elements, many of whom not members of our party – and the event served not to breathe new life into the East End and support the party’s GLA [Greater London Authority] campaign next year, but to attack the party, its leadership and add personal grievances of all kinds.
The keynote address was given by the party’s previous, old leader, Mr John Tyndall, who launched a strong attack upon the party. This is merely the latest in a continual barrage of attacks that began last summer, the object of which is to cause as much disruption as possible.
...
[D.] of Stepney, east London is henceforth a proscribed person. A non-member, [D.] with [R.] (himself a proscribed person) and one other forcibly entered the home of London & the Essex regional organiser Chris Roberts on 9/3/03 and, with threats, stole £1,024 collection taken at the day’s east London meeting, [D.] and [R.] were prominent in turning the East End rally into a farcical beer garden. The matter is now in the hands of the police.”
6. The April 2003 edition of Spearhead, a far-right magazine owned and edited by Mr John Tyndall, the BNP’s former leader, also reported on the rally in an article headed “London rally best for years”:
“East London saw one of its best BNP meetings for many years on 9th March when an audience of 120 gathered above a pub in Newham to hear speeches aimed at generating support for the party’s campaign to contest the London mayoral election and the elections to the Greater London Authority in 2004.
...
The meeting ended in tremendous enthusiasm and a collection raised a really splendid £1,024.00.”
7. The rally was also reported in an article by Mr Nick Knowles in the April 2003 edition of Searchlight, a magazine that reports on the activities of far-right groups in Europe and which is openly critical of the BNP:
“The fractious infighting in the British National Party shows little sign of abating as its north-west regional organiser resigns and its former leader, John Tyndall, rallies forces against the current leadership in London.
...
Over 100 London activists attended the meeting arranged by the BNP east London organiser ...
Despite the best efforts of Chris Roberts to keep to the set agenda, Tyndall and others openly attacked the leadership, Tyndall’s exceptionally robust and bitter speech never mentioned anyone by name, referring only to ‘our chairman’ and ‘our leadership’. His words were punctuated by bursts of applause, especially when he directly criticised the party leadership.”
8. The story was picked up by Mr Gerry Gable in the May 2003 edition of Searchlight. In an article headed “Night of the short knives”, he reported:
“... Shortly after the rally the BNP March members’ bulletin came out with the claim that [D.] and [R.] had turned up at Roberts’ house and stolen the money collected at the meeting ... The party claims that the police have been informed about the alleged theft.
The story doing the rounds is that [D.] and [R.] initially went to collect the £200 booking fee for the meeting room, which Roberts had forgotten to pay in his rapid exit from the pub, but seeing all the money it appears that temptation got the better of them and they took the lot.”
9. D. and R. responded to the allegations in the June and August editions of Spearhead, setting out their version of the events of 9 March 2003 and denying the allegations of forced entry and attempted theft of the collection money.
10. In October 2003, Mr Gable wrote a further article for Searchlight in his regular column called “News from the sewers”. The article was headed “BNP London Row Rumbles on” and, in so far as material, reported as follows:
“... the BNP’s March bulletin accused two members of stealing the collection from the meeting. The story that was put around was that [D.] and [R.] ... stole the money from the house of Chris Roberts, the London and Essex organiser. It appears that the police investigated but decided not to act.
Perhaps the police are now more interested in Roberts and his brother Barry. [D.] and [R.] recently issued a long open letter attacking Griffin [the leader of the BNP] and his supporters, including Chris Roberts. It explains that it was Roberts who stole the money from the rally and that although it went against the grain, [D.] and [R.] reluctantly threatened to report him to the police. After Roberts angrily returned the money, the letter alleges, he and his brother Barry threatened to ‘kneecap, torture and kill’ [D.], [R.] and their respective families.
The letter complains that the Griffin leadership described Roberts as a self-made millionaire who was leaving the City to devote his time and fortune to the BNP, but he turned out to be a disappointment. ‘It was now quite obvious that a little village somewhere, was missing its idiot’.”
2. The domestic proceedings
11. The applicants commenced libel proceedings against Searchlight and Mr Gable on 30 September 2004 in respect of the article of October 2003. The defendants raised two defences to the claim: justification (that the facts reported were true) and qualified privilege (that there was a public interest in the reporting and that the statements had been made without malice – see Reynolds at paragraph 26 below). In particular, the defendants relied upon the “reportage” variant of the qualified privilege defence, set out in the case of Al-Fagih, which permits journalists to repeat allegations that have already been published without verifying the accuracy of the allegations in certain circumstances (see paragraphs 27-28 below).
12. On 26 and 27 April 2006 a single judge sitting in the High Court heard a preliminary issue on the question of qualified privilege. In his judgment of 12 May 2006, he explained the general background as follows:
“... The BNP regularly places candidates before the electorate, both in London and elsewhere, and that in itself could be said to render the allegations and cross‑allegations (especially of apparent criminality) as of ‘significant interest’, but it is also relevant to have in mind that there was in or about October 2003, when the article was published ... ‘heightened public interest in the BNP’. This was in large measure because Mr Nick Griffin, who had taken over the leadership from Mr John Tyndall in 1999, had been given a high media profile in the course of presenting the party and its policies to the electorate.
My attention was drawn, in particular, to an article published in March 2003 in the BNP journal Identity ... [which] attracted a certain amount of media attention. Moreover, following success in local elections in Lancashire in 2002, the BNP had begun to put up more candidates in elections. Because of this high profile, people were naturally taking a greater interest in the party and also in policy and doctrinal divisions among its activists. A focus of particular interest was the split between two factions generally identified, respectively, with Mr Griffin and Mr Tyndall ...”
13. He summarised the various articles published in the British Nationalist, Spearhead and Searchlight (see paragraphs 5-10 above) and continued:
“24. It was against this background that the Defendants reported the [D./R.] denial of the allegation of criminality, to which they had already given currency in the May issue. It is clear to me that readers of the words complained of would be well aware of Mr Gable’s antipathy to the BNP and that he was merely reporting the conflicting positions rather than taking sides with either. They could hardly conclude that he had been present as an eye-witness and would, therefore, realise that he was not in a position to espouse one version or the other. What would be of interest to the reader would be the fact that the allegations and cross-allegations of criminal offences were being made by BNP factions against each other, and ‘not necessarily [their] truth or falsity’ ... It seems to me that these were allegations they were entitled to know about, in the context of a party presenting itself before the electorate of London, and especially so since the allegations against Messrs [D.] and [R.] had already been reported.”
14. Referring to the relevant criteria for establishing the defence of qualified privilege set out by Lord Nicholls of Birkenhead in the House of Lords judgment of Reynolds (see paragraph 26 below), the judge noted that the allegations were serious and that there was a legitimate general public interest in the subject matter. While no steps had been taken to verify the information, this was not fatal in a reportage case where the fact of the allegations being made was the important element of the story. The judge further observed that the source was less significant in a reportage case, as it was not the reliability of either side which mattered but rather the nature of the quarrel. He commented that there was no urgency about the matter, that no investigation into the allegations had been conducted and that no comment was sought from the applicants. However, he noted that both claimants had in any case accepted that they would never have discussed political matters with anyone from Searchlight and, in light of the long history of Mr Gable’s interaction with the BNP, he considered that the failure to make an approach to the applicants was reasonable. Finally, he considered it obvious to readers that each of the factions was denying impropriety and accusing the other and noted that Mr Gable was merely reporting the accusations and not “adopting” them. He concluded:
“36. There is a duty ... upon political commentators generally ... to cover the goings‑on in political parties, including disputes, fully and impartially. There is a corresponding legitimate interest in the public, and especially those who have a vote, to have such information available. More specifically, Searchlight having covered the allegations against Messrs [D.] and [R.] in its May 2003 issue, it would also be incumbent on it to cover their denials ...
37. In all the circumstances, I have no hesitation in upholding the privilege defence.”
15. He accordingly dismissed the applicants’ claim.
16. The applicants applied for leave to appeal to the Court of Appeal. Leave was refused on the papers by a single judge of the Court of Appeal on 9 August 2006, who endorsed the approach taken by the High Court judge, observing that:
“[The judge’s] approach, which would undoubtedly be taken by this court too, is that libel litigation is not the conduct of political vendettas by other means. The article was a gratified report by the BNP’s enemies of a venal falling out between some of its leading members and ex-members.”
17. At the renewed hearing for leave on 8 November 2006, leave was granted by two Court of Appeal judges.
18. The appeal was heard on 22 February 2007 before three judges of the Court of Appeal, including the judge who had initially refused leave to appeal on the papers. The applicants wished their counsel to apply for the judge who had refused leave to appeal to withdraw from the case. However, they were advised against this course of action by their counsel on the grounds that a judge would not allow his political opinions to influence his judgment and in any case such an application risked antagonising the judge in question.
19. On 12 July 2007, the Court of Appeal handed down its judgment dismissing the appeal.
20. As to the scope of the appeal, the judge who delivered the leading judgment of the court noted that in light of the pleaded defence of reportage, which had only recently been introduced to the jurisdiction through Al‑Fagih, the appeal gave the court the opportunity to explore the nature and extent of that defence and its place in the libel law landscape. Following an examination of domestic and Strasbourg authorities, the judge summarised the position as follows:
“53. ... [T]he journalist has a good defence to a claim for libel if what he publishes, even without an attempt to verify its truth, amounts to reportage, the best description of which gleaned from these cases is that it is the neutral reporting without adoption or embellishment or subscribing to any belief in its truth of attributed allegations of both sides of a political and possibly some other kind of dispute ...”
21. The judge considered that the following matters had to be taken into account when examining whether there was a defence on the ground of reportage:
“(1) The information must be in the public interest.
(2) ... the publisher will not normally be protected unless he has taken reasonable steps to verify the truth and accuracy of what is published ... This is where reportage parts company with Reynolds. In a true case of reportage there is no need to take steps to ensure the accuracy of the published information.
(3) ... To qualify as reportage the report, judging the thrust of it as a whole, must have the effect of reporting, not the truth of the statements, but the fact that they were made ...
(4) Since the test is to establish the effect of the article as a whole, it is for the judge to rule upon it in a way analogous to a ruling on meaning ...
(5) This protection will be lost if the journalist adopts the report and makes it his own or if he fails to report the story in a fair, disinterested and neutral way ...
(6) To justify the attack on the claimant’s reputation the publication must always meet the standards of responsible journalism as that concept has developed from Reynolds, the burden being on the defendants ...
(7) The seriousness of the allegation ... is obviously relevant for the harm it does to reputation if the charges are untrue. Ordinarily it makes verification all the more important ...
(8) The relevant factors properly applied will embrace the significance of the protagonists in public life and there is no need for insistence as pre-conditions for reportage on the defendant being a responsible prominent person or the claimant being a public figure ...
(9) The urgency is relevant ... in the sense that fine editorial judgments taken as the presses are about to roll may command a more sympathetic review than decisions to publish with the luxury of time to reflect and public interest can wane with the passage of time ...”
22. On the facts of the case, the judge considered that the October 2003 article covered a subject of legitimate public interest. He further found that the allegations were made in the context of reportage and were not adopted by the respondents as their own, thus absolving the respondents from verifying the truth of the allegations. While the allegations were serious, the thrust of the article related to the disagreement as to who should take charge of the collection money and not whether one or the other of the protagonists had stolen it. The judge was of the view that the public were entitled to know that the BNP was divided by this dispute. He observed that the source of the information was attributed and, given that the truth of the information was not being asserted, the reliability of the source was of little significance. In this regard, he noted that Mr Gable had made some inquiries of other sources in order to establish that the dispute was real. Although no comment was sought from the applicants, this was understandable in light of the history between them and Mr Gable. While the tone was somewhat sarcastic, it was nonetheless as neutral and disinterested as any Searchlight article on the BNP could be. He concluded that the impugned article constituted a piece of responsible journalism.
23. On 19 July 2007 the applicants wrote to the judge who had initially refused leave to appeal on the papers and who had been a member of the Court of Appeal bench which heard the appeal (see paragraph 18 above) accusing him of bias. They referred to the fact that he had refused leave to appeal in the case on the papers (see paragraph 16 above) in a manner which, they considered, indicated his hostility towards their case. They further complained that following the appeal hearing but prior to the delivery of the judgment, the judge had attended a conference on extreme speech and democracy, at which persons hostile to the BNP and acquainted with Mr Gable had been present. They asked for confirmation of whether the judge was a subscriber to Searchlight. The director of the Court of Appeal responded on 14 August 2007 denying that there was any lack of impartiality and explaining that no political issues had been considered by the Court of Appeal in the decision, which concerned solely the development of libel law.
24. On 10 September 2007 the applicants wrote to the Court of Appeal judge who had delivered the leading judgment in their case, referring to the fact that the judge who had initially refused leave to appeal had formerly been a member of the Communist party and alleging that as a consequence he was “diametrically opposed to the BNP”. They referred again to the fact that the judge had attended a conference on extreme speech and pressed for a response as to whether he subscribed to Searchlight. In a subsequent letter dated 14 September 2007, the applicants wrote again to the judge who had delivered the leading judgment to reiterate their complaint of bias, having discovered that Mr Gable had stood as a parliamentary candidate for the Communist Party at the time when the judge who had refused leave on the papers was a member of that party. They concluded that Mr Gable and the judge were therefore personally acquainted with one another.
25. The applicants subsequently applied for leave to appeal the decision of the Court of Appeal. In their grounds of appeal dated 10 August 2007, they contested the Court of Appeal’s decision regarding the defence of reportage. They did not challenge the impartiality of the judge in the appeal proceedings. They were refused leave to appeal by the House of Lords on 31 January 2008.
B. Relevant domestic law and practice
1. Qualified privilege as a defence to libel
26. The defence of qualified privilege was examined by the House of Lords in Reynolds v. Times Newspaper Limited [1999] UKHL 45. In the context of his opinion, Lord Nicholls listed ten factors relevant to whether a publication could avail itself of a qualified privilege defence to libel proceedings, noting that the factors set out were illustrative only. The relevant factors he identified were:
“1. The seriousness of the allegation ...
2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
3. The source of the information ...
4. The steps taken to verify the information.
5. The status of the information ...
6. The urgency of the matter ...
7. Whether comment was sought from the plaintiff ... An approach to the plaintiff will not always be necessary.
8. Whether the article contained the gist of the plaintiff’s side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.”
2. The reportage defence
27. In Al-Fagih v. HH Saudi Research & Marketing (UK) Ltd [2001] EWCA Civ 1634, the claimant, a member of a dissident party in Saudi Arabia, sued the defendant newspaper, which supported the Saudi government, for reporting a dispute between the claimant and A.M., another member of his political party. The impugned report stated that A.M. had told the defendant’s journalist that the claimant had spread malicious rumours about him (A.M.) and had said that A.M.’s mother had procured women to have sexual intercourse with him at his home. At the liability hearing it was common ground that A.M. had made that allegation to the journalist and that it was in fact untrue. The newspaper published the allegation without verifying the information and the claimant was only contacted and asked for his comments on the allegations the following day.
28. The Court of Appeal considered that in a libel case, verification of a third party’s allegation would ordinarily be appropriate and perhaps even essential before the defence of qualified privilege could be relied upon. However, the public was entitled to be informed of a political dispute which was being fully, fairly and disinterestedly reported without having to wait for the publisher, following an attempt at verification, to commit himself to one side or the other. Lord Justice Simon Brown (as he then was) noted:
“50. ... To my mind [the newspaper] was entitled in this case to publish without attempting verification. Indeed in the present context verification could even be thought inconsistent with the objective reporting of the dispute ...
51. I am not, of course, saying that verification (or at least an attempt at verification) of a third party’s allegations will not ordinarily be appropriate and perhaps even essential ...
52. I am saying, however, that there will be circumstances where ..., in short, both sides to a political dispute are being fully, fairly and disinterestedly reported in their respective allegations and responses. In this situation it seems to me that the public is entitled to be informed of such a dispute without having to wait for the publisher, following an attempt at verification, to commit himself to one side or the other.”
COMPLAINTS
29. The applicants complained under Article 6 § 1 of the Convention that their right to a fair hearing by an impartial tribunal was violated due to the presence of the impugned judge on the bench in the Court of Appeal, in light of the fact that he had previously refused leave to appeal on the papers and on the grounds of his alleged personal connections and political sympathies with the defendants in the case.
30. The applicants further complained under Article 8 of the Convention that the publication of the Searchlight article in October 2003, without verification of the truth of the allegations contained in it, breached their right to respect for their private life.
THE LAW
I. ARTICLE 6 § 1 OF THE CONVENTION
31. The applicants contended that the presence of one of the judges on the bench in their Court of Appeal hearing had deprived them of a fair hearing by an impartial tribunal as guaranteed by Article 6 § 1 of the Convention, which provides in so far as relevant:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
32. The applicants relied on three arguments to support their claim that the impugned judge was not an impartial judge in the hearing of the merits of the appeal. First, they pointed to the fact that he had refused leave to appeal on the papers prior to the granting of leave by two other members of the Court of Appeal (see paragraph 16 above). In his decision refusing leave, he had referred to the “venal falling out” between some of the members of the BNP and, in the applicants’ submission, thus displayed hostility towards them.
33. Second, the applicants relied on the fact that the judge was a former member of the Communist Party, which in their view rendered him naturally opposed to the BNP. They further contended that in his capacity as member of the Communist Party in the 1960s, he must have been personally acquainted with Mr Gable, who had stood as a parliamentary candidate for election for the party at around the same time.
34. Third, the applicants referred to the judge’s alleged attendance at a conference on extreme speech and democracy, which they claimed was also attended by persons hostile to the BNP and by acquaintances of Mr Gable, after the hearing but prior to the handing down of the judgment in their case.
35. The Court reiterates that it is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‑IV; and Demopoulos and Others v. Turkey (dec.) [G.C.], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04, 21819/04, § 69, 1 March 2010 ).
36. As stipulated in its Akidivar judgment (cited above, §§ 66-67), normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. Further, the complaints intended to be made before this Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law, and any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective.
37. In the present case, although the applicants were aware of the fact that one of the judges participating in their appeal hearing was the judge who had refused leave to appeal on the papers and although they knew of the judge’s background, they failed to request that he recuse himself (see Talmon v. the Netherlands, no. 30300/96, Commission decision of 26 February 1997, unreported; Yasar v. Turkey (dec.), no. 30500/96, 1 June 1999; and Posokhov v. Russia (dec.), no. 63486/00, 9 July 2002). The applicants have alleged that this failure was a result of the advice of counsel that a judge would not allow his political opinions to influence his judgment and that in any case an application for the judge’s recusal risked antagonising the judge in question. The Court considers that the decision whether to proceed with a challenge to the judge’s alleged partiality and request his recusal was a tactical one (see, mutatis mutandis, Ebanks v. the United Kingdom, no. 36822/06, § 82, 26 January 2010), taken by the applicants after advice from experienced counsel. If a party, for tactical reasons, chooses to adopt one approach in presenting his case, he must bear the consequences of his choice and it is not in the interests of justice to allow him later to seek to rely on an argument which, although known to him prior to or during the impugned proceedings, he chose not to present to the court at that time. The Court further observes that in their grounds of appeal to the House of Lords, the applicants in any event failed to raise their complaint regarding the lack of impartiality of the judge in the Court of Appeal (see paragraph 25 above).
38. In the circumstances, the Court finds that the applicants have failed to exhaust domestic remedies available to them. This complaint must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
II. ARTICLE 8 OF THE CONVENTION
39. The applicants claimed that the article published in Searchlight breached their right to respect for reputation, which they contended was protected by Article 8 of the Convention, which reads:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of the rights and freedoms of others.”
A. Application of Article 8
40. The Court has previously found that a person’s reputation, even if that person is criticised in the context of a public debate, forms part of his personal identity and psychological integrity and thus falls within the scope of private life (see Pfeifer v. Austria, no. 12556/03, § 35, ECHR 2007‑XII. See also Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004‑VI; Petrina v. Romania, no. 78060/01, § 36, 14 October 2008; Karakó v. Hungary, no. 39311/05, § 23, 28 April 2009; Petrenco v. Moldova, no. 20928/05, § 51, 30 March 2010; and Andreescu v. Romania, no. 19452/02, § 86, 8 June 2010). However, it has also consistently emphasised under Article 10 of the Convention the importance of the right to freedom of expression in a democratic society (see, for example, Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298; Goodwin v. the United Kingdom, 27 March 1996, § 39, Reports 1996‑II; and Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007‑XI). The Court explained its approach to such cases in its judgment in A. v. Norway, no. 28070/06, § 64, 9 April 2009, holding that 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 Mikolajová v. Slovakia, no. 4479/03, § 55, 18 January 2011. See also Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, §§ 40 and 44, 21 September 2010).
41. In the present case, the Court notes that the impugned article reported allegations that the applicants were guilty of criminal offences of dishonesty and threatening violence (see paragraph 10 above). It considers these allegations to be serious and is, in the circumstances of the case, willing to accept that the publication of allegations of this nature had a direct effect on the applicants’ private lives. Accordingly, it must examine whether the interference with their right to respect for their reputations was justified.
B. Whether publication of the article was compatible with Article 8
42. The applicants contended that the publication of the article was incompatible with their Article 8 rights because the author had failed to verify whether the defamatory allegations were true.
43. The Court reiterates that, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. The boundary between the State’s positive and negative obligations under this provision does not lend itself to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004-VI).
44. The respondent State’s obligation to protect the applicants’ right to respect for their private lives in the present case has to be balanced against the freedom of expression guaranteed by Article 10 of the Convention. In that context, the Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society. It is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; and Von Hannover, cited above, § 58). Given the essential role which the press plays in a democratic society, the safeguards afforded to the press are of particular importance. Although it must not overstep certain boundaries, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does the press have the task of imparting information and ideas, the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see, inter alia, Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999-II; and Flux v. Moldova (no. 6), no. 22824/04, § 24, 29 July 2008). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Bladet Tromsø and Stensaas, cited above, § 59; and Von Hannover, cited above, § 58).
45. Finally, the Court reiterates that the punishment of a journalist for assisting in the dissemination of statements made by another person would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so (see Jersild, cited above, § 35; Bergens Tidende and Others v. Norway, no. 26132/95, § 52, ECHR 2000‑IV; and Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001‑III). In assessing whether the reporting of allegations was incompatible with Article 8 in a particular case, it is necessary to examine the seriousness of the allegations reported, the context in which they were published and the extent to which the allegations were adopted by the author of the impugned publication (see Thoma, cited above, §§ 57-64). In this regard, the Court emphasises that a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the role of the press in providing information on current events, opinions and ideas (see Thoma, cited above, § 64; and Verlagsgruppe News GmbH v. Austria, no. 76918/01, § 33, 14 December 2006).
46. The Court has already found that the allegations in question were serious (see paragraph 41 above). However, it also observes, like the High Court judge, that most readers of the article in question would understand that the allegations and cross-allegations reflected the underlying personal and political dispute within the BNP and that they were not necessarily evidence of the truth of the allegations as regards one or the other party (see paragraph 13 above).
47. As to the context in which the allegations were published, the Court observes that the October 2003 article was published following a number of previous articles in the British Nationalist and Spearhead, both right-wing publications, and in Searchlight concerning the political divisions within the BNP and the dispute which had arisen following the rally regarding the collection money (see paragraphs 5-9 above). The previous articles on the subject had already reported on the allegations of theft concerning D. and R. (see paragraphs 5 and 8-9 above). Further, the publication of the allegations must be examined in light of the general context prevailing in the United Kingdom at the relevant time. As the judge in the High Court pointed out, at the time of the publication of the article, there was a “heightened public interest” in the activities of the BNP following a change in the party’s leadership and success in local elections (see paragraph 12 above). It is also of relevance that the first applicant was, at the time of the publication of the article, a potential candidate for mayor of London (see paragraph 3 above). These considerations are sufficient for the Court to conclude that there was likely to be a significant interest in the dispute between members of the BNP and in the applicants’ roles and allegiances within the context of that dispute. The Court therefore considers that the impugned article was published within the broader context of a debate which was likely to have been of significant interest to the general public.
48. Finally, the Court notes that the domestic courts found that the author had not adopted the allegations as his own but simply reported allegations made by others, citing the source (see paragraphs 14 and 22 above). The Court agrees and considers it clear from the terms of the article itself, including “It [the letter written by D. and R.] explains ...”, “the letter alleges ...” and “the letter complains ...” that the journalist did not himself allege that the applicants were guilty of any offence but merely assisted in the further dissemination of the allegations by reporting them in his article (contrast and compare Verdens Gang and Aase v. Norway (dec.), no. 45710/99, ECHR 2001‑X). The fact that the tone of the October 2003 article reflected a critical approach towards the BNP in general, or the applicants in particular, cannot justify the conclusion that the article adopted the content of the allegations reported (see Verlagsgruppe News GmbH, cited above, § 33).
49. Given that the publication contributed to the discussion of a subject of public interest and concerned well-known members of the BNP, there would have to have been particularly strong reasons to punish a journalist or publisher for dissemination of the allegations (see Verlagsgruppe News GmbH, cited above, § 31; and, mutatis mutandis, Thoma, cited above, § 62). The Court considers that no such reasons were present here. Accordingly, it concludes, in light of all of the above considerations, that the domestic courts struck a fair balance between the competing interests in the case.
50. The applicants’ complaint under Article 8 is accordingly manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence EarlyLech Garlicki
RegistrarPresident
Full & Egal Universal Law Academy