Strasbourg’s death knell to defamatory libel

The European Court of Human Rights has consistently argued that recourse to criminal proceedings when affecting freedom of expression should be exercised with restraint. This is because member states of the Council of Europe invariably punish breaches of defamation through the criminal law. Yet there exist other sanctions, notably civil remedies, which do not have a chilling effect on freedom of expression like criminal sanctions do. A case in point is the recent judgment of Reichman v. France, application no 50147/11, of 12 July 2016.

Claude Reichman was responsible for a programme broadcast on Radio Courtoise. He was critical of the new radio’s vice-chairman, who assumed control of the radio station’s editorial line stating that ‘the radio station’s financial situation has given rise to certain... I was going to say acrobatic feats... let’s just say, to actions whose lawfulness should be verified, and all of this leaves me very uneasy’. The vice-chairman complained and Mr Reichman was committed for trial on a charge of criminal public defamation. The Paris Criminal Court found Mr Reichman guilty and sentenced him to pay a suspended fine of €1,000 together with a further fine of €1,500 in damages and €2,000 for costs. His appeal before the appellate court and the Court of Cassation were both unsuccessful.

Having exhausted all domestic remedies available, Mr Reichman petitioned the Strasbourg Court, which adopted a different approach from the national French courts seized of Mr Reichman’s defamation case. Here below are summarised the main points reached by the European Court of Human Rights as contained in the Court’s Press Release dated 12 July, 2016:

The Court considered that the contested remarks had been made as part of a debate on matters of general interest and concerned the freedom of the press, in the context of which the applicant was expressing himself in his capacity as the presenter, of more than 15 years’ standing, of a news programme, and even if he was personally affected by the difficulties encountered by the radio station. It noted that this resulted in a particularly narrow margin of appreciation for the State in restricting the right to freedom of expression.

The Court considered that a certain degree of “exaggeration” or even “provocation” was permitted in the exercise of journalistic freedom. It noted that the impossibility of proving the truthfulness of a statement could not imply a failing by the writer or speaker to comply with professional ethics. The Court reiterated that the protection afforded by Article 10 to journalists was subject to the proviso that they acted in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism.

The questions posed on the airwaves by Mr Reichman were such as to suggest the possible existence of irregularities in the financial management of the radio station, but did not however refer to any specific fact. Mr Reichman was thus expressing an overall impression concerning the management of the radio station over a period which included the civil party’s presidency. He concluded his remarks by referring to the need to carry out further checks in this area. The court noted that the criminal court itself had described this statement as “allusive” and that it was the statement’s abstract nature which had led the domestic courts to accept the existence of defamation. The Court concluded from this that the contested statement amounted to a value judgment and not a statement of fact.

The Court noted that the contested remarks were not a matter of gratuitous incentive, but, on the contrary, had a factual basis. It noted in this connection that Mr Reichman had been able to submit two documents from, respectively, the radio station’s accounts department and its auditor, attesting to the station’s poor financial situation. The Court also noted the relatively measured nature of the contested remarks, which were made in a context of disagreements within the station and followed on from incidents that had taken place a short time previously between members of staff and the civil party.

The Court noted that the domestic courts had merely proved the constituent elements of defamation, without examining the various criteria laid down by the Court in the context of its review of proportionality. In particular, the Court noted that the domestic court had not drawn a distinction between statements of fact and value judgments, although similar violations had already been found in cases concerning Article 10 of the Convention.

Finally, the Court reiterated that a criminal sanction, even a relatively light one, could have a chilling effect on the exercise of freedom of expression. The Court noted that the very fact of imposing a criminal conviction was one of the most serious forms of interference with the right to freedom of expression, having regard to the existence of other means of intervention and rebuttal, particularly through civil remedies, and reiterated that it had invited the domestic authorities on a number of occasions to show restraint in resorting to criminal proceedings.

The Court concluded from these elements that Mr Reichman’s conviction had amounted to a disproportionate interference with his right to freedom of expression and that there had therefore been a violation of Article 10 of the Convention.

This judgment is very much applicable to Malta. However, its impact on Malta remains very much unheeded with successive governments – both Nationalist and Labour – dragging their feet to ensure that the criminal law is amended to allow recourse to the criminal action for defamatory libel being restrained to only those exceptional cases which do not admit of a civil remedy due to the public harm they cause to society. Indeed, the bells are ringing loudly. But is the government so deeply immersed in its sleep that it is too deaf to hear them?

Professor Kevin Aquilina is Dean of the Faculty of Laws at the University of Malta