Free Speech, or Defamation?

Lily Parisi
Lily Parisi

The ECtHR case of Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina concerned defamation proceedings brought against four NGOs (Non-Governmental Organisations) by the entertainment editor of a public radio station. The NGOs had submitted a letter of complaint to district authorities alleging misconduct of the entertainment editor, which was subsequently published by newspapers.

The difficulty the Court faced was in balancing the conflicting rights of the parties:

  1. The entertainment editor’s right to protect their reputation (as a prospective candidate for a position as a public servant);
  2. The applicant NGOs’ right of freedom of expression (Article 10 of the European Convention of Human Rights (ECHR)) to report alleged misconduct of a public servant to a suitable public body.

Contrary to expectation, the NGOs’ comments were not discussed in regard to serving public interests; an interesting factor, as it indicates that in this case, the NGOs’ comments may have been made without sufficient public concern and therefore unnecessary.

FACTS & BACKGROUND

 The four NGOs involved were:

  1. The Brčko Branch of the Islamic Community of Bosnia and Herzegovina (Medžlis Islamske Zajednice Brčko)
  2. The Bosniac Cultural Society “Preporod” (Bošnjačka zajednica kulture)
  3. The Bosniac Charity Association “Merhamet” (Humanitarno udruženje građana Bošnjaka Brčko Distrikta)
  4. The Council of Bosniac Intellectuals (Vijeće Kongresa Bošnjačkih intelektualaca Brčko Distrikta)

In May 2003, the applicants submitted a letter to the highest authorities of the Brčko district of Bosnia and Herzegovina in complaint of the alleged misconduct of the entertainment editor of their district’s mutli-ethnic public radio station. The NGOs alleged that the editor had been involved in disparaging behaviour towards Bosniac people and their culture; therefore, the editor should be disqualified as a potential candidate for the position of the radio station’s director. The letter was later published in three different newspapers. Consequently, the entertainment editor brought civil defamation proceedings against the NGOs.

First Instance

At first instance, the claim was rejected. The Court found the applicants could not be held liable as they had not themselves published the letter in the media. The relevant part of the judgement reads as follows:

From the defendants’ letter, it is clear that it was privately sent to the Governor, to the President of the Assembly and to the Supervisor for Brčko District…and it was not sent to the media… [T]he aim of the letter was not dissemination of unverified information to public, but bringing the attention of the competent authorities to certain issues and to enable them to draw certain conclusions on verification of that information.

Having examined the articles published in the media, the court concludes that none of them was published by the defendants in this case.’
The Appellate Court

In 2007, the appellate court found the NGOs were liable for defamation due to the false nature of the statements they had made about the editor. The comments made by the NGOs were also found to be significantly damaging to the editor’s reputation. It was held that to establish liability for defamation under section 6(1) of the Defamation Act 2003, it was irrelevant that the NGOs did not in fact publish the letter.

The NGOs were ordered to retract their statements within 15 days. Upon the NGOs’ failure to comply, the editor brought enforcement proceedings and in December 2007, the applicants paid 1,445 euros for the enforcement of the judgement of July 2007.

Further, the Constitutional Court upheld the appellate court’s judgement in May 2010.

The European Court of Human Rights

The applicant NGOs complained that the domestic courts’ decisions against them had breached their right to freedom of expression (thus in violation of Art. 10 of the ECHR). The NGOs argued that they had never intended to publish the letter and that this had occurred without their knowledge, action or consent. They claimed that their only intention was to inform those in authority about certain irregularities in a matter of public interest and to prompt them to investigate the allegations.

The European Court of Human Rights held by four votes to three that there had been no violation of Article 10.

The Court found that the national courts, which had heard the witnesses in the defamation proceedings, had correctly concluded that the applicant NGOs had acted negligently in reporting the entertainment editor’s alleged misconduct, without making a reasonable effort to verify the accuracy of this misconduct.

The national courts were found to have struck a fair balance between the radio editor’s right to reputation and the applicants’ right to report irregularities about the conduct of a public servant.

Dissenting Opinion

Judges Nicalaou, Tsotsoria and Vehabović gave a joint dissenting opinion. They argued that there had been a violation of Article 10 of the Convention on the basis that the applicants’ rights to hold opinions and to receive and impart information had been breached.

The dissenting opinion drew on the fact that no question arose as to the meaning and effect of the relevant provision in this case, which was Section 6 of the Defamation Act 2003. The act defines defamation as causing damage to the reputation of a person by ‘…ascertaining or disseminating a falsehood in relation to that person…’ which they argued was not satisfied by the NGOs comments.

The facts surrounding the publication of the letter were also highlighted; it was argued that ‘it cannot be said that the applicants were, in the circumstances, responsible for disseminating the letter complained of.’ The dissenting opinion further stated that the letter had been ‘both private and confidential, and was made to persons who had a direct institutional interest in the matter and were thus entitled to receive it. The letter was certainly not meant for wider publication…’

COMMENTS

I agree with the majority ruling that there had been no violation of Article 10 of the Convention. In my opinion the entertainment editor’s right to reputation outweighs the applicants’ right to report irregularities about the editor’s conduct in this case. Of crucial importance here is that the editor was a prospective candidate for a position as a public servant, thus maintaining their respected reputation was fundamental to their future prospects, which should be taken into consideration.

With respect, the dissenting opinion is less persuasive, particularly with regards to the suggestion that the applicants were not responsible for disseminating the letter in question. The applicants do appear to have been reckless and careless in believing that the letter would not be disseminated widely. It is fair to suggest that greater awareness of possession of the letter and a conscious effort to ensure it was not publicised should have been pursued.

What strikes me as significant in this case is that an open discussion of matters of public interest did not come into play in the balancing exercise. The lack of discussion of public interest suggests that the alleged misconduct of the editor was not in fact something that was even in the public’s interest. One could further argue the complaint, therefore, was somewhat meaningless and unnecessary in light of the NGOs’ expected exclusive commitment to public interest. It must be asked whether the European Court of Human Rights should even be considering applications based on relatively trivial complaints when other applications could be of a higher importance.

Lily Parisi is an 2nd year undergraduate student at the School of Law, University of Sussex

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