Monday 11 May 2009

Libel Amongst Politicians During Campaign

Political campaigns are almost never the highlight of civility and politeness, in any country. A recent case of the Court, Karakó v. Hungary ( 39311/05), concerns the accusation of libel by one politician against another during an electoral campaign. Please find below a summary and some comments on the case by Darian Pavli of the Justice Initiative, who has been so kind to allow me to post it on here:


The following is a summary of the Karako judgment, which involves an Article 8 complaint by an Hungarian politician following the refusal of the Hungarian courts to allow the criminal prosecution of a critic for supposed libel against the applicant related to critical remarks made during an election campaign:

1. The judgment starts with the premise that there is no real conflict between article 8 and article 10 insofar as article 10.2 protects the rights of others, which would include rights recognized under “private life”;
2. However, there is no independent and general right to reputation under article 8: a “prudent approach” is required to finding positive state obligations to protect “private life in general” – any such measures should be consistent with article 10;
3. Cases involving reputation/defamation should be resolved under the framework of article 10 -- irrespective of which provision is invoked or the nature of complaint – since article 10 is the natural conceptual setting “specifically designed by the drafters” for solving such conflicts;
4. Article 8 protects both the personal identity (image etc) and personal integrity (self-esteem, development of personality and the like). These only extend to reputation, however, when the attack on reputation is so severe as to affect one’s personal integrity: that is when (a) the factual allegations (b) were of such a seriously offensive nature that (c) their publication had an inevitable direct effect (d) on one’s private life (reference to Petrina v. Romania, which had to do with allegations of secret service collaboration, a sore point in a post-Communist society) – by implication, value judgments should not trigger article 8 protection in principle;
5. Crucially: article 8 does not extend to harm to reputation that - as is usually the case - primarily affects one’s public standing (‘the external evaluation of the individual’), rather than self-esteem – according to the Court, this is a common distinction in European law (DP: usually known as the difference between insult and defamation), and article 8 was designed to protect personal integrity, not one’s social standing;
6. The judgment, rather explicitly, departed from the Pfeiffer v. Austria line of cases by noting that “reputation has only been deemed to be an independent right sporadically” – the lone dissenter in the case disputed this by arguing, in effect, that Pfeiffer etc was already settled law;
7. The expression at issue in the case was protected value judgment – had Hungary gone ahead with its criminal prosecution, it would have violated article 10 of the Convention.

Some of us believe that this ruling, if endorsed by other sections of the Court, would go a long way toward addressing the concerns of the free expression community regarding the proper balance between article 8 v. article 10 interests in the defamation context. The challenge will be for other sections of the Court, and eventually the Grand Chamber, to steer closer to the path of Karako, rather than Pfeiffer/Petrina. At the moment, I think it is fair to say there is diverging jurisprudence among the various sections on this question (or central parts thereof), and Karakó offers hope for a re-orientation that takes proper account of the implications for free expression.

Interestingly, Karakó is also one of two article 10 judgments issued in April that is classified by the Court’s own database as Importance 1 (“High importance, Judgments which the Court considers make a significant contribution to the development, clarification or modification of its case-law, either generally or in relation to a particular State”). The other one, another landmark case from Hungary, was Társaság (appl. no. 37374/05) on the right of access to state-held information and records.