Friday 4 December 2009

Freedom of Expression for Historians

Coming to terms with its past is a challenge for many societies. The role of a former Hungarian Prime minister, Pál Teleki, in anti-Jewish policies before and during WW II, is at the core of a judgment by the Court this week: Karsai v. Hungary ( 5380/07). The applicant is a historian who participated in a public debate on Teleki's role, in relation to a cotnroversy on the possiblity of raising a statue for Teleki a few years ago. In a weekly newspaper, Karsai wrote on the ill-informed apology of Teleki by a number of people, which he labelled as 'careful Jew-bashing'. One of the persons he reffered to was an amateur historian, B.T., who subsequently sued him for defamation. Karsai was ordered to pay the legal costs of the ensuing proceedings and to arrange the publication of a rectification.

Taking his case to Strasbourg, Karsai claimed that this obligation violted his freedom of expression and that the sanction itself affected his credibility as a historian. The Court agreed, holding unanimously that Article 10 ECHR had been violated. Most of the Court's reasoning is very familiar: it considered the debate of utmost public interest (leading to a higher protection for Karsai's expressions). In addition, it held that B.T. had exposed himself to criticism by also openly participating in the public debate on the issue of Teleki. In this case Karsai's criticism had been indirect, but in the Court's view even harsh criticism would have been protected by Article 10 ECHR.

One element is of note for those who follow every step of the Court's freedom of expression case law. The Court has always distinguished between statements of fact - which are susceptible to proof - and to value-judgments which are not. In this case the domestic Courts had labelled Karsai's writings as factual statements, but the European Court disagreed. In order to do so it had to step away even further from what originally seemed to be intended as a clear typology, but which has become a bit blurred over the years. In this case, the Court introduced the term "value-laden" statements of fact, which seems to be somewhere in the grey zone between the two extremes. Does this mean that the Court has now truly chosen for a kind of gliding scale, in which the less factual a statement is, the less proof is needed? If so, then domestic courts might have a hard time in applying this approach consistently and convincingly in new cases coming before them.

Finally, having studied history myself, I was happy to read that the Court now explicitly held the following (para. 36): "the measure imposed on the applicant, namely, the duty to retract in a matter which affects his professional credibility as a historian, is capable of producing a chilling effect."