Professional Documents
Culture Documents
Immediately after the elections which took place in Albania in July 2005,
a daily newspaper published an article in which several accusations of
wrongdoing were raised against the majority political party.
Notably, the journalist author of the article alleged that he had received,
from an undisclosed source, reliable information that the electoral
campaign of the political party had been financed unlawfully by two of the
biggest commercial companies of the countries.
The article also alleged that the newly appointed Prime Minister, who
was the leader of the political party, betrayed the trust of the Albanian
people, that he was “culturally retarded” and criticised his face for having
a “criminal look”.
In the course of the proceedings for defamation, the Court asked the
journalist to disclose the identity of the information source but he refused
the request. Since the identity of the source was considered essential for
the proceedings, the Court ordered the disclosure. The journalist refused
Case study 63 - Article 10 of the ECHR: 3
(Freedom of expression and political elections)
to comply with the order and was fined of 10.000 € (or in default of
payment, he was to be sentenced to 3 months imprisonment). Moreover,
the Court held that the allegations of wrongdoings were false and that
the comments concerning the figure of the Prime Minister were
unjustifiably offensive and with no factual basis. As a consequence, the
journalist and the newspaper were convicted of defamation, and
considering the seriousness of the offence the former was sentenced to
2 years imprisonment and the latter to pay compensatory damages in the
amount of 500.000 € and to suspend publication for 1 month.
Questions:
2. Do you think that there was an interference with the journalist and
newspaper’s right to freedom of expression? And was the
interference proportionate to the aim pursued in respect of all the
statements contained in the articles?
Question 1:
In relation to the proceedings for defamation brought by the Prime Minister and
other members of the political party, which elements should have been taken
into account by the Albanian Court in the light of Art. 10 ECHR?
As to the Prime Minister and members of the political parties mentioned in the article:
the limits of permissible criticism are wider with regard to the government than in
relation to a private citizen or even a politician ;
Question 2:
Do you think that there was an interference with the journalist and newspaper’s
right to freedom of expression? And was the interference proportionate to the
aim pursued in respect of all the statements contained in the articles?
does the press have the task of imparting such information and ideas: the public also
has a right to receive them.
Thus, there was an interference with the journalist and newspaper’s right to freedom
of expression.
It can be assumed for the purpose of the case study that the above interference was
prescribed by the law.
The interference pursued a legitimate aim (“the protection of the reputation or rights
of others”), as in the newspaper article there were allegations concerning the
unlawful financing of the electoral campaign and bribes connected to those elections
(facts) as well as allegations concerning the newly appointed Prime Minister (facts
and value judgments).
As to the allegations concerning the facts, the Court stated that the good faith
defence must be accepted in cases of defamation, which essentially concern facts.
The journalist should not be sanctioned if at the time of publication he/she had
sufficient reasons to believe that a particular piece of information used in the article
was true (reliability of the source of information and a reasonable check made by a
journalist) and it was not only the intent to defame the alleged victim what made the
journalist write an article.
Question 3:
Do you think that the court order to the journalist to disclose his source and
the sanction imposed upon him for non compliance, raise an issue under Art.
10 ECHR?
In the Goodwin judgement the Court stated that (s. paragraph 39 of the judgement):
Case study 63 - Article 10 of the ECHR: 7
(Freedom of expression and political elections)
The Court recalls that freedom of expression constitutes one of the essential
foundations of a democratic society and that the safeguards to be afforded to
the press are of particular importance.
Protection of journalistic sources is one of the basic conditions for press
freedom, as is reflected in the laws and the professional codes of conduct in a
number of Contracting States and is affirmed in several international
instruments on journalistic freedoms. Without such protection, sources may be
deterred from assisting the press in informing the public on matters of public
interest. As a result the vital public-watchdog role of the press may be
undermined and the ability of the press to provide accurate and reliable
information may be adversely affected. Having regard to the importance of the
protection of journalistic sources for press freedom in a democratic society and
the potentially chilling effect an order of source disclosure has on the exercise
of that freedom, such a measure cannot be compatible with Article 10 (art. 10)
of the Convention unless it is justified by an overriding requirement in the
public interest.
In the same judgment, the Court found the disclosure order requiring Mr Goodwin to
reveal the identity of his source and the fine imposed upon him for refusing,
constituted a violation of Article 10 of the ECHR (“Freedom of expression”).
After examining the case, the Court concluded the measures impugned on the
applicant were “prescribed by law” and the interference pursued a legitimate aim.
Considering the necessity of the interference in a democratic society the Court found
there was not:
-a reasonable relationship of proportionality between the legitimate aim
pursued by the disclosure order and the means deployed to achieve that aim.
The restriction which the disclosure order entailed on the applicant journalist's
exercise of his freedom of expression cannot therefore be regarded as having
been necessary in a democratic society, within the meaning of paragraph 2 of
Article 10 (art. 10-2), for the protection of Tetra's rights under English law,
notwithstanding the margin of appreciation available to the national authorities.
Accordingly, the Court concludes that both the order requiring the
applicant to reveal his source and the fine imposed upon him for having
refused to do so gave rise to a violation of his right to freedom of
expression under Article 10.
(emphasis added)
Question 4:
In relation to the proceedings for outrage against the judiciary, was there a
violation of Art. 10 ECHR?
It is very likely that in this case study 63, this interference was “prescribed by law”
and had pursued at least one of the legitimate aims referred to in Article 10 § 2 – the
protection of the reputation or rights of others. In this case study, the rights of the
judges examining an alleged unlawful interference with the electoral process were
protected.
The article suggesting that investigations were not properly conducted due to “the
long-term shrewd financial strategy of the political party which saved part of the
money for dealing with the aftermath” could be seen as a part of a debate on the
malfunction of the judicial system or as an example for doubting the independence of
judges. In this case it would be an important issue for the public which could not be
left outside the public debate.