Three recent decisions of the ECtHR have been criticised for shifting the focus in defamation cases away from an assessment of the truthfulness of the statements concerned in favour of an analysis of the privacy rights of the individual making the claim. There is now concern that the freedom of expression of journalists and publishers will be unreasonably limited in defamation cases going forward.

The traditional approach in defamation cases

Until recently, the ECtHR (as with the English Courts) has maintained a clear separation between the legal tests applicable to defamation and privacy[1] when balancing the competing right to respect for private and family life (the "Article 8 Right") and the right to freedom of expression (the "Article 10 Right").

When faced with a defamation case, the ECtHR has previously approached the Article 8/Article 10 balancing exercise primarily from the perspective of the journalists' or publishers' Article 10 Right and the essential role of a free press in a democratic society. That is to say, the ECtHR has traditionally focused on the nature and extent of the journalists' obligation to verify the veracity of their factual statements.

In contrast, when considering breach of privacy cases, the ECtHR focuses on the strength of the Article 8 privacy rights of the individual balanced against the public interest in any publication of the material in question. This involves an analysis of the following criteria[2]:

  1. the contribution of the statement to a debate of general interest;
  2. how well known the person concerned is (the claimant in the national case) and what the subject of the report is;
  3. the prior conduct of the person concerned;
  4. the method of obtaining the information and its veracity;
  5. the content, form and consequences of the publication; and
  6. the severity of the sanction imposed,

(the "Privacy Criteria").

Following Print Zeitungsverlag GmbH v Austria,[3] Ristamäki and Korvola v. Finland,[4] and Ungvary and Irodalom Kft v. Hungary[5], the ECtHR can now be seen to be applying the Privacy Criteria when deciding whether to make/uphold a finding of defamation.

The shift in approach - application of the Privacy Criteria

The cases, all involving a claim against a national court for breach the right to freedom of expression, show a shift in the approach taken by the ECtHR in defamation cases. Emphasis now appears to be on the Article 8 Right of the individual rather than the Article 10 Right of the journalist or publisher.

In deciding whether the alleged infringement of the journalist's Article 10 Right was justified on the basis of protecting the individual's Article 8 Right, the ECtHR applied the Privacy Criteria (of which veracity is only one consideration) rather than primarily focusing on the truthfulness of the statements and whether or not the journalists/publishers verified this.

Briefly, the facts of the Cases were as follows :

  • In Print Zeitungsverlag GmbH v Austria, the ECtHR held the Austrian court was correct in finding that the printing of a story containing a full copy of a letter which sought to harm the reputation of two local politicians was defamatory. The ECtHR held that there was no breach of Article 10 by the Austrian court.
  • In Ristamäki and Korvola v. Finland, the ECtHR held that the Finnish court had violated Article 10. The Finnish court was incorrect in their finding that reference (in a television programme about investigation into economic crimes) to the fact that the police wanted to know whether a sports centre had been funded by a well-known Finnish businessman was defamatory.
  • In Ungvary and Irodalom Kft v. Hungary, the ECtHR held that the defamation judgments against a historian and a literary weekly in relation to statements about the communist activities of a judge of the Hungarian Constitutional court violated Article 10.

These cases mark the first time the Privacy Criteria has been considered in the context of a defamation claim and represent a noticeable change in approach by the ECtHR away from the more typical Article 10 starting point in defamation cases in favour of Article 8 considerations.

An undue encroachment on freedom of expression at the national level?

The full effects of the decisions are not yet known. However, what is certain is that EU national courts must have regard to the ECtHR's decisions in balancing the Article 8 Right of individuals and the Article 10 Right of journalists/publishers.

We may therefore see national courts begin to apply the Privacy Criteria in defamation cases, moving the focus of the analysis away from the truth of the statement concerned and thereby limiting a publisher's right to rely on truth as a defence. This would mean that journalists and publishers alike may see a significant increase in successful defamation claims being brought against them in respect of statements which, although true, fall foul of the Privacy Criteria.