Up-366/16

Opravilna št.:
Up-366/16
ECLI:
ECLI:SI:USRS:2019:Up.366.16
Evidenčni stavek:
[The text published below is a summary prepared for the annual report.]
 
Freedom of Expression and the Reputation of a Political Party
 
 

By Decision No. Up-366/16, dated 5 December 2019 (Official Gazette RS, No. 3/20), the Constitutional Court decided on the constitutional complaint of DELO newspaper against the Supreme Court judgment by which it was ordered to pay monetary compensation in the amount of EUR 10,000 for damaging the reputation and good name of the plaintiff – i.e. a political party. The plaintiff (Slovenska demokratska stranka [the Slovene Democratic Party] – SDS) demanded (by means of a lawsuit) that the complainant publicly apologise for having published an article entitled “The money from Patria did not end up with Janez Janša, but with his SDS party”, published in the daily newspaper Delo on 23 November 2009. The court of first instance granted the plaintiff’s claim for damages, and the Higher Court and the Supreme Court confirmed this decision. The complainant criticised the Supreme Court for not sufficiently taking into account, when weighing the rights in conflict, the circumstance that the plaintiff is a political party, or the fact that the complainant’s journalist prepared the article in good faith, and therefore it allegedly violated the complainant’s right determined by the first paragraph of Article 39 of the Constitution. In the complainant’s opinion, a journalist is not required to verify the veracity of official information if he or she prepares information in good faith and cannot be held liable even if such information later proves to be false.

 

The first paragraph of Article 39 of the Constitution guarantees freedom of expression of thought, freedom of speech and public appearance, of the press and other forms of public communication and expression. Everyone may freely collect, receive, and disseminate information and opinions. Freedom of expression is furthermore a direct manifestation of an individual’s personality in society and a fundamental constitutive element of a free democratic society. In accordance with the third paragraph of Article 15 of the Constitution, the right to freedom of expression (Article 39 of the Constitution) is limited by the rights and freedoms of others. It often collides with the right to the protection of personal dignity (Article 34 of the Constitution) and the protection of personality rights (Article 35 of the Constitution), which also include the right to the protection of one’s honour and reputation.

 

By Decision No. Up-530/14, dated 2 March 2017 (Official Gazette RS, No. 17/17, and OdlUS XXII, 18), the Constitutional Court already held that, by its very nature, a legal entity, such as a political party, does not enjoy the right to personal dignity and consequently also not the constitutional right to the protection of (subjective, intrinsic) honour – i.e. to the protection of its perception or awareness of its intrinsic worth. Political parties do, however, enjoy the right to the protection of their reputation that follows from Article 35 of the Constitution. Unless they are protected from false (unsubstantiated) statements or statements made in bad faith that inadmissibly dismantle their reputation in public, their activities could be significantly impaired. As a structure intended for the attainment and exercise of power, a political party must be subjected to constant critical scrutiny by the democratic public, and therefore a public character and the requirement of transparency are already integrated into its very essence. When weighing constitutional values, especially in a conflict with freedom of expression, the weight of the reputation of a political party is thus appropriately small. It also follows from the ECtHR case law that the limits of acceptable criticism are broader with regard to politicians and political parties than with regard to private individuals.

 

In the case at issue, the Constitutional Court had to examine the acceptability of the position of the Supreme Court that the freedom of journalistic expression cannot protect knowingly false statements of facts which interfere with the reputation of a person, even if what is damaged is the reputation of a political party and the limits of freedom of expression in debates on the potential corruption of political parties are broad. The article at issue was published in the context of a corruption affair that was unfolding in public at the relevant time. There is therefore no doubt that the case concerned reporting on an issue that is important for a debate in the public interest. The Supreme Court classified the notes at issue as statements of facts regarding which journalists are required to prove that they are true or at least that they relied on them in good faith, i.e. that they had a legitimate basis to believe that what they wrote was true.

 

It is in principle true that a journalist is not required to verify the veracity of official information and that he or she cannot be held liable even if such information later proves to be false. However, such is only the case if the journalist is acting in good faith. The finding that a journalist knowingly wrote and published false or fabricated information that is seriously harmful to the plaintiff’s reputation logically excludes that the journalist acted in good faith. The duty of journalists to cite the sources they rely on in a credible manner in no way encroaches on journalistic freedom of expression. The duty of a journalist who disseminates facts by referring to a source to properly cite comments made by the source does not entail a burden that would in any way impede the journalist's freedom of expression.

 

Whereas the media and journalists undoubtedly play a key and irreplaceable role in informing the public of issues that are in the public interest, such is closely intertwined with their duty and responsibility to act in good faith when providing the public authentic and verified information and facts. In such manner, the interest of the public to be informed of issues that are important for a debate in the public interest is namely realised. Journalistic freedom entails the freedom to responsibly search for the truth.

 

The Constitutional Court concluded that in a collision between freedom of expression and the right to the protection of one’s reputation, the conduct of the complainant’s journalist, which the courts assessed as being seriously harmful to the plaintiff’s reputation, cannot be granted constitutional protection, regardless of the importance of the issue for debate in the public interest and the invoked role of journalists in informing the public of such issues. It must namely be noted that the special protection afforded to journalists by the first paragraph of Article 39 of the Constitution and the first paragraph of Article 10 of the ECHR is subject to the condition that they act in good faith and with the intention of ensuring precise and reliable information in accordance with the principles of responsible journalism. In such an instance, the limitation of freedom of expression in order to protect the reputation of another proves to be necessary in a democratic society.

 

In the assessment of the Constitutional Court, although the awarded damages in the amount of EUR 10,000 imposed as a sanction for violating the right to one’s reputation restrain the exercise of the right to freedom of expression, such did not have a punitive character. The Supreme Court stated relevant and sufficient reasons to substantiate that in the circumstances of the case at issue it was necessary in a democratic society and proportional to the aim pursued – i.e. to protect a person’s reputation against the newspaper publication of a journalist’s knowingly false statements of facts that were seriously harmful to the person’s reputation. In light of the above, the Constitutional Court dismissed the constitutional complaint.

 

Dokument v PDF obliki:
Vrsta zadeve:
constitutional complaint
Vrsta akta:
individual act
Vlagatelj:
DELO, d. o. o., Ljubljana
Datum vloge:
28.04.2016
Datum odločitve:
05.12.2019
Vrsta odločitve:
decision
Vrsta rešitve:
dismissal
Dokument:
AN03996