CEDH · CASELAW;CLIN;ENG — 27 juillet 2021

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Portugal - 29856/13 Judgment 27.7.2021 [Section IV] Article 10 Article 10-1 Freedom of expression Civil defamation award disproportionate to harm caused from television reports on child sexual abusers wrongly alluding to well-known politician: violation Facts – The applicant, a television network and media company, on 6 and 7   December 2003 respectively, broadcast television reports on a network of child sexual abusers, wrongfully alluding to the involvement of R.R., a well-known politician who served as Regional Secretary of Agriculture and Fisheries. The source of the news was an investigative report published on the former date in Expresso , a leading weekly newspaper in Portugal, and compiled by both the applicant company and that newspaper. On 8   December 2003 R.R. resigned from his above-mentioned post. In a subsequent news report broadcast by the applicant company in the morning of 9   January 2004 it was falsely reported that R.R. had been arrested and questioned by the police. A few hours later it rectified its statement. Following civil liability proceedings instituted by R.R., the applicant company was convicted for disseminating wrongful information and ordered by the Supreme Court, at final instance, to pay EUR 50,000 for non-pecuniary damage and EUR 65,758 for pecuniary damage. With the addition of legal interests, the amount came to EUR 145,988.28. Law – Article 10: The Supreme Court’s judgment ordering the applicant company to pay R.R. damages for infringing his right to reputation amounted to an “interference” with the exercise of the applicant company’s freedom of expression which was lawful and pursued the legitimate aim of the protection of the reputation or rights of others” – namely, those of R.R. The main question therefore that arose was whether the interference was necessary in a democratic society. (a)     Whether the news reports contributed to a debate of public interest and whether R.R. was a public figure – The impugned statements comprised several opening reports on the primetime evening and midday news about the ongoing investigations into a network implicated in the sexual abuse of minors in the Azores. There was thus no doubt that they had conveyed information of public interest. R.R. had been a public figure both in his own region in the Azores and in the entire country and, at the time the reports had been broadcast, he had held a high-level political appointment. (b)     The method of obtaining information, and the content, form and consequences of the impugned statements – The December news reports had originated from different sources and had been collected through the report compiled by both the applicant company and Expresso , whereas the facts that had been disseminated at this point had already been published in the above paper. As to the January news report, it was considered established that the source of the information had been the reporters working for the applicant company. Taking into account the reports’ content and the particular stigma attached to offences of a sexual nature involving children, allegations of involvement in this type of offence had the capacity to cause prejudice to the personal enjoyment of the right to respect for private life. Further, although R.R. had not been directly identified in the December news reports, he had still been easily identifiable. Therefore, while the news reports had been the result of a journalistic investigation conducted by the applicant company and Expresso , both of whom were widely regarded by the public as reliable news media outlets, they had been able to cause prejudice to him. As to the January news report, despite the rectification made, the applicant company had accepted that the false reference to R.R.’s arrest and questioning by the police had infringed R.R.’s right to reputation and honour. In this connection, the Court considered that when making this reference, the applicant company had not acted in a responsible way, particularly as it had known of the wide dissemination of the news via media outlets both domestically and internationally. Accordingly, there had been compelling reasons to impose a sanction on the applicant company for the false information. It had, however, limited the harm to R.R.’s reputation, both in scope and in time, by rectifying this mistake a few hours after the news broke. Moreover, although the domestic courts had considered that it was still possible to find references to his potential involvement in such a crime on different online platforms, R.R. had resumed his role in politics shortly after the news report; he had served as a member of the national parliament for several years and had remained, to this day, a well-established and active politician. (c)     Severity of the sanction – While it was not possible to conclude that there had been no harm at all to R.R.’s right to a reputation and honour, the Court found it difficult to accept that the injury to R.R’s reputation in the present case was of such a level of seriousness as to justify an award of the size the applicant had had to pay. Such an amount of compensation, which was high when compared with previous cases concerning Portugal that the Court had examined, was also capable of discouraging the participation of the press in debates over matters of legitimate public concern and had a chilling effect on the freedom of expression and of the press. It had therefore been excessive in the circumstances of the present case. In view of the foregoing considerations, the Court concluded that the interference with the applicant company’s right to freedom of expression was disproportionate and not “necessary in a democratic society” within the meaning of Article   10. Conclusion : violation (unanimously). Article 41: no award in respect of non-pecuniary damage as under domestic law the applicant could seek the reopening of the civil proceedings in respect of which the Court had found a violation. (See also Público - Comunicação Social, S.A. and Others v. Portugal , 39324/07 , 7   December 2010; Bédat v. Switzerland [GC], 56925/08, 29   March 2016, Legal Summary ; Ramos Nunes de Carvalho e Sá v. Portugal [GC], 55391/13 et al., 6   November 2018, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes