Information Note on the Court’s case-law 28

March 2001

Thoma v. Luxembourg - 38432/97

Judgment 29.3.2001 [Section II]

Article 10

Article 10-1

Freedom of expression

Journalist quoting accusations formulated by fellow journalist: violation

Facts : The applicant, a journalist, presented a weekly radio programme. He devoted one of the programmes to the problems related to reafforestation after storms in 1990, a subject that was being widely debated in the Luxembourg media. In the course of the programme he quoted an extract from an article in the daily newspaper, Tageblatt . He described the article several times as “strongly worded”. In the passage that was read out on the air, the author of the article accused officials of the Water and Forestry Commission of taking a percentage on plant purchases made with a view to reafforestation and of carrying out repeated planting for that purpose, when a single planting w ould have sufficed. The Tageblatt journalist also quoted a source, whom he described as “qualified” and “from that background”, who asserted that he knew only one forestry warden who was incorruptible. The applicant went on to explain that the journalist’s article called into play a provision in the Criminal Code that made it an offence for a civil servant to use his position to derive a benefit before adding that the salary earned by Water and Forestry Commission staff was reasonable and could not justify recourse to such practices. He put questions on the subject to a Water and Forestry Commission engineer, before asking a private owner about his views on the remarks of the Tageblatt journalist and what credit to attach to them. Sixty-three civil servants from the Water and Forestry Commission issued proceedings against the applicant for damage to their reputation and he was ordered to pay them one franc each in nominal damages plus costs. The district court held that the applicant had adopted the journalis t’s conclusions without seeking evidence to support them. It concluded that by giving the impression without proof that all but of the Water And Forestry Commission officials concerned by the reafforestation work were corrupt, the applicant had overstepped the boundaries of his right to impart bona fide information. The applicant appealed against the decisions. The court of appeal upheld the impugned judgments holding, inter alia , that a journalist quoting from a published article only escaped liability if he formally distanced himself from the quoted remarks. That the applicant had failed to do. His appeal to the Court of Cassation was dismissed.

Law : Article 10: The interference in issue was prescribed by law since the Civil Code established the principle of liability in tort and under the case-law those provisions were applicable to journalists. The applicant could therefore have foreseen to a reasonable degree, if necessary by seeking advice from those qualified to give it, that the remarks broadcast duri ng his programme did not render him immune from legal action. The grounds relied on by the Luxembourg courts were consistent with the legitimate aim of protecting the reputation and rights of the officials concerned and the presumption of innocence that op erated in their favour. In view of the size of the country and the limited number of Water and Forestry Commission officials in Luxembourg, those targeted were easily identifiable to listeners, even though they had not been mentioned by name during the pro gramme. Some of the remarks made by the applicant contained serious allegations and civil servants had to have the confidence of the general public in order to discharge their duties. However, the topic raised in the programme was the subject of widespread debate in the Luxembourg media and concerned a problem of general interest, a sphere in which restrictions on freedom of expression were to be strictly construed so as not to discourage the press from taking part in the discussion of matters of public int erest. Having regard to the applicant’s comments during the programme, he could be regarded as having adopted – at least in part – the assertions of the Tageblatt journalist. In order to assess whether the necessity for the interference had been establishe d convincingly, the Court had essentially to examine the reasoning of the appellate courts. The appellate courts found that the applicant had adopted the conclusions of his fellow journalist, without distancing himself from them, solely on the basis of the passage in issue from which he had quoted. However, a general requirement for journalists formally and systematically to distance themselves from the content of a quotation that might insult or damage the reputation of a third party was not reconcilable w ith the press’s role of providing information on current events, opinions and ideas. In the case before the Court, the applicant had consistently taken the precaution of saying that he was quoting and of citing the name of the author. He had used the term “strongly worded” to describe the article by his fellow journalist. He had also sought the opinion of a woodlands owner as to the truth of the allegations in the article. The applicant’s conviction was therefore disproportionate to the aim of protecting th e reputation or rights of others.

Conclusion : violation (unanimously).

Article 41: Taking into account the sums which the applicant had had to pay to his opponents pursuant to the judicial decisions, the Court awarded him LUF 741,440 for pecuniary damage a nd an amount by way of reimbursement of his costs and expenses. It held that the finding of a violation of the Convention constituted sufficient compensation for the non-pecuniary damage he had sustained as a result of the decisions of the Luxembourg court s.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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