Information Note on the Court’s case-law 193

February 2016

Erdener v. Turkey - 23497/05

Judgment 2.2.2016 [Section II]

Article 10

Article 10-1

Freedom of expression

Civil award of damages against journalist for comments criticising quality of medical care received by Prime Minister: violation

Facts – The applicant was at the relevant time a member of parliament belonging to a party chaired by the Turkish Pr ime Minister.

In August 2002 a national daily newspaper published an article on the Prime Minister’s state of health. The journalist reported a discussion she had had with two MPs, one of whom was the applicant. Among other things the applicant was reporte d to have said about the doctors of the university hospital in question: “They nearly drove him to his death”.

The administration of the university filed a civil suit against the applicant and the other MP seeking compensation for damage to its reputation.

In June 2003 the applicant was ordered to pay about EUR 1,200 in compensation. The court found that she had expressed a personal opinion, consisting of an accusation against the hospital, and that in itself this constituted damage to the hospital’s reputa tion.

The applicant’s appeals against the civil judgment were unsuccessful.

Law – Article 10: The judgment against the applicant ordering her to pay damages had constituted an interference with her right to freedom of expression, as prescribed by law.

The applicant had expressed her opinion both as an MP and as a member of the Prime Minister’s party on a subject of general interest which had received wide media coverage, concerning, in particular, the right of citizens to be informed of any allegations about the Prime Minister’s state of health.

Her remarks especially concerned rumours which had been circulating for a long time in the National Assembly. The offending expression, “They nearly drove him to his death”, seen in the context of the remarks as a whole, and notwithstanding its polemical undertone, amounted to a personal opinion criticising the Prime Minister’s medical treatment at the university hospital. Having regard to the documents submitted by the applicant to the domestic courts, that opini on had a sufficient factual basis and was closely linked to the circumstances of the case.

In addition, the District Court had disregarded the manner in which the applicant had made her remarks. It had been a private conversation and there was no evidence to suggest that she had intended to use it to publicly wage a defamatory campaign against the hospital.

The domestic court had considered the offending remark out of its context, concluding that it had, in itself, been sufficient to damage the university’s reputation. Such an expression should have been placed in the specific context of the circumstances of the case. For the same reasons, the Court could not agree with the conclusion that it had been sufficient “in itself” to damage the university’s reputat ion.

Thus, the judicial authorities had not struck a fair balance between the need to protect the applicant’s right to freedom of expression and the need to safeguard the university’s reputation. Even supposing that the reasoning given by the District Cour t in finding against the applicant had been relevant, it had not been sufficient to justify the interference with her freedom of expression.

Lastly, even though the damages awarded against the applicant had ultimately not been very high, the judgment had c ertainly had a deterrent effect on the free public discussion of questions which were of interest to the wider community.

Consequently, the upholding of the defamation claim against the applicant had constituted a disproportionate interference with her right to freedom of expression and one that had not been “necessary in a democratic society” within the meaning of Article 10 of the Convention.

Conclusion : violation (unanimously).

Article 41: EUR 7,500 in respect of non-pecuniary damage; EUR 2,340 in respect of pecuniary damage.

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

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