DISSENTING OPINION OF JUDGE LÓPEZ GUERRA JOINED BY JUDGES JUNGWIERT, JAEGER, VILLIGER AND POALELUNGI

I do not agree with the finding by the Grand Chamber of a violation of Article 10 of the Convention. In my opinion, in the present case the Grand Chamber had no grounds for concluding that the domestic courts did not duly protect the applicant company’s right to freedom of expression.

I certainly agree with the Grand Chamber’s determination of the facts of the case. It correctly established that there had been an interference with the applicant company’s right to freedom of expression as recognised in Article 10 of the Convention (in this case, the right to publish certain information) as a result of court sanctions imposed on it for publishing two press articles concerning the arrest and sentencing of a third person. I also agree with the Grand Chamber that the sanctions were provided for by law and pursued a legitimate end, namely, respect for the rights of others, in this case the right to privacy (including the right to respect for one’s reputation) as recognised in Article 8 of the Convention. I also agree with the Grand Chamber’s assertion (see paragraph 76 of the judgment) that the Court’s task was to determine whether those sanctions were necessary in a democratic society pursuant to the terms of Article 10 § 2 of the Convention. Also, as indicated in subsequent paragraphs of the Grand Chamber judgment, in order to answer this question this Court had to decide whether the domestic courts had adequately weighed the conflicting rights and interests, namely, the right to freedom of expression versus the right to privacy.

My difference of opinion with the Grand Chamber judgment derives from its further reasoning. According to our consolidated case-law as cited in this judgment (see Petrenco v. Moldova , no. 20928/05, § 54, 30 March 2010; Petrov v. Bulgaria (dec.), no. 27103/04, 2 November 2010; and Polanco Torres and Movilla Polanco v. Spain , no. 34147/06, § 40, 21 September 2010), it is not the task of this Court to assume the role of the competent national courts in determining the merits of the case, but rather to review the decisions those courts render in the exercise of their powers of appreciation. Concerning compliance with Article 10 of the Convention, the domestic courts have a certain margin of appreciation (see Von Hannover v. Germany , no. 59320/00, § 57, ECHR 2004 ‑ VI, and Lappalainen v. Finland (dec.), no. 22175/06, 20 January 2009) although, as the Grand Chamber underscores in the present judgment (see paragraph 86) their decisions are subject to the scrutiny of this Court. In that regard, this Court has established a series of criteria which must be followed when assessing how the domestic courts have balanced conflicting rights, including, inter alia , the published information’s contribution to a debate of general interest, the previous behavior and degree of notoriety of the person affected, the content and veracity of the information, and the nature of the sanctions and penalties imposed. In balancing the conflicting rights in the cases brought before them, national authorities (in this case, the national courts) must apply these criteria in reaching their decision, whilst appraising, with the benefit of direct examination, the facts and circumstances of the case when applying their domestic law.

In order to exercise this Court’s powers of review without becoming a fourth instance, our task in guaranteeing respect for Convention rights in this type of case is essentially to verify whether the domestic courts have duly balanced the conflicting rights and have taken into account the relevant criteria established in our case-law without any manifest error or omission of any important factor. Where these prerequisites have been met, that is, the domestic courts have expressly weighed the conflicting rights and interests and applied the pertinent criteria established in our above-cited case-law, an additional assessment of the competing interests by this Court, examining anew the facts and circumstances of the case, is tantamount to acting as a fourth instance (or, as now, a fifth instance).

In the present case the domestic courts (mainly the Hamburg Regional Court and the Court of Appeal) certainly performed the required balancing exercise. Concerning each of the published articles, on two consecutive occasions those courts assessed the competing interests derived from freedom of expression and the safeguard of privacy. In extensive reasoning they explained their final judgments and their reasons for giving more weight to the protection of the right to privacy and reputation. These judgments exhaustively examined the different aspects and circumstances of the question, including the relevance of the matter for the public interest, the degree of notoriety of the person affected, the nature of the crime of which he was suspected and subsequently accused and sentenced, and the severity of the sanction imposed on the applicant company. Furthermore – albeit indirectly – the domestic Court of Appeal consciously applied our Court’s criteria by using as a point of reference the judgment of the Federal Court of Justice of 15 November 2005, a judgment which expressly cited and applied the criteria established in our Von Hannover v. Germany judgment of 24 June 2004.

There is certainly a possibility that domestic courts may apply the relevant criteria in a manifestly unreasonable way or may fail to duly assess the presence of some important factor. But in this case the judgments of both the Hamburg Regional Court and the Court of Appeal demonstrate that both domestic courts carefully weighed all the relevant facts of the case, with the advantage of their knowledge and their continuous contact with the social and cultural reality of their country, in a way which cannot be considered arbitrary, careless or manifestly unreasonable.

In view of the above, none of the grounds which would justify a review by this Court of the judgments of the domestic courts are present in this case. The domestic courts did not fail to balance the conflicting interests or to apply the relevant criteria in doing so. They made no manifest error of appreciation; nor did they fail to consider all the relevant factors. Nevertheless, on this occasion and instead of concentrating its assessment on whether the domestic courts applied the above-mentioned criteria effectively, the Grand Chamber has chosen to re-examine the same facts that were brought before the national courts. And this was done in spite of the national courts having extensively assessed the circumstances of the case in a way that was not manifestly unreasonable, and with the added benefit of their direct examination of the context in which the events occurred. Analysing the same facts and using the same criteria and same balancing approach as the domestic courts, the Grand Chamber came to a different conclusion, giving more weight to the protection of the right to freedom of expression than to the protection of the right to privacy. But that is precisely what the case-law of this Court has established is not our task, that is, to set ourselves up as a fourth instance to repeat anew assessments duly performed by the domestic courts.