DISSENTING OPINION OF JUDGE ZAGREBELSKY

(Translation)

I do not agree with the majority of the Chamber that there has been a violation of Article 8 of the Convention in the present case for the following reasons.

1. There is no doubt that Article 8 of the Convention is applicable in the case, since the publication concerned caused considerable damage to the applicant ’ s reputation. The Court ’ s case-law on the matter is clear. The Court has held that a person ’ s right to protection of his or her reputation is encompassed by Article 8 as part of the right to respect for private life (see, recently, Pfeifer v. Austria , judgment of 15 November 2007). Article 8 may require the adoption of positive measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see Von Hannover v. Germany , no. 59320/00, § 57, ECHR 2004-VI, and Stubbings and O thers v. the United Kingdom , judgment of 22 October 1996, Reports of Judgments and Decisions 199 6-IV, p. 1505, §§ 61 and 62).

2. In the context of a press article, freedom of expression enters into play. Here too the Court has clearly stated on numerous occasions the principles to be taken into account, which may be summarised as follows. The press plays an eminent role in a democratic society. Although it must not overstep certain bounds, regarding in particular the protection of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest . Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed.

From Article 8 is derived the right to protection of one ’ s reputation, even outside the sphere of private life, but the requirements of such protection must be weighed against the interest in free discussion of matters of public interest. The Court must check that the domestic authorities have maintained a fair balance between protection of freedom of expression and protection of the reputation of those against whom allegations have been made.

There are different ways of securing respect for private life, and the nature of the State ’ s obligation depends on the aspect of private life concerned. It follows that the choice of measures calculated to secure compliance with that positive obligation falls within the Contracting States ’ margin of appreciation.

The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but

that margin goes hand in hand with European supervision. In exercising its supervisory function t he Court ’ s task is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken by virtue of their power of appreciation . The Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient” and whether the measure complained of was “proportionate to the legitimate aims pursued” . The right of journalists to impart information about matters of public interest is protected, provided that they are acting in good faith, on the basis of exact facts, in order to provide “accurate and reliable” information in accordance with the ethics of journalism. The second paragraph of Article 10 emphasises that exercise of the freedom of expression carries with it duties and responsibilities, and those duties and responsibilities may be of some importance where there is a risk of damage to the reputation of a person referred to by name or impairment of the “rights of others”.

The nature and severity of the penalties imposed on those whose comments give offence are also elements to be taken into consideration in assessing the proportionality of an interference. Although Contracting States have the power, and indeed the duty, by virtue of their positive obligations under Article 8 of the Convention, to regulate the exercise of freedom of expression in such a way as to ensure the appropriate protection of the reputation of individuals by law, they must in so doing avoid taking measures likely to dissuade the media from playing their role.

The civil nature of measures taken against journalists or publishers does not exclude assessment of their “proportionality”, given the condition that they must not have the effect of dissuading the press from taking part in the discussion of matters of public interest. In that connection, “perceptions as to what would be an appropriate response by society to speech which does not or is not claimed to enjoy the protection of Article 10 of the Convention may differ greatly from one Contracting State to another. The competent national authorities are better placed than the European Court to assess the matter and should therefore enjoy a wide margin of appreciation in this respect” (see Tolstoy Miloslavsky v. the United Kingdom , judgment of 13 July 1995, § 48).

Excessively large sums in damages and the lack of appropriate and effective safeguards against disproportionate awards may lead the Court to find a violation of Article 10 (see Tolstoy Miloslavsky v. the United Kingdom , cited above, §§ 50 and 51, and Steel and Morris v. the United K ingdom , judgment of 15 February 2005, § 96).

3. It was accepted by the domestic courts that there had been abuse of the freedom of expression and damage to the reputation of the applicant ’ s husband in the present case. It is not for the Court to take those courts ’ place in determining whether or not the wrong done was intentional within the meaning of domestic law. What is important is the finding that the first condition for protection of the husband ’ s right to defend his reputation was met by the domestic courts. Those courts also upheld his right to damages , equivalent to 2,896 euros, which was the maximum sum they could have awarded under the legislation in force at the time, which indeed fixed a ceiling with the evident intention of preventing exorbitant awards in respect of non-pecuniary damage.

To my mind, the mere fact that there was a ceiling should not cause any problem; on the contrary, I would say, the aim was to protect freedom of expression from possible interference stemming from judicial decisions relating to a question – non-pecuniary damage – which by its nature leaves wide latitude to judges. Naturally, the ceiling must be reasonable, but from that point of view what is decisive is the maximum figure concerned, and above all the result of the ceiling ’ s application.

4. On the one hand, the exclusion of disproportionate awards of damages is prompted by the need to avoid interfering with freedom of expression. On the other hand, an order to pay an insignificant level of compensation might constitute failure to protect the victim ’ s right to respect for his or her private life (although it may sometimes be sufficient simply to recognise the fact that there has been an unjustified attack on the reputation of the person concerned). Except in extreme cases at one end of the spectrum or the other, I find it difficult to accept that the Court should substitute its assessment for that of the domestic courts and, through its judgment, intervene in substance to correct their decisions.

5. In the present case the amount of 2,896 euros – awarded as compensation for non-pecuniary damage – does not seem so disproportionate as to enable the Court to find that the applicant ’ s right was not protected at national level. Unlike the practice in Article 10 cases, in a case concerning Article 8 consideration of the economic power of the opponent does not seem relevant, since it is not a question of punitive damages but of assessing the damage actually suffered by the applicant.

In a recent case concerning a violation of Article 8 of the Convention, in which the domestic courts had given priority to freedom of expression over protection of the applicant ’ s right to defend his reputation (and in which he therefore had lost his case and received nothing in damages) the Court, in applying Article 41 of the Convention, awarded the applicant 5,000 euros (see Pfeifer v. Austria , cited above). While I accept that each case is different, I think that at least that case may serve to provide an approximate calibration, and lead the Court to the conclusion that the amount awarded by the Lithuanian courts, pursuant to the legislation in force, can reasonably be taken to cover the non-pecuniary damage suffered by the applicant ’ s family and that, in any event, the domestic decisions gave the family appropriate protection.

PARTLY dissenting opinion of Judges Popović and Tsotsoria

We voted against the amount awarded to the applicant in just satisfaction, because we consider it to be excessive in respect of the violation found. We believe that, in the light of the balancing test between the fundamental rights protected under Articles 8 and 10 of the European Convention on Human Rights, rightly referred to in the Judgment, the applicant should be awarded a lesser sum.