CONCURRING OPINION OF JUDGE MOTOC

(Translation)

I think that the judgment delivered in the present case represents an important decision because of the complexity and subtlety of the reasoning behind it.

In my view, the judgment has advanced our understanding of the concept of responsible journalism. I would like to dwell on three different aspects in this opinion, namely the origin of the concept of independent journalism in the Court’s case-law, proportionality and the State’s margin of appreciation.

Responsible journalism is no new concept in the Court’s case-law. I take the view that the Court has explicitly or implicitly followed the principles of journalism ethics set out in the Munich Declaration of the Duties and Rights of Journalists (1971) . Although the rights of journalists are well known, their duties are less so, which is why it could be useful to list them:

“ Declaration of duties

The essential duties of the journalist in gathering, reporting on and commenting on events consist in:

1) Respecting the truth no matter what consequences it may bring about to him, and this is because the right of the public is to know the truth.

2) Defending the freedom of information, of commentaries and of criticism.

3) Publishing only such pieces of information the origin of which is known or – in the opposite case – accompanying them with due reservations; not suppressing essential information and not altering texts and documents.

4) Not making use of disloyal methods to get information, photographs and documents.

5) Feeling obliged to respect the private life of people.

6) Correcting any published information which has proved to be inaccurate.

7) Observing the professional secrecy and not divulging the source of information obtained confidentially.

8) Abstaining from plagiarism, slander, defamation and unfounded accusations as well as from receiving any advantage owing to the publication or suppression of information.

9) Never confusing the profession of journalist with that of advertiser or propagandist and not accepting any consideration, direct or not, from advertisers.

10) Refusing any pressure and accepting editorial directives only from the leading persons in charge in the editorial office. Every journalist worthy of this name feels honoured to observe the above-mentioned principles; while recognising the law in force in each country, he does accept only the jurisdiction of his colleagues in professional matters, free from governmental or other interventions.”

These principles have been acknowledged in several Court judgments, particularly Bladet Tromsø and Stensaas v. Norway ([GC], no. 21980/93, ECHR 1999-III), Fressoz and Roire v. France ([GC], no. 29183/95, ECHR 1999 ‑ I), Kasabova v. Bulgaria (no. 22385/03, 19 April 2011), and Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2) (nos. 3002/03 and 23676/03, ECHR 2009). In those judgments the Court pointed out the other principles relating to responsible journalism, especially as regards publication content.

The main achievement of this judgment is that the principle of responsible journalism has been brought to the fore with regard to the public conduct of journalists.

In the present judgment the Court clarifies the journalists’ duty to comply with the applicable domestic law in a context in which their professional honour is not at stake (this corresponds to the end of the Munich Declaration). The point in issue here is the public conduct of journalists. The judgment points out the two corollaries of that principle, that is to say, firstly, the fact that journalists cannot claim any kind of immunity from the application of criminal law on the basis of their profession, and secondly, the obligation on journalists who have failed to comply with the law to carefully weigh up the consequences of their conduct.

The principle of responsible journalism has also been addressed by other courts, particularly the US Supreme Court in its landmark case in New York Times v. Sullivan , 376 US 254 (1964), in the wake of which that Court laid down the regulations which transformed libel legislation. A public official can only win a libel suit if and when a court rules that the libellous statement concerning him or her was made with “‘actual malice’ – that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.” Provided that the press show “no malice”, public officials cannot claim damages for the publication of false statements concerning them.

In separate concurring opinions, Mr Justice Hugo L. Black and Mr Justice William O. Douglas disagreed with Mr Justice Brennan on whether the press should never be held responsible for libelling officials. They considered that the First Amendment laid down absolute immunity for criticism of the way public officials do their public duty. Anything less than absolute immunity would encourage a “deadly danger” to the free press under State libel legislation harassing, punishing and ultimately destroying criticism. The findings set out in that judgment have not been followed by the other Supreme Courts.

In Grant v. Torstar Corp. , [2009] 3 SCR 640, the Canadian Supreme Court found that two conditions had to be fulfilled for the defence of responsible communication to be established:

(1) the case had to involve a matter of public interest;

(2) the defendant had to demonstrate that he had acted responsibly and been diligent in trying to verify the allegation(s), having regard to all the relevant circumstances.

The Supreme Court stated that in order to assess whether the defendant had acted responsibly, the court had to consider

(1) the seriousness of the allegation;

(2) the public importance of the matter;

(3) the urgency of the matter;

(4) the status and reliability of the source;

(5) whether the plaintiff’s side of the story was sought and accurately reported;

(6) whether the inclusion of the defamatory statement was justifiable;

(7) whether the defamatory statement’s public interest lay in the fact that it was made rather than in its truth .

The Supreme Court noted that the list was not exhaustive and that it should only serve as guidance. The courts were free to consider other factors. Moreover, the factors listed should not all carry the same weight.

There are a number of decisions from European Constitutional and Supreme Courts on the conduct of journalists. For instance, the Austrian Constitutional Court held that the fact of punishing a journalist for refusing to leave a public demonstration was not contrary to the relevant journalists’ rights (see VGH , judgment of 20 September 2012). The same reasoning is to be found in a judgment delivered by the Macedonian Constitutional Court in 2014: the Court held that the removal of journalists from a parliamentary session did not infringe their rights. Again, in a 2004 judgment the Swedish Supreme Court ruled that the fact of being a journalist could not prevent a person from being convicted of unlawful conduct while covering a demonstration in a limited-access nuclear zone.

I fully agree with the majority’s conclusion that a distinction must be drawn between the present case and Stoll v. Switzerland ([GC], no. 69698/01, ECHR 2007-V). Even if both cases involved the concept of public order, the publication of secret documents in Stoll has nothing to do with the failure to comply with an order during a demonstration which is central to the instant case. Stoll concerned a publication, not public conduct.

Another major question remains to be addressed in this case, as in all those involving the rights set out in Articles 8 and 11 of the Convention, namely proportionality. The application of the proportionality principle has also given rise to most debates concerning Court case-law. Originally, it was often considered that the Court applied the principle of giving “priority to rights”, to the effect that it is incumbent on the Government to demonstrate the proportionality of the impugned interference. Several examples of grounds of interference in a Convention right have been set out: interference must be “relevant and sufficient” (see, among other authorities, Nikula v. Finland , no. 31611/96 , ECHR 2002-II); the need for a restriction must be “convincingly established” (see Société Colas Est and Others v. France , no. 37971/97, ECHR 2002-III) or it must be justified by “convincing and compelling reasons” (see Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98 and 3 others, ECHR 2003-II); the interference must be justified by an “overriding social need” (see Observer and Guardian v. the United Kingdom , 26 November 1991, Series A no. 216); and public policies must be pursued “in the least onerous way as regards human rights” (see Hatton and Others v. the United Kingdom , no. 36022/97, 2 October 2001). Nevertheless, confusion has been created by other decisions which have opted for a “fair balance” between the Convention rights and the “general interests of the community”, without providing any particular reasons [2] .

Although it is broadly considered that the Court uses the triadic structure to assess proportionality, albeit often in a rather obscure manner, other approaches to the proportionality issue have been proposed in terms of moral values, drawing on the stance adopted by Jeremy Waldron, who notes the lack of a common system to “balance” incommensurability but allows the relevant values to be taken into account [3] .

I consider that this judgment implicitly combines both approaches, as do many of the Court’s judgments. It analyses the objective, the aims and the question whether the measure helps pursue those aims, and at the same time it highlights the question of the competing moral values. Ultimately, it leaves adequate room for the State’s margin of appreciation.