CONCURRING OPINION OF JUDGE LOUCAIDES

I agree with the findings of the Court in this case but I would like to express certain views regarding freedom of expression and the right to protection of one ’ s reputation.

One cannot disagree with the importance of freedom of speech, especially that of the media, as an essential element of a democratic society. However, the question is whether the protection accorded to such a freedom may, under any circumstances, be so excessive as to deprive the victims of false defamatory statements of the necessary effective remedy.

For many years the jurisprudence of the Court has developed on the premise that, while freedom of speech is a right expressly guaranteed by the Convention, the protection of reputation is simply a ground of permissible restriction on the right in question which may be regarded as justified interference with expression only if it is “necessary in a democratic society”, in other words if it corresponds to “a pressing social need” and is “proportionate to the aim pursued” and if “the reasons given were relevant and sufficient”. Moreover, as a restriction on a right under the Convention it has to be (like any other restriction on such rights) strictly and narrowly interpreted. The State bears the burden of adducing reasons for interfering with expression and has to demonstrate the existence of “relevant and sufficient” grounds for doing so.

As a consequence of this approach, the case-law on the subject of freedom of speech has on occasion shown excessive sensitivity and granted over-protection in respect of interference with freedom of expression, as compared with interference with the right to reputation. Freedom of speech has been upheld as a value of primary importance which in many cases could deprive deserving plaintiffs of an appropriate remedy for the protection of their dignity.

This approach cannot be in line with the correct interpretation of the Convention. The right to reputation should always have been considered as safeguarded by Article 8 of the Convention, as part and parcel of the right to respect for one ’ s private life.

It would have been inexplicable not to provide for direct protection of the reputation and dignity of the individual in a h uman r ights c onvention drafted in the aftermath of the Second World War and intended to enhance the protection of the individual as a person after the abhorrent experiences of Nazism. The Convention expressly protects rights of lesser importance, such as the right to respect for one ’ s correspondence. It is therefore difficult to accept that the basic human value of a person ’ s dignity [1] was deprived of

direct protection by the Convention and instead simply recognised, under certain conditions, as a possible restriction on freedom of expression. A person ’ s dignity requires more extensive and direct protection against false defamatory accusations which may destroy individuals and we have plenty of examples of such tragic results. In this respect I reiterate the following statement from my dissenting opinion in the report of the Commission concerning the case of Bladet Tromsø A/S and Stensaas v. Norway (9 July 1998 , unreported ):

“The press is, in our days, an important and powerful means of influencing public opinion. The impressions that may be created through a publication in the press are usually more decisive than the reality because until the reality is found out the impressions prevail. And the reality may never be discovered or when it is disclosed it may be too late to remedy the damage done by the original impressions. The press is in effect exercising a significant power and should be subject to the same restraints applicable to any exercise of power, namely it should avoid abuse of its power, it should act in a fair way and respect the rights of others.”

Accepting that respect for reputation is an autonomous human right, which derives its source from the Convention itself, leads inevitably to a more effective protection of the reputation of individuals vis-à-vis freedom of expression.

In recent years the Court has expressly recognised that protection of reputation is a right which is covered by the scope of the right to respect for one ’ s private life under Article 8 § 1 of the Convention (see Chauvy and Others v. France , no. 64915/01, ECHR 2004-VI; Abeberry v. France (dec.), no. 58729/00, 21 September 2004; and White v. Sweden , no. 42435/02 , 19 September 2006 ), even though the relevant jurisprudence has not expanded on this novel approach, nor has it been relied on in other cases involving freedom of speech and defamation. In the light of this jurisprudence, protection of reputation entails an obligation for the State to enforce a corresponding right guaranteed by the Convention with the same status as freedom of expression. Any defamatory statement amounts to interference with the right guaranteed by the Convention and can only be justified if it satisfies the requirements of permissible restrictions on the exercise of such right, that is to say , it must be prescribed by law and necessary in a democratic society, corresponding to a pressing social need, proportionate to the aim pursued, etc. Therefore it will be more difficult to defend a defamatory statement for purposes of Convention protection when it is examined as interference with a right recognised under the Convention, rather than as a necessary restriction on freedom of expression.

When there is a conflict between two rights under the Convention, neither of them can neutralise the other through the adoption of any absolute approach. Both must be implemented and survive in harmony through the necessary compromises, depending on the facts of each particular case.

The principle established by the jurisprudence that there is more latitude in the exercise of freedom of expression in the area of political speech or debate, or in matters of public interest, or in cases of criticism of politicians, as in the present case, should not be interpreted as allowing the publication of any unverified defamatory statements. To my mind this principle means simply that in those areas mentioned above, and in respect of politicians, certain exaggeration in allegations of fact or even some offending effect should be tolerated and should not be sanctioned. But the principle does not mean that the reputation of politicians is at the mercy of the mass media or other persons dealing with politics, or that such reputation is not entitled to the same legal protection as that of any other individual. Reputation is a sacred value for every person including politicians and is safeguarded as a human right under the Convention for the benefit of every individual without exception. And that is how I approached the facts of the present case.

I wish to take this opportunity to point out some adverse consequences resulting from over-protection of freedom of expression at the expense of the right to reputation. The main argument in favour of protecting freedom of expression, even in cases of inaccurate defamatory statements, is the encouragement of uninhibited debate on public issues. But the opposite argument is equally strong: the suppression of untrue defamatory statements, apart from protecting the dignity of individuals, discourages false speech and improves the overall quality of public debate through a chilling effect on irresponsible journalism. Moreover, such debates may be suppressed if the potential participants know that they will have no remedy in the event that false defamatory accusations are made against them. The prohibition of defamatory speech also eliminates misinformation in the mass media and effectively protects the right of the public to truthful information. Furthermore, false accusations concerning public officials, including candidates for public office, may drive capable persons away from government service, thus frustrating rather than furthering the political process.

The right to reputation, having the same legal status as freedom of speech, as explained above, is entitled to effective protection so that under any circumstances any false defamatory statement, whether or not it is malicious and whether or not it may be inevitable for an uninhibited debate on public issues or for the essential function of the press, should not be allowed to remain unchecked.

One should not lose sight of the fact that the mass media are nowadays commercial enterprises with uncontrolled and virtually unlimited strength, interested more in profitable, flashy news than in disseminating proper information to the public, in controlling government abuse or in fulfilling other idealistic objectives. And although they may be achieving such objectives incidentally, accidentally or occasionally, even deliberately, they should be subject to certain restraint out of respect for the truth and for the dignity of individuals. Such restraint should include the duty to investigate defamatory allegations before rushing into print and the obligation to give an opportunity to the persons affected by their defamatory stories to react and give their own version. Furthermore they should remain legally accountable to the persons concerned for any false defamatory allegations. Like any power, the mass media cannot be accountable only to themselves. A contrary position would lead to arbitrariness and impunity, which undermine democracy itself.