DISSENTING OPINION OF JUDGE CABRAL BARRETO

(Translation)

To my regret, I cannot concur with the majority.

1. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10 , it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.

These principles are of particular importance with regard to the press. While it must not overstep the bounds set, inter alia , for “the protection of the reputation of others”, its task is nevertheless to impart information and ideas on political issues and on other matters of general interest.

As to the limits of acceptable criticism, they are wider with regard to a politician acting in his public capacity than in relation to a private individual.

A politician inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance, especially when he himself makes public statements that are susceptible of criticism .

Determining whether the interference in question was “necessary in a democratic society” requires the Court to establish whether it corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient ( see Lopes Gomes da Silva v . Portugal , no. 37698/97 , § 30 , ECHR 2000-X).

2. Above all, I would emphasise that the present case clearly involved a political debate on matters of general interest, an area in which restrictions on the freedom of expression should be interpreted narrowly.

That said, it seems to me that the fundamental issue in this case is whether the award of damages was proportionate to the legitimate aim of protecting Mr de Rossa ’ s reputation or rights .

The majorit y, however, attach too much importance to the safeguards afforded by Irish law for reviewing domestic decisions (see paragraph 114 of the judgment ).

I am not disputing the value of these safeguards, but that does not seem to me to be a sufficient reason for finding that there has been no violation of A rticle 10.

The important aspect to my mind was, rather, not only whether the safeguards functioned properly but also whether, despite the margin of appreciation enjoyed by the domestic authorities, the final decision was consistent with the principles set forth in our case-law.

Weighing up all the circumstances of the case, I came to the conclusion that the amount of damages which the first applicant was ordered to pay, notwithstanding the review of the award by the Supreme Court , was so high that the reasonable relationship of proportionality between the interference and the legitimate aim pursued was not observed.

I therefore consider that there was a violation of Ar ticle 10 of the Convention.

[1] . In its composition before 1 November 2004 .