CONCURRING OPINION OF JUDGE SERGHIDES

1. The applicant company complained before the Court that a domestic judgment of 10 October 2007 had constituted a disproportionate interference with its right to freedom of expression guaranteed by Article 10 of the Convention. The applicant is a media outlet company which reported information disseminated by the local police and the State consumer protection agency regarding mercury poisoning following consumption of a branded juice-based drink. As indicated in the introduction to the judgment, drinks marketed under the brand in question were produced by at least two legal entities, one of which (the “claimant”) brought defamation proceedings against the applicant company before the commercial courts. The lower commercial courts dismissed the claims, but the highest commercial court hearing a cassation appeal brought by the claimant, the Federal Commercial Court of the Moscow Circuit (the “Circuit Court”), found against the applicant company and ordered it to pay the claimant an award of 1,000,000 roubles (28,428 euros) in compensation for non ‑ pecuniary damage (see paragraph 32 of the judgment).

2. I agree with the judgment (paragraph 81) in finding a violation of Article 10 of the Convention and I also agree with all the remaining points of the operative part of the judgment. I would, however, have used a different methodology to reach the same conclusion.

3. Let me start by saying that the judgment concerns the resolution of a conflict between two private rights, namely, the right to freedom of expression of the applicant under Article 10 of the Convention and the right to the private life/reputation of the claimant under Article 8.

4. In resolving this conflict, the judgment uses four criteria for the purpose of weighing up the two rights. These criteria are referred to in a general manner in paragraph 63 of the judgment and in a more specific manner in paragraph 67. In the latter, it is pertinently stated as follows:

“In the Court’s view, the following criteria are relevant in the assessment of the necessity of an interference where the right to freedom of the media is to be weighed against the competing right to reputation of a commercial company: the subject matter of the impugned publications, that is, whether they concerned a matter of public interest; the content, form and consequences of the publications; the way in which the information was obtained and its veracity; and the gravity of the penalty imposed on the media outlet or journalists ...”

5. Subsequently, the judgment examines these four criteria separately (see paragraphs 68-79), and, lastly, it concludes that in view of these “elements” (criteria), the Circuit Court failed to establish that there had been a pressing need for the interference complained of, and that, consequently, the Circuit Court’s judgment amounted to a disproportionate interference with the applicant’s right to freedom of expression, that was not “necessary in a democratic society”, within the meaning of Article 10 § 2 of the Convention (see paragraphs 80-81).

6. In the very recent case of Rashkin v. Russia (no. 69575/10, 7 July 2020, not yet final), I have proposed in my dissenting opinion (§§ 6-15) a method for resolving a conflict between a right under Article 10 and a right under Article 8, by first determining the damage or impairment that each right will potentially sustain in the conflict, and, then, by weighing in the balance the damage that each of the two rights would potentially suffer. I suggested that a victim-centred test would in essence be the same as a damage-centred test. I based my proposal on a harmonious blending of the principle of effectiveness with the principle of proportionality (see §§ 9-10 of the said opinion). After finishing my opinion in Rashkin and while writing this opinion, I discovered that the use of the “impact criterion”, with nuances between different authors, in resolving a conflict of rights has received considerable academic support (see, for instance, Stijn Smet, “Conflict Between Human Rights and ECtHR – Towards a Structural Balancing Test”, in Stijn Smet and Eva Brems (eds), When Human Rights Clash at the European Court of Human Rights – Conflict or Harmony?, Oxford, 2017, 38, at p. 46 et seq., where reference is made to Robert Alexy’s treatise, namely, A Theory of Constitutional Rights, Oxford, 2002, at pp. 44-48; Stijn Smet, Resolving Conflicts Between Human Rights – The Judge’s Dilemma, London-New York, 2017, at pp. 144, 152-162; and Aharon Barak, Proportionality: Constitutional Rights and their Limitations , Cambridge, 2012, at p. 89 et seq.).

The originality of this opinion, like the one I appended to Rashkin , in resolving a conflict of rights lies: (a) in using the principle of effectiveness as a norm of international law in determining the extent of damage that each of the competing rights will suffer from the conflict; (b) in using the principle of effectiveness as a method of interpretation which seeks to find the best interpretative approach or methodology in resolving a conflict of rights, namely through the harmonious employment of the principle of effectiveness as a norm and the principle of proportionality (see § 10 of my opinion in Rashkin ). In my view, the conflict of rights is in most cases resolved since only the core or very essence of one of the rights will be affected by the conflict and here the principle of effectiveness intervenes as a norm to assist in ascertaining whether and when the core of the right is affected.

7. By following the above approach in the present case, I come to the same conclusion as the judgment, since I find that the damage that the right to freedom of expression would suffer from this conflict would be more considerable than the damage to the claimant’s right to respect for its private life; more precisely, only the core or very essence of the first right, but not also of the latter, would be damaged by the conflict.

8. My difference in relation to the judgment is basically threefold: (a) the judgment does not follow my damage-based approach; (b) I am using the four criteria/considerations that the judgment uses with the focus on determining the extent of damage that each of the two conflicting rights would suffer if the other were to prevail; and (c) unlike the judgment, I always keep clear in my mind that the only conflict that has to be resolved is that between the two competing rights. Regarding (c) above, the following example may be given to explain what I mean. In paragraph 79 of the judgment it is stated that “the Circuit Court, finding for the claimant, did not advance any arguments as to why it had accorded more weight to the reputational interest of a commercial company than to the interest of the general public to be informed of such a serious matter as an instance of mercury poisoning through commercially distributed foods”. However, in my humble opinion, the “public interest” criterion should not be used, or be perceived to be used, as a right in itself to be weighed against the claimant’s right to the protection of private life under Article 8. There are not three rights to be weighed in the balance in the present case, but only two rights, namely, that of the applicant under Article 10 and that of the claimant under Article 8. In my view, the interest of the public to be informed is an element or criterion which concerns mainly the individual right to freedom of expression, because this is the means through which the public can be informed, for example, about a potential health hazard. In the present case, one can say that informing the public about such a hazard was the object and the main purpose of the exercise of the applicant’s right. Thus, to prevent a right from being exercised and from fulfilling its object and main purpose would affect its very core or essence. It is to be noted here that the applicant relied on information gathered from official sources (see paragraph 72).

9. In my humble view, the examination of the relevant criteria in making a fair balance test (see paragraphs 67-79) does not itself serve to resolve a conflict of rights if ultimately there is: (a) no determination or finding of the extent of damage that each right will suffer from the conflict (if the other right is to prevail), and (b) no weighing up of the two rights as regards the potential damage caused to each one. I respectfully highlight that these are omissions in the present judgment, as in that of the Circuit Court at domestic level. Neither judgment has carried out a full or appropriate balancing exercise. A fair balance test, however, by its very nature, can never be partial or lacking in some important elements. It is a process involving different steps or phases, which can either be fulfilled or not (see § 6 of the joint concurring opinion of Judges Elósegui and Serghides in Nadtoka v. Russia (no. 2), no. 29097/08, 8 October 2019). This is especially significant when the Court is dealing with two rights which are mutually exclusive and where the restrictive measure, appearing as a limitation under paragraph 2 of Article 10 or Article 8, is an individual right in itself.

10. I am of the view that without a diligent review of where the greater damage would lie, and without a proper weighing-up of the damage to the two conflicting rights, one cannot resolve the conflict arising in the present case.

11. In the present instance, the omission of an appropriate or full balancing exercise has not led to a wrong outcome. However, without diligently weighing up the possible damage to each of the two rights at stake, one may run the risk of setting a precedent which would disproportionately favour one right over another.

12. For this reason, I propose the damage-centred or victim-focused methodology, which I believe takes into account the two conflicting rights on an equal footing, since Article 10 and Article 8, in principle, deserve equal respect. On the equal status and the consequent enjoyment of equal protection of the two rights enjoyed, the Court in Bédat v. Switzerland ([GC], no. 56925/08, § 52, 29 March 2016) pertinently held:

“52. Furthermore, when it is called upon to adjudicate on a conflict between two rights which enjoy equal protection under the Convention, the Court must weigh up the competing interests. The outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the offending article or under Article 10 of the Convention by the author of that article, because these two rights deserve, in principle, equal respect.”

(see, similarly, Hachette Filipacchi Associes (ICI PARIS) v. France , no. 12268/03, § 41, 23 July 2009; Timciuc v . Romania (dec.), no. 28999/03, § 144, 12 October 2010; Mosley v . the United Kingdom , no. 48009/08, § 111, 10 May 2011; and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 91, ECHR 2015).

13. The proposed test focuses on the damage or consequence that the clash of rights will bring, comparing which right will be the winning one and consequently which “victim” in the scenario will sustain more damage. I conceive that if the core of a right is impaired, as was that of the applicant company in the present care, compared to the damage sustained by the claimant company whose core right has remained intact with only a non-essential aspect being negatively affected, the applicant company’s right should prevail (see also § 12 of the dissenting opinion of Judge Serghides in Rashkin v . Russia , cited above). It must be acknowledged that there is a difference between the reputational interest of a legal entity and the reputation of an individual as a member of society. Whereas the latter may have repercussions on a person’s dignity, the former is devoid of that moral dimension (see paragraph 66 of the judgment and Margulev v. Russia , no. 15449/09, § 45, 9 October 2019).

To my mind, the principle of effectiveness requires that greater protection should be given to the victim, who suffers more damage as a result of the conflict of rights, and is therefore in a weaker or more vulnerable situation (see, in Rashkin , above-cited dissenting opinion, § 12).

14. Accordingly, in the present case I am of the view that the core of Article 10 has been impaired since the applicant company was ordered to pay to the claimant a sizeable award as a result of exercising its freedom of expression, namely for disseminating a statement in which it voiced concerns about public health, a belief which it reasonably based upon a document obtained from State authorities. In comparison, the claimant’s right to the protection of its reputation, although still negatively affected by the dissemination of the information, would not suffer damage to as great a degree as the applicant’s right to freedom of expression would suffer as a result of the Circuit Court’s judgment, or as the same right would suffer if the dissemination of information were to be trumped by the right to reputation.

15. In view of the above, I find that there has been a violation of Article 10 of the Convention.

CONCURRING STATEMENT BY JUDGE DEDOV

I am surprised by the calculation method chosen by the Court in awarding pecuniary damage (see paragraphs 87 and 88 of the judgment), which is quite unusual. It would have been more appropriate to follow the proposal made by the applicant company, based on an official inflation rate. This latter approach would have been consistent with the case-law of the Court (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 258, ECHR 2006 ‑ V) and was not contested by the Government. In the end the Court reached the same result.

[1] The amounts in euros in this paragraph are calculated using the exchange rate applicable on 10 October 2007, that is, RUB 35,18 to one euro.

[2] This amount is calculated using the exchange rate applicable on 27 December 2007, that is, RUB 35,62 to one euro.

[3] The amounts in euros in this paragraph are calculated using the exchange rate set on 25 May 2018, the date of submission of the applicant company’s just satisfaction claims, that is, 72 Russian roubles to one euro.