JOINT DISSENTING OPINION OF JUDGES SAJ Ó AND TSOTSORIA

To our regret we have to disagree with our colleagues in the majority. We take the view that the applicant ’ s Article 10 rights were violated in this case.

On 26 August 2003 the applicant, a journalist, published an article concerning a police investigation on the basis of information which he had received from the police about S.A. being suspected of aggravated theft and of absconding. Following the publication of the article, S.A. ’ s father sent a letter to the newspaper. In the letter the father stated that his son was out of the country and that the police had informed him that there had been a mistake and the search had been called off. In the letter the father claimed that the document confirming this information was available at the judicial service. Furthermore, the father requested the article ’ s retraction. The letter was published three days after the original publication of the article.

On 15 September 2003, as the journalist had taken no further action, S.A. lodged a criminal complaint against the applicant for criminal defamation. Thirty-two days later, on 17 October 2003 the police informed the local court that the search order had been revoked on 3 September 2003, that is to say after the publication of the father ’ s letter. The applicant was held liable for civil defamation. The domestic courts attached importance to the fact that although the injured party ’ s father had notified the newspaper that the facts published about his son were false, the newspaper had not published a retraction of the article written by the defendant. This consideration was held by the Court to show that the applicant had failed to correct the erroneous and defamatory information.

While we disagree with the judgment primarily because we find that the Court has departed from its clear case-law that protects freedom of expression and journalism, we have disagreements with regard to the reconstruction of the facts, and also to the domestic proceedings. In particular, we find that the injured party ’ s father was immediately granted the right to reply (although he was not a directly concerned party and apparently had no power of attorney).

Moreover, it is unclear whether under Section 72 of the 1974 Press Act a defamed person is entitled to request both reply and retraction.

Thirdly, at the time of the non-specific request for retraction the search had not been called off. There was nothing to retract. The search was called off later, and this was not known to the applicant until the police provided the information during the criminal proceedings. The plaintiff never provided the relevant official information that could have served as a basis for retraction. The Court itself accepts that at the time it was written the facts presented in the article were accurate (§ 28). The Court claims, however, that “the courts referred to the fact that a retraction should have been published once the applicant had become aware of the error contained in the article” (§ 29). We do not find such a limited approach in the domestic judgments quoted, where the main reference is to the notification by the father. At the time of that notification, as the present judgment clearly states, the contested information was correct. Moreover, the plaintiff in the domestic proceedings at no point requested rectification, even though he had thirty days to avail himself of that remedy. Instead he asked for damages for the defamation contained in the original publication which informed about the position of the police. The injured party initiated an action for damages as the original publication had allegedly damaged his reputation. During the proceedings it was shown that the police made a mistake. The injured party did not alter his plea and did not request rectification. Nevertheless, the journalist was ordered to pay damages for reputational injury for what he had failed to do during the proceedings, where he had not even been asked to act in any given manner. Furthermore, we also entertain serious doubts about the assumption that journalists have a duty of rectification whenever they become aware of an error in their article, especially if that error is not of their making. Such a duty is even more problematic in the absence of any request for a rectification when the error becomes known (if it really is an error on the part of the journalist, a very big “if” in this case).

However, our major concern is that the judgment, which seems to endorse the above-mentioned position, departs from the clear case-law of this Court. In the present case, the Court allegedly relies on a concept of “responsible journalism” with reference, mutatis mutandis , to “ Pentikäinen v. Finland [GC], no. 11882/10, § 90, 20 October 2015 and the case-law cited therein)”. More specifically, the Court refers to the duty of the journalist (or newspaper) to enable a defamed person to present his or her reply in a manner compatible with the editorial practice of the newspaper concerned (see KaperziÅ„ski v. Poland , no. 43 206/07, § 66, 3 April 2012). Needless to say, in the present case the right of reply was allowed, so the KaperziÅ„ski requirement of responsible journalism was satisfied. But perhaps there is something else in the general principles of Pentikäinen (even if it is quoted without going into specifics, mutatis mutandis ) that justifies the non-violation of Article 10. The “case-law cited” in Pentikäinen is Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999 ‑ III; Fressoz and Roire v. France [GC], no. 29183/95, § 54, and so on.

Fressoz and Roire § 54 reads as follows:

“In essence, that Article [Article 10] leaves it for journalists to decide whether or not it is necessary to reproduce such documents to ensure credibility. It protects journalists ’ right to divulge information on issues of general interest provided that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism (see, in particular, the Goodwin judgment cited above, p. 500, § 39; the Schwabe v. Austria judgment of 28 August 1992, Series A no. 242-B, p. 34, § 34; and, as an example of a finding to the contrary on the facts, Prager and Oberschlick v. Austri a, 26 April 1995, Series A no. 313, p. 18, § 37).”

It is true that Pentikäinen (§ 90) uses a formula that may be seen as a slight and most unfortunate departure from the traditional position of this Court in matters of journalistic responsibilities [1] .

“The Court also reiterates that the protection afforded by Article 10 of the Convention to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism (see, mutatis mutandis , Bladet Tromsø and Stensaas v. Norway [GC], cited above, § 65; Fressoz and Roire v. France [GC], no. 29183/95, § 54, ... etc.)”

Pentikäinen also adds a new element (not taken into consideration by the Court, and not even cited in the present case), namely the lawfulness of the journalist ’ s behaviour: “the fact that a journalist has breached the law in that connection is a most relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly.” There can be no doubt that there is no issue with regard to this “most relevant” consideration: the journalist acted lawfully.

It is undeniable that the text of Fressoz and Roire is not fully reproduced in Pentikäinen (§ 90). The relevance of an accurate factual basis was omitted and, “in accordance with the ethics of journalism”, was replaced with “tenets of responsible journalism”. This is regrettable, especially as there are no reasons given. But in the absence of a specific statement to the contrary and in view of the direct reference to the earlier texts of the leading cases we see no reason to assume that the previous standards and case-law have been abandoned or reinterpreted in any way or sense. The role of the Court remains the same. It has to:

“ examine whether the journalist who wrote the impugned article acted in good faith and in accordance with the ethics of the profession of journalist. In the Court ’ s view, this depends in particular on the nature and degree of the defamation at hand, the manner in which the impugned article was written and the extent to which the applicant newspaper could reasonably regard its sources as reliable with respect to the allegations in question. The latter issue must be determined in light of the situation as it presented itself to the journalist at the material time, rather than with the benefit of hindsight (see Bladet Tromsø and Stensaas , cited above, § 66, Flux v. Moldova (no. 6), no. 22824/04, § 26, 29 July 2008). ”

There can be no question about the good faith of the article, which provided reliable information on the search and the reasons it was carried out. This is correct factual information. The only thing added to the information is that it has assumed that the wanted person was a fugitive. This was a logical conclusion drawn from the suspect ’ s absence, in order to describe the legal situation. Journalism is not stenography; if such comments are not allowed, official press communiques will replace the press.

The source (the police) was to be considered reliable.

In the most controversial Flux v. Moldova (no. 6) judgment even the majority would have accepted that the publication of a reply is a measure complying with the responsibilities dictated by journalistic ethics. Further, the present case does not involve someone being charged with criminal acts in the absence of a factual basis at the material time (see Bladet Tromsø and Stensaas , § 66). At the material time the information was correct. It accurately reported the facts of the police search. The injured party could have asked the police for a rectification (possibly at their own expense) after the search had been called off. Arguably he could also have asked the newspaper after the cancellation of the search, but he failed to do so, even during the criminal procedure . We cannot see why it should be a matter of journalistic ethics to provide rectification ex officio and proprio motu where the police mistake comes to the journalist ’ s attention in a criminal case against him. Of course, we would have given thought to that possibility had the Court given us reason to believe that such an obligation exists.

The Bladet Tromsø test requires us to consider the nature of the defamation. It was grave but inevitable and certainly not caused by the press which acted as a messenger in a matter of public interest (note that the burglary had targeted the headquarters of a political party).

The majority position is even more surprising if one compares the facts and the reasoning in the present case with that of a number of judgments concerning Romania. See for all Barb v. Romania, no. 5945/03, 7 October 2008 and further case- law cited there.

To our regret we observe time and again that the concept of responsible journalism (in the present case in the framework of a non sequitur ) results in undermining freedom of the press. And this case is no exception! While there are responsibilities attached to all professional activities, when it comes to the press, the reference to responsible journalism is disturbing, just as when the little adjective “socialist” was added to democracy.

Responsible journalism is far too often equated with self-censorship, or is perhaps used as a judicial tool to enforce self-censorship. We do not intend to use that tool.

[1] The term “responsible journalism” was used in 2007 in Flux and Samson v. Moldova , no. 28700/03, 23 October 2007 to explain what is said in Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 63, ECHR 1999 ‑ III). It was shorthand for judicial respect for journalistic ethics. In Stoll v. Switzerland [GC], no. 69698/01, ECHR 2007 ‑ V, it was used to emphasise that there is no full immunity for journalists in the name of journalistic freedom in matters of criminal responsibility . It seems that this idea was transposed to responsibility in general, and the fact that journalists cannot claim unlimited protection in criminal cases in the name of freedom of expression is now increasingly understood as imposing special duties on journalists in reporting in general in the civil context .