JOINT DISSENTING OPINION OF JUDGES NICOLAOU, TSOTSORIA AND VEHABOVIĆ

We regret that we are unable to subscribe to the view of the majority that the Appellate Court judgment finding the applicants liable for defamation, as upheld by the Constitutional Court, was compatible with Article 10 of the Convention. We are of the opinion that it was not and that there has therefore been a violation of the applicants ’ right to hold opinions and to receive and impart information and ideas under that Article.

Section 6 of the Defamation Act 2003 of BD defines defamation as causing damage to the reputation of a person by “ ... ascertaining or disseminating a falsehood in relation to that person ... ”. It is, of course, for the domestic courts to interpret legislation, but no question arises as to the meaning and effect of the relevant provision in the present case. What is at issue is, in effect, whether the undisputed facts of the case could conceivably afford grounds for imputing any liability to the applicants.

As we understand those facts, they clearly do not. We note first that it cannot be said that the applicants were, in the circumstances, responsible for disseminating the letter complained of. They addressed it to the competent authorities, that is to say the International Supervisor for BD, the President of the Assembly of BD and the Governor of BD. It was a very limited communication, which was both private and confidential, and was made to persons who had a direct institutional interest in the matter and were thus entitled to receive it. The letter was certainly not meant for wider publication or, in the words of Section 6 of the Defamation Act 2003, for dissemination. That the applicants reserved the right to contact the media if no action was taken by the authorities does not detract from this argument; whether such an eventuality would have materialised and, if so, in what form or with what content one simply does not know. Lastly, it has not been suggested that the applicants should be held accountable for the ultimate dissemination of the letter, in which they were not shown to have been involved in any way.

The letter in question concerned in essence the procedure for the appointment of a director of the BD public radio. It contained views on matters of public interest. It criticised the approach already taken by the authorities and transmitted to them “unofficial information” received in relation to candidate M.S., to the effect that M.S. was unsuitable for the post. The gist of it all was that the authorities were duty-bound to direct their attention to the said “unofficial information” and, if it was substantiated, to act accordingly. It was clear that the applicants relied on the authorities to inquire into the various allegations and to evaluate them.

The fact that some of the allegations to which that information referred might have been shown, after inquiry, to be unfounded or inaccurate could not by itself vitiate the propriety of the applicants ’ communication with the authorities. What is germane to the present purpose is that the applicants themselves made no definite or final assertions as to the facts. In the words of Section 6 of the Defamation Act 2003, there was nothing they did that could fairly be regarded as tantamount to ascertaining a falsehood.

We would further emphasise that in this type of situation the communication should be seen in context. Account should be taken of the need to protect the reputation of the individual but also of the need to maintain confidence in public administration by encouraging the involvement of citizens and addressing their concerns. People are entitled, in the discharge of their civic duties, to bring relevant information to the attention of the authorities and may, indeed, do so in strong terms in an attempt to persuade the authorities to scrutinise such information so as to ensure sound administration in public affairs. A person may sometimes overstep the mark and, where that happens, a proportionality exercise may be necessary. In the present case, the highest domestic courts approached the case as if the applicants had actually gone farther than they should have done. Even if that were the case the courts then failed, in our view, to carry out a meaningful examination of the relevant competing interests bearing on the proportionality of State interference with the right to freedom of expression under Article 10.

[1] The convertible mark uses the same fixed exchange rate to the euro that the German mark has: EUR 1 = BAM 1.95583.