PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF JUDGE KŪRIS, JOINED BY JUDGE RAIMONDI

I. CONCURRING VIEWS

1. I agree that in respect of Irodalom Kft, the publisher, there has been a violation of Article 10 of the Convention. This publisher applied “the proper standard of care” when it relied on the professional expertise of the author of the offending article, a historian; it also published Mr K.’s statement wherein the former denied the allegations against him. These considerations present a sufficient basis to find that this publisher “acted in accordance with the rules governing journalistic ethics” and should not be held liable for spreading statements of fact and/or value judgments unfavourable to the person whose past activities were judged in the article. This applies to the factual and legal situation examined in this particular case.

2. Still, with a view to possible future cases pertaining to freedom of expression in general, and to alleged defamation or libel in particular, a rider should perhaps have been added to make it clear that this finding (and the reasoning on which it is based) should not be interpreted as a general rule, that is to say as a judicial precedent dispensing publishers of liability in all, most, or even many cases concerning the aforesaid issues. The very fact that a publisher may have published something written by a professional and/or may, a posteriori , have allowed the publication of a rectification or a denial of an accusation, cannot, per se , absolve the publisher of liability for disseminating a text or other message in which a person has been groundlessly accused or defamed by an ill-disposed value-judgment. Such a rider would have been in line with the principles, set out in paragraph 43 of the judgment, that journalistic freedom “covers possible recourse to a degree of exaggeration, or even provocation”, but that “offence may fall outside the protection of freedom of expression if it amounts to wanton denigration”. This reminder was given in the “general principles” sub-section of the judgment but no reference was made of the second of these two principles in the part of judgment dealing with the assessment of the case in respect of the publisher. In my opinion, that part of the judgment should have explicitly emphasised that principle, as a message from the Court that publishers do have their own responsibility, both in the formal legal and in the wider social and moral sense, which cannot be transferred to the author alone. The Convention defends publisher’s freedom to a very large extent, but not at the cost of absolute non-liability.

II. DISSENTING VIEWS

3. Regarding the finding that in respect of Mr Ungváry, the author of the impugned article, there has been a violation of Article 10 of the Convention, and the reasoning on which it is based, I respectfully disagree. The reasoning is sequential, thorough, addresses important aspects of the dispute and refers to the relevant case-law of the Court as established to date. All this is most commendable.

4. However, the dispute regarding the alleged infringement of Mr Ungváry’s freedom of expression is a borderline one where there is no clear-cut landmark precedent to serve as a point of reference, at least in one respect. The finding that the Hungarian authorities violated this applicant’s freedom of expression can be compared with the opposite one: that his freedom was not violated. In principle, such a finding could be as plausible as that of the majority. The notion of “the Hungarian authorities” includes the Supreme Court of Hungary, which acted as the domestic court of last instance. As the juxtaposition of the majority’s finding and the possible contrary finding favours no clear “winner” (as explained in paragraph 16 below), there is no pressing reason not to give the benefit of the doubt to the said court. Regrettably, the majority’s standpoint was different.

5. Their finding is based on the reasoning that the Supreme Court did not strike a fair balance between the author’s freedom of expression and the right of the person concerned to protect his reputation, both guaranteed by the Convention. Mr Ungváry published the article in which Mr K., a local Communist party official in the mid-1980s (deputy secretary in a university under the one-party rule), was reported to have ordered the removal of a poster of a students’ movement, to have reported this to his party hierarchy and, at the secret service’s instigation, to have reproached a candidate in a Communist youth organisation for having been supported by that movement. The author did not state outright that Mr K. was an “agent” of the Communist regime’s State security, but he did invite, if not command of the reader the interpretation that Mr K. was not only “in regular and collegial contact with the State security” but also, presumably of his own free will and on his own initiative, “was in regular ... contact with the State security, quite often anticipating and exceeding its expectations”. He called Mr K. “an official contact ... busy as an informant and demanding hard-line policies”. According to the Supreme Court, such an assessment, if the author appeared unable to prove its veracity, amounted to qualifying Mr K. as a “quasi-agent” of the former undemocratic regime, and it found against Mr Ungváry.

6. Calling a person an “official contact” and a “quasi-agent” of the former Communist regime, however reproachful in the eyes of today’s citizenry, is not a legal but a moral and a political statement and per se does not entail legal consequences. Both the notion of an agent and that of a quasi-agent of a secret service suggest that the person’s actions contribute to the ends of that agency and, in the broader sense, of the corresponding regime. Such actions are typically covert, as others are not supposed to know about the agent’s or quasi-agent’s relationship with that agency. Both notions, at least for the purposes of this case, are limited to outsiders to the agency, that is to volunteer helpers, informants and other “outside” collaborators whose services are made use of by the agency, and exclude “normal” employees thereof. The relation between these notions, as they are perceived by the public at large, must also be considered. When one is called an agent of a secret service, it means that one is presumed to receive orders from that agency, to carry them out and (more often than not) to receive payment or other benefits for doing so; one is also presumed to be listed as an agent in a corresponding register not accessible to outsiders to the agency concerned (as a rule, a nomenclature of agents comprises more than one category, and the exact titles of collaborators vary). On the other hand, the label of a quasi-agent of a secret service designates a person who has volunteered or has been otherwise drawn into collaborating with that agency without entering into a formal relationship with it: he or she does not receive orders from the agency but acts on his or her own discretion along the policy lines sustained by the regime, does not (save in exceptional cases) receive financial or other incentives from the agency, and is not listed in its register. The distinction between an agent and a quasi-agent of a secret service is a formal one, as they both report actions the regime discourages, or help to prevent such actions. Irrespective of this difference, in the eyes of the public at large, both agents and quasi-agents of a secret service of an undemocratic regime deserve condemnation (see paragraph 11 below).

7. Establishing who is an agent/quasi-agent of a secret service and who is not is no easy matter even in a democracy, but it is infinitely more complex in a totalitarian system. In the judgment the one-party regime in Hungary in the mid-1980s is called “totalitarian” (paragraphs 55, 65). Even allowing for the fact that, by then, the Hungarian regime had become less repressive than it was, say, in 1950s, this does not alter the fact that it was, in essence, an undemocratic one.

8. Under totalitarianism, by definition, the official tends to penetrate all things non-official. In a one-party totalitarian system, all institutions and offices (including those nominally far removed from politics) are “official” in the sense that all institutions function, and offices are held, as long as they accept the possible interference with their activities by officials from the regime (including the secret service), that is to say, the possibility of a contact approaching them (whether officially or otherwise, as was often the case), whenever the regime decides to bring pressure to bear on an institution or an office-holder. Contrary to stereotype, it is a regime not of only all-penetrating downward surveillance and repression but also of wide-scale bottom-up collaboration (whatever its motives may be); people have little choice but to more or less toe the line. Also, under one-party totalitarianism, by definition, formal orders or informal requests are often given to people by institutions and officials far more “innocent” than secret services. As to the secret services prompting “official contacts” in a totalitarian regime, anyone who has been “officially” (in the aforementioned sense) approached by a secret service officer with a request and did not refuse to comply (which would have been risky not only for the person concerned) but did what was required of him or her can be thought of, in a formal sense and if one is so inclined, as having collaborated with that agency and, thus, having been “an official contact” thereof, albeit grudgingly. This holds also for those who, either guided by their affection for a totalitarian regime or merely simulating loyalty thereto, have on their own initiative, “officially” entered into contact with its agents or otherwise attempted to contribute, or actually contributed, to the policies upheld by the regime. Does this automatically, in all cases, amount to one’s being a quasi-agent of a regime or its secret service? In my opinion, the answer is no. In order for such categorisation, especially if made public, to be recognised as accurate, a lot more is needed.

9. The aforesaid does not exonerate people who collaborated – to a greater or lesser extent, whether willingly or against their will – with a totalitarian regime’s secret service from their moral or, where applicable, legal responsibility. Some were hard-hearted hardliners and informants; others compromised with the political climate; yet others succumbed to direct pressure (sometimes after agonising reflection). There was also a variety of other patterns and motives of behaviour. It is not necessarily possible, therefore, to deduce from the actual instance(s) of a person’s communication or interaction with the secret service that he or she was in a “collegial” contact with it, or acted on his or her own initiative or at the instigation of the secret service, or in accordance with what they thought was expected of them. The Supreme Court rejected the automatic assumption and the “guilty by association” reasoning (see paragraph 11 below), but the majority have rejected this rejection. I believe that the Supreme Court’s standpoint deserves to be upheld.

10. The conduct of anyone who, under totalitarian rule, chose to behave in a loyalist manner must be judged not only from today’s perspective but also in the light of the reality of the situation at the material time, including prevalent patterns of behaviour in a comparable situation in that society, the behavioural options (if any) open to that person in that situation, the realistic consequences of alternative conduct and the assessment thereof by the person concerned. In the eyes of the law most of this is irrelevant. Whether every single loyalist to such a regime or anyone who informed its agents of any activities the regime discouraged, or anyone who carried out a request or order of its secret service, can be categorised as (and, where this is done publicly, accused of being) “an official contact”, “an informant”, or “a quasi-agent” of that regime’s secret service is a matter of political opinion, a moral judgment, an academic topic, and not a question to be decided in court. What is legally relevant is that, if a dispute arises regarding such public categorisation, which is tantamount to condemnation in the eyes of the public at large, whoever disseminated the accusation must be able to prove its accuracy, to prove that it is based on facts which have been interpreted without prejudice.

11. I share the majority’s view that a historian’s freedom to formulate judgments of this kind (provided they are based on facts) is protected by Article 10 of the Convention. Yet I disagree with the assessment that the Supreme Court, when finding against Mr Ungváry, overstepped the line drawn by the provisions of that Article. True, the facts related to Mr K.’s position (not a top one) in the party hierarchy and to his ordering of the removal of the poster and his writing of the report were not contested by Mr K. himself. However, the Supreme Court’s argument (quoted in paragraph 19 of the judgment) must not be ignored: “it is not possible to deduce from this potentiality [the possibility that the Ministry of the Interior indeed considered certain officials as ‘official contacts’ and that some of the so-called ‘official contacts’ occasionally cooperated with the State security and were active in the manner described by Mr Ungváry as ‘unambiguously incarnating the activities of an agent’] the general conclusion that every single [official] acted as an ‘official contact’; consequently, in the absence of proven facts, it is not acceptable to qualify all potentially available personalities ... as ‘official contacts’ actually cooperating with the State security. Public opinion condemns those persons who cooperated with the State security, even if they do not fall within the actual category of ‘agent’ or ‘informant’. Therefore, if someone is characterised, without a proper ground, as actually having carried out such activities, this violates that person’s reputation, according to public opinion.” Mr Ungváry offered no proof of his characterisation of Mr K., even at the national courts’ insistence. The Supreme Court also took into consideration the fact that, in the television interview, Mr Ungváry called Mr K. (who by then had already denied the allegations) “trash”, obviously not a scholarly term but an open insult, and apologised for having done so only in the course of the ensuing criminal proceedings.

12. The Supreme Court did not deny Mr Ungváry’s right to have his own assessment of Mr K.’s conduct at the material time, or to express that assessment in public. If it had done so, that would indeed have been a violation of Article 10 of the Convention. What the Supreme Court urged the author to do was to prove his public assessment of Mr K.’s conduct, which Mr Ungváry appeared not to be able to do. This requirement is in line with the ethical imperatives applicable to anyone emitting any fact or value-judgment in respect of any person, in general, and with the ethical imperatives of academic research and journalism, in particular.

13. According to the majority, “the Supreme Court did not assess the impact on Mr K.’s personality rights in the light of the role of the press and did not apply the ‘most careful scrutiny’”, and “it did not consider the fact that many of the allegations regarding the involvement of Mr K. in the actions directed against the students’ movement had been proved true” (paragraph 57 of the judgment). In my opinion, not only did the Supreme Court assess the said balance but, having done that, it found that Mr Ungváry had upset it to the detriment of Mr K.’s personality rights. The quotation from the Supreme Court’s judgment (see paragraph 11 above) attests just that. The Supreme Court did not overstep its margin of appreciation in qualifying the author’s statement as a statement of fact and not as a value-judgment (cf. paragraph 46 of the judgment) but took the view that, although there was a public interest in discussing the issues concerned, there was no public interest in irresponsible, defamatory language in respect of a person without proper substantiation.

14. The core of my disagreement with the majority’s position is the methodology of interpretation of polysemous terms. “Official contact” is a “wide” term, “capable of evoking ... different notions as to its content and significance” (paragraph 52 of the judgment). Still, a court should not give the benefit of the doubt to an author who has used (especially by design) an ambiguous or vague word or expression in order to portray a person in an unfavourable light. If a word or expression used in respect of a person has, say, two meanings one of which is contemptuous, scathing, disdainful, scornful or otherwise hurtful and the other is unbiased, unprejudiced, disinterested, dispassionate or otherwise impartial, but a reader will tend to understand the former meaning, if any dispute arises the author should be required to justify using that particular term, failing which he or she should be held liable, if the law so provides, for not having chosen a more fair-minded vocabulary. The same holds for words and expressions that may be understood as statements of fact by some and as value-judgments (opinions) by others. Relying on freedom of expression as a fundamental value protected by the Convention, inter alia , is not convincing enough to allow an author to evade responsibility for inviting a reasonable reader (not necessarily most of them) to form the opinion that a certain characteristic attributed to a person is actually an impartial statement of fact. The majority have concluded that a broad connotation should be given to a whole set of terms: not only “official contact” but also “cooperation”, “reporting”, “informant” and “collegial contact” (see paragraphs 59, 60 of the judgment). The frequency with which the terms thus collectively exculpated are used attests to precisely the opposite conclusion: that they were used in respect of Mr K. in a restrictive sense. Clemency towards the expanded connotation of the disputed terms (justified from the linguistic or semantic perspective but not from the legal one) has allowed them to be interpreted in this case as “opinions with sufficient factual basis”. I object to this interpretation because it conceals the fact that a reasonable reader will naturally grasp their restrictive meaning, and, thus, perceive them not as value-judgments but as statements of fact. As to the meaning of the terms in issue preferred by the author himself, and his prejudice against Mr K., they are revealed and corroborated by the fact that the author did not bother to change them in a publication which followed the court-ordered rectification of the statement of fact, as well as by his vocabulary in the television interview (see paragraph 11 above). Therefore, I cannot join the majority in reproaching the Supreme Court for failing to follow the broader rather than the restrictive connotation of the terms “cooperation”, “official contact”, “reporting”, “informant”, “collegial contact” and so on.

15. Mr Ungváry’s assessment of Mr K’s personality is based on his perception of the motives that led Mr K. to act as he did. For him, in the mid-1980s Mr K. anticipated and exceeded the expectations of the State security, being an informant of the regime and a hard-line Communist policy supporter. A historian, like anyone else, has the right to be critical of any activity that compromised with the totalitarian regime instead of resisting it, and the right to maintain that every single person who held a position (however low) in the party hierarchy was a pillar on which that regime rested. The right to hold such an opinion is protected by the Convention. A historian can also categorise, in his own academic taxonomy, those who collaborated or at least compromised with the totalitarian regime as “official contacts” or “informants”, or “quasi-agents”, or “agents”, for example. It is not for a court to decide whether such extra-legal categorisation is appropriate. Still, in this Court’s jurisprudence, an essential distinction is drawn between the right to hold an opinion and the right to express it openly and publicly. An analyst has to accept the condition that if and when any of the aforementioned labels is publicly attached to a person and this can result in public condemnation of the person concerned (especially if the category was coined in an academic discourse and was not actually used to classify people at the material time), the burden of proof of the accuracy of the categorisation lies upon the analyst. If the latter fails to prove it, then one has to accept that a sanction provided for in law can be imposed on him or her. Mr Ungváry failed, in the domestic court proceedings, to prove the veracity of his categorisation of Mr K. as an “official contact”, an “informant” or a “quasi-agent” of the former regime. Therefore, in my opinion, the Supreme Court, in deciding that Mr Ungváry infringed Mr K.’s personality rights, did not deviate from the standards set forth in the Court’s case-law.

16. Mr Ungváry’s assessment of Mr K.’s conduct in 1983 may be correct or incorrect. The majority have not contradicted his interpretation, but nor have they endorsed it. Alternative interpretations may be as plausible as the one discussed here, especially if an analyst makes an effort to pronounce judgement on an individual’s past conduct not only from today’s perspective but also having regard to the reality of the situation at the material time (see paragraph 10 above; although this may not be an easy thing for a person born in 1969 to do in respect of one born in 1951), and with a deeper understanding that the motives behind a person’s politically relevant conduct, especially under totalitarianism, do not fit into an oversimplified “black or white” scheme, of “cooperation or non-cooperation”, but are often much more complicated. For instance, one could take into account that in the former Communist totalitarian regimes in Europe many reports were written along official hierarchy lines not only because people were eager or happy to write them but also because they were an important element of “official” discipline. Account could also be taken of the fact that such reports might be written not in order to inform the regime of activities it discouraged and persecuted, but because people were well aware of the likelihood that they themselves would be reported on by someone else. One might also imagine that Mr K.’s conduct in the students’ movement case in ordering the removal of a poster by a university party official was meant as a message to the State security that it need not interfere because the matter had been settled. Such speculations are every bit as plausible as Mr Ungváry’s. None of them is advocated here; they illustrate that writing a report within an official hierarchy does not necessarily stamp the writer as a hard-liner working for the secret service, anticipating its orders and so on. Post-Communist countries’ history is full of examples of individuals who, having been loyal to the regime and even having held important positions under it, later turned out to be among those who effectively brought about its downfall, not to mention those who put on a show of co-operating with the regime but only out of wariness, precaution, prudence, or fear, and not because they sympathised with the ruling party’s policy.

17. Because Mr Ungváry was unable to prove the veracity of his assessment of Mr K.’s conduct, his assessment cannot be considered legally defensible. The Supreme Court did not grant it legal protection, and I support this view because there was no evidence that such arbitrary categorisation of Mr K. contributed to any progressive development in a democratic society. Now the Court has found in favour of Mr Ungváry, thereby lending his statements at least some legal credence, notwithstanding the failure of their author to substantiate them. Such a finding cannot but encourage the publication, as opinions, of abusive statements wittingly expressed in polysemous terms, even if the authors cannot prove their veracity, when in fact the reader perceives them as statements of fact not distorted by prejudice. Thus, this finding may have an undesirable cascade effect.

18. One more point has to be made. At the material time Mr K. was, and at the time of examination of this case still is, a sitting Constitutional Court judge. The publication of the offending article coincided with his re-election to that position. In the “general principles” part of the judgment, it is stated that “the limits of acceptable criticism may in some circumstances be wider with regard to civil servants exercising their powers than in relation to private individuals. However, the courts – the guarantors of justice, whose role is fundamental in a State based on the rule of law – must enjoy public confidence; and it may therefore prove necessary to protect judges from offensive and abusive verbal attacks” (paragraph 44). Yet this principle was not brought into play in the Court’s assessment of the case in respect of the author of the offending article.