DISSENTING OPINION OF JUDGE

DAVID THÓR BJÖRGVINSSON

I disagree with the majority’s finding of no violation in the present case.

Upon receiving the allegedly defamatory letters, and with all due diligence, the journalists contacted Z.W. and informed him about their content. However nothing in the letters was ever published (see paragraph 9 of the judgment).

The case raises a novel issue, since the defamation claim is born out of the applicant’s statements, admittedly strong and intemperate, made in the context of her private correspondence with journalists which were never in fact published. The case is therefore different from the vast majority of defamation cases where the claim relates to the publication of defamatory material.

There are several cases where a claim has its roots in defamatory statements made in the context of private correspondence with State authorities (see, for example: Kazakov v. Russia , no. 1758/02, 18 December 2008; Zakharov v. Russia , no. 14881/03, 5 October 2006; Sofranschi v. Moldova , no. 34690/05, 21 December 2010 and Siryk v. Ukraine, no. 6428/07, 31 March 2011). In the first case, Kazakov v. Russia , the Court unanimously found that the defamation proceedings against the applicant, in particular the order made against him to issue an apology, had been excessive and disproportionate and therefore in breach of his Article 10 rights. In the second case, Zakharov v. Russia , the Court considered that the expressions used by the applicant, such as “outrageous conduct”, “anti ‑ social behaviour”, “ostensibly makes an exemption”, were value judgments that represented the applicant’s subjective appraisal of the moral dimension of the behaviour of the leader of the town council. The Court found that the burden of proof in respect of these expressions was obviously impossible to satisfy and that the Russian authorities had failed to adduce “relevant and sufficient” grounds for the interference with the applicant’s right to impart information and found a violation of Article 10. In the third judgment, Sofranschi v. Moldova , the applicant complained about civil proceedings brought against him for defamation in which he had been ordered to pay compensation to the leader of a collective farm and candidate in local elections for the office of mayor. The applicant had criticised the latter in a letter addressed to the President of Moldova and other authorities. The letter contained indeed strong and intemperate statements, with a very weak factual basis. The applicant described the plaintiff in the following terms: “shameless”, “cannot even read properly”, “illegally possesses shares in the collective farm”, “he has guns and threatens people with them ...” All the same, the Court unanimously found a violation of Article 10. In the last case, Siryk v. Ukraine , the applicant sent a letter to the tax authorities in which she accused officials of corruption, for which she was condemned by the national court. The Court unanimously found a violation of Article 10.

Just as in these cases, where the Court has unanimously found a violation, I find that there has been a violation in the present case. These are my reasons:

First, the starting point must be that in an open and free society private individuals should not be discouraged from contacting the media if they believe they have information about prominent members of society, including high-ranking politicians, which may be of interest to the public. If individuals are discouraged from doing so under the threat of defamation proceedings or other sanctions, it potentially weakens the public “watchdog” role of the media, which goes hand-in-hand with the individual’s right to impart information, a right secured under Article 10 of the Convention.

Second, in similar cases where statements have been made in the context of private correspondence the Court has found the non-publication of the defamatory material to be a highly relevant consideration. Thus, in Sofranschi v Moldova (cited above, § 33) in assessing the proportionality of the sanctions, the Court gave weight to the “limited impact of the impugned statements, due to the fact that the applicant addressed his complaint by way of private correspondence to State officials and did not make it public to the outside world” (see also Grigoriades v. Greece , 25 November 1997, § 47, Reports of Judgments and Decisions 1997 VII, and Bezymyannyy v. Russia , no. 10941/03, § 42 , 8 April 2010). Although the letters were addressed to the media in the present case, but not State officials, similar considerations must apply. The real impact, if any, of the letters on Z.W.’s reputation could only have been very limited given that their content was never made known to the public. It would seem that they only became known to the outside world when Z.W. himself lodged a bill of indictment for defamation against the applicant.

Third, I refer to paragraph 43 of the judgment where the majority states that, although agreeing that acceptable criticism of politicians is wider it does not follow from this that politicians should not be given an opportunity to defend themselves. It goes without saying that high-ranking politicians, just as everyone else, have the right to defend themselves, if not by other means, at least by refuting allegations through the instrument of public debate, which is, for a prominent politician in a democratic society, a much more appropriate form of reply than lodging a private indictment before the courts. However, in the present case Z.W. was informed about the letters and their content. By doing so the journalists respected his right to defend himself, and the material was never published as a result. In my opinion, this was enough to satisfy Z.W.’s right to defend his reputation.

Fourth, I believe that the status of the applicant, a private individual and not a trained journalist with professional duties and responsibilities, is highly relevant. While it may be accepted that the distinction between statements of facts and value judgments, and the need to provide some kind of a justification or factual basis for the former, are relevant considerations in relation to journalistic work, they have less, if any, bearing in relation to the content of letters of private individuals which have not been published. Even accepting that they may have some limited bearing in relation to such letters, I believe the most intemperate statements in the letters were, in any case, clear value judgments, simply stating the applicant’s subjective appraisal of the moral character of Z.W., a prominent politician at the time. In addition, while accepting that some of the statements made regarding the financial relations between Z.W. and the applicant’s son-in-law may indeed have been highly inaccurate, it cannot be said that they were completely devoid of any relevant factual basis, having in mind that there was an on-going financial dispute between the two.

Fifth, I note that under Article 212 of the Polish Criminal Code the applicant faced a term of imprisonment of up to one year. I find this legislation in itself highly inappropriate and disproportionate in the context of defamation proceedings. As regards the sanction finally imposed on the applicant I refer to the case of Kazakov v. Russia (cited above). In that case the Court unanimously found that the defamation proceedings against the applicant, in particular the decision ordering him to issue an apology, had been excessive and disproportionate. Indeed, I believe that the sanction imposed on the applicant in the instant case should not be underestimated since she was ordered to apologise publicly for statements made in unpublished private letters. In addition, the information about her conviction was recorded in the Criminal Convictions Register for about 2 years and 6 months. Therefore, in my view, the sanctions imposed on the applicant were disproportionate in the circumstances of the present case.

On the basis of the foregoing I find that the restrictions on the applicant’s right to freedom of expression and to impart information have not been sufficiently justified and the sanctions imposed must be considered disproportionate. Moreover, these restrictions are certainly not, in the circumstances of the present case, necessary in a free and open democratic society. Accordingly, there has, in my view, been a breach of Article 10 of the Convention.