CONCURRING OPINION OF JUDGE KOSKELO

Preliminary remarks

53 . Like my colleagues, I have voted in favour of finding a violation of Article 10 in the present case, and I agree with the conclusion set out in paragraph 43 of the judgment. What has nevertheless prompted me to write a separate opinion in this case is the fact that, in my view, the reasoning could have benefited from greater structural clarity. I find this point particularly important because what we have before us is a kind of case that should no longer require treatment at this level of international adjudication. The Court has produced abundant case-law in this area, which should enable the domestic courts to adequately deal with these types of cases and to safeguard the rights of the parties in the domestic proceedings by conducting the necessary balancing exercise between the conflicting Convention rights, in line with the standards developed in that case-law. When, as in the present case, it nevertheless appears that the domestic courts have been insufficiently attentive to those standards, it would be highly desirable for the Court to give sufficiently clear guidance, so as to enable the domestic courts to discern the line of analysis which, in line with the Convention, should come into play in such situations.

The context of the case

54 . As mentioned in paragraph 33 of the judgment, the protection of a person ’ s reputation is one aspect of the right to respect for private life (see, inter alia , Delfi AS v. Estonia [GC], no. 64569/09 , § 137, ECHR 2015). In the present case, it is this, and only this, aspect of E.P. ’ s Article-8 rights which is at issue.

55 . In this regard, I find it unsatisfactory that the present judgment, under “general principles”, limits itself to what is stated in paragraph 34, namely a succinct listing of the broad general criteria which have been laid down in the Court ’ s case-law with a view to the wide(r) range of situations where conflicts between freedom of expression and the protection of private life may arise. What has been omitted is a recapitulation of the more specific principles which can be derived from the Court ’ s case-law regarding the balancing exercise to be conducted between freedom of expression and the protection of a person ’ s reputation, although it is solely this specific variant of the balancing exercise which is at issue in the present case. The Court has stated that where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Delfi , cited above, § 139, with further references). Therefore, from the point of view of the guidance to be provided, the presentation of the general principles should, in my opinion, be more specifically adapted to the context of the case, especially as there is abundant case-law on this particular aspect of the balancing between the rights protected under Articles 10 and 8. I will therefore begin with a further summary of the relevant case-law.

Elements of the Court ’ s case-law on the balancing between the freedom of expression and the protection of another person ’ s reputation

56 . The Court has held that in order to fulfil its positive obligation to safeguard one person ’ s rights under Article 8, the State may have to restrict to some extent the rights secured under Article 10 for another person. When examining the necessity of that restriction in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court is required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention (see, for instance, Bédat v. Switzerland [GC] (no. 56925/08 , § 74, 29 March 2016). In this assessment, account must be taken of the circumstances and overall background against which the statements in question were made (see Morice v. France [GC], no. 29369/10 , § 162, 23 April 2015).

57 . In examining these types of cases and when conducting an assessment of the proportionality of the impugned interference with freedom of expression, the Court has taken into account (i) the position of the person exercising his freedom of expression; (ii) the position of the person against whom the impugned statements were made; (iii) the subject matter and context of the statements; (iv) the nature of those statements (whether they were statements of fact or value judgments); (v) other characteristics of the remarks, such as the form or medium and the language used; and (vi) the nature and severity of the sanction imposed (see, for instance , Redaktsiya Gazety Zemlyaki v. Russia, no. 16224/05, § 40, 21 November 2017; Brosa v. Germany , no. 5709/09 , § 38, 17 April 2014; and Jerusalem v. Austria , no. 26958/95 , § 35, ECHR 2001-II).

58 . As regards the position of the person exercising his or her freedom of expression, the Court has, for obvious reasons, often had to consider the particular role played by the press and other media in a democratic society and the requisite rights, as well as the duties and responsibilities, attached to their function as “public watchdogs”. In the present case, the applicant is a private individual who exercised his freedom of expression in relation to issues which had arisen in his own environment and drawn his attention in connection with his business activities. The Court has held that all persons who exercise their freedom of expression undertake “duties and responsibilities”, the scope of which depends on their situation and the technical means they use (see Haldimann and Others v. Switzerland , no. 21830/09 , § 47, ECHR 2015, and Stoll v. Switzerland [GC], no. 69698/01, § 102, ECHR 2007-V). In this respect, the Court has pointed out a distinction between a private person who related to the press his or her personal, negative experiences involving a named professional, and the dissemination of those statements by the press (see Kanellopoulou v. Greece , no. 28504/05, § 39, 11 October 2007). It has also taken into account the particular position of individuals or groups wishing to alert public authorities to irregularities in the conduct of public officials (see Medžlis Islamske Zajednice Brčko and others v. Bosnia and Herzegovina [GC], no. 17224/11 , § 82, 27 June 2017, with further references).

59 . As for the position of the person against whom statements with negative reputational implications are made, it is well-established that the limits of acceptable criticism are wider with regard to politicians, or those holding public office, than they are in respect of private individuals (see Lindon, Otchakovsky-Laurens and July v. France ([GC], nos. 21279/02 and 36448/02 , § 46, ECHR 2007 ‑ IV, and Redaktsiya Gazety Zemlyaki v. Russia, cited above, § 42). Politicians, too, are entitled to have their reputation protected, even when they are not acting in a private capacity, but the requirements of that protection have to be weighed against the interests of the open discussion of political issues, or other issues of public interest (see Lingens v. Austria , judgment of 8 July 1 986, Series A no. 103, p. 26, § 42) .

60 . Although, in the general context of the criteria to be taken into account in balancing freedom of expression under Article 10 and protection of the right to private life under Article 8, the Court has held that one of the relevant factors is how well known the person invoking the latter right is, it is important to note that this aspect is of limited relevance in situations where the boundaries of acceptable criticism in connection with the exercise of public functions are concerned. Local politicians or office holders are also legitimate targets of criticism for their acts or omissions in their public functions, although they may not otherwise be well-known to the public, even at the local level (see, for example, Ziembiński v. Poland (no. 2), no. 1799/07 , 5 July 2016; Jucha and Żak v. Poland , no. 19127/06 , § 45, 23 October 2012; and Kwiecień v. Poland , no. 51744/99 , § 52, 9 January 2007).

61 . The subject matter and context of the statements are important factors in the balancing exercise. The key question is whether a publication or other action in the exercise of freedom of expression contributes to a debate of public interest. The Court has specified that the notion of public interest relates to matters which affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree, especially in that they affect the well-being of citizens or the life of the community. This is also the case with regard to matters which are capable of giving rise to considerable controversy, which concern an important social issue, or which involve a problem that the public would have an interest in being informed about (see Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07 , § 103, 10 November 2015, with further references). Thus, for instance, the Court has underlined the importance of citizens being able to report on alleged irregularities in the conduct of public officials (see Medžlis Islamske Zajednice Brčko and others, cited above, § 82). On the other hand, the communication of negative information concerning aspects of a person ’ s private life rather than his or her conduct in a public function may not attract protection (see, for instance, Marin v. Romania , n o. 306997/02, 3 February 2009).

62 . The context of the exercise of the freedom of expression is also significant. For instance, the Court has acknowledged there should be greater latitude for remarks made in the context of a lively political debate (see Lombardo and Others v. Malta , no. 7333/06 , § 60, 24 April 2007, and Kita v. Poland , no. 57659/00, § 46, 8 July 2008; for a different but similar context, see Tavares de Almeida Fernandes and Almeida Fernandes v. Portugal , no. 31566/13 , § 61, 17 January 2017).

63 . As regards the nature of the statements, a distinction is to be made between statements of fact, which are capable of proof, and value judgments, albeit that the line may not always be easy to draw. The Court has held that i n order to distinguish between a factual allegation and a value judgment it is necessary to take account of the circumstances of the case and the general tone of the remarks, bearing in mind that assertions about matters of public interest may , on that basis, constitute value judgments rather than statements of fact (see Morice , cited above, § 126). But even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient “factual basis” for the impugned statement: if there is not, that value judgment may prove excessive (see idem § 126, with further references).

64 . For instance, the Court has considered that concrete accusations of misappropriation of funds or property by an office-holder were to be considered as allegations of fact which, in the absence of sufficient proof of their validity, could reasonably be deemed defamatory and undermining the right of the person concerned to be presumed innocent of serious offences (see Marchenko v. Ukraine , no. 4063/04 , § 50, 19 February 2009). In the context of insinuations published through the press by an advocate criticizing the outcome of a case and suggesting that the prosecutor was corrupt, the Court, reiterating that even value judgments could be excessive without a sufficient factual basis, held that the advocate ’ s freedom of expression had not been violated, as no factual support for the insinuations had been presented (see Karpetas v. Greece, no. 6086/10 , § 78, 30 October 2012).

65 . Other characteristics of the statements which are relevant in the balancing exercise include the form or manner of dissemination which has been employed, and the language used. Thus, for instance, the assessment may vary depending on whether a communication has been made to a limited audience or to a wide public, for instance through the internet (see, for instance, Delfi , cited above, § 147). The language and tone of the statements is obviously significant when considering whether the limits of acceptable criticism have been respected (see, for instance, Lindon, Otchakovsky-Laurens and July v. France , cited above, §§ 56-57).

The present case

66 . The article published by the applicant has its background in a dispute between the applicant and E.P. concerning the use of a public space adjacent to the latter ’ s house. The applicant raised grievances against E.P., alleging that she had usurped the public space by having a pavement built and trees planted outside her house, and by erecting on her property a construction with a roof jutting out over the adjoining public space. As a result of these and other measures taken by E.P., the applicant was obstructed from parking his taxi vehicles in that area. In the impugned article, the applicant criticised E.P., insinuating that the construction of the pavement and the planting of the trees had resulted from the latter ’ s misuse of her position as president of the local council, and suggesting that persons like E.P. tended to serve their personal interests in public office, or even sought such office with self-serving motives.

67 . Although the underlying conflict between the applicant and E.P. arose in the private sphere, it is obvious that what prompted the applicant to write the article was the position held by E.P. as president of the local council and the alleged link between the circumstances of their dispute and E.P. ’ s conduct in that public function. Public office involves public accountability, and E.P. ’ s position as a local politician and office holder meant that her behaviour in that function would be a matter of public interest.

68 . As regards the nature of the statements made by the applicant, his article contained generally formulated negative remarks about a political class serving their own interests, exemplified by concrete circumstances and comments which could be linked to E.P. Although there are circumstances in which accusations alleging that a person holding public office has misused his or her position to serve private interests in the context of a specific situation would qualify as factual statements requiring proof, the applicant ’ s article, taken as a whole, can more appropriately be characterized as negative value judgments extending to an individual holder of public office. But even where a statement amounts to a value judgment, there must be a sufficient factual basis to support it, failing which it may be excessive.

69 . The question therefore is whether the applicant had a sufficient factual basis for the allegations of misuse of public office which he raised against E.P. The domestic court (the Court of Appeal) concluded that the statements with regard to the constructions and work on and around E.P. ’ s property, as well as those concerning threats made by her of legal action against parking outside her house, were true. Importantly, the domestic court also found – although it is unclear on what basis – that the impugned acts had taken place arbitrarily and in abuse of her position at the municipality. Thus, it has been established at the domestic level that the applicant did have a sufficient factual basis for the allegations of misuse of public position in the context referred to in his article.

70 . The next issue is whether, although the allegations of misuse of public office were not without factual basis, the applicant, by the expressions and tone used in his newspaper article, had exceeded the permissible limits of criticism, bearing in mind that those limits are wider where a person ’ s conduct in elected office is concerned. In the present case, the applicant used a pejorative style, and his formulations suggest that the intention was to discredit E.P. Nevertheless, given the factual background and the subject matter of the criticism expressed, which was linked with E.P. ’ s public office, I share the view that the limits of acceptable criticism were not exceeded in the present case.

71 . The final issue is the nature and severity of the penalty. In this respect, I have nothing to add to the reaso ning presented in the judgment.