DISSENTING OPINION OF JUDGE TSOTSORIA

I voted in favour of finding a violation of Article 10 of the Convention in this case.

The publication by the applicant company indisputably concerned a matter of great public interest – the activities of the mafia in Germany. In the book, S.P. ’ s alleged membership of the criminal organisation was presented as a presumption and not as a fact. This assumption was based on a variety of sources, including the official reports of the Federal Office of Criminal Investigation. In those circumstances, contrary to the findings of the present case, the case-law does not require that journalists undertake independent research. The case-law also provides that journalists must be free to report on events based on information gathered from official sources without further verification (see Koniuszewski v. Poland , no. 619/12, § 58, 14 June 2016, with references to other case-law).

I consider that the author of the book, a journalist who is renowned for her anti-Mafia publications, acted in good faith, in compliance with the duties and responsibilities enshrined in Article 10 of the Convention. Equally, I do not find it possible to reproach the applicant company for overstepping the allowed limits of exaggeration. Moreover, the possible meaning of “high level of suspicion” (see paragraph 47 of the judgment) in terms of the Court ’ s case-law is also unclear to me. Further, I am not convinced that the applicant company was given appropriate opportunities by the domestic courts to put forward arguments regarding the veracity of the information.

In a nutshell, based on the above arguments and sharing the rationale of the applicant ’ s reasoning, I find that the local courts failed to strike a proper balance between the applicant company ’ s freedom of expression and the right to respect for S.P . ’ s private life and reputation, as required by the criteria established by the Court ’ s case-law. In my view, the national judicial authorities did not give due consideration to the importance and the scope of the principle of freedom of expression, which should result in a narrow margin of appreciation being accorded to the decisions of the national courts. This fact meant that the Court ought to have substituted its view for that of the domestic courts (see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 67, ECHR 2012, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, §57, ECHR 2011).

I deeply regret this troubling departure from the prevailing understanding of the case-law of this Court.