JOINT DISSENTING OPINION

OF JUDGES DAVID THÓR BJÖRGVINSSON , HIRVELÄ

AND DE GAETANO

1. We disagree with the majority ’ s finding that there has been no violation of Article 10 of the Convention in the present case .

2. The majority ’ s conclusion is based on three main arguments. First that the applicant , a politician , was not justified in calling the Mr. G.J. , a journalist , a “manipulator” and a “collaborator” and in saying that the said Mr G.J. “lacked objectivity” as these allegations lacked a factual basis (see § 45 ). Second , as is clearly implied in § 47 , because of the importance of the media and of journalist s in a democratic society , journalists are in need of some “ special protection ” of a kind offered by defamation legislation. Third , that the penalty imposed on the applicant was relatively lenient and the domestic court took into account various mitigating circumstances (§ 50).

3. We accept that the penalties as such were modest and do not raise particular concerns under Article 10 § 1 of the Convention. However , since we cannot share the first and second argument (and , as a result , the conclusion based on those arguments) , the leniency of the penalties is irrelevant in the present case: the conviction in the domestic defamation proceedings was already by itself an unjustified interference with the applicant ’ s right to freedom of expression.

4 . Before proceeding further , we would underscore the fact that the case is somewhat unusual in that it originates from defamation proceedings brought by a journalist against a politician (the applicant) by way of reaction to the latter ’ s statements concerning the journalist ’ s alleged lack of impartiality and his alleged affiliation with , or leanings towards , certain political circles. Thus , this time round , the applicant before our Court , and who is claiming a violation of his right to freedom of expression , is a politician who , according to the domestic courts , has damaged the honour and reputation of a journalist .

5. As to the first point – namely the lack of a factual basis for the allegedly defamatory words – w e agree that these statements may , on one view being taken , be considered as statements of fact susceptible of being proven or at least of being supported by reference to known facts. However we consider them to be more in the nature of value judgments , which express in a simple , crude or perhaps even angry way the applicant ’ s subjective appraisal of Mr. G.J. as a journalist. In either case , whether viewed as mere statements of fact or as value judgments , it is not in dispute in the present case that the Mr. G.J. was at the relevant time a journalist for the S .Tar TV. It is also established as a fact that Mr. G.J. was present at the broadcast of the TV debate described in § 18 of the judgment. Regardless of Mr. G.J. ’ s role as a camera operator during this particular broadcast , his presence there and his position as a journalist at the TV station are facts susceptible of being legitimately interpreted in such a w ay as the applicant did. In other words , regardless of whether t he applicant ’ s appraisal of Mr. G.J. ’ s qualifications as a journalist is right or wrong , the existence of these facts is , in our considered view , a sufficient factual basis to explain the applicant ’ s resent ment towards Mr. G.J. , and thus his appraisal of him as a journalist. Moreover the domestic courts , and in particular t he Tarnow Regional Court (see § 17) , relied heavily on the negative connotations of the words “manipulation” and “collaboration” in Polish society while at the same time apparently ignoring th e wider reality of the media ’ s agendas and their ability of , and the necessity for , selective reporting and nuanced presentation of facts if only to survive in a highly competitive and increasingly global market. The observation by Jock Young that the mass media “selects events which are atypical , presents them in a stereotypical fashion and contrasts them against a backcloth of normality which is overtypical” is as valid today as when it was first made in the early 1970 ’ s [1] . The parochial approach of the domestic courts in this case is in direct contradiction to the very raison d ’ ê tre of an international regional instrument safeguarding the right to freedom of expression.

6. With regard to the second point , the Court has in numerous cases emphasised the essential role of the media in a democratic society , as also its duty to impart – in a manner consistent with its obligations and journalistic responsibilities – information and ideas on all matters of public interest (see , among the many authorities , Observer and Guardian v. the United Kingdom , 26 November 1991 , § 59 , Series A no. 216; and Bladet Tromsø and St ensaas v. Norway [GC] , no. 21980/93 , § 59 , ECHR 1999-III). Bearing in mind the importance of the media and the possible impact the media and journalists can have on public debate , the media , and journalists in particular , must be ready , like politicians , to tolerate and accept criticism and commentary to a far greater extent than private individuals (see Petrina v. Romania , no. 78060/01 , § 19 , 14 October 2008 , § 40). A journalist , just like a regular blogger on the internet , becomes to a greater or lesser extent a public figure. In the same way as the applicant , as a politician and participant in public debate , was expected to be thick-skinned enough to allow his every word and act to be critically examined , so also Mr. G.J. , as a

journalist , should have be en prepared for harsh , exaggerated and even unfair commentary on his past and present work in the media field , not only in the form of value judgments but also as concerns the presentation of “facts” (see , for instance , the observation in case no. 41486/04 Seleckis v . Latvia (dec.) 2 March 2010 , § 32) . Moreover , it is also highly relevant that as a journalist Mr. G.J. had ample opportunity to reply publicly to any insinuations which allegedly were directed at him concerning his work as a journalist , rather than resorting to defamation proceedings to suppress or punish such criticism. This is how a media-driven public debate in a democratic society works and should have worked in the instant case .

7. On the basis of the foregoing we believe that the interference with the applicant ’ s right to freedom of expression was not justified , and that there has therefore been a violation of Article 10 of the Convention in this case.

[1] 1.  Young J ‘The role of Police as Amplifiers of Deviancy , Negotiators of Reality and Translators of Fantasy’ in S Cohen (ed) Images of Deviance Penguin Harmondsworth.