JOINT CONCURRING OPINION OF JUDGES RAVARANI, SERGHIDES AND LOBOV

1. We respectfully disagree with the majority’s view that the violation of Article 10 in this case was due to the fact that the impugned interference with the applicant company’s right to freedom of expression lacked a legitimate aim under paragraph 2 of Article 10 of the Convention. In our view, Article 10 was violated on another ground, relating to the domestic courts’ failure to demonstrate that the interference was necessary in a democratic society, in line with the Court’s well-established case-law.

The existence of a legitimate aim for the interference

2. The majority decided to review the Court’s approach to the entitlement of public entities to “the protection of the reputation and rights of others”, provided for by paragraph 2 of Article 10. Notwithstanding the policy considerations that prompted the majority’s novel approach (paragraph 43 of the judgment), we are not convinced that there were good reasons for the Chamber to deviate in such a radical way from numerous previous judgments that had accepted the applicability of the aforementioned legitimate aim to various public entities and authorities in different countries, in both criminal and civil contexts.

3. The Court has so far invariably acknowledged the existence of a legitimate aim in similar cases, irrespective of whether the parties disputed this point or not (compare the cases cited in paragraph 42 of the judgment, and Frisk and Jensen v. Denmark , no. 19657/12, §§ 42-50, 5 December 2017, where the applicants explicitly challenged the existence of a legitimate aim). In the latter case, the Court unambiguously rejected the applicants’ submission that “the judiciary is the only public authority whose protection is capable of constituting a legitimate aim under Article 10 § 2” (ibid., § 47), a conclusion which is contradicted by the majority’s overly restrictive assumption in paragraph 37 of the present judgment.

4. In addition to the various cases cited in the present judgment and those where the interference served a more specific aim of “maintaining the authority ... of the judiciary” (see, most recently, Freitas Rangel v. Portugal , no. 78873/13, § 48, 11 January 2022, not yet final), the Court has already accepted the legitimate aim of “the protection of the reputation ... of others” in respect of such public institutions as the police ( Savva Terentyev v. Russia , no. 10692/09, § 60, 28 August 2018) or the prosecutor’s office ( Goryaynova v. Ukraine , no. 41752/09, § 56, 8 October 2020 ). The majority’s view, restricting the reputational protection to public institutions which compete on the marketplace (paragraphs 44-46 of the judgment), does not sit well with the above case-law. Nor is it convincing, in our view, to determine the eligibility of “easily identifiable” members of a public authority to protection of their individual reputation and interests solely on the basis of this authority’s “scale of operation” (paragraph 48 of the judgment).

5. Admittedly, the Court has acknowledged at times that a legal entity’s right to reputation (including the scope of such right) is debatable and has emphasised a difference between the reputational interests of a legal entity (including a public authority) and the reputation of an individual. That did not alter its finding in another recent case that the same legitimate aim could be relied upon in respect of Moscow City Council, although its interest in protecting its “reputation” did not necessarily attract the same level of guarantees as that accorded to “the protection of the reputation ... of others” within the meaning of Article 10 § 2 (see Margulev v. Russia , no. 15449/09, § 45, 8 October 2019).

6. We consider the latter point to be of great relevance to the present case, which also concerned a set of defamation proceedings brought against an applicant by a similar public institution, the Administration of the Volgograd Region. The interest of preserving the Court’s case-law consistency should therefore have led the Chamber to follow the established approach by accepting the existence of the legitimate aim and by considering the proportionality of the interference with due regard to the difference in the “level of guarantees” applicable to different public entities depending on their status and the nature of their activities.

7. While it cannot be excluded that defamation proceedings could be intended to have a chilling effect on those who criticise the authorities’ activities, the existence of such an illegitimate aim cannot be presumed, let alone taken for granted, without tangible evidence to that effect. In any event, the determination of the limits of acceptable criticism lends itself to be assessed through the balancing exercise under the proportionality test, in line with the Court’s established case-law.

The necessity of the interference in a democratic society

8. The publication at the heart of the present case contributed to a debate of public interest and the impugned statements represented Mr S.’s value judgment, which was not devoid of any factual basis. In such circumstances, in view of the respective position of the claimant as a public authority and the applicant company as a media outlet, having regard to the fact that the impugned statements had concerned matters of public administration, and admitting that the applicant company did not make allegations of illegal conduct, the domestic authorities had a narrow margin of appreciation in assessing the need for the interference with the applicant company’s right to freedom of expression.

9. Where a public authority (and not its individual officials) resorts to defamation proceedings in relation to criticism by the media, it is incumbent on the domestic courts examining institutional defamation claims to provide compelling reasons capable of demonstrating convincingly that members of the media acted in bad faith or in flagrant disregard of the tenets of responsible journalism when making allegedly defamatory statements. Any failure to do so would run contrary to the positive obligations under Article 10 of the Convention requiring States to create a favourable environment for participation in public debate by all persons concerned, enabling them to express their opinions and ideas without fear (see Uzeyir Jafarov v. Azerbaijan , no. 54204/08, § 68, 29 January 2015).

10. We are not satisfied, however, that the existence of a pressing social need for the interference complained of was convincingly established by the domestic authorities in the circumstances of the present case. Indeed, the domestic courts paid no heed to the positions of the parties to the defamation proceedings as a public authority and a media outlet. Nor did they make the necessary distinction between the statements of fact and the value judgement conveying the criticism against the Administration of the Volgograd Region. The domestic courts thus failed to apply the standards embodied in Article 10 of the Convention, including those reiterated in Ruling no. 16 of 15 June 2010 by the Plenary Supreme Court of Russia (see paragraph 21 of the present judgment).

11. The authorities therefore failed to demonstrate that there was a reasonable relationship of proportionality between the interference in question and the legitimate aim pursued (see, among others, Romanenko and Others v. Russia, no. 11751/03, § 49, 8 October 2009; OOO Izdatelskiy Tsentr Kvartirnyy Ryad v. Russia , no. 39748/05, § 46, 25 April 2017; Cheltsova v. Russia , no. 44294/06, § 100, 13 June 2017; Skudayeva v. Russia, no. 24014/07, § 39, 5 March 2019; Nadtoka v. Russia (no. 2) , no. 29097/08, § 50, 8 October 2019; Tolmachev v. Russia , no. 42182/11, § 56, 2 June 2020; and Timakov and OOO ID Rubezh v. Russia , nos. 46232/10 and 74770/10, § 71, 8 September 2020).

12. We have accordingly concluded that there has been a violation of Article 10 of the Convention in the present case.