The Defamation of Public Figures in Europe – Cases of Hungarian Interest before the ECtHR

András KoltayPázmány Péter Catholic University

The ECHR and the defamation of public figures

Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. (…)2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, (…) for the protection of the reputation or rights of others (…).

Lingens v. Austria (1986): ‘No doubt art 10-2 enables the reputation of others—that is to say, of all individuals—to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.’

ECtHR case law regarding defamation – general overview

• Case law is rich and stable with regard to defamatory statements and opinions voiced about public figures.

• Ensures broad protection of debates about public

issues.

• The status of the defamed party remains significant.

• Case law distinguishes between statements of fact and expressions of opinion.

Defamation cases of Hungarian interest before the ECtHR

• Keller v. Hungary (2006)

• Karsai v. Hungary (2009)

• Uj v. Hungary (2011)

• Ungváry and Irodalom Kft. v. Hungary (2013)

Keller v Hungary (2006) on different tests applied to factual statements and value judgments

Facts:• Applicant (an MP) questioned the PM on connection

between the government and extreme right groups. • PM was not aware of any such connection. • Applicant said that the father of the minister

responsible for overseeing the secret services was a member of an extreme right group.

• The minister initiated a civil lawsuit, as the applicant had alleged that he had abused his official power.

Keller v. Hungary

Decision (Hungary):

• The courts established that the minister’s personality rights had been violated.

• The allegations made by the applicant constituted statements of fact whose truth he was unable to prove.

Keller v. Hungary

Decision (ECtHR):

• The application was unfounded and inadmissible.

• The applicant’s communication had been a statement of fact,

• had been injurious to the reputation of the minister, and

• had had no factual basis.

Karsai v. Hungary (2009) – on the classification of a certain allegation as statement of fact or expression of opinion

Facts: • Public dispute around the statue of Pál Teleki, twice PM in the

Horthy era (1920-21, then 1938-41)• Applicant: articles and studies ‘praising’ Teleki had appeared in

‘extreme right-wing’ publications.• „…The amateur historian [B. Török] wrote several articles

singing the praises of Pál Teleki—of the devout Catholic, the enthusiastic Scouts officer—who in his view was an anti-Nazi ‘Realpolitiker’. (…) Only a few of us lay our hands, at least from time to time, on the products of the right-wing or extreme right-wing press, which, perhaps encouraged by this indifference, keep lying, keep slandering, keep inciting against and bashing the Jews [zsidózik], in a more and more uninhibited way.”

Karsai v. Hungary

Decision (Hungary):

• The author named in the article, B. Török, filed a lawsuit.

• The court established the violation of his reputation by publishing false facts. (Only as regards the expression ’bashing the Jews’).

Karsai v. Hungary

Decision (ECtHR): • Violation of article 10. • Exaggerations or even provocative statements are

acceptable in public debates. • The use of the term ‘Jew-bashing’ is an opinion rather

than a statement of fact (and it has certain ‘factual basis’).

• Applicant had argued that the ‘apology’ for a politician widely known to have had anti-Semitic convictions constitutes the trivialisation of his ‘racist’ policies.

• Taking into account Teleki’s historical role labelling Török’s writings as ‘Jew-bashing’ is neither excessive nor devoid of factual basis.

Karsai v. Hungary

Critique of the ECtHR’s decision: • The term ‘Jew-bashing,’ could be regarded as a

statement of fact (which is unproven).• Where does the state courts’ margin of appreciation

end? • Török hadn’t published any direct anti-Semitic

statements whatsoever, or in any extreme right-wing papers, though he was protecting a controversial politician.

• Saying that somebody is a ‘Nazi’ (or a ‘racist’ or a ‘xenophobe’) is different from saying that the person engages in ‘Jew-bashing’?

Karsai v. Hungary

More critique of the ECtHR’s decision:

• In historical debates, courts are not referees.

• ECtHR indirectly took a stand in the dispute by summarising the information on Teleki’s historical role.

Karsai v. Hungary

Even more critique of the ECtHR’s decision: • Wabl v. Austria (2000): applicant, a former MP, accused

a newspaper of ‘Nazi journalism’.• ECtHR: applicant’s outrage does not justify the analogy

with Nazi journalism. • “…the Court had particular regard to the special

stigma which attaches to activities inspired by National Socialist ideas.”

• “…the Court notes that the applicant did not use this expression ‘Nazi-journalism’ as an immediate reaction” but only a few days after the event. 

Uj v. Hungary (2011) – on the personality rights of legal persons

Facts: • Article published about the quality of the product of the

state-owned Tokaj Kereskedőház Zrt. [Wine Trading Plc]. • Applicant: the quality of the product was poor and its

popularity was unjustified. • „it is a product of Tokaj Zrt. that represents the

Hungarian National Pride and Treasure, and that could make me cry. Not only because of the taste—although that alone would easily be enough for an abundant cry: sour, blunt and over-oxidised stuff, bad-quality ingredients collected from all kinds of leftovers. Hundreds of thousands of Hungarians drink this shit with pride, even devotion.”

Uj v. Hungary

Decision (Hungary): • Criminal defamation proceeding was instituted against

the applicant. • Court established the harming of the company’s

honour. [Violation of the protection of reputation or good name can be executed by statements of (false) facts, whereas ’harming the honour’ can be materialized through the expression of opinions.]

• The court also speaks of a violation of the ‘dignity’ of the company.

Uj v. Hungary

Decision (ECtHR): • Violation of article 10.

• Article was part of a public debate. Free speech allows the publication of exaggerated, injurious and even offensive opinions.

• „…there is a difference between the commercial reputation-related interests of a company and the reputation of an individual concerning his or her social status. Whereas the latter might have repercussions on one’s dignity, for the Court interests of commercial reputation are devoid of that moral dimension.”

Ungváry and Irodalom Kft. v. Hungary (2013) – on facts–opinions distinction and the freedom to publish false facts

Facts: • Applicant’s article was concerned with the actions of the

state security service against a student peace activist movement called Dialogue, active at the university of Pécs in the 1980s.

• Applicant wrote about the role of the leadership of the university in the suppression of the movement, including the deputy secretary of the local party committee, in supporting the activities of the state security service.

• The former deputy secretary filed a criminal complaint and launched two civil lawsuits for the protection of personality.

•  

Ungváry and Irodalom Kft. v. Hungary1. Civil court

decision (Budapest Metropolitan Court)

2. Civil court decision (Budapest Court of

Appeal)

3. Civil court decision (Supreme Court)

1. Criminal court decision (Pest Central District Court)

2. Criminal court decision (Budapest

Metropolitan Court)

3. Criminal court decision (Budapest

Court of Appeal)

‘[L. K.]’s conduct wholly qualifies as the work of a secret security agent.’

statement of fact opinion statement of fact opinion statement of fact opinion

‘[L. K.] maintained a regular and obviously collegial relationship with the organs of state security, often pro-actively meeting their expectations.’

statement of fact opinion statement of fact opinion statement of fact opinion

‘As an official contact [L. K.] had been a diligent informant and proponent of hard-line policies.’

statement of fact opinion statement of fact opinion statement of fact opinion

‘[L. K.] reported to state security in the line of his professional duties.’

statement of fact opinion statement of fact opinion statement of fact opinion

‘The action of [L. K.] against S. Zs., an alleged sympathiser with the Dialogue group, resulted in the political demise of the latter.’

statement of fact opinion statement of fact opinion statement of fact opinion

Ungváry and Irodalom Kft. v. Hungary

Facts:

• Different courts came to different conclusions as regards the classification of the content as „statements of facts” or „opinions”.

• Applicant was acquitted in the criminal procedure, but the civil court established the violation of reputational rights.

Ungváry and Irodalom Kft. v. Hungary

Decision (ECtHR): • Violation of article 10. • ECtHR ‘does not dispute’ the decision of the Hungarian courts

(disputed statements were statements of fact). • Applicant had ‘exceeded the limits of journalism, scholarship,

and public debate’. • Courts should have interpreted the disputed passages of the

text in conjunction with the entire article. • Applicant’s ‘undeniably offensive and exaggerated’ statements

were made within the broader context of presenting the operation of the oppressive mechanism of the totalitarian system.

• Accuracy expected of a journalist or a historian is not measurable in the same way as the accuracy expected from a criminal court.

Ungváry and Irodalom Kft. v. Hungary

Criticique of the ECTHR’s decision:

• If purpose, content and general grounds of a text and the relationship of the offensive passages with the whole are, in themselves, regarded as grounds for exculpation from legal liability, that may result in legal uncertainty.

• The scope of protection for false factual statements is also uncertain.

Concluding remarks

• Companies are no humans.

• The fact-opinion distinction is important.

• Shocking, offensive, disturbing opinions are protected in public debates – but not unlimitedly.

• The protection of false factual statements is still an unsettled idea.

• The possibilities of the ECtHR to overrule the classification and establishment of the facts of a case by the state courts is also uncertain.

Thank you for your attention!