CASE OF VERLAGSGRUPPE DROEMER KNAUR
GMBH & CO. KG v. GERMANY
(Application no. 35030/13)
19 October 2017
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Verlagsgruppe Droemer Knaur GmbH & Co. KG v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Erik Møse, President,
Mārtiņš Mits, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 26 September 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 35030/13) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 May 2013 by Verlagsgruppe Droemer Knaur GmbH & Co. KG (“the applicant company”), a German limited partnership.
2. The applicant company was represented by Mr U. Reber, a lawyer practising in Munich. The German Government (“the Government”) were represented by their Agents, Mr H.-J. Behrens and Ms K. Behr of the Federal Ministry of Justice and Consumer Protection.
3. The applicant company alleged, under Article 10 of the Convention, that an order to pay damages in the amount of 10,000 euros (EUR) for a publication had violated its freedom of expression.
4. On 21 March 2016 the application was communicated to the Government.
I. SUBJECT MATTER OF THE CASE
5. The applicant company was ordered to pay EUR 10,000 in damages to a person referred to as a presumed member of the mafia on one page of a book published by it. The domestic court considered that the applicant company, which had based the impugned passage of the book on, inter alia, an internal report of the Federal Office of Criminal Investigations (Bundeskriminalamt), had not complied with its duty to carry out thorough research and had seriously interfered with the personality rights of the person referred to.
II. THE CIRCUMSTANCES OF THE CASE
6. The applicant company is a prominent German book-publishing house with its registered office in Munich. In 2015 it was ranked among the ten publishing firms generating the highest turnover in the German publishing sector.
7. In September 2008 the applicant company published a book entitled “Mafia” written by Petra Reski, an author internationally renowned for her anti-Mafia publications. The book was reprinted in several editions and also published in Italy. It deals, in its 352 pages, with the Mafia’s ties to Germany, its inner structures and its various branches. The book also recounts an event which took place in 2007 in Duisburg where six people of Italian nationality were killed by fifty-six bullets in front of the Italian restaurant “Da Bruno”. The killings were supposed to be the culmination of a vendetta between two ‘Ndrangheta families which had started in 1991 in Italy. The incident received national and international media attention.
A. The publication at issue
8. On pages 157 and 158 the book referred, by his full name, to a person called S.P., an Italian national residing in Germany. The relevant part reads as follows (translated, names abbreviated and emphasises added by the Court):
“... The public prosecutor’s office of Stuttgart investigated the Calabrian [L] for drug dealing and money laundering - he is said to have contributed to financing the electoral campaign of [O] with his funds. This was not to remain the sole link existing between a presumed member of the ʽNdrangheta and a German politician: in the city of Erfurt, the Calabrian [S.P.], who had been mentioned already in 2000 in a report prepared by the Federal Office of Criminal Investigation, gained notoriety. [S.P.] runs the restaurant ‘[Pa]’ in Erfurt: a restaurant seating 400 guests, not a bad rise for someone like [S.P.], who, according to statements of the investigators, had started out as a pizza baker in the pizza restaurant ‘Da Bruno’. After all, having contacts can be very helpful, even if, following the massacre of Duisburg, the pizza restaurant ‘Da Bruno’ no longer serves as that great a reference. In any case, [S.P.] continued to maintain his network of relationships in Erfurt by generously sponsoring the local golf club. When the police performed a search of the restaurant ‘[Pa]’ because of [S.P.]’s alleged involvement in a murder, it ran into the then Prime Minister of Thuringia, [B.V.], and his Secretary of the Interior, [R.D.] - both of whom had been dining there purely as a matter of chance, as [S.P.] asserted. He, by the way, had excellent relations with the police: when a further search was performed, the police found an identity card in his premises, which had been issued to him in his purported capacity as interpreter for the Uzbek delegation at an Interpol conference in Rome. The identity card, it was stated, had been issued by the Secretary of the Interior of the Saarland. ...”
9. As regards S.P.’s presumed membership of the ‘Ndrangheta, the applicant company relied on, inter alia, reports by the German Federal Office of Criminal Investigation of 2000 and 2008. Neither report had been made public.
10. The relevant passage in the report of 2000 reads:
“If one takes account of the enormous reputation that [S.P.] has and the esteem in which he is held by the Italian community, one forms the opinion that [S.P.] is a de-facto fully-fledged member of the ‘Ndrangheta clan.”
11. The relevant parts of the report of 2008 read:
“According to Italian colleagues from Calabria and Bianco, this connection could have contributed to [S.P.] becoming a member of the Romeo alias ‘Staccu’ clan. Owing to the prestigious reputation [S.P.] enjoys in the ‘Italian milieu’, he has to be a full member of the ‘Ndrangheta.
Direct relatives of the clan live in Germany and run pizza restaurants. Their main bases are in the cities of Duisburg, Erfurt, and Leipzig. These bases are led by [A.M.], [D.G.] and [S.P.], with [D.G.] taking the role of the so-called ‘capo locale’.
[D.G.] and [S.P.] could be in charge of investing the proceeds of drug trafficking. This theory is corroborated by the high number of good restaurants and statements from various sources that [S.P.] is said to have invested in several restaurants and acquired real estate in Dresden and the surrounding areas.”
12. In 1997 S.P. had already been mentioned by name in the context of organised crime. He had been interviewed in a television report regarding the ‘Ndrangheta in Thuringia and had denied any membership of or connection to the ‘Ndrangheta.
B. Interim proceedings
13. After publication of the book, S.P. applied to a court for an injunction against the dissemination of the passages highlighted in the above excerpt of the book (see paragraph 8 above). On 13 November 2008, the Munich Regional Court issued the injunction and confirmed it on 15 December 2008 after hearing both parties. It held that even though there was a public interest in reporting about organised crime, the author had acted in breach of her journalistic duties. The internal reports of the Federal Office of Criminal Investigation constituted an insufficient source for the allegations made in the book, since the reports were not intended for publication. The investigating authorities themselves had not come to the conclusion that there was sufficient evidence of an offence having been committed by the plaintiff. Moreover, the Regional Court stated, a report on a suspicion also had to include the circumstances exonerating the party affected. Accordingly, the book should have stated that the investigating authorities had not obtained any indications which would have served as a basis for filing an indictment, much less a sentence, and that in fact the investigations pursued against the plaintiff had not resulted in any such bringing of charges or in any sentencing. In addition, the court held, the publication had not made it clear that the pizza restaurant “Da Bruno”, in which the murders had been perpetrated, was not identical to the pizza restaurant of the same name in which the plaintiff had worked as a pizza baker many years prior to those deeds. Lastly, the court continued, the book had been published unlawfully because the plaintiff had not been given any opportunity to make a statement regarding the suspicion prior to publication.
14. On 7 April 2009 the Munich Court of Appeal dismissed the applicant company’s appeal against the Regional Court’s judgment of 15 December 2008. It held that the book expressed a serious allegation that the plaintiff was a member of a criminal organisation and therefore seriously interfered with his personality rights. The section of the book dealing with the plaintiff did not allow an average reader to infer that the plaintiff’s membership of the criminal organisation ‘Ndrangheta could only be assumed vaguely. Rather, the court continued, the interplay of the many individual statements in the book created the impression that there was a very strong suspicion that the plaintiff was a member of the ‘Ndrangheta. The evidentiary facts researched by the author and published by the applicant company did not constitute sufficient proof of the exceptionally grave suspicion raised in the book. The court established that even the internal report by the Federal Office of Criminal Investigation only mentioned a number of vague suspicious circumstances, for the most part without providing any details or naming any specific sources. For example, it said that because of the high respect in which the plaintiff was held in the “Italian milieu”, he must be a fully fledged member of the ‘Ndrangheta. The internal reports only showed that owing to certain information compiled in them, some of which had not been corroborated by evidence, assumptions had been made as to the existence of certain connections. This did not seem to be a sufficient basis for publicly branding the plaintiff as a presumed ʽNdranghetista. Moreover, the court continued, certain statements in the book were incorrect, such as the region in which the plaintiff had been born. Other statements were fragmentary, as the investigation during which the plaintiff’s restaurant was searched by the police had been discontinued. In that regard, the court held that the book had failed to report exonerating circumstances. Even though authors did not have to await the outcome of an investigation before reporting on a corresponding suspicion, if the reporting on a suspicion was reliant on investigations that had been carried out six or seven years previously, the author could not ignore the fact that the investigation proceedings had come to an end without any charges having been brought.
C. Main proceedings
15. In the main proceedings, in addition to his request that the injunction be upheld, S.P. applied for damages in the amount of EUR 20,000.
16. On 22 June 2011, the Munich Regional Court upheld the injunction, but dismissed the plaintiff’s application for damages. The Regional Court reiterated the reasoning it had given in the judgment of 15 December 2008 and that given by the Court of Appeal in its judgment of 7 April 2009 (see paragraphs 13-14 above). The court further reiterated that the author had not sufficiently researched the basis for the allegation that S.P. was a member of the ʽNdrangheta, since all the sources only indicated vague suspicious circumstances pointing at S.P. Secondly, the author had not complied with the “absolute requirement” of presenting exonerating circumstances. Lastly, the court held that the publication was unlawful as the author had not given the plaintiff the possibility to comment on the allegation prior to publication.
17. The Regional Court dismissed the plaintiff’s application for damages as being ill-founded. It held that even though the applicant company had breached the permissible boundaries of reporting on suspicions as well as its journalistic diligence, it had not done so in a serious manner. Accordingly, it sufficed to stop the dissemination of the impugned statements but did not require a payment of damages.
18. During the proceedings before the Regional Court the applicant company offered to furnish certain evidence supporting the suspicion published in the book. In particular, it offered to provide the names of witnesses who could allegedly confirm the statements made in the internal report of the Federal Office of Criminal Investigation and the suspicion published in the book. The Regional Court refused to hear the witnesses as it found that they would be unable to give evidence regarding the alleged membership and that the applicant company had failed to identify the specific issues on which the witnesses could testify.
19. The applicant company did not appeal against the judgment of the Regional Court. The plaintiff, however, appealed against the dismissal of his claim for damages. Consequently, in so far as the judgment ordered the injunction, it became final.
20. On 29 November 2011, the Munich Court of Appeal, in addition to the injunction, sentenced the applicant company to pay damages in the amount of EUR 10,000 and dismissed the plaintiff’s further claim for damages. The court stated that the prerequisite for any entitlement to pecuniary compensation was a serious violation of personality rights which could not be compensated in any other way. It found that that prerequisite had been met in the plaintiff’s case. As far as the violation of the plaintiff’s personality right was concerned, the Court of Appeal endorsed the reasoning of the Regional Court. It expressly conceded to the applicant company that there was great public interest in obtaining information about criminal organisations and “that the motivation of the author and of the defendant [in the instant case: applicant company] for informing the public on the activities pursued by the ‘Ndrangheta in Germany was commendable and honest”. However, the Court of Appeal continued, the applicant company had acted culpably to a significant extent. It had been grossly negligent on the part of the applicant company to disseminate an allegation based on a suspicion which seriously interfered with the plaintiff’s personality right in spite of the fact that the plaintiff had obviously not been given an opportunity to be heard and that the allegation had been disseminated without including the necessary information that the murder investigation addressed by the book subsequently had been discontinued. This charge of gross negligence could not be put aside because the author had tackled a subject of strong public interest. The applicant company should have realised that the information compiled about the plaintiff was not corroborated by evidence and that there were insufficient evidentiary facts to support the allegation reported in the book. The applicant company could not argue that it had not acted culpably, as it had based its publication on information obtained from a governmental authority. That principle, the court held, had been developed by the courts in adjudicating for official press releases issued by German authorities. However, the author had relied solely on internal analyses prepared by the Federal Office of Criminal Investigation as well as evaluation reports and documents generated in the course of intra-agency communications between Italian government authorities.
21. The Court of Appeal further reasoned that the injunction was not sufficient redress for the plaintiff, as it was not an adequate means of reaching the readers of a book that had already been published. Consequently, it found that the payment of damages was required. The court held that compensation in the amount of EUR 10,000, instead of the EUR 20,000 claimed by the plaintiff, was both sufficient and adequate.
22. On 28 March 2012 the Munich Court of Appeal dismissed as ill-founded a complaint lodged by the applicant company that it had been denied the right to be heard.
23. On 19 November 2013, the Federal Constitutional Court refused to admit a constitutional complaint (1 BvR 82/12) lodged by the applicant company, without providing reasons.
III. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Basic Law
“(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.
B. The Civil Code and relevant practice
25. Article 823 § 1 of the Civil Code (Bürgerliches Gesetzbuch) provides that anyone who, intentionally or negligently, unlawfully infringes another person’s right to life, physical integrity, health, freedom, property or another similar right will be liable to pay compensation for the resulting damage.
26. A person’s personality right enjoys the protection of Article 2 § 1 and Article 1 § 1 of the Basic Law, and is therefore recognised as “another similar right” within the meaning of Article 823 § 1 of the Civil Code (Federal Court of Justice, judgment of 25 May 1954, no. I ZR 211/53).
27. According to the well-established case-law of the Federal Court of Justice (judgment of 11 December 2012, no VI ZR 314/10) and the Federal Constitutional Court (decision of 9 March 2010, no 1 BvR 1891/05), when considering the veracity of statements of fact, official statements made by public authorities can be qualified as so-called “privileged sources”, which enjoy a higher degree of credibility. Regarding their information policy, public authorities are bound by the fundamental rights of the person concerned and objectivity. As a consequence, prior to publishing information, they have to strike a balance between the person’s right to protection of private life and the right of the public to receive information. Thus, a report which is categorised as “confidential” cannot be considered a privileged source, since it is not intended to be a public document (Federal Court of Justice, judgment of 17 December 2013, no VI ZR 211/12).
28. Furthermore, according to the case-law of the Federal Court of Justice, the prerequisite for any entitlement to pecuniary compensation is a serious violation of the personality right that cannot be compensated in any other way. The seriousness of the violation has to be determined in regard to the significance and reach of the interference, the reasons and motivation of the acting party and the degree of fault. The specific amount has to be assessed by a judge as the respective trier of fact. In a case, comparable to the present one, the domestic courts awarded the plaintiff 30,000 German Marks (DEM - about EUR 15,339) (see Federal Court of Justice, judgment of 30 January 1996, no. VI ZR 386/94).
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
29. The applicant company complained that the Court of Appeal judgment of 29 November 2011 ordering it to pay damages in the amount of EUR 10,000 to S.P. had infringed its right to freedom of expression as provided for in Article 10 of the Convention, which reads, in so far as relevant, as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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, ... .”
30. The Government contested that argument.
31. The Government argued that the applicant company had failed to exhaust domestic remedies, as in its constitutional complaint it had failed to challenge the reasoning of the Court of Appeal that the author had exaggerated the degree of suspicion shown in the official documents and had failed to include exonerating circumstances. The Government made the same argument in regard to the applicant company’s complaint that the Court of Appeal had refused to hear certain witnesses who could have confirmed the published suspicion. The applicant company contested those arguments, submitting that striking a balance between freedom of expression and the right to private life required an overall assessment. Therefore, it was neither possible nor necessary to challenge certain lines of reasoning in isolation.
32. The Court notes that is not in dispute between the parties that the applicant company invoked its right to freedom of expression before the Constitutional Court and challenged the judgment of the Court of Appeal and the balance struck in the court’s reasoning. The Court finds that the applicant company provided the Constitutional Court with an opportunity to review the balance struck by the Court of Appeal between the applicant company’s freedom of expression and S.P.’s personality right. Consequently, the applicant company did not fail to exhaust domestic remedies.
33. The Court also notes that the application is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties’ submissions
34. The applicant company argued that awarding S.P. EUR 10,000 in damages had not been necessary in a democratic society, as the author and thereby the applicant company itself had based the passage at issue on official reports and had thus fulfilled their journalistic duties and responsibilities. In particular, it submitted that the part of the book at issue conveyed that there had been a suspicion that S.P. was a member of the ‘Ndrangheta. There had been sufficient reliable sources for that suspicion, including official reports of the Federal Office of Criminal Investigation, which had been identified as a source in the book. Since the report had come from an official and reliable source, the author was justified in refraining from further corroborating the information. The Court of Appeal had also neglected to take into account the fact that the author had researched the mafia for several years and interviewed a multitude of prosecutors, criminal investigators and other insiders, as well as the fact that the court had refused to hear the witnesses put forward by the applicant company. In addition, the applicant company had not been required to give S.P. an opportunity to be heard, as he had already denied his alleged membership when interviewed for a television report in 1997. The mere fact that S.P. had erroneously been described as a Calabrian had not constituted such a grave violation of his personality right as to justify the damages awarded to him.
35. The Government argued that the domestic courts, in particular the Court of Appeal, had balanced the conflicting rights in compliance with the criteria established by the Court’s case-law. The Court of Appeal had remained within the margin of appreciation afforded by the Court to member States and there were no strong reasons to substitute the assessment made by the domestic courts. The Government emphasised parts of the Court of Appeal’s reasoning and argued that a violation had been found not because the author and the applicant company had relied on an internal official report without any further research, but because they had gone beyond the suspicion mentioned in the report and insinuated that it was highly likely that S.P. was a member of the ‘Ndrangheta. In addition, they had neither directly quoted the internal report by the Federal Office of Criminal Investigation nor clearly identified which information stemmed from the report. Moreover, the book contained false and misleading information corroborating the suspicion. The applicant company had failed to publish any information exonerating S.P. and lessening the degree of suspicion, as conveyed by the book. Having taken all those aspects into account, the Court of Appeal legitimately awarded S.P. damages. The amount of EUR 10,000 had been appropriate, as the violation of S.P.’s personality right was serious and there had been no other effective alternatives, such as a printed retraction, to counter the misleading information published in a non-fiction book.
2. The Court’s assessment
36. At the outset, the Court notes that it is not in dispute between the parties that the order to pay damages constituted an interference with the applicant company’s right to freedom of expression and that the interference was prescribed by law. The Court is satisfied that the interference pursued the legitimate aim of protecting “the reputation or rights of others”. It therefore considers that the present case requires an examination of the question whether a fair balance has been struck between the applicant company’s freedom of expression as guaranteed by Article 10 of the Convention and S.P.’s right to the protection of private life and reputation under Article 8.
(a) General principles
37. Having considered on numerous previous occasions similar disputes requiring an examination of the issue of a fair balance, the Court refers to the general principles relating to each of the rights in question that have been established in its case-law (see Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 83-92, 10 November 2015; Axel Springer AG v. Germany [GC], no. 39954/08, §§ 78-88, 7 February 2012; and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 95-107, ECHR 2012). These principles also apply to the publication of books, in so far as they concern matters of public interest (see Editions Plon v. France, no. 58148/00, § 43, ECHR 2004-IV).
38. In cases such as the present one, where the national authorities had to balance two conflicting interests, the Contracting States have a certain margin of appreciation. However, this margin goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court. In exercising its supervisory function, the Court’s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on. Where the exercise of striking a balance between two conflicting rights was 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 Couderc and Hachette Filipacchi Associés, cited above, §§ 90-92, and Von Hannover (no. 2), cited above, §§ 104-07).
39. The Court has identified, in so far as relevant for the present case, the following criteria in the context of balancing competing rights: the contribution to a debate of public interest; the degree to which the person affected is well-known; the subject of the news report; the method of obtaining the information and its veracity; the prior conduct of the person concerned; the content, form and consequences of the publication; as well as the severity of the sanction imposed (see Couderc and Hachette Filipacchi Associés, § 93; Axel Springer AG, §§ 90-95; and Von Hannover (no. 2), §§ 109-13, all cited above).
(b) Application of these principles to the present case
(i) Contribution to a debate of public interest
40. An initial essential criterion is the contribution made by articles in the press to a debate of public interest. The Court has previously recognised the existence of such an interest where the publication concerned political issues or crimes (see Axel Springer AG, cited above, § 90, with further references).
41. The domestic courts held that there was a great public interest in obtaining information about criminal organisations and the Court of Appeal even stated that “informing the public on the activities pursued by the ‘Ndrangheta in Germany was commendable and honest”. The Court agrees that the book contributed to a debate of public interest.
(ii) How well known is the person concerned and what is the subject of the report?
42. The role or function of the person concerned constitutes another important criterion, related to the preceding one. A distinction has to be made between private individuals and persons acting in a public context, such as political or public figures. Accordingly, whilst a private individual who is unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures (see Petrenco v. Moldova, no. 20928/05, § 55, 30 March 2010).
43. The domestic courts did not explicitly discuss this issue and only mentioned that S.P. was the owner of a restaurant. The Court considers that, as a private individual, S.P. could claim the right to particular protection.
(iii) Method of obtaining the information and its veracity
44. As regards the method of obtaining the information and its veracity, the Court reiterates that Article 10 of the Convention does not guarantee wholly unrestricted freedom of expression, even with respect to press coverage of matters of serious public concern. Under the terms of paragraph 2 of that provision, freedom of expression carries with it “duties and responsibilities”, which also apply to the media even with respect to matters of serious public concern. By reason of these “duties and responsibilities”, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of public interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see, for example, Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999-I; and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78, ECHR 2004-XI).
45. Moreover, those “duties and responsibilities” are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the “rights of others”. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations (see Pedersen and Baadsgaard, cited above, § 78). The latter issue must be determined in the light of the situation as it presented itself to the newspaper at the material time (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 66, ECHR 1999-III, and Yordanova and Toshev v. Bulgaria, no. 5126/05, § 50, 2 October 2012) and requires, in turn, consideration of other elements such as the authority of the source, whether the newspaper had conducted a reasonable amount of research before publication (see Prager and Oberschlick v. Austria, 26 April 1995, § 37, Series A no. 313), whether the newspaper gave the persons defamed the opportunity to defend themselves (see Bergens Tidende and Others v. Norway, no. 26132/95, § 58, ECHR 2000-IV; Flux v. Moldova (no. 6), no. 22824/04, § 29, 29 July 2008; and Europapress Holding d.o.o. v. Croatia, no. 25333/06, § 67, 22 October 2009) and the urgency of the matter (see Yordanova and Toshev, cited above, § 49). In relation to the last point, the Court has emphasised that, as far as the press is concerned, news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest (see Observer and Guardian v. the United Kingdom, 26 November 1991, § 60, Series A no. 216, and The Sunday Times v. the United Kingdom (no. 2), 26 November 1991, § 51, Series A no. 217).
46. The Court has previously held that the press should normally be entitled, when contributing to public debate on matters of legitimate concern, to rely on the contents of official reports (see Bladet Tromsø and Stensaas, cited above, § 68) or on information provided by a press officer at the public prosecutor’s office (see Axel Springer AG, cited above, § 105) without having to undertake independent research. However, the Court has also emphasised the importance of clearly identifying such a source (see Erla Hlynsdottir v. Iceland (no. 3), no. 54145/10, § 73, 2 June 2015, with further references).
47. In the present case, the Court notes that S.P.’s alleged membership of the ‘Ndrangheta was presented by the applicant company as presumed and not as a fact. Nonetheless, the domestic courts established that the passage in the book implied that his membership was highly likely and that the applicant company had been unable to substantiate such a high level of presumption. The Court of Appeal held that certain statements had been incorrect and that the internal reports of the Federal Office of Criminal Investigation had only indicated vague suspicious circumstances regarding S.P.’s alleged membership. The applicant company had exaggerated the level of suspicion conveyed by the internal official reports, and had been unable to prove the presented high level of suspicion by means of additional facts. The domestic courts also pointed out that the reports of the Federal Office of Criminal Investigation had not been meant for publication and could therefore not exonerate journalists or authors from their journalistic duty to carry out their own research.
48. While the Court recognises the importance of internal documents for journalistic research, it also reiterates that freedom of press carries with it “duties and responsibilities”. In this connection, the Court agrees with the domestic courts that a distinction has to be made between public official reports or official press releases and internal official reports. While journalists may rely on the former without further research, the same cannot be held for the latter. The Court concludes that even though internal official reports can be an important source, they cannot exonerate journalists completely from their obligation to base their publications on sufficient research. In this regard, the Court emphasises again that it is important that both categories of sources are clearly identified and the information taken from these sources is not presented in an exaggerated way. This holds particularly true in regard to reports concerning allegations of criminal conduct, where the right to be presumed innocent is at issue. In sum, the Court does not find unreasonable the domestic courts’ conclusion that the applicant company did not provide sufficient evidence to corroborate the allegation.
49. The Court also agrees with the Court of Appeal that the applicant company did not fulfil its journalistic duties in respect of providing S.P. with an opportunity to defend himself. The responses of S.P. to similar allegations more than ten years earlier did not exempt the applicant company from contacting him. In this context, the Court also notes that in the present case the publication of a book is at issue and that therefore there was not the same urgency as sometimes exists in the context of the publication of news.
50. Having regard to the above considerations, the Court accepts the findings of the Court of Appeal regarding the veracity of information. The internal official report alone was an insufficient basis for the allegations presented in the book. In addition, the domestic courts established that the applicant company and the author were unable to provide further evidence to corroborate the allegations in the domestic proceedings. In this context, the Court reiterates that the Convention does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). As the applicant company had the benefit of adversarial proceedings and was able to submit its arguments, the Court considers that the refusal of the domestic courts to hear the witnesses offered by the applicant company did not infringe its right under Article 10 of the Convention.
(iv) Prior conduct of the person concerned
51. The conduct of the person concerned prior to publication of the report or the fact that the related information had already appeared in an earlier publication are also factors to be taken into consideration (see Hachette Filipacchi Associés (Ici Paris) v. France, no. 12268/03, §§ 52 and 53, 23 July 2009).
52. The Court of Appeal touched upon this criterion when considering that the applicant company had not given S.P. the opportunity to comment on the allegation that he was a member of the ‘Ndrangheta. It further dismissed the applicant company’s argument that the alleged membership was publicly known as it had already been disseminated in Italian newspapers and another book in Germany. The Court of Appeal established that all of those publications had been released after the publication of the book in question.
53. The Court accepts these considerations and finds, in addition, that the televised report and the comments made by S.P. in that connection in 1997 (see paragraph 12 above) did not deprive him of protection against later publications (see Egeland and Hanseid v. Norway, no. 34438/04, § 62, 16 April 2009).
(v) Content, form and consequences of the publication
54. The way in which a report is published and the manner in which the person concerned is represented in the report may also be factors to be taken into consideration. It is true that, when taking part in a public debate on a matter of general concern, an individual is allowed to have recourse to a degree of exaggeration or even provocation, or in other words to make somewhat immoderate statements. However, the Court considers that there is a difference between acceptable exaggeration or provocation, or somewhat immoderate statements, and the distortion of facts known to the journalists at the time of publication (see Kania and Kittel v. Poland, no. 35105/04, § 47, 21 June 2011). Nonetheless, it is not for this Court, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists (see Stoll v. Switzerland [GC], no. 69698/01, § 146, ECHR 2007-V). The question is not how the Court or a national court would have worded particular statements, but whether statements went beyond the limits of responsible journalism (see Yordanova and Toshev, cited above, § 53). In particular, where criminal allegations are concerned, it has to be kept in mind that the suspect has a right to be presumed innocent of any criminal offence until proven guilty and that the courts are the proper forum for the determination of a person’s guilt or innocence on a criminal charge (see Erla Hlynsdottir (no. 3), cited above, §§ 64 and 65).
55. The Court of Appeal held that the interplay of the many individual statements in the book created the impression that there was a very strong suspicion regarding S.P.’s membership of the criminal organisation ‘Ndrangheta. Since the book omitted any exonerating facts, the reporting was not sufficiently balanced and led to a prejudgment of S.P. In sum, the Court of Appeal concluded that the section of the book dealing with S.P. insinuated that he was an ‘Ndranghetista and that the author had overstepped the limits of responsible journalism.
56. While the Court observes that only two out of the 352 pages concerned S.P. and that the domestic courts did not establish that the publication of the book had led to any specific consequences for him, it agrees with the Court of Appeal that the passage in question conveyed a strong suspicion against him. Consequently, it finds the conclusion that the applicant company overstepped the limits of responsible journalism not unreasonable.
(vi) Severity of the sanction imposed
57. Lastly, the nature and severity of the sanction imposed are further factors to be taken into account when assessing the proportionality of interference. In that respect, the Court must be satisfied that the sanction does not amount to a form of censorship intended to discourage the press from expressing criticism (see Stoll, cited above, §§ 153-54).
58. The Court of Appeal awarded S.P. EUR 10,000 and reasoned that, given that the book had already been published, it was necessary to award S.P. damages for the grave violation of his personality rights.
59. The Court notes that it is not the injunction against the publication of the respective passage that is at issue in the present case, but only the order to pay damages. It also observes that the Court of Appeal awarded S.P. only half the amount he had asked for and ordered the applicant company, but not the author, to pay damages. Lastly, it notes that the German courts awarded an even higher amount in a comparable case (see paragraph 28 above). The Court agrees with the reasoning of the Court of Appeal that in the particular circumstances of the present case, namely a book that has already been published, a mere injunction could not fully rectify the interference with S.P.’s reputation. It further agrees with the Government’s argument that, in contrast to a publication in a newspaper, a printed retraction would not have constituted effective redress either. Lastly, the applicant company did not submit any evidence regarding the overburdening character of the amount or the specific consequences for their financial situation (compare Ashby Donald and Others v. France, no. 36769/08, § 43, 10 January 2013).
60. Having regard to the above considerations, the Court concludes that the award of damages in the amount of EUR 10,000 was not disproportionate and, given the economic position of the applicant company, it constituted neither a form of censorship nor a discouragement from publishing books in the future.
61. The Court observes that the domestic courts carefully balanced the right of the applicant company to freedom of expression against the right of S.P. to respect for his private life and reputation. They attached fundamental importance to the veracity of the message conveyed, the journalistic duties and obligations of the applicant company, and the content and form of the passage at issue. Therefore, the Court reiterates that, although opinions may differ on the outcome of the judgment, where a balancing exercise was 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 Lillo-Stenberg and Sæther v. Norway, no. 13258/09, § 44, 16 January 2014 with references to Axel Springer AG, § 88, and Von Hannover (no. 2), § 107, both cited above).
62. In these circumstances and having regard to the margin of appreciation enjoyed by the domestic courts when balancing competing interests, the Court concludes that there are no strong reasons to substitute its view for that of the domestic courts, and that there has accordingly been no violation of Article 10 of the Convention.
FOR THESE REASONS, THE COURT
1. Declares, unanimously, the application admissible;
2. Holds, by six votes to one, that there has been no violation of Article 10 of the Convention.
Done in English, and notified in writing on 19 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Erik
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Tsotsoria is annexed to this judgment.
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.