European Court of Human Rights

 

 

 

FOURTH SECTION

CASE OF WELSH AND SILVA CANHA v. PORTUGAL

(Application no. 58106/15)

 

 

 

 

 

JUDGMENT

STRASBOURG

30 August 2022

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 

In the case of Welsh and Silva Canha v. Portugal,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

          Armen Harutyunyan, President,
          Jolien Schukking,
          Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 58106/15) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18 November 2015 by two Portuguese nationals, Mr Eduardo Pedro Welsh and Mr Gil da Silva Canha (“the applicants”), who were born in 1967 and 1961 respectively and live in Funchal (Madeira), and were represented before the Court by Mr F. Teixeira da Mota, a lawyer practising in Lisbon;

the decision to give notice of the application to the Portuguese Government (“the Government”), represented by their Agent, Ms M.F. da Graça Carvalho, Deputy Attorney General;

the parties’ observations;

Having deliberated in private on 5 July 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns a judgment given by the Lisbon Court of Appeal against the applicants in relation to three articles published in a local satirical newspaper. The applicants complained of a breach of their right to freedom of expression under Article 10 of the Convention.

2.  The applicants are journalists and respectively the editor and deputy editor of the newspaper called Garajau, with a fortnightly circulation of 500 copies in Madeira.

3.  On 15 December 2006, 23 March and 2 November 2007 the newspaper published three articles regarding an ongoing criminal case concerning the management of the Port of Madeira.

4.  The articles followed other news reports previously published by well-known national newspapers with a much higher circulation, such as Sol and Diário de Notícias.

5.  The relevant part of the article of 15 December 2006 stated as follows:

“Garajau has learnt [teve conhecimento] [1] that the criminal police procured a CD containing highly compromising material disclosing two different accounting balance sheets for the corporation [managing the Port of Madeira] - a fake one, to be provided to the tax office, and a real one, for the internal use of the administrators.”

6.  The relevant part of the article of 23 March 2007 stated as follows:

“To unload a ship in Caniçal is the same as unloading a pallet of money into the Orange Foundation [2]”.

7.  L.S., a well-known businessman and a member of the board of directors of the private company managing the Port of Madeira, instituted civil liability proceedings in the Funchal District Court, asserting that certain statements contained in the three articles had damaged his honour and reputation.

8.  On 3 July 2014 the District Court ruled in favour of L.S. and the applicants were ordered to pay him 30,000 euros (EUR) in respect of non-pecuniary damage.

9.  On 21 May 2015, following an appeal by the applicants, the Lisbon Court of Appeal reduced the award of compensation to EUR 15,000, finding that only two of the statements made in the articles published on 15 December 2006 and 23 March 2007 (see paragraphs 5-6 above), had damaged L.C.’s honour and reputation.

10.  It found that the first statement had no factual basis since the applicants did not conduct a proper investigation thus were unable to prove their statements and that, as a result, the applicants had gone beyond the limits imposed by good faith and discretion. As to the second impugned statement, it was considered purely offensive, with no informative aim.

11.  The applicants complained that the domestic court’s judgment in the defamation proceedings had resulted in a violation of Article 10 of the Convention.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

12.  The applicant submitted that the impugned court judgments constituted an interference which was prescribed by law and pursued a legitimate aim but was not necessary in a democratic society and thus amounted to a violation of Article 10.

13.  The Government, for their part, argued that the interference was necessary in a democratic society in order to protect the reputation of the other party.

14.  The Court considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

15.  The Court notes that the domestic court’s judgment constituted an interference with the applicants’ right to freedom of expression. The parties agreed that the interference was lawful and served the protection of the rights and reputation of L.S., and the Court sees no reason to hold otherwise. The issue is, therefore, whether it was “necessary in a democratic society”.

16.  The general principles of the Court’s case-law for assessing the necessity of an interference with the exercise of freedom of expression in the interest of the “protection of the reputation or rights of others” have been summarised in Couderc and Hachette Filipacchi Associés v. France ([GC], no. 40454/07, § 93, ECHR 2015 (extracts)); Morice v. France ([GC], no. 29369/10, § 152, ECHR 2015); Bédat v. Switzerland ([GC], no. 56925/08, §§ 48-54, 29 March 2016), and SIC - Sociedade Independente de Comunicação v. Portugal (no. 29856/13, §§ 54-62, 27 July 2021).

17.  In the present case, the domestic courts considered that there had been an ongoing debate concerning the monopoly in the port sector of Madeira and that criminal proceedings had been initiated in that regard. They concluded that the articles at issue had concerned a question of public interest. The Court accepts this assessment (compare Lopes Gomes da Silva v. Portugal, no. 37698/97, § 33, ECHR 2000‑X).

18.  The domestic courts also considered that the claimant was a public figure with prominent business activities in Madeira, mainly in the port sector (see paragraph 7 above).

19.  The statements at issue concerned the port’s corporate management. They did not concern aspects of the claimant’s private life, but only his professional behaviour as an administrator of the port (compare Ileana Constantinescu v. Romania, no. 32563/04, § 41, 11 December 2012, and Antunes Emídio and Soares Gomes da Cruz v. Portugal, nos. 75637/13 and 8114/14, §§ 48 and 60, 24 September 2019).

20.  Regarding the content of the articles in question, the Court notes that they were linked, since they both referred to the income and the accounting practices of the Port of Madeira and the funding of a Portuguese political party (see footnote 1 in paragraph 6 above), which was the subject of public debate, especially following the opening of a criminal investigation in that regard (see paragraph 3 above).

21.  In respect of the characterisation of the impugned statements, the Court reiterates that the classification of a statement as a fact or as a value-judgment is a matter which in the first place falls within the margin of appreciation of the national authorities (see Ungváry and Irodalom Kft v. Hungary, no. 64520/10, § 46, 3 December 2013).

22.  The domestic courts concluded that the first article constituted a statement of fact without, however, sufficient factual basis (see paragraphs 5 and 9 above). The Court, for its part, observes that the article was drafted in the light of two other news items previously published by well-known national newspapers with a much higher circulation (see paragraph 4 above), both expressly mentioned in the article in question. This is also implicit in the wording chosen to open the article: “Garajau has learnt that ...”. The Court therefore considers that, even if the applicants could not demonstrate the truth of their allegations, there is no reason to presume that they did not act in good faith on the basis of information imparted by reliable third-party sources.

23.  The Court further observes that the domestic courts required in essence compelling proof (see paragraph 10 above) and thereby applied a high degree of precision coming close to that usually required for the determination of a criminal charge by a court, which can hardly be compared to the standard which ought to be observed when expressing an opinion on a matter of public concern. The standards applied when assessing a person’s political activities in terms of morality are different from those required for establishing an offence under criminal law (compare Brosa v. Germany, no. 5709/09, § 48, 17 July 2014).

24.  Concerning the second article (see paragraph 6 above), the domestic courts considered it wanton denigration. For the Court, without a minimum of factual evidence, the article could appear excessive, but not in the light of the established facts, in particular in view of the metaphorical tone of the remark, the specific context in which it was made and the public interest involved.

25.  Furthermore, the claimant L.S. was considered a public figure (see paragraphs 18 and 19 above), who voluntarily exposed himself to public scrutiny by virtue of his role in the port sector, and was therefore required to display a higher level of tolerance than would be expected of non-public figures, in respect of which wider limits of criticism are acceptable (compare Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 110, ECHR 2012).

26.  It should also be considered that Garajau newspaper is satirical in nature (see paragraph 2 above) (compare Lopes Gomes da Silva, 34 and Antunes Emídio and oares Gomes Da Cruz, § 48, both cited above; and Uj v. Hungary, no. 23954/10, §§ 23-24, 19 July 2011).

27.  While the wording of the two articles may be seen as exaggerated and thus unfortunate, the articles may well be interpreted as an illustration of a broader critique regarding the inappropriate funding of that specific political party in Madeira, which was a subject of public interest (see paragraph 17 above; compare Freitas Rangel v. Portugal, no. 78873/13, §§ 57-58, 11 January 2022).

28.  Another factor to be considered is the low circulation of Garajau, which distributed only 500 copies fortnightly in Madeira (see paragraph 2 above). The articles in question were not therefore able to reach a large number of readers. Furthermore, the subject matter of the articles had been previously disclosed by more influential media sources (see paragraph 4 above).

29.  Lastly, regarding the severity of the sanction imposed on the applicants, the Court considers that such a sanction (see paragraph 9 above) may be liable to deter the media from discussing matters of legitimate public concern, having a “chilling effect” on the freedom of expression and of the press (compare SIC - Sociedade Independente de Comunicação, cited above, § 69).

30.  In the light of the above considerations, in particular the fact that the domestic courts did not duly weigh the interests at stake in accordance with the criteria established in its case-law, the Court finds that the interference with the applicants’ right to freedom of expression did not correspond to a pressing social need and thus was not “necessary in a democratic society”.

31.  There has accordingly been a violation of Article 10 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

32.  The applicants jointly claimed 15,000 euros (EUR) in respect of pecuniary damage corresponding to the compensation they had paid to L.S. following the civil liability proceedings (see paragraph 9 above). Regarding non-pecuniary damage, they considered that the finding of a violation constituted sufficient just satisfaction. They also jointly claimed EUR 3,238.50 in respect of court fees paid to the domestic courts and EUR 3,000 in respect of legal fees incurred before the Court, payable to their lawyer. The Government invited the Court to apply its case-law regarding costs and expenses.

33.  The Court notes that there is a causal link between the domestic court ruling and the amount claimed in respect of pecuniary damage. Having regard to the documents in its possession, the Court awards the full sum claimed under this head, that is, EUR 15,000 to the applicants jointly.

34.  Regard being had to the documents in its possession and to its case‑law, the Court rejects the claim concerning the legal fees incurred before the Court, since the applicants did not submit any documentation in that respect; and awards the applicants jointly EUR 3,238.50 for the costs and expenses incurred in the domestic proceedings, plus any tax that may be chargeable to them.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 10 of the Convention;

3.      Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants;

4.      Holds

(a)  that the respondent State is to pay the applicants jointly, within three months, the following amounts:

(i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 3,238.50 (three thousand two hundred and thirty-eight euros and fifty cents), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 30 August 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

             Ilse Freiwirth                                                Armen Harutyunyan
          Deputy Registrar                                                      President