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20.10.2017

Court rules on mafia book case

By Emil Weber

The European Court of Human Rights (ECtHR) has decided on that the German courts were right to sanction a major publisher with 10,000 Euros non-pecuniary damages for defamation against a private person by claims in a book about the mafia.

The European Court of Human Rights (ECtHR) in Strasbourg The European Court of Human Rights (ECtHR) in Strasbourg (photo: Nicoleon, Cour européenne des droits de l'homme, CC BY-SA 4.0)

The crux of the matter, from a media ethics viewpoint, is that the top European human rights court now maintains that the media cannot rely solely on investigative authorities’ internal reports - in particular on crime issues - to publish content without their own research. If they do so without further proof, the media might face defamatory fines.

Judge Nona Tsotsoria issued a dissenting opinion, arguing instead that journalists must be free to report information gathered from official sources. The author of the book reacted in a blog arguing that if journalists must rely only on “qualified sources” then their freedom of speech is at risk.    

Munich court 'right to sanction publisher' 

About one month after the publication, the Munich Regional Court issued an injunction against the dissemination paragraphs in question in the book. The publisher was later ordered by the Munich Court of Appeal, in November 2011, to pay 10,000 Euros in damages.       

The European Court of Human Rights ruled on 19th October that the book contributed to a debate of public interest on the topic of crime, but it said that as a private citizen, the subject of the book pages had a right “to particular protection”.

It paid attention to the method of gathering information. The court said the book “exaggerated the level of suspicion” of the investigator’s office, that the report to which the author referred was not meant for publication, and that it could not substitute the author’s duty to carry out her “own research”.

It said that the domestic courts had established that by reading the book the readers would find it, “highly likely ,that the private citizen was a member of a criminal clan, even  though  the publisher was “unable to substantiate such a high level of presumption” and the investigation report “had only indicated vague suspicious circumstances…”.

'Overstepped limits of responsible journalism'

“While the Court recognises the importance of internal documents for journalistic research, it also reiterates that the freedom of press carries with it ‘duties and responsibilities’”, the ECtHR said. “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”.

According to the court, there was no chance of self-defence given to the private person by presenting his voice. Since it was a book, the court said, there was no urgency in publication as for example in the case of a news story. “In addition, the domestic courts established that the (publisher) and the author were unable to provide further evidence to corroborate the allegations in the domestic proceedings”, the ruling read.

The European court said the descriptions in the book led to prejudgement and “overstepped the limits of responsible journalism” and it maintained that the private citizen was not publicly known before the publication.

According to ECtHR, the sum awarded for damages did not amount to “censorship intended to discourage the press from expressing criticism”. It said the sanction was not disproportionate since the claims were “grave violation of (private person’s) personal human rights”, the book was already published, the publisher and not the author was charged, and the domestic courts had issued even higher sanctions in other cases. It further said that a statement of retraction would not “constitute effective redress either”, unlike in newspapers, and that the publisher did not provide evidence that the sanction was of “overburdening character…for their financial situation”.

“The award of damages […] constituted neither a form of censorship nor a discouragement from publishing books in the future”, the judgment read.

Judge dissents: 'journalists can report from official sources'

Among the seven judges at the Fifth Section of the European Court of Human Rights, there was one opinion dissenting from the ruling. Judge Nona Tsotsoria said that journalists “must be free to report on events based on information gathered from official sources without further verification” and that the case law does not require them to “undertake independent research”.

According to Judge Tsotsoria, the author of the book acted “in good faith” and “in compliance” with the responsibilities that go with the right to freedom of expression.

“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’…in terms of the Court’s case-law is also unclear to me”, the dissenting judge said. “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”.

Case of Verlagsgruppe Droemer Knaur Gmbh & Co. Kg v. Germany, application no.35030/13. 19 June 2017





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