The Recent Recognition of a Right to Reputation: A Judicial Response to a Perceived Media Crisis

TitleThe Recent Recognition of a Right to Reputation: A Judicial Response to a Perceived Media Crisis
Publication TypeConference Paper
Author(s)Fahy, R.
Affiliation (1st Author)Universiteit Gent, Belgium
Section or WGLaw Section with Communication Policy and Technology Section
DateThurs 27 June
Slot CodeLAWT1a
Slot Code (Keyword)LAWT1a
Time of Session9:00-10:30
Session TitleRights of the Individual
Submission ID7080

There is no mention of a “right to reputation” in the European Convention on Human Rights; indeed, such a right was deliberately omitted during the drafting of the Convention. In its first judgment on defamation in 1986 (Lingens v Austria), the European Court of Human Rights rejected the argument that reputation was a right protected by the Convention. For the next 18 years, the Court proceeded on the basis that reputation was merely a “legitimate interest” justifying restrictions on freedom of expression in certain instances, provided such restrictions were strictly construed and satisfied the stringent test of proportionality.   However, in 2004 a lone chamber of the Court simply declared in Radio France v France that there existed an unenumerated right to reputation under the Convention. No justification was given, no authority was cited, and the point had not even been argued by the parties in the case. Within three months, the same chamber would purport to apply a different standard of scrutiny in reviewing defamation judgments, seeking to determine only whether a “fair balance” had been achieved between the right to reputation and the right to freedom of expression, two rights deserving equal respect (Chauvy v France).   Three years later, the Court introduced a further ground-breaking principle, holding that a litigant in a failed defamation suit against a journalist could now apply to the European Court to determine whether his right to reputation had been adequately protected by the domestic courts (Pfeifer v Austria). Seven years later, the Court in SipoÅŸ v Romania went so far as to hold that where a media defendant has been acquitted of criminal defamation, the European Court can proceed to hold that the acquittal represented a failure to adequately protect the allegedly defamed individual’s right to reputation (with the Court ignoring the availability of civil defamation proceedings).   However, some other chambers of the Court have openly questioned the basis for recognising a right to reputation (Karakó v Hungary), which has resulted in confusion for domestic courts throughout Europe. While there has been much discussion on the consequences of recognising reputation as a right, the purpose of this paper is to answer two fundamental questions not yet adequately answered: (a) why did the Court choose to recognise this right, given that none of parties in the first three cases requested such a holding; and (b) was the recognition of a right to reputation consistent with the methods of interpretation the Court uses in recognising, or refusing to recognise, other unenumerated rights under the Convention.   The first part of the paper will argue that a small group of judges within the Court sought to create such a right in response to a perceived crisis in modern media, with the Court attempting to rebalance the power relationship between the individual and the media.  Evidence for this proposition will be based upon analysis of voting patterns of certain judges, in addition to various judicial statements made by a number of these judges. Much is revealed, for instance, in remarks uttered by the judges in Wizerkaniuk v Poland, namely that ‘we no longer live in a world in which the press can always assume the position of a victim. More and more often, the press abuses its power position, and deliberately and malevolently, undermines the good name and integrity of others persons. We have no alternative but to address this new situation.’ The second part of the part of the paper will seek to apply the two primary methods of interpretation the Court utilises, namely the drafters’ intent doctrine, and the living instrument doctrine, to the question of reputation. It will be argued that the application of both doctrine leads to the same result: reputation should not be recognized as an autonomous right under the Convention.   First, under the drafters’ intent doctrine, clear evidence is available from the travaux préparatories, that a right to reputation was deliberately omitted from the Convention. In this regard, reference will be made to two comparable rights which were deliberately omitted, namely the right to divorce and the right of access to the public service. In both instances, the Court applied the framers’ intent doctrine, holding that neither right can be recognised under the Convention.   Second, and in the alternative, were the living instrument doctrine to be applied to the question of reputation, the answer would also be that reputation should not be recognised as a right. Reference will be made to a plethora of documentation the Court utilises in applying the evolutive interpretation of the European Convention, including the Charter of Fundamental Rights, which omits entirely any mention of a right to reputation, and places an increased importance on media freedom over reputation. It will be argued that in light of modern circumstances, reputation should not be recognised as a right, and consequently not treated equally to freedom of expression,   The final part of the paper will argue that it is still open to the 17-judge Grand Chamber of the European Court to remedy the aberration in the case law which the recognition of a right to reputation arguably represents.

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