Freedom of expression
Award of damages against a historian and a publisher for alleging that a public official had collaborated with the state security services during the Communist era: violation
Facts – In 2007 a literary and political weekly owned by Irodalom Kft (the second applicant) published a study by a historian, Mr Ungvary (the first applicant). The article stated that a named judge of the Constitutional Court had worked during the Communist era as an official contact of the State-security service, written reports for the service, and advocated hard-line policies. After being sued by the judge the second applicant printed a rectification. However, the first applicant repeated his allegations in interviews and in a book he co-authored. The judge then brought a civil action in defamation against both applicants, which resulted in a judgment of the Supreme Court in 2010 in which the applicants were held jointly and severally liable in damages in the sum of EUR 7,000, and the first applicant was ordered to pay an additional EUR 3,500.
Law – Article 10: The interference with the applicants’ rights had been prescribed by law and pursued the legitimate aim of protecting the judge’s reputation. The Court went on to consider whether the interference had been necessary in a democratic society.
(a) As regards the first applicant – The Supreme Court had not assessed the impact of the allegations on the judge’s personality rights in the light of the role of the press or considered the fact that many of the allegations regarding his involvement in the actions directed against a student peace movement in the 1980s (Dialogus) had been proved true. It was undisputed that the judge had had local responsibilities in the Communist party and as a party secretary had produced reports on the Dialogus affair. The Supreme Court had understood those activities as belonging to his responsibilities within the party, without considering their relation to the goals of the State security service. Such a selective interpretation of the impugned statements, with the resultant burden of proof incumbent on the first applicant, was hardly compatible with the demands of the ‘most careful scrutiny’ applicable in the instant case.
Furthermore, the first applicant’s statements concerned Hungary’s recent history and sought to shed new light on the functioning of the secret service and, in particular, its reliance on public and party officials. Various issues related to the Communist regime still appeared to be open to ongoing debate between researchers, in the general public as well as in Parliament, and as such should be a matter of general interest in contemporary Hungarian society. The publication had been based on research by the first applicant, a known historian, who had relied on material available in the security services’ historical archives. It had therefore deserved the high level of protection guaranteed to political discourse and the press, but those considerations were absent from the Supreme Court’s judgment.
Moreover, the personal moral integrity of holders of high office was a matter of public scrutiny in a democratic society. The publication did not concern the judge’s personal life but his public behaviour, a matter which was to some extent related to his position as a member of the Constitutional Court in 2007-08. Although the article had asserted that the judge had cooperated as an ‘official contact’ with the security services of the previous regime, that criticism had been limited to his role as a Communist party official in the 1980s and had not focused on his contemporary professional conduct as a Constitutional Court judge. The judge had not concealed his past position within the Communist Party and as a public figure had to tolerate stronger criticism by the first applicant acting in his capacity as a historian.
The impugned article had presented a scholarly position and, although it used excessive language, it was not sensationalist. The judge had had the opportunity to comment on the allegations and a further rectification had been published in the magazine. He had not been accused of criminal wrongdoing, and there was no indication that he had suffered any negative consequences in his professional activities.
While the first applicant had been subjected to civil-law, rather than criminal, sanctions, he had been ordered to pay a considerable amount of money in damages and legal costs. This had affected his professional credibility as a historian and been capable of producing a chilling effect. Since rectification of the statement of facts had already been ordered, the subsequent sanctions had not been strictly necessary.
Accordingly, the domestic courts had not convincingly established a proper balance between the personality rights of a public figure and the first applicant’s right to freedom of expression and the reasons relied on could not be regarded as sufficient and relevant justification for the interference with that right.
Conclusion: violation (four votes to three).
(b) As regards the second applicant – The findings regarding the lack of a proper balance between the competing rights also held true in respect of the second applicant, even if the sanction imposed on it was not a matter of concern per se. The second applicant had published the judge’s comments on the first applicant’s statements in its next weekly edition, thus enabling readers to form their own opinion.
Publishers were understandably motivated by considerations of profitability and holding them responsible for publications often resulted in proprietary interference in the editorial process. In order to enable the press to exercise its ‘watchdog’ function, it was important that the standards of liability of publishers for publication be such that they should not encourage censorship of publications by the publisher. The consideration of liability-related chilling effect was of relevance in the finding of the proper standard of care.
Since access to the State security archives was restricted, the information that had served as the factual basis for the allegations had, in all likelihood, not been accessible for verification. Moreover, since the use of the archives required special professional knowledge, there had been no reason for the second applicant to call into question the accuracy of an article written by a historian who specialised in state security affairs. The second applicant had thus acted in accordance with the rules governing journalistic ethics.
Conclusion: violation (unanimously).
Article 41: EUR 7,000 to the first applicant in respect of pecuniary damage; EUR 3,000 to the second applicant in respect of non-pecuniary damage plus, in respect of pecuniary damage, any sums it had paid pursuant to the domestic judgment.
Updated: 28 November 2021; Ref: scu.519694