(appl. no. 39311/05, Judgment of April 28, 2009)

May 1, 2009

The following is a summary (by Darian Pavli) of the Karako judgment, which involves an Article 8 complaint by an Hungarian politician following the refusal of the Hungarian courts to allow the criminal prosecution of a critic for supposed libel against the applicant related to critical remarks made during an election campaign:

the judgment starts with the premise that there is no real conflict between art 8 and art 10 insofar as art. 10.2 protects the rights of others, which would include rights recognized under “private life”

However, there is no independent and general right to reputation under article 8: a “prudent approach” is required to finding positive state obligations to protect “private life in general” – any such measures should be consistent with art 10

Cases involving reputation/defamation should be resolved under the framework of art 10, — irrespective of which provision is invoked or the nature of complaint – since art 10 is the natural conceptual setting “specifically designed by the drafters” for solving such conflicts

Article 8 protects both the personal identity (image etc) and personal integrity (self-esteem, development of personality and the like). These only extend to reputation, however, when the attack on reputation is so severe as to affect one’s personal integrity: mostly when (a) the factual allegations (b) were of such a seriously offensive nature that (c) their publication had an inevitable direct effect (d) on one’s private life (reference to Petrina, which had to do with allegations of secret service collaboration in a post-Communist society) – by implication, value judgments do not trigger art 8 protection in principle

Crucially: article 8 does not extend to harm to reputation that - as is usually the case - primarily affects one’s public standing (‘the external evaluation of the individual’), rather than self-esteem – according to the Court, this is a common distinction in European law (DP: usually known as the difference between insult and defamation), and art 8 was designed to protect personal integrity, not one’s social standing

The judgment, rather explicitly, departed from the Pfeiffer line of cases by noting that “reputation has only been deemed to be an independent right sporadically” – the lone dissenter in the case disputed this by arguing that Pfeiffer etc was already settled law

The expression at issue in the case was protected value judgment – had Hungary gone ahead with its criminal prosecution, it would have violated art. 10

Some of us believe that this ruling, if endorsed by other sections, would go a long way toward addressing our concerns regarding the proper balance between article 8 v. article 10 interests in the defamation context. The challenge will be to sway other sections of the Court, and eventually the Grand Chamber, closer to the path of Karako, rather than Pfeiffer/Petrina. At the moment, I think it is fair to say there is diverging jurisprudence among the various sections on this question (or central parts thereof), and Karako offers hope for a reorientation that takes proper account of the implications for free expression. Something to keep in mind if you’re defending or intervening in similar cases in Strasbourg …

PS. Interestingly, Karako is one of two art 10 judgments issued in April that is classified by the Court’s own database as Importance 1 (“High importance, Judgments which the Court considers make a significant contribution to the development, clarification or modification of its case-law, either generally or in relation to a particular State”). The other one, also against Hungary, was Tarsasag on the right of access to state-held info/records (see earlier postings).

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