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HEADNOTES
All
the agendas of state institutions, as well as the activity of persons
active in public life, e.g. the activity of local and national
politicians, officials, judges, attorneys, or candidates or trainees for
these offices are a public matter; of course, the arts, including
journalistic activities and show business, and everything which attracts
public attention, are also a public matter. These public matters, or
the public activities of individual persons, may be judged publicly. In
constitutional terms, the criticism of public matters carried out by
publicly active persons is subject to the presumption that the criticism
is constitutional. This is the expression of a democratic principle,
the expression of participation in public matters by members of a civil
society.
The presumption of constitutionality protects only an evaluative judgment, not the claiming of facts, which the critic himself must prove by evidence to the degree that they served as the basis for the criticism.
The presumption of constitutionality protects only an evaluative judgment, not the claiming of facts, which the critic himself must prove by evidence to the degree that they served as the basis for the criticism.
Another
general rule which can be derived from European case law is that if
anyone wishes to publish information of a defamatory nature about
someone else, his conduct can not be considered reasonable or legitimate
unless he proves that he had reasonable grounds for relying on the
truthfulness of the defamatory information which he disseminated, unless
he proves that he took proper available steps to verify the
truthfulness of that information, to a degree and in an intensity in
which it was possible for him to verify the information, and finally,
unless he himself had no grounds to believe that the information was
untrue.
The
publication of such information also can not be considered reasonable
if the disseminator of the information does not verify its truthfulness
by inquiring of the person whom the information concerns, and does not
also publish that person’s position, with the exception where such steps
are impossible or evidently unnecessary.
To evaluate the legitimacy of publishing information it is important to
examine the motive for its publication. It can not be concluded that
publication of information was legitimate if the dominant motive for it
was the desire to damage the defamed person, if the disseminator himself
did not believe the information, or if he provided it irresponsibly,
without due concern for whether it was or was not true.
Honor is also an integral and important component of human dignity. It
also forms the basis of many decisions made my members of a democratic
society, which are fundamental for it to function well. Honor plays a
role in relationships, such as whom an employer hires, or whom an
employee wants to work for, it is decisive in decisions about who is to
advance to higher employment or official positions; honor is important
for deciding with whom to begin business relations or whom to vote for
in political life. If honor is once sullied by an unsubstantiated
accusation expressed publicly, and all the more so in the media, a
person’s reputation and honor can be damaged forever, and especially in a
situation where there is no possibility of rehabilitation. If such a
situation arises, both the person himself and the society lose. And it
is precisely for that reason that one can not assume that protection of
reputation, or honor, is an important matter only for the affected
individual or his family. For these reasons the protection of reputation
or honor must be seen as protection of a public good. Therefore, it is
in the public interest for the honor and reputation of persons active in
public life not be discussed at factually altered levels. Both in the
field of politics and in the media a voter must be able to distinguish
good from evil, so that he can in the end make an informed choice in
relation to a politician and to the media.
The fundamental right to honor is exercised in multiple spheres: the
private sphere, the societal, civil and professional spheres; the last
three can be described as the social sphere. The first sphere actually
involves protection of privacy, where the right to honor is undoubtedly
also applied. It is fundamentally up to each individual, what from that
sphere, and to what extent, he will release as information for the
outside world.
The societal, civil and professional levels reflect the social nature
of the fundamental rights, or reflect the fact that an individual lives
in a society, and enters into communication with its other members, and
through his conduct, or even through his very existence, influence other
members of the society.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
JUDGMENT
IN THE NAME OF THE REPUBLIC
A Panel of the Constitutional Court of the Czech Republic, composed of its Chairwoman Michaela Židlická, judge Eliška Wagnerová (Judge-Rapporteur) and Vlasta Formánková decided on 11 November 2005 in the matter of a constitutional complaint filed by the complainant I. B., represented by JUDr. H. Ch., attorney, against a decision by the High Court in Prague of 6 December 2001, file no. 1 Co 147/2001, and a decision by the Supreme Court of the CR of 21 May 2003, file no. 28 Cdo 1395/2002, with the participation of the High Court in Prague and the Supreme Court of the CR as parties to the proceedings, as follows:
I.
The decision of the High Court in Prague of 6 December 2001, file no. 1
Co 147/2001, and the decision of the Supreme Court of the CR of 21 May
2003, file no. 28 Cdo 1395/2002 violated the complainant’s fundamental
rights to preservation of his personal honor and good reputation
guaranteed by Art. 10 par. 1 of the Charter of Fundamental Rights and
Freedoms.
II. Therefore, these decisions are annulled.
REASONING
I.
In
a constitutional complaint sent to the Constitutional Court by the
deadline provided by Act no. 182/1993 Coll., on the Constitutional
Court, as amended by later regulations (the “Act on the Constitutional
Court”), the complainant seeks the annulment of the decisions cited in
the introduction because he believes that the decisions of the general
courts violated his constitutionally guaranteed fundamental rights,
specifically the right to personal honor and a good reputation under
Art. 10 par. 1 of the Charter of Fundamental Rights and Freedoms (the
“Charter”), and the right to judicial protection under Art. 36 par. 1 of
the Charter.
In the
decision cited in the introduction, the appeals court amended a decision
by the City Court in Prague of 28 February 2001, file no. 37 C 115/99 –
100 by denying the complainant’s complaint that the defendant (the
secondary party, Ing. M. Z.) arrange the publication of an apology in
the daily newspaper Mladá Fronta DNES within 15 days after the decision
went into effect, with dimensions of at least 8.5 cm (two columns ) x 3
cm, in the editorial section of the newspaper, with the following
wording: “I apologize to the journalist I. B. for untrue statements
saying that he wrote at the order of České energetické závody [Czech
Energy Company], with whom he had a confidential agreement, and for
accusing him of corruption” and that he pay the complainant CZK 300,000.
The appeals court also awarded compensation of trial costs.
The
complainant filed an appeal against this decision, on which the Supreme
Court of the CR ruled in the decision cited in the introduction, and
denied under § 243b par. 2 of the Civil Procedure Code.
In
his constitutional complaint, the complainant states that, in his
journalism he focuses primarily on ecological topics. The grounds for
the above-mentioned court dispute were several verbal attacks by the
secondary party, in the office of prime minister, against the
complainant, which took place in the Chamber of Deputies on 29 June
1999, in a Česká Televize [Czech Television] program on 30 June 1999, in
broadcasts on the station Český rozhlas – Radiožurnál on 3 July 1999,
and at a press conference in the Lidový dům [People’s House] on 16 July
1999. According to the complainant, the secondary party expressly stated
in the Chamber of Deputies, referring to testimony from the general
manager of ČEZ, Ing. Č., this claim: “Since you constantly want some
concrete evidence of corruption among journalists, let me give you some.
There is a journalist named I. B. This journalist wrote for the
magazine Reflex and may still write for it. This I. B. wrote articles in
support of the completion of the Termelín nuclear power plant. There’s
nothing wrong with that, of course. I, as you well know, also support
completion of that electric power plant. However, this I. B. had a
confidential agreement with České energetické závody, which means that
he wrote at the order of České energetické závody, and that’s what I
consider a form of corruption.” In the Česká televize program the
secondary party allegedly added to that claim: “And if you’ll allow me,
you will be the first journalists whom I’ll tell something which I have
not yet had an opportunity to say. You know that yesterday I accused the
editor I. B., who subsequently filed a criminal report against me, of
being paid – in whatever manner - for his articles supporting the
completion of the Temelín nuclear power plant, by the company ČEZ. I
know that the ČEZ press secretary denied this report. Of course, I also
know that about a month ago the general manager of ČEZ, Mr. Č., informed
me that the agreement had been entered into, and that he had cancelled
it. What does that indicate? In that case either the press secretary of
ČEZ is not telling the truth, or the general manager of ČEZ is not
telling the truth. And that alone is reason enough to investigate these
matters, whether they concern foreign countries, whether they concern
transportation, whether they concern energy, because corruption is
terribly hard to prove.” In the broadcast on Český rozhlas – Radiožurnál
the secondary party allegedly said this: “I publicly give you the
following information, that some time ago, about a month ago, I watched a
TV program which I think is called “Nahraně,” and that program
contained discussions about Temelín. There, with Mr. B. present, an
environmental activist accused him of writing articles supporting
nuclear energy for ČEZ, for ČEZ’s money. However, by coincidence,
shortly afterwards, because he was invited to a government meeting about
Temelín as an expert, I met with the new general manager of ČEZ, Mr. Č.
And I told him: look, Mr. Č., I support the completion of Temelín, but I
heard in this program that Mr. B. is writing about you for your money,
under an agreement. And I think that that isn’t right, that everyone
should promote himself through his opinions, not through corruption. Mr.
Č. then said to me, literally, and in the presence of witnesses: Mr. B.
is not our employee, he only has a contract with us. I took note of
that information. But allow me to continue. Mr. Č. is now saying that he
gave me erroneous information. He issued a statement to that effect.
Fine, then I will tell you something else. A few weeks after that – and
now, to tell the truth, I don’t know where, it was at some reception
where we met – the general manager, Mr. Č., came to me and told me: I
cancelled that contract with Mr. B. And I took note of that. And now I
ask you both, because you’re editors, a simple question: all right, I
admit that I could be mistaken and that perhaps no such contract exists.
To err is human. But can you cancel contracts that don’t exist?” At a
press conference in Lidový dům, in response to a direct question from
the complainant, whether there is evidence of his corruption, the
secondary party answered: “The course of your case has been the
following. Phase number one: in the TV program “Nadoraz” you were
accused by an environmental activist of writing propaganda materials for
ČEZ for money. You were present at that program, and I don’t want to
elaborate on it now, because that was really phase number one. In other
words, this accusation came from a different person, and publicly, even
before coming from me. Phase number two: in the presence of witnesses I
asked the general manager of ČEZ, Mr. Č., and said, although I support
nuclear energy, just like you do, but I consider it somewhat immoral
when your company pays for articles by journalists, if what was said in
the program “Nahraně” is true. I can publicly say that the general
manager of ČEZ said: Mr. B. is not our employed, but he has a contract
with us. And he said that in the presence of witnesses. And phrase
number three, Mr. B.: shortly afterwards Mr. Č. was in the presence of
witnesses again at some reception in the Lichtenštejn Palace and
informed me that he had cancelled the contract with you. So these are
three absolutely clear arguments on which I rely.”
The
complainant is aware that, just like politicians, so he too, as a
journalist, is subject to heightened scrutiny, and must bear possible
criticism for his opinions and positions; nonetheless, such criticism
may not be untrue, or, with regard to character, a dishonoring
accusation. Because the complainant considered the above-mentioned
accusation of corruption to be considerable detriment, which endangered
his honor and good reputation in professional circles and in society
(and he didn’t have long to wait for the consequences), he asked the
general courts to protect his honor and dignity.
The
above-mentioned decision by the court of the first level granted the
complainant’s complaint, but that decision was then changed by decision
of the appeals courts. The complainant criticizes the two appeals
courts, saying that their decisions interfered in his fundamental right
to personal honor and a good reputation, as well as in his right to a
fair trial. The complainant argues that he is aware that criticism of an
individual’s conduct which is based on circumstances about which true
information is given can not generally be considered inconsistent with §
11 of the Civil Code, even if the criticism used a corresponding
measure of irony, condemnation and repudiation of the criticized conduct
of the individual. In contrast, the use of criticism, irony,
condemnation and rejection of the conduct or activity of an individual
about which untrue information is given is generally palpable,
unjustified interference in the individual’s right to protection of his
personality, and this involves considerable intensity of unjustified
interference, which will usually have unfavorable consequences on the
afflicted person’s status. As the complainant says, the secondary
party’s accusation was the first accusation of corruption of a
journalist by name, and it involved suspicion of corruption by an
industrial concern, which, from the point of view of a journalist, is
considered the worst. The complainant is afraid that he will be
disadvantaged in any future expert dispute with environmental activists
for this reason. The complainant specifically disagrees with the opinion
of the appeals court which found the information about the corruption
of the complainant to be true, because the secondary party obtained it
from a trustworthy person. The complainant objects that the testimony
before the court of the first level and before the appeals court was
inconsistent on many points, and appears untrustworthy and self-serving.
He certainly cannot agree that calling a journalist corrupt was
actually the exercise of the right to criticize, which can not be
subject to proof of truthfulness. Primarily, however, the complainant
believes that the secondary party can not rid himself of responsibility
by pointing out that the source of information is relevant. In his
opinion, a mere reference to a relevant person can not be allowed to rid
the bearer of a report of responsibility. Only if he is performing his
reporting duties can it be allowed that, if he is conveying information
about a particular event of public interest, the right to information
and its dissemination can be given priority over protection of
personality. And in cases of conflict between these rights it is the
duty of the courts to weigh, taking into account the circumstances of
each case, whether one right was not given unjustified priority over the
other right. This case, however, did not concern the tradition conflict
of the media and a politician, as usually happens in cases of conflict
between the right to information and the right to protection of
personality; instead, in the instant case the journalist was a “target”
who unwillingly found himself in “a kind of long standing battle between
journalists and politicians,” and, moreover, was in an unequal
position. The complainant also disagreed with the claim that the court
evaluated the statements which followed the ČEZ statement and which
refuted the report of possible corruption or writing for pay as some
kind of statement at the request of the media or the plaintiff. On the
contrary, the complainant believes that these statements were an answer
to questions related to the fact that both ČEZ and its general manager
denied the report of a contract, and the questions related to evidence
of corruption. As regards the decision of the second appeals court, the
complainant says that he expected that the Supreme Court of the CR would
handle the objections which were set forth in the appeal on a point of
law, which did not happen. Although the second appeals court itself said
in the reasoning of its decision that the first appeals court did not
have an easy task, it only repeated the case law applied and concluded,
without justifying it, that the application of § 11 and § 13 of the
Civil Code and the interpretation of them can not be considered
inconsistent with the text of these provisions in the published case law
of courts.
In view of the
foregoing, the complainant proposes that the Constitutional Court enter a
judgment annulling both the decisions of the general courts cited in
the introduction.
On behalf
of the party to the proceedings, the High court in Prague, the
chairwoman of the panel, JUDr. N. Ž., responded to the constitutional
complaint; she said that she refers in full to the reasoning in the
contested decision.
On
behalf of the Supreme Court of the CR, the chairman of the panel, JUDr.
J. R., responded to the complainant’s filing; he said that the
constitutional complaint does not present any concrete criticism of the
steps taken by the first and second appeals courts in the proceedings in
terms of procedural regulations, or against the legal evaluation of the
matter in the decisions of these courts, that would contain anything
other than disagreement with the evaluation of the evidence admitted by
the appeals court. Therefore, in terms of the application and
interpretation of provisions of the Civil Code and the Civil Procedure
Code by the first and second appeals courts in the instant case, the
complainant’s constitutional complaint can not be seen as justified.
Evaluation in terms of constitutional law regulations is up to the
Constitutional Court, as the panel chairman stated.
The
secondary party, Ing. M. Z., responded to the constitutional complaint
to the effect that he relied on information from the then general
manager of ČEZ, and he regards the claim that he should have verified
that information as absurd. He also stated that he subjectively believes
that the information from the then general manager of ČEZ was true. Of
course, the Constitutional Court did not take this statement into
account, because the secondary party was not represented by an attorney
under § 30 par. 1 of the Act on the Constitutional Court.
The
Constitutional Court also determined from public sources that the
Syndicate of Journalists of the Czech Republic prepared a Journalist’s
Ethical Codex, which it called on all Czech and Moravian journalists to
observe voluntary, regardless of their membership in the Syndicate.
Under Art. 1 let. i) of that document, a journalist is obligated to
accept only assignments appropriate to his professional dignity, and
under Art. 2 let. d) he is obligated not to misuse the profession of
journalist for the work of an advertising worker and not to accept any
direct or indirect compensation from potential advertisers. The
Constitutional Court also determined form the Declaration of Principles
of Journalistic Conduct, promulgated as a norm for professional conduct
of journalists, which was approved at the 2nd world congress of the
International Federation of Journalists in Bordeaux held on 25-28 April
1954 and subsequently amended at the 18th world congress of the
International Federation of Journalists in Helsingore held on 2-6 June
1986, that a journalist shall consider the acceptance of any form of
bribe to be serious professional misconduct.
II.
The Constitutional Court determined the following information from the file no. 37 C 115/99:
In
1999 the complainant wrote an article on nuclear energy for the
magazine Reflex. Having been approached by the press secretary of ČEZ,
a.s. after the article’s publication, he gave consent to ČEZ using it
for its needs, on the condition that it would be printed with an
announcement that the article was being re-printed with the author’s
consent, without entitlement to payment (pp. 29, 64).
In
the television program “Nahraně” aired on 22 March 1999, the
environmental activist J. B. said to the complainant: “You are not an
objective journalist, because ČEZ is printing your articles as a paid
advertisement.”
On 12 May
1999 in the vestibule at the Office of the Government, the then general
manager of ČEZ, a.s. told the secondary party (then prime minister), in
response to his express question, that ČEZ did not employ journalists,
and did not employ the complainant. If journalists worked for it, then
it was “by contract” (pp. 50, 52).
The
next day the general manager issued an instruction to annul the
contract with the complainant, based on the information from the prime
minister, provided to him the day before, about the fact that ČEZ was
using the complainant’s article, and being convinced, without having
seen the actual publication of the article, that everything was being
respected, i.e. convinced that a payment must have been made to the
complainant on the basis of the contract with him (p. 50).
A
few weeks later, at an unspecified reception, the secondary party, the
former prime minister, met with the former manager of ČEZ, and the
general manager of ČEZ informed him about the above-mentioned actions
(pp. 30, 50, 52).
On 28 June
1999, after a meeting of the government, a press conference was held at
which the prime minister spoke about the corruption of journalists (p.
70) in connection with the presentation of politicians in the media. The
then minister of foreign affairs, J.K., spoke on the same issue,
directing his remarks at the person of the former minister of foreign
affairs, J. Zieleniec. The journalists present criticized the members of
the government for speaking of the accusations of ex-minister Zieleniec
publicly without presenting evidence (p. 77). The prime minister said
that he had received from the minister of foreign affairs a list of four
media agencies which were alleged to represent J. Z.; at the same time,
however, he said that he would disclose their names, in response to the
request of J. K. only after J. K. met with J. Z., and would investigate
the suspicion that excessive funds had been spent for the personal
promotion of J. Z. J. K. presented a critique of J. Z. and his work, and
informed the journalists that he was investigating the circumstances
surrounding the selection of agencies for promoting foreign policy
during the term of office of minister Z., as well as the reasons for
their high fees (pp. 71, 72). The prime minister then closed the answers
to the journalists by stating that he trusted the members of the
government and their information, and unless he were to be convinced of
the contrary, he had no reason to apologize to J. Z.
On
29 June 1999, in the vestibule of the Chamber of Deputies, journalists
again pressed the prime minister to disclose the list of agencies which
were alleged to have created a better image of ex-minister Z. for high
fees, which he refused to do, although he did say that he would disclose
a case of corruption of journalists. He then made the first statement
now contested by the complainant (pp. 2, 8, 9, 10, 14, 95, 96).
Reports
from ČTK and internet dailies from that day contain the complainant’s
denial of the accusation of corrupt conduct. (P. 10).
Media
reports of 30 June 1999 concerning the secondary party’s declaration of
29 June 1999, i.e. reports provided by the media the following day,
contain a statement from the press secretary of ČEZ, a.s. which says
that the current management of the company had never paid the
complainant and that there was nothing to suggest that the former
management of ČEZ, a.s. had done so. These reports also contain a
statement from the general manager of ČEZ, a.s. in which he stated with
regret that he had informed the prime minister erroneously about the
relationship between ČEZ and the complainant, based on incomplete
information, and he apologized to both gentlemen (pp. 11, 12, 15).
On
30 June 1999 the secondary party basically repeated the contested
statements in a program on ČT [Czech Television], and added that he was
aware of the denial given to the media by the press secretary of ČEZ,
a.s., and also said that about a month earlier the general manager of
ČEZ, a.s. had told him that the contract with the complainant had been
entered into and that he had cancelled it. The secondary party concluded
from the general manager’s information that either the press secretary
or the general manager of ČEZ, a.s. was not telling the truth (p. 2).
On
3 July 1999, in a panel discussion on Radiožurnál, the secondary party
described the genesis of the contested statements from the TV program
“Nahraně” after the general manager’s denial, and added, “I admit that I
could be mistaken, and that no such agreement existed; to err is human.
But how can you cancel a contract that doesn’t exist?” (p. 35).
On 16 July 1999, in response to the complainant’s question whether there was evidence of his corruption, which he raised at a press conference in the Lidový dům, the secondary party basically repeated what he had said on 3 July 1999 on Radiožurnál, without, of course, adding the information about the press release of ČEZ and the press lease of the general manager (p. 3).
On 16 July 1999, in response to the complainant’s question whether there was evidence of his corruption, which he raised at a press conference in the Lidový dům, the secondary party basically repeated what he had said on 3 July 1999 on Radiožurnál, without, of course, adding the information about the press release of ČEZ and the press lease of the general manager (p. 3).
III.
Before
the Constitutional Court could turn to evaluation of the matter on the
merits, it was required, in view of its own case law (III. US 28/96),
consider the question whether the secondary party M. Z. (originally the
defendant) even had passive standing in the original suit. After
evaluating the matter, the Constitutional Court concluded that the
secondary party did have passive standing in the original suit, and that
the instant matter differs significantly from the above-mentioned
decision of the Constitutional Court.
The
suit by the weekly Respekt against minister J. L. (the former minister
of agriculture) concerned a refusal to provide information, which was
contained in a letter signed by J. L. In denying the constitutional
complaint, the Constitutional Court concluded, among other things, that
the minister’s letter must be considered to be a decision by an
administrative body.
The
matter being addressed today differs significantly from the matter in
file no. III. US 28/96. The minister’s decision to not provide
information fell within his ministerial jurisdiction as substantively
defined by statute. Minister L. was thus acting in a matter which was
within his jurisdiction. In contrast, the secondary party in the instant
matter was prime minister of the government of the CR at the time when
he made the contested statements, but the government, as a
constitutional body, can not be assigned responsibility for these
statements, because their content, i.e. giving information about the
results of an investigation led by the prime minister himself concerning
the complainant’s alleged conduct and evaluation of that conduct in
terms of criminal law is not, under any circumstances, a matter which
falls within the jurisdiction of the government. The government does not
have investigative authority at any of the levels in which it
functions, i.e. not if it is performing political functions, nor if it
is performing administrative functions. Therefore, if the government, or
any member of it, or even the prime minister, obtains information on
conduct which could be considered a crime, the government is not
authorized to handle it, in the sense of investigating it, and it is
even less so authorized to evaluate it legally and inform the public
about its conclusions. If any member of the government commits such
conduct, he is impermissibly stepping outside the bounds of his
authorization as a member of the government, or even prime minister.
Such conduct by a member of the government is conduct ultra vires in
terms of jurisdiction; it is not binding on the government, and the
government, as a body acting on behalf of the state, can not be held
responsible for it. Therefore, the member of the government who commits
such conduct is responsible for it as an individual – i.e., among other
things, in a potential lawsuit for protection of personality he himself
is a person with passive standing. This finding does not rule out taking
into account, in further substantive evaluation of the case, precisely
the fact that the contested statements were made by a member of the
government, or even its prime minister, (see below).
Because
the constitutional complaint met all the formal requirements required
by the Act on the Constitutional Court, the court could turn to
substantive evaluation of it.
IV.
The
subject of evaluation in the instant case is whether the general courts
(the High Court and the Supreme Court) interfered in the complainant’s
fundamental right to preservation of his honor and good reputation (Art.
10 of the Charter) by, on the contrary, providing protection to the
fundamental right to freedom of expression, to the benefit of the
secondary party, the original defendant.
A)
The fundamental right to freedom of expression must be considered a
constitutive element of a democratic, pluralistic society, in which
everyone is permitted to express his opinion on public matters and to
make evaluative judgments about them.
All
the agendas of state institutions, as well as the activity of persons
active in public life, e.g. the activity of local and national
politicians, officials, judges, attorneys, or candidates or trainees for
these offices are a public matter; of course, the arts, including
journalistic activities and show business, and everything which attracts
public attention, are also a public matter. These public matters, or
the public activities of individual persons, may be judged publicly. In
constitutional terms, the criticism of public matters carried out by
publicly active persons is subject to the presumption that the criticism
is constitutional. This is the expression of a democratic principle,
the expression of participation in public matters by members of a civil
society.
The presumption of
constitutionality protects only an evaluative judgment, not the claiming
of facts, which the critic himself must prove by evidence to the degree
that they served as the basis for the criticism.
The
requirement that the critic himself prove the claimed facts is a
European constitutional standard (e.g. decision of the House of Lords of
28 October 1999 in the matter Reynolds v. Times News Papers Limited, or
the decision of the German Constitutional Court (BVerfG) of 3 June
1980, 1 BvR 797/78 in the case of Böll, which is also confirmed by the
case law of the European Court of Human Rights – the ECHR – e.g.
decision of the Grand Chamber of 17 December 2004 in the matter Pedersen
and Badsgaard v. Denmark).
Another
general rule which can be derived from European case law is that if
anyone wishes to publish information of a defamatory nature about
someone else, his conduct can not be considered reasonable or legitimate
unless he proves that he had reasonable grounds for relying on the
truthfulness of the defamatory information which he disseminated, unless
he proves that he took proper available steps to verify the
truthfulness of that information, to a degree and in an intensity in
which it was possible for him to verify the information, and finally,
unless he himself had no grounds to believe that the information was
untrue.
The publication of
such information also can not be considered reasonable if the
disseminator of the information does not verify its truthfulness by
inquiring of the person whom the information concerns, and does not also
publish that person’s position, with the exception where such steps are
impossible or evidently unnecessary (see Reynolds, cited above).
To
evaluate the legitimacy of publishing information it is important to
examine the motive for its publication. It can not be concluded that
publication of information was legitimate if the dominant motive for it
was the desire to damage the defamed person, if the disseminator himself
did not believe the information, or if he provided it irresponsibly,
without due concern for whether it was or was not true.
Facts
alleged to be defamatory must always be evaluated comprehensively, from
many points of view, which can be expressed in the following points
(concurring, see Amicus Curiae Opinion of the Venice Commission of 17
March 2004, CDL-AD(2004)011):
1. The gravity of the charge. The more serious the charge is, the more the public was misinformed and the defamed person damaged, if the claim is not true.
2.The nature of the information and a consideration of the degree to which the problem at hand is a matter of public interest.
3. The source of the information. Some disseminators of information do not have direct knowledge of the event. Some have their own reasons to diffuse information or are paid for their stories.
4. The effort expended and concrete steps taken to verify the truthfulness of information.
5. The status of the information. The charge may already be the subject of investigation, which must be taken into consideration.
6. The urgency of the matter. News is often a commodity which spoils quickly.
7. Whether comments were requested from the complainant (plaintiff). He may have information which is not available to others or which they did not disclose. A request to the complainant (plaintiff) need not always be necessary.
8. Whether an announcement spread by the media contained the substance of the matter seen through the eyes of the complainant (plaintiff).
9. The tone of the announcement spread by the media. The originator of information spread in the media can initiate discussion or investigation. He need not present the charge as a disclosure of fact.
10. The circumstances of the publication, including the timing.
1. The gravity of the charge. The more serious the charge is, the more the public was misinformed and the defamed person damaged, if the claim is not true.
2.The nature of the information and a consideration of the degree to which the problem at hand is a matter of public interest.
3. The source of the information. Some disseminators of information do not have direct knowledge of the event. Some have their own reasons to diffuse information or are paid for their stories.
4. The effort expended and concrete steps taken to verify the truthfulness of information.
5. The status of the information. The charge may already be the subject of investigation, which must be taken into consideration.
6. The urgency of the matter. News is often a commodity which spoils quickly.
7. Whether comments were requested from the complainant (plaintiff). He may have information which is not available to others or which they did not disclose. A request to the complainant (plaintiff) need not always be necessary.
8. Whether an announcement spread by the media contained the substance of the matter seen through the eyes of the complainant (plaintiff).
9. The tone of the announcement spread by the media. The originator of information spread in the media can initiate discussion or investigation. He need not present the charge as a disclosure of fact.
10. The circumstances of the publication, including the timing.
As
regards the evaluative judgments, including exaggeration and hyperbole,
even if they were harsh, they are not in and of themselves a
non-permitted expression. Even the unsuitability of the critic’s
opinion, in terms of logic or the prejudice of the critic do not, by
themselves, permit the conclusion that the critic went beyond the bounds
of expression that can be described as appropriate. Only in the case of
criticism of matters of actions by public persons which completely
lacks a substantive basis, and for which no justification can be found,
is it necessary to consider such criticism disproportionate. It is
always necessary to evaluate the entire expression made in a literary,
reporting, or other format; one can never judge a single expression or
sentence taken out of context.
Only
if the free expression, thus understood, comes into conflict with other
legal values protected by the constitutional order (the immanent
limitation of fundamental rights – see judgment file no. Pl. US 42/02)
or statutes pass for a purpose for which free expression can be limited
under Art. 17 par. 4 of the Charter (rights and freedoms of others, the
security of the state, public security, public health, or morals), do
conditions exist for testing a concrete expression from the points of
view cited above. In evaluating these requirements in a concrete matter,
it is necessary to weigh the legal values generally and specifically
applied in the matter and standing in opposition to each other.
B)
A person’s honor and good name are values which belong in the cultural
heritage of our civilization, with its roots in Christianity and Judaism
(“A good name is to be chosen rather than great riches, loving favor
rather than silver and gold.” Proverbs 22:1). However the content and
scope of this value may change over time, we can conclude that it
includes the rules which appear in the ethical codices of various
professions, i.e. including the profession of journalist.
Honor
is also an integral and important component of human dignity. It also
forms the basis of many decisions made my members of a democratic
society, which are fundamental for it to function well. Honor plays a
role in relationships, such as whom an employer hires, or whom an
employee wants to work for, it is decisive in decisions about who is to
advance to higher employment or official positions; honor is important
for deciding with whom to begin business relations or whom to vote for
in political life. If honor is once sullied by an unsubstantiated
accusation expressed publicly, and all the more so in the media, a
person’s reputation and honor can be damaged forever, and especially in a
situation where there is no possibility of rehabilitation. If such a
situation arises, both the person himself and the society lose. And it
is precisely for that reason that one can not assume that protection of
reputation, or honor, is an important matter only for the affected
individual or his family. For these reasons the protection of reputation
or honor must be seen as protection of a public good. Therefore, it is
in the public interest for the honor and reputation of persons active in
public life not be discussed at factually altered levels. Both in the
field of politics and in the media a voter must be able to distinguish
good from evil, so that he can in the end make an informed choice in
relation to a politician and to the media. It is precisely in view of
these considerations that agreements on human rights, just like the
Charter, do no consider freedom of expression to be an absolute right
(see above).
The fundamental
right to honor is exercised in multiple spheres: the private sphere,
the societal, civil and professional spheres; the last three can be
described as the social sphere. The first sphere actually involves
protection of privacy, where the right to honor is undoubtedly also
applied. It is fundamentally up to each individual, what from that
sphere, and to what extent, he will release as information for the
outside world. In other words, this sphere is usually governed by
self-determination as regards information, which can not be intervened
in from outside.
The
societal, civil and professional levels reflect the social nature of the
fundamental rights, or reflect the fact that an individual lives in a
society, and enters into communication with its other members, and
through his conduct, or even through his very existence, influence other
members of the society. In this second level we can not insist on
complete self-determination regarding information; in other words, under
certain circumstances one can intervene at this level. Thus, the social
spheres can be interfered in through proportional interventions
undertaken for purposes of protecting the interests of society. Because
the rights to personal honor and a good reputation guaranteed by Art. 10
par. 1 of the Charter (this right is not independently guaranteed by
the Convention) can not be limited by ordinary statutes, whose purpose
would be set forth by the Charter as public values (as, for instance, in
the case of freedom of expression), potential limitations of this right
must be sought in the category of immanent limitations, i.e.
limitations arising directly from the constitutional order itself. Such
an immanent limitation of the fundamental right to honor can also be
found in the requirement for protection of freedom of expression, which
is also constitutionally protected (see above).
V.
In
evaluating the matter from a constitutional viewpoint, the
Constitutional Court began with the fact that the complainant, as a
journalist – a commentator – is a person active in public life, and
therefore his professional activity, in particular, may be subject to
public criticism. However, the secondary party must prove the
truthfulness of facts claimed in the critical statement, and the
critical opinion expressed by him is subject to a test under the
principle of proportionality.
The
Constitutional Court also evaluated the secondary party’s statements
and concluded that, with the exception of legal evaluation of the
complainant’s alleged conduct, they were claims of fact.
Thus,
the Constitutional Court subjected the secondary party’s statements,
insofar as their truthfulness was determined by the High Court, to the
test described in part IV.
Re
1) The Constitutional Court primarily reviewed the starting point of
the High Court, which based its decision on evaluating the contested
statements by the secondary party to the effect that the defendant
truthfully informed the journalists about the statement by the general
manager of ČEZ and also identified him as the source of his information.
Insofar as the secondary party described these statements as
corruption, this was his opinion, which, by its nature, is not subject
to proof of truthfulness.
This
evaluation of the secondary party’s statements appears to the
Constitutional Court to be flawed. In the first contested statement,
made on 29 June 1999, the secondary party did not limit himself to
repeating information which he had received form the general manager of
ČEZ, a.s. The manager testified as a witness before the High Court. The
witness never spoke of a “confidential contract” between the complainant
and ČEZ. In the opinion of the Constitutional Court, the use of the
term “confidential contract,” which the secondary party used in the
context of providing “evidence” about the corruption of a journalist,
can be classified as a statement containing a claim of fact, which was
intended to strengthen the argument about the impropriety of the
complainant’s alleged conduct. In contrast, as shown by the evidence
admitted by the High Court, the information from the general manager
about contracts with journalists, was neutral in terms of evaluating
contracts with journalists.
Also,
one can not conclude from the total context of the information provided
(originally this was an interview concerning alleged corruption of
journalists on the part of J. Z.) that the purpose of providing
information was to give information about what the general manager of
ČEZ told the secondary party.
However,
what is of primary importance is evaluation of the fact that it is not
the role of the prime minister to provide information to journalists
about a statement from the general manager of ČEZ, even though this was a
commercial company owned in considerable part by the state. It is
unacceptable for the statements of the prime minister to be evaluated as
if he were the press secretary of a private commercial company.
In
this light, the High Court’s comparison with the printed media received
by reports (“svodka”) of the Police of the CR appears quite
inappropriate. This is because an important function of the printed
media is precisely to provide un-commented information, i.e. reportage. A
paper owned by a private legal entity is fully entitled to rely on the
truthfulness contained in the official records of the Police of the CR,
because the truthfulness of official information provided by state
bodies needs to be presumed, for reasons explained below. However, the
secondary party provided at a minimum a report with comments, and
precisely through his commentary strengthened the gravity of the
accusation contained in his statement. It was clear from the evidence
admitted by the court of the first instance that this was a serious
accusation, affecting the area of the complainant’s good reputation and
professional honor under the journalistic codex, which also had serious
consequences for the complainant’s livelihood.
Likewise,
it is quite evident that the gravity of the accusation exceeded the
complainant’s personal interest, because the statement cast doubt upon
the community of journalists as a professional group. Again, one can not
overlook the context in which the statement was made, or the fact that
it was meant to serve only as an example of a widespread phenomenon –
corruption among journalists. Of course, creating an image of corrupt
media has a devastating effect on relationships in a civil society,
because individuals are generally completely reliant on information from
the media in forming their opinions and subsequently projecting them
into their daily decision making. However, the High Court did not
consider the gravity of the accusation made by the secondary party in
this context at all.
Re 2)
What was said under Re 1) is also connected to the evaluation of the
nature of this statement and its evaluation in terms of the public
interest. Its content – corruption among journalists, with the provision
of one piece of so-called evidence – is undoubtedly a matter of public
interest, for the reason stated above under Re 1). The number of media
reports which reacted to the prime minister’s statement also testifies
to this.
Re 3) As regards
the source of the information, the High Court relied on the
determination that the secondary party did not have direct knowledge of
the circumstances which were the content of his information. The High
Court then relied on a completely unrealistic opinion, based on pre
formalism, i.e. on the statement that if the secondary party was
informed by a “statutory body,” its information must be truthfully, and
it concluded immaterially that it was not necessary to verify it
further. In doing so it ignored the fact that ČEZ is an enormous
company, and no general manager can be informed about everything that
happens in it, and also that it is highly unlikely, even impossible,
that he will be informed about events which are not directly connected
to the company’s business activities or even about events which preceded
a particular person’s presence in the position.
Primarily,
however, the High Court did not at all evaluate the determined facts
relating to the way in which the general manager of ČEZ gave the
information to the secondary party, the prime minister. The undisputed
part of the testimony of the general manager of ČEZ (p. 138) indicated
that the prime minister asked the witness about the employment of
journalists in an “antechamber” after a government meeting, around
midnight, and the second meeting of the two men, which was said to last a
few seconds, took place at an unspecified reception, where the general
manager of ČEZ informed the prime minister, erroneously, as was later
shown, that he had cancelled the contract with the complainant.
The
time, manner and place of giving the “information” undoubtedly affected
its quality, in the sense of its precision and the resulting
truthfulness. And in fact, the subsequent verification of the content of
the statement by the really properly informed professional staff of ČEZ
showed that it was untrue.
The
Constitutional Court believes that information provided to the public
by persons holding high constitutional office can not be based on a
source in the form of oral statements in conditions which will evoke in
any reasonable person at least a suspicion that the person providing the
information might have, because of the time, place, or atmosphere, had
the impression that this was not serious information, and adapted his
degree of care accordingly. Likewise, one must take into account that
the person providing information, like the person receiving it, might
have been either exhausted after a long working session (the first
meeting of the two men) or distracted by the social atmosphere of the
event – a reception – in which he was taking part. The Constitutional
Court is convinced that information provided by high constitutional
officials, containing such explosive potential as in this case, should
be seriously verified by their professional staff before it is disclosed
publicly, which was evidently not done in this case.
The
High Court also did not evaluate the secondary party’s statement in
terms of the context of the political situation in the country, or from
the point of view of the political agenda of the government, of which
the secondary party was then prime minister. One of the main points of
the then government’s political agenda was the fight against corruption.
This publicly very beneficial agenda, however, also forms the context
for this matter, and it must be evaluated in terms of evaluating the
secondary party’s motivation for making his statement. Fulfilling the
political agenda could undoubtedly have been a strong motive for
providing the information. The context for evaluating the motive must
also be formed by evaluation of the truthfulness of the secondary
party’s statement, which had a similar content in relation to J. Z., as
this statement is inseparably contextually tied to the statement being
contested.
Re 4) In contrast
to the High Court, for the reasons given under Re 3, the Constitutional
Court considers the secondary party’s demonstrably expended effort to
verify the truthfulness of his subsequent statement completely
inadequate in view of the defamatory potential it contained. On the
contrary, it considers the demonstrated effort to be inadequate in
relation to the secondary party’s opportunities to verify the
truthfulness of the information. At that time the secondary party could
rely on the work of an enormous administrative apparatus which arranged
or could arrange background materials for public appearances for him.
Re
5) The status of the information was explained under point III of this
judgment, i.e. as conduct ultra vires in relation to the jurisdiction of
the government of the CR. Exceeding the bounds of government
jurisdiction, however, always has, and in this case had, serious
consequences. Information provided by the prim minister is always given
greater weight by the citizens that information coming from other
persons, including the media. A citizen of a democratic law-based state
quite naturally expects truthful information from constitutional
officials and also expects that constitutional officials will maintain
absolute respect for individual persons who are members of the civil
society.
This principle is
also a starting point for the very idea of a democratic law-based state.
The cited, rightfully expected respect of course completely rules out
the defamation of individuals by the state power (which constitutional
officials represent). Therefore, the representatives of state authority
are required to make public only thoroughly verified information which,
in addition, relates only to matters which fall under their areas of
jurisdiction. If a constitutional official has not had his claims of
fact thoroughly verified as to their truthfulness, he is not entitled to
make them public. These starting points apply all the more so in the
case of claiming facts which threaten to defame individual persons, even
if these persons are active in public affairs.
No
state which is to be considered democratic and law-based can function
without meeting this fundamental requirement. Defamation of individuals
by representatives of state power and the resulting misinformation of
all members of society is, in contrast, a technique well-known to
totalitarian regimes. Therefore, our experience from the period before
1989 also dictates that it is necessary to insist quite firmly on the
observance of the above-mentioned principles, which the High Court
overlooked.
Re 6) Evaluation
of the urgency of the information provided by the secondary party must
be performed in the context of the considerations set forth above,
especially those contained under Re 4 and 5.
Re
7) The High Court did not even pose the question whether the secondary
party asked the complainant for comments on his intended statement, and
therefore, of course, it did not consider this aspect. Although it can
be conceded that the secondary party did not have to ask for the
complainant’s comments, this would apply only if he had verified the
truthfulness of the intended statement in the ways indicated above. The
same applies for the evaluation of the High Court from the point of view
of point 8 of the test cited above.
Re 9) The tone of the secondary party’s first contested statement was that of an announcement. In addition, the secondary party introduced his claim with the sentence: “Since you constantly want some concrete evidence of corruption among journalists, let me give you some.” His statement contains not even a suggestion of doubts, which could be interpreted as an invitation for subsequent discussion about the alleged corruption among journalists. However, for reasons given under Re 5), it can not be conceded that a person holding constitutional office would be permitted, even by posing rhetorical questions, to initiate discussion to the detriment of the honor and reputation of a private person. Such an action, and only with a large dose of caution, can be permitted, under certain circumstances, with, for example, investigative journalism. However, the position of prime minister is not comparable with the purpose of the activities of an investigative journalist.
Re 9) The tone of the secondary party’s first contested statement was that of an announcement. In addition, the secondary party introduced his claim with the sentence: “Since you constantly want some concrete evidence of corruption among journalists, let me give you some.” His statement contains not even a suggestion of doubts, which could be interpreted as an invitation for subsequent discussion about the alleged corruption among journalists. However, for reasons given under Re 5), it can not be conceded that a person holding constitutional office would be permitted, even by posing rhetorical questions, to initiate discussion to the detriment of the honor and reputation of a private person. Such an action, and only with a large dose of caution, can be permitted, under certain circumstances, with, for example, investigative journalism. However, the position of prime minister is not comparable with the purpose of the activities of an investigative journalist.
Re
10) The High Court did not consider the circumstances under which the
first contested statement was made at all in the sense set forth above
(in particular under Re 3 and 5), and for that reason too its
conclusions must be considered defective.
At
the close of the tested first statement by the secondary party the
Constitutional Court says, borrowing the words of a writer who
penetrates deep under the surface of events and things, that the general
courts which will decide the matter again should bear in mind that even
the ground of mere determination of facts is muddy and slippery and it
is difficult to stand on it. Even a fact is not something clear and
unprejudiced (Salman Rushdie, essay “When The Prisoner Is the Facts,”
Mladá Fronta Dnes, 25 June 2005, p. E-II).
As
regards evaluation of the High Court’s decision relating to the
secondary party’s claim made on 30 June 1999 on ČT, 3 July 1999 on
Radiožurnál, and 16 July 1999 at a press conference in Lidový dům, to
this extent it is a non-reviewable decision, because it is given
practically no justification, or only a general one, without individual
statements being analyzed, although they differ from the statement which
the secondary party made on 29 June 1999, i.e. from the first
statement, and moreover were made in a considerably different situation
than the first statement.
In
the case of the second statement, it will thus be necessary to evaluate
especially the fact that the secondary party completely neglected to
reproduce the explanatory apology from the general manager of ČEZ,
published together with a statement from the press secretary of ČEZ,
which he mentioned, and likewise neglected to deal with the published
statement by the complainant himself. If the secondary party had
honestly mentioned all these statements, he could not have continued to
pose rhetorical questions, in which the Constitutional Court can not
find any purpose other than continuing to cast doubt on the
complainant’s honor and good reputation.
In
the third case, the secondary party added to the description of the
genesis of his accusation relating to the claimant information about the
content of the program “Nahraně” aired by ČT on 22 March 1999. This
information is also a claim of fact which, however, as the file
indicates, was not true. The secondary party stated that an
environmental activist accused the complainant of writing articles
favoring nuclear energy for ČEZ, for payment from ČEZ. However, as the
Constitutional Court determined from the file, the environmental
activist J. Beránek only said that ČEZ was printing the complainant’s
articles as paid advertising. This untrue claim of fact set forth by the
secondary party in connection with the original statement by the
general manager of ČEZ, which had been quite reliably refuted by that
time, i.e. after his apology, which was well known to the secondary
party, in and of itself represents considerable interference in the
complainant’s honor and reputation. It also testifies to the fact that
the secondary party quite incomprehensibly refused to take cognizance of
the explanation and apology by the general manager of ČEZ, as he began
to perform a kind of quasi-analysis of the steps taken by the general
manager of ČEZ, in the conclusion of which, without any kind of
substantiation, he cast doubt on the truthfulness of the apology, and on
the contrary, worked only with his original, untrue information. A
question arises which will have to be considered, whether, on the
contrary, by adding untrue information on the content of the program
“Nahraně” was not intended to compensate for the objectively weakening
ring of the original information provided by the secondary party on the
basis of the original untrue information from the general manager of
ČEZ. Again, the High Court did not ask this question, although answering
it was essential for evaluating the third statement comprehensively and
in the context in which it was made.
As
regards the fourth statement, the secondary party repeated the
untruthful claim about the content of the television program “Nahraně”
and repeated his version of the course of events, and then described
everything as “completely clear arguments,” on which he relied. All this
was in response to the complainant’s question whether there was
evidence of his corruption. This time he completely omitted any mention
of the denial provided by ČEZ, the apology by its general manager, as
well as the complainant’s own statement. These circumstances too
remained outside the attention and evaluation of the High Court.
In
evaluating the secondary party’s expression made in the first statement
that he considers the conduct he described to be a form of corruption,
the Constitutional Court states that one can agree with the High Court
to the extent that this was an expression of an opinion, the
truthfulness of which fundamentally can not be verified. However, it can
not be overlooked that this was an expression of a particular kind of
opinion, i.e. a legal opinion. The proportionality of the expressed
opinion can be reviewed, in fact it must be tested, but the High Court
did not even try to conduct such a test. Yet it is evident that even
when evaluating the proportionality of an expressed legal opinion the
then official position of the secondary party must be taken into
consideration.
Errors in
the legal evaluation of the complainant’s alleged conduct are scarcely
tolerable in the case of the secondary party. There were several lawyers
in the government of which he was prime minister at that time; he had
an opportunity, even an obligation, to discuss the matter with them,
regardless of any desirable or even required consultations with the
professional staff of the office of the government. In other words, the
heightened requirements for the proportionality of the secondary party’s
statement again develop from his then official position, and they can
not be subject to parameters applied, for example, to the media, where a
certain degree of imprecision in the legal evaluation of actions by
persons on whom they report can be tolerated, though even in that case
the tolerance can not be unlimited. However, the general courts did not
determine whether the secondary party had any consultations with legal
experts regarding the legal classification of the complainant’s alleged
conduct.
For all the
above-mentioned reasons, and weight the importance of freedom of
expression on one side, and the importance of the honor and reputation
of persons on the other side, the Constitutional Court must state that
the High Court’s verdict completely ignored the importance of the latter
value, which led to flagrant interference in the complainant’s
subjective right, the fundamental right to protection of honor and good
reputation, which is guaranteed by Art. 10 par. 1 of the Charter.
The
secondary party’s statement did not hold up under the test conducted by
the Constitutional Court; therefore, neither did the decision of the
High Court, which approved it, both in terms of evaluating the
truthfulness of the contested statements as regards the facts claimed,
and as regards the proportionality of the opinion expressed. The High
Court did not provide protection for the claimant’s honor and good
reputation, and, surprisingly for the Constitutional Court, provided
protection to the secondary party’s fundamental right to freedom of
expression, although in the instant case that right was exercised in
conflict with a number of principles whose observance is a condition for
protecting that right.
As
regards evaluation of the decision of the Supreme Court of the CR, which
denied the claimant’s appeal on a point of law, that decision continued
the interference in the claimant’s fundamental rights. The
Constitutional Court considers it necessary to point out that it does
not understand the reasoning of that decision, which is composed of
quotations from judicial case law primarily from the 1980s, and is more
reminiscent of a post-modernist collage open to many interpretations
than the reasoning of a court decision in the sense of evaluating a
particular case in light of constitutional values and principles,
interpreted in the context of contemporary European case law on
analogous matters. It is evident from such case law how the approaches
by individual European states in interpreting the principles applied to
resolving conflicts between the right to freedom of expression and the
right to honor and a good reputation approach each other. because the
Supreme Court of the CR did not meet the above-mentioned requirements,
it was also necessary to annul its decision.
In
view of the foregoing, the Constitutional Court granted the
constitutional complaint under § 82 par. 2 let. a) in connection with
par. 3 let. a) of the Act on the Constitutional Court, and annulled the
contested decisions, because it found that the decision of the High
Court in Prague and of the Supreme Court of the CR violate the
complainant’s fundamental right guaranteed by Art. 10 par. 1 of the
Charter.
Notice: Decisions of the Constitutional Court can not be appealed
Notice: Decisions of the Constitutional Court can not be appealed
Brno 11 November 2005
Dissenting Opinion
of judge Michaela Židlická
I do not agree with the verdicts of the judgment; Nevertheless, I consider it beneficial to address in this form a question which I consider fundamental and which was not given attention in the reasoning of the decision.
In the
instant case, the substance of the problem was the legal opinion of the
High Court in Prague that the information made public by the secondary
party, Ing. M. Z., was truthful, and therefore not capable of causing
unjustified interference in the complainant’s personal rights. The High
Court concluded that the secondary party, by identifying the source of
the information, only truthfully reproduced the content of his
conversation with Ing. Č.; this was not affected at all by the fact that
the information provided by Ing. Č. was shown to be untrue. Of course,
such an interpretation is unacceptable from a constitutional viewpoint,
because it gives priority to formal logic over the realistic meaning of
the communication, as it is understood by the hearers, and it overlooks
the possible negative effects of such conduct on the sphere of the
complainant’s personality.
The
secondary party’s statement, leaving aside his evaluative judgments,
can be considered truthful in terms of logic; nonetheless, we can not
overlook that it completely lacks completeness, which is decisive for
evaluating the truthfulness of information in its material sense. An
erroneous impression was created among the recipients of the information
mediated by the secondary party that the information provided to the
secondary party by Ing. Č., was also truthful, because the secondary
party’s statement did not contain even a suggestion that this need not
be the case. It is completely non-decisive whether the secondary party
should or could have verified the actual situation, because liability
for unjustified interference in personal rights is strict liability,
which does not require causation in any form.
There
is not the slightest doubt that the entire incident could negatively
affect the complainant’s personal sphere. For that reason too the High
Court’s interpretation can not be accepted, because this would result in
a situation where the person who made the statement would not be
responsible for real interference in the complainant’s personality
rights, nor would the person who provided the initiative for it, because
his communication was not public, and therefore it would obviously not
be possible to conclude a causal connection between the conduct of the
person communicating the information and the subsequent interference in
personality rights.
Fundamental
rights and freedoms may be limited if they conflict, even if the
constitutional framework does not expect such limitation. In these
situations it is necessary to set forth conditions under which one
fundamental right or freedom has priority, and conditions under which
the other has priority. In this regard there is a fundamental maxim that
a fundamental right or freedom may be limited only in the interest of
another fundamental right or freedom (Constitutional Court judgment of
17 February 1999, file no. Pl. US 16/98, published in the Collection of
Laws as no. 68/1999 Coll.). In the event of balancing two fundamental
rights and freedoms it is always necessary, in view of Art. 4 par. 4 of
the Charter of Fundamental Rights and Freedoms, to preserve the essence
and significance of the right which is to cede to another right. The
interpretation of the High Court in Prague does not meet this
fundamental condition, because it provides protection for the expression
of the secondary party, while ignoring the true significance of his
communication, and permits the complainant to be denied an opportunity
to defend himself against actually existing interference in his
fundamental right to protection of his honor and good name under Art. 10
of the Charter of Fundamental Rights and Freedoms. For that reason I
voted to annul the contested decision of the High Court in Prague, as
well as that of the Supreme Court of the Czech Republic, which did not
recognize the foregoing lack of constitutionality .
Brno 11 November 2005
Brno 11 November 2005