06.06.2024

On the borders of the right to free speech and Greek football: between notoriety and the right to reputation

The European Court of Human Rights has established, through a vast and constant case law, the relationship between Article 8 of the European Convention on Human Rights, which protects the right to privacy, on the one hand, and Article 10 of the same Convention, which concerns the right to freedom of expression, on the other hand. A recent decision of the Court in Thomadis v. Greece brings this issue back to the forefront and also looks at it from a less debated angle.

In a 2012 broadcast, the plaintiff, a journalist by profession, raised the subject of a criminal case involving a number of professional football shareholders accused of match-fixing. In this context, a witness statement from 2010, already known to the public, was also presented. The Greek courts ruled that there had been defamation of one of the shareholders, who had been insulted during the broadcast and who, moreover, was the subject of the witness statement broadcast.

Two problems arise in this context: firstly, the witness statement broadcast had already been made public and was therefore no longer new. Secondly, unlike in many other famous cases (Von Hannover v. Germany, Tüzünataç v. Turkey, etc.), not only was the person concerned by the material presented public (which was also the case in the cases mentioned), but the subject matter was not his private life but his professional life.

What is even more interesting is that in most countries in the world, football is the most popular sport. According to statistics, Greece is no exception either - the Greek Super League attracts an estimated 1.5 million fans annually. Precisely for this reason, in the proceedings before the ECHR, there was no doubt as to the public interest in the subject under debate. Moreover, the definition of matters of public interest has been established by many other decisions (including Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland, cited in Thomadis): in principle, they are matters of sufficient relevance to the public that it can legitimately take an interest in them.

On the one hand, the Court pointed out that, despite an obvious public interest, the way in which the information was presented meant that the broadcast was nevertheless defamatory. Similar to the decision in Țuluș v. Romania, here too the main aim did not appear to be the dissemination of information relevant to the general public, but, on the contrary, to damage the reputation of the person concerned. By contrast, in Ottan v. France, the Court held that the statements made by the applicant did not betray any animosity towards any member of the jury referred to. It follows that the motive underlying the publication of certain information may also be relevant in the ECHR's analysis.

On the other hand, the influence which the applicant's actions had had on ongoing criminal proceedings was also taken into account. This is not the first time that the Court has held that the protection afforded to information may be upheld even where that information (or, as in the present case, excerpts of it) has been previously disseminated.

Decisive in the ECtHR's analysis was the fact that the witness statement that was disseminated was nonetheless subject to the secrecy of criminal proceedings. By way of parallel, in Brisc v. Romania, the very fact that the applicant had used and quoted only documents which, at the time, were no longer confidential led to the conclusion that the secrecy necessary for an investigation had not been breached. A comparison of the two decisions leads to the conclusion that, as long as information or a document should enjoy a certain protection, its publication amounts to a breach of that protection even if it had already occurred previously. Thus, in the Court's view, it is less important that the 'harm has already occurred' and more important that it should not continue to spread.

At the same time, in Thomadis v. Greece, the Court also touches on another controversial aspect: the influence that a public discussion about a (potentially) criminal act might have on the conclusions of an investigation. It follows from the reasoning of the decision that the public should not be encouraged to form a premature opinion on the guilt or innocence of a person. The injured person in the Thomadis case was, prior to a court's decision on his guilt, portrayed as a dangerous person with a deep involvement in illegal activities.

It was precisely this portrayal which led to the conclusion that the right to privacy of the person concerned had been infringed, despite the fact that it concerned his activities as president of a football club. Even taking into account the wider limits which freedom of expression receives when weighed against the right to privacy of a public person, some protection must nevertheless be afforded to the latter - in particular in its reputational component.

At the same time, the Court also considered the manner in which the applicant organized and presented his broadcast to be relevant. This is not the first time that it has been held in ECtHR case-law that the way in which information is presented has an impact on the protection afforded to it (the Sellami v. France decision, for example, is to that effect).

The application of the same criterion can, of course, also lead to different conclusions - as, for example, in Erla Hynsdóttir v. Iceland. There, however, it was precisely the fact that the complainant (also a journalist) had striven to obtain a balanced report and, to that end, had interviewed people with different points of view. The question of impartiality is also a question of journalistic ethics, an issue often addressed by the Court.

So, however far the limits of free expression may be extended, as the case may be, they continue to exist - and as such may be breached, with the consequence of a sanction as provided for by national law.

Once it has been established that the conditions for a violation of the right to privacy have been met, the European Court of Human Rights, as on other occasions, avoids taking the place of national courts, which it does only in exceptional circumstances. In so far as the decision of the Greek court, given in accordance with national law, does not violate either the Convention itself or the criteria laid down by case-law, the ECHR saw no reason why it should replace the reasoning of the Greek court.

Moreover, this approach reinforces the oft-repeated idea that the European Court of Human Rights cannot be turned into a new level of jurisdiction to review the legality or soundness of national courts' decisions. The Court's role is to determine whether the fundamental rights enshrined and guaranteed by the Convention have been violated at national level. It does not, however, legislate in the place of the national legislature and, moreover, it does not judge in the place of the national judge.

Although, in some respects, the Court also maintained its earlier conclusions in Thomadis v. Greece (e.g. that it was unwilling to substitute itself for a national court except in very exceptional circumstances), there is no doubt that these conclusions have been qualified in a way that could even lead to a reconsideration of the settled case-law of the courts of the States Parties to the European Convention on Human Rights.

An article signed by Alin-Gabriel Oprea, Senior Associate and Maria-Irina Crivăț, Junior Lawyer - STOICA & ASOCIAȚII