October 22, 2018

The applicant in all three cases was Oleg Fedchenko, a Russian national, and editor of a weekly Russian newspaper that he had founded himself called Bryanskiye Budni.

All three cases concerned court findings of defamation against Mr Fedchenko.

In Fedchenko v Russia (no 3) the Russian courts had found that Mr Fedchenko had defamed a member of the Bryansk Region Duma in an article that referred, amongst other things, to the politician allegedly using his official car for private purposes.

In Fedchenko v Russia (no 4) the Russian courts had ruled against Mr Fedchenko for publishing an article that referred to a deputy governor of the Bryansk region in connection with land fraud.

In Fedchenko v Russia (no 5) Mr Fedchenko was found to have defamed another regional governor in an article about alleged favouritism by the authorities to the owner of a local shopping centre that had been found to be in breach of fire safety rules.

Relying on Article 10 (freedom of expression), Mr Fedchenko appealed to the ECtHR. In all three cases, the ECtHR found that the Russian courts had not carried out the balancing exercise between Article 8 (right to respect for private life) and Article 10 in accordance with ECtHR case law and the standards applied were not compatible with the principles embodied in Article 10. There were no “sufficient” reasons to justify the interference with Mr Fedchenko’s Article 10 rights. The interference was disproportionate to the aim pursued and was therefore not “necessary in a democratic society.” There had therefore been a violation of Article 10 in each case.

In relation to application no 3, the ECtHR noted that the limits of acceptable criticism are wider when it comes to politicians than for private individuals. A politician acting in his public capacity inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, the ECtHR said.

The ECtHR said that the article was a matter of general interest to the local community, since it concerned a member of the regional parliament and his wealth. Mr Fedchenko was therefore entitled to bring the matter to the public’s attention.

Considering whether the Russian courts had struck a fair balance between Mr Fedchenko’s Article 10 rights and the Article 8 rights of the politician, to the extent that the tone may have implied Mr Fedchenko’s disapproval of the politician, the ECtHR said that it constituted a value judgment that was not susceptible to proof. The Russian courts had therefore failed to distinguish between a statement of fact and a value judgment.

In the article, Mr Fedchenko had implied that the politician had acted unlawfully by carrying out additional paid activities (prohibited to members of the regional Duma) because the rumours were that he also ran a small wholesale business. The ECtHR noted that the press has a vital role of “public watchdog” and the media’s reporting on “‘stories’ or “rumours” should be protected where they are not completely without foundation. The Russian courts had not examined whether the rumours were true or not. In any event, owning a business was not contrary to the constitution so could not be damaging to the politician’s reputation.

Given that finding, the ECtHR said that the reliance on rumours was compatible with the exercise of freedom of expression. The extent to which it might be acceptable for journalists to rely on unverified sources depends on the particular aspects of each case, it said. (Fedchenko v Russia (no 3) (application no 7972/09) [2018] ECHR 779 (02 October 2018) — to read the judgment in full, click here).

As for application no 4, the article had discussed a fraud involving plots of land and corruption in the regional administration, which had resulted in criminal proceedings against two regional officials. That was undoubtedly a matter of general interest, which Mr Fedchenko was entitled to bring to the public’s attention, the ECtHR said.

The ECtHR noted that in three out of the four passages concerned, Mr Fedchenko had not mentioned the deputy governor by name, but had referred to the “Bryansk thieves”. The ECtHR said that a fundamental requirement of the law of defamation is that the defamatory statement must refer to a particular person. It was doubtful, therefore, that the deputy governor had been affected directly or indirectly. In any event, the passages constituted value judgments that had sufficient factual basis given that criminal proceedings had been commenced.

The ECtHR also found that in calling the regional officials “thieves”, Mr Fedchenko had not overstepped the margins of a degree of exaggeration, or even provocation covered by journalistic freedom. (Fedchenko v Russia (no 4) (application no 17221/13) 2018] ECHR 782 (02 October 2018) — to read the judgment in full, click here).

As for application no 5, the ECtHR said that Mr Fedchenko had merely expressed his opinion regarding the role local officials had played, saying that they had acted inappropriately. It was his view that their efforts had been aimed specifically at helping the owner of the centre. In the ECtHR’s view, Mr Fedchenko had a sufficient factual basis to support such a value judgment. In any event, a value judgment was not susceptible to proof.

In one particular passage, Mr Fedchenko had expressed his disapproval of the actions of local officials in the form of a rhetorical question. The ECtHR reiterated that Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed. Mr Fedchenko had not overstepped the margins of the certain degree of exaggeration or even provocation allowed by journalistic freedom

As for the satirical tone taken by Mr Fedchenko in the article, the ECtHR reiterated that the use of sarcasm and irony is perfectly compatible with the exercise of a journalist’s freedom of expression. (Fedchenko v Russia (no 5) (application no 17229/13) [2018] ECHR 783 (2 October 2018) — to read the judgment in full, click here).