Freedom of expression vs protection of reputation: an ongoing battle

A very topical theme, always worth exploring, is the balancing act between the concept of freedom of expression in relation to the concept of the protection of reputation. This article will attempt to do just that. Ready?

Freedom of expression is a fundamental right available in every functioning democracy. These days, though, its presence and protection are threatened by various circumstances. For example, due to the ever-expanding nature of the online sphere and the subsequent existence of an unregulated online world. So, what do we actually mean when referring to the term freedom of expression?

The answer, from a legal point of view, lies in Article 10 of the European Convention on Human Rights (ECHR) which states that:

‘Everyone has the right to freedom of expression. This right shall include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.’

Further, Article 10 (2) of the Convention states that:

‘The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary for a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’

Article 10(1) ECHR describes the freedoms the right to freedom of expression entails, and Article 10(2) ECHR explains the occasions where one might not be able to take advantage of these freedoms. Thus, it can be concluded that the first paragraph presents the essence of the right, while the second paragraph introduces limits to it.

Specifically, reputation can be defined as an evaluation made by other people regarding the character of a certain individual. [1] Reputation can be attributed not only to a single person but also to a group of people or even a corporation, as well as a brand. It has been claimed that reputation is associated with 'the projection of the self to society that the law protects, even if it is an illusion '. [2] An interesting point of view, since it shows that the reputation that someone possesses might not necessarily represent the truth about them. Still, the law is obliged to protect this ‘image’ someone appears to have, which is made based on the opinions of others about someone.

This leads us to think about the concept of defamation law. Defamation law is a mechanism for protecting reputation. One of the aims of this law is to effectively minimize the spread of false or hurtful information that leads to the defamation of someone. [3] Defamation in UK law is divided into two categories. The first one is libel and the second one is slander. [4] Libel takes place when the information is communicated through 'a permanent form' (written), and slander happens when the information is communicated through 'a temporary form' (spoken). [5] The distinction of defamation between libel and slander showcases that the legislators wanted to give a different level of protection to each category, depending on the form through which the defamatory comments were made available to the public.

Arguably, the protection of reputation is a necessary limit to freedom of expression since it prevents publishers from using someone’s name to maximize profit in an attempt to beat the competition in the market. In particular, the protection of reputation acts as a limit to freedom of expression. Each time the court is dealing with a relevant case it must strike a balance and decide which should be given priority.

Throughout the years a pattern has emerged, which formed ‘a hierarchy of protected expression based on the status of the individual whose reputation was alleged to be harmed and the nature of the speech’. [6] The highest protection is granted to people that are considered ‘private persons’ with the exception of a ‘public interest’ matter. [7]

Consequently, people that are considered to be public figures, i.e., politicians, are given less protection as it is expected of them to be receptive to a higher level of criticism. [8] Speech that is related to ‘commercial or business context’ receives less protection compared to the other types of expression and positions. [9] One can say that this hierarchy is justified since civilians that are not public figures do not have an obligation to share any part of their lives with the public.

Unfortunately, for public figures, there is a public interest in their lives and the public ought to be informed about their actions. So, from the moment a person rises to a ‘public status’, we could say that there is a kind of ‘social contract’ formulated between them and society that this individual has to live life with a certain amount of transparency attached to it.

A representative case raising this matter is Steel and Morris v United Kingdom. [10] This dispute involved two activists who were collaborating with London Greenpeace and wanted to raise awareness against the way McDonald’s conducts business: they tried to portray the company in an unflattering light. [11] One of the questions raised was about the likelihood of a breach concerning the right to freedom of expression, as stated in Article 10 of the ECHR. [12] The Court agreed that businesses can try to protect their name from comments that are hurting their reputation. [13] The European Court of Human Rights (ECtHR) stated that ‘large companies inevitably and knowingly lay themselves open to close scrutiny of their acts’. [14] Furthermore, the Court went on and stated that:

‘As a result of law as it stood in England and Wales, the applicants had the choice either to withdraw the leaflet and apologize to McDonald’s or bear the burden of proving, without legal aid, the truth of the allegations contained in it. Given the enormity and complexity of that undertaking, the court does not consider that the correct balance was struck between the need to protect the applicants’ rights to freedom of expression and the need to protect McDonald’s rights and reputation.’ [15]

The fact that there is a ‘public interest about health and environment’ and that these groups can aid society in some way was highlighted. [16] Thus, it was held that Article 10 of the ECHR was not properly exercised in this case. [17]

Another factor that must be examined when considering whether a statement is defamatory, is the form the expression takes. For example, journalists when delivering the news or commenting on a topic present facts, arguments, opinions or judgements. The courts have decided that it is left in the judgement of the journalist to make a decision about how to present the various information to the public. [18] The same applies to the various ‘techniques of reporting or presentation’ that are employed to convey a message to the public. [19] The legislators have argued that there should be a clear way of showing that the information presented to the audience falls under either the category of ‘fact’ or the category of an ‘opinion’ expressed by a certain individual. [20]

It has been illustrated that ‘the existence of facts can be demonstrated, whereas the truth of value judgements is not susceptible of proof’. [21] The distinction between the two categories seems easy to prove but, in reality, the boundaries can become blurry as journalists often, when delivering the news or certain information, fail to make it clear to the audience, whether something constitutes a fact or an opinion.

Further, when analysing the protection of reputation as a limit to freedom of expression, according to Article 10(2) of the ECHR, one can notice that it is viewed as a restriction to the right of freedom of expression and not as a separate right. However, there has been a view that the protection of reputation can also fall under Article 8 of the ECHR. [22] Article 8 of the ECHR (the right to respect for private and family life) states that:

‘Everyone has the right to respect for his private and family life, his home and his correspondence’. [23]

It mentions that ‘There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary for a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’ [24]

So, the potential protection that can be granted under this Article is indirect, in the sense that the protection of reputation can be viewed in this scenario as an extension of one’s ‘right to respect for private and family life’.

A relevant case where these two rights came into direct conflict was Axel Springer AG v Germany. [25] The judgement of the German Court illustrates how the judges from European jurisdictions are handling similar conflicts. In this case, the Court stated that:

‘When examining the necessity of an interference in a democratic society in the interests of the ‘protection of the reputation or rights of others ’, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right to respect for private life enshrined in Article 8’. [26]

It is evident that it is of importance that the balancing act that is taking place between these rights must be proven to be justified.

Thoughts

Freedom of expression and the protection of reputation are two fundamental concepts linked with the development of society that can change throughout time, as society progresses. A democratic society is not able to function properly without adequate protection given to both. Thus, it is evident that one should not exist without the other and only together they can safeguard our fundamental freedoms.

Endnotes

[1] Dario Milo, Defamation and Freedom of Speech - The Right to Reputation (Oxford University Press 2008) 17.

[2] ibid.

[3] Edward Craven, ‘ECHR and Defamation’, (2019) Thomson Reuters, 2.

[4] Eloise Le Santo, Sara Mansoori, ‘Defamation – Slander’, (2019) Thomson Reuters, 1.

[5] ibid.

[6] Dan Kozlowski, ‘For the Protection of Reputation or Rights of Others' the European Court of Human Rights Interpretation of the Defamation Exception in Article 10(2)’ (2006) 11(1) Comm. L. & Pol.Y., 141. [7] ibid.

[8] ibid.

[9] ibid.

[10] Steel and Morris v United Kingdom [2005] EMLR 314.

[11] Columbia University, Global Freedom of Expression (New York) 1 accessed 14 February 2020.

[12] ibid.

[13] Kozlowski (n6) 165.

[14] ibid 166.

[15] ibid.

[16] Columbia University (n11).

[17] Kozlowski (n6) 166.

[18] Andrew Nicol, Gavin Millar, Andrew Sharland, Media Law and Human Rights (Oxford University Press 2009) 88.

[19] ibid.

[20] ibid.

[21] ibid.

[22] European Court of Human Rights, ‘Factsheet – Protection of Reputation’.

[23] European Convention on Human Rights, art 8(1).

[24] European Convention on Human Rights, art 8(2).

[25] Axel Springer AG v Germany 39954/08, para 83-84.

[26] Axel Springer AG v Germany 39954/08, para 83-84.