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Focus on Regulation

The European Court of Human Rights accepts that the protection of the reputation of a public authority can be a legitimate aim for restricting Article 10 rights

In Derbyshire County Council v Times Newspapers [1993] AC 534, the House of Lords held that it was of the highest public importance to allow a democratically elected governmental body to be subject to uninhibited scrutiny and criticism.  As such, it is now a well-established principle of UK defamation law that local authorities cannot sue for defamation because of a concern that it would have a chilling effect on democratic accountability.

However, a recent judgment of the European Court of Human Rights (“ECtHR“) suggests that this principle may not be set in stone.

In Pinto Pinheiro Marques v. Portugal (Judgment of 22 January 2015, only in French) the First Section of the ECtHR held that a libel judgment against Mr Marques for damaging the reputation of a municipal council was a violation of his Article 10 (Freedom of Expression) rights. However, the interesting feature of the judgment was that although in Mr Marques’ case, the ECtHR considered the libel judgment to be unjustified, it nevertheless accepted that the protection of the reputation of a public authority could be a legitimate aim for limiting Article 10 rights and that there were circumstances where an authority could, in principle, bring a defamation claim.

Mr Marques, had entered into an agreement with a Municipal Council in Portugal to permit the publication of a book of the works of Alfonso Duarte, a poet from the region. However, two years later the Council published another book on its own initiative, causing Mr Marques to publish an article in a regional newspaper complaining about the Council’s conduct and alleging that the Council had “engaged in falsification“.

Following a complaint by the Council against Mr Marques for insulting a legal entity exercising public authority, the Portuguese Court found Mr Marques guilty of defamation, and that he “knew or ought to have known” that the statement that the Council had “engaged in falsification” undermined the Council’s reputation.

Mr Marques took the case to the ECtHR, which ruled that the Portuguese court’s judgment was a violation of Mr Marques’ Article 10 rights because he was undoubtedly taking part in a debate of general interest.  It also considered that his comments were expressions of personal opinion rather than fact, and that the limits of acceptable criticism of a public institution were wider than those of a private citizen.  Finally, it found that the criminal fine imposed on Mr Marques was manifestly excessive.

The ECtHR’s finding of a violation of Mr Marques’ Article 10 rights is not surprising.  However, what is perhaps more controversial was the ECtHR’s finding in its judgment that the “protection of the credibility and prestige of [the Council] and public confidence in this institution was a legitimate aim” under the Convention.  As such, the ECtHR seems to have accepted that there could be circumstances where it would be legitimate for a local authority to curb expression rights by bringing proceedings to protect its reputation.   It will be interesting to see what impact, if any, the ECtHR’s decision will have on the UK courts, and in what circumstances the need for public confidence in our democratically elected local government bodies might be found to outweigh democratic accountability.