HomeInsightsEuropean Court of Human Rights finds Portuguese courts’ interference with academic’s Article 10 rights not “necessary in a democratic society”.

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The applicant, Carlos do Carmo de Portugal e Castro Câmara, was a Portuguese national.  The case concerned his criminal conviction for defaming the president of a public institution.

In March 2006, the applicant, a university professor who had previously worked for the Portuguese Meteorological Institute, published an opinion article in the national newspaper O Independente explaining the management and financial problems he had encountered when running a project developed by the Meteorological Institute and co-funded by an EU Agency.  In his article, he criticised in particular the President of the Meteorological Institute, referring to him as “a petty liar” and “a poor wretch”.

The President of the Meteorological Institute lodged a criminal complaint against the applicant for defamation.

In July 2010 the applicant was convicted of aggravated defamation.  The Portuguese courts referred to his statements in the article as a personal attack on the President of the Meteorological Institute and an insult to his honour and reputation.  He was ordered to pay fines totalling €2,000 and ordered to pay the President €3,000.  This judgment was upheld on appeal in February 2011.

Relying on Article 10 (freedom of expression), the applicant complained that his criminal conviction had been unnecessary and a disproportionate interference with his freedom of expression.

In the ECtHR’s view, a person who manages an institution financed from the public purse should be prepared to accept “hard-hitting criticism” particularly in the course of a public debate where matters of management of a project paid for with public funds are being discussed.

The ECtHR considered that the applicant’s statements had had a sufficient factual basis and had therefore not been excessive.  Even though the impugned statements were strongly worded and could be considered offensive, the applicant had reacted to a public attack of the President.  In this context, and taking into consideration that the applicant had supported his statements with facts, his reaction was not a gratuitous personal attack. In addition, the ECtHR recalled that persons taking part in a public debate on a matter of general concern are “allowed to have recourse to a degree of exaggeration or even provocation, or in other words to make somewhat immoderate statements”.  Where there is no factual basis, such statements could, admittedly, appear excessive, the court said, but in the light of the established facts, that was not so in this case.

Accordingly, the ECtHR said, the Portuguese courts had failed to strike a fair balance between the relevant interests and to establish a “pressing social need” for putting the protection of the President’s reputation above the applicant’s right to freedom of expression.  Therefore, the Portuguese courts had overstepped the narrow margin of appreciation afforded to them in matters of public interest and the interference was not “necessary in a democratic society”.  There had therefore been a breach of Article 10.  (Do Carmo de Portugal e Castro Câmara v Portugal (no. 53139/11), 4 October 2016 — to read the judgment in full, click here).

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