public-figures doctrine refined

Posted on October 25, 2007 | Filed Under fundamental rights 

trial_le_pen2.jpgIn his recent judgement Lindon, Otchakovsky-Laurens und July gegen Frankreich (Appl. nos. 21279/02 and 36448/02) the ECHR has affirmed its Public-figures doctrine which says that the limits of acceptable criticism are wider as regards a politician or a political party as such, than as regards a private individual.
However, the court also introduced some alterations by refined the doctrine helding that:

“regardless of the forcefulness of political struggles, it is legitimate to try to ensure that they abide by a minimum degree of moderation and propriety, especially as the reputation of a politician, even a controversial one, must benefit from the protection afforded by the Convention.“

The alledgedly defamatory statements were published as a novel under the title “Jean-Marie Le Pen on Trial”, based on real events. The book recounts the trial of a Front National militant, Ronald Blistier, who committed the cold-blooded murder of a young man of North African descent and admits it was a racist crime. In the novel Le Pen appears in various passages being called “a chief of a gang of killers” and “a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood”. Although according to the public figures-doctrine the limits of acceptable criticism are wider as regards a politician as such than as regards a private individual, because unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large. Consequently he must display a greater degree of tolerance (see, for example ECHR Lingens, Series A-103). In case of Le Pen this can amount to an even higher degree of tolerance precisely because he is a politician who is known for the virulence of his discourse and for his extremist views.
Nevertheless the Court considered that:

“… in the present case the Court of Appeal made a reasonable assessment of the facts in finding that to liken an individual, though he be a politician, to the ‘chief of a gang of killers’, to assert that a murder, even one committed by a fictional character, was ‘advocated’ by him, and to describe him as a ‘vampire who thrives on the bitterness of his electorate, but sometimes also on their blood’, ‘oversteps the permissible limits in such matters’.“

Another interesting detail worth to be mentioned can be found in the concurring opinion of Judge Loucaides, who states:

“… the suppression of untrue defamatory statements, apart from protecting the dignity of individuals, discourages false speech and improves the overall quality of public debate through a chilling effect on irresponsible journalism.“

This use of the term “chilling effect” is nothing but bewildering. Originally used by the United States Supreme Court in the Case Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493 (1965), it describes a situation in which free speech is suppressed or limited in self-censorship, because of the fear of penalization. Loucaides however turns that definition around and speaks of a ‘positive’ chilling effect which according to him would “eliminate misinformation in the mass media and effectively protect the right of the public to truthful information” through fear of penalization for defamatory speech, leading to a rise of the overall quality of public debate.

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One Response to “public-figures doctrine refined”

  1. Lex Ferenda » Anarchy in the UK on October 27th, 2007 12:17 am

    […] of the concurring opinion by Judge Loucaides, though, who says (thanks to contentandcarrier for spotting this!) that “the suppression of untrue defamatory statements, apart from protecting the dignity of […]

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