Individual Application

The Facts

In regard to the column published in a newspaper, where the applicant is working as an editor-in-chief, the respective mayor (complainant) sent a letter of correction to the applicant, who refused to publish the letter for involving defamatory statements. Thereupon, the complainant applied to the 1^st Magistrate Judge (magistrate judge), seeking for the publication of the letter of correction. The magistrate judge ordered the publication of the complainant’s letter of correction on the same page and column as the relevant publication, in the same font size. The applicant’s challenge to the decision was dismissed by the magistrate judge, which referred the case for examination to the 2^nd Magistrate Judge. It rejected with final effect the applicant’s challenge to the decision, affirming that it was in accordance with the law and procedure for involving no error and deficiency.   

The Applicant’s Allegations

The applicant maintained that the order of magistrate judge for publication of the letter of correction in response to the impugned column infringed his freedoms of expression and the press.  

The Court’s Assessment

The Court primarily delineated the basic principles and the methodology to be followed in striking a balance between the freedoms of expression as well as the press, enshrined respectively in Articles 26 and 28 of the Constitution, and the right to rectify and reply safeguarded under Article 32 thereof. Accordingly, where the avenue of rectification and reply is resorted to, as in the present case, the tree-step test must be applied for striking a balance between the conflicting rights. For the initial decision ordering the publication of a letter of correction to comply with Article 32 of the Constitution, the impugned publication must have offended the honour and dignity of a person or involved false statements about him/her, which must be demonstrated in the decision with relevant and sufficient grounds. If the underlying reason is the undermining of honour and dignity of a person, the alleged interference with the honour and dignity must have reached a certain level of gravity, that is to say exceeding the threshold of severity. As to the second test, the letter of correction must exactly address the impugned article (it must not exceed the scope of the news or article, and there must be a logical relation and cohesion between the letter of correction and the impugned expressions), it must not involve no criminal element, and it must not be contrary to the legally protected interests of third parties. The last test to be applied is the proportionality as regards the length of the letter of correction and that of the publication. It should be kept in mind that if the letter of correction is significantly longer than the respective publication, it would call into question the proportionality.  

The Court has noted that in the present case, the column published in the newspaper, where the applicant is an editor-in-chief, contained issues as to the mayor’s relations affiliated to his official duty, but no expression and criticism directed towards his personality or private life. Nor did it involve any subjective assessment about the mayor. 

In consideration of the initial decision ordering the publication of the letter of correction and the decision dismissing the applicant’s challenge, it has been observed that the magistrate judge intended to strike a balance between the conflicting interests, finding out that the interference with the mayor’s honour and dignity had attained the severity threshold to necessitate the publication of the letter of correction. Therefore, it is evident that the magistrate judge provided relevant and sufficient reasons, thus satisfying the first condition justifying the publication of the letter of correction.

On the other hand, the letter of correction reveals, by its content, to target the columnist himself, rather than his professional competence and to go far beyond a reply to the criticisms directed towards the complainant, constituting an attack on the personality of the columnist. However, the magistrate judge failed, in its reasoned decision, to discuss whether the complainant’s letter of correction corresponded, in the technical sense, to a rectification and reply, and to demonstrate which parts in the letter constituted a rectification of, and reply to, the claims raised in the column.

It should be noted that the editorial discretion in choosing the articles to be published is in principle exercised by the editor, himself. In this context, the right to rectify and reply, as a part of the State’s positive obligation, does not give individuals an unlimited power to interfere with the press by way of rectification.

In the present case, the applicant was forced to publish an irrelevant content that did not respond to the claims in the column, in other words, a content which was not technically in the form of a rectification and reply. Such an interference with the freedom of the press cannot be said to meet a pressing social need. Moreover, in the face of the fact that the expressions regarding the complainant formed a significantly limited part of the whole column, the letter of correction, being relatively longer than the impugned column, rendered disproportionate the interference with the editorial freedom of the press. For these reasons, the Court has concluded that the interference with the freedoms of expression and the press of the applicant, a journalist, did not coincide with the requirements of a democratic society.

Consequently, the Court has found violations of the freedoms of expression and the press.