The Strasbourg Court makes a critical distinction between value judgments and statements of fact. Value judgments cannot be proved. A requirement, in defamation proceedings, that a defendant prove the truth of a value judgment will violate his right to freedom of expression, protected by Article 10.
The Strasbourg Court will judge for itself whether the statement was a value judgment or a statement of fact. (nota de subsol: Stojanovic v Croatia, where the Court disagreed with the domestic court in finding that the applicant made a statement of fact. There was not enough proof to come to this conclusion). The determination can be very controversial. (nota de subsol: for a odd majority decision by four votes to three which turned on the characterization of the offending material as fact or value judgment, see Schmidt v Austria).
In the Pedersen and Baadsgard case, for example, the applicants produced two television programmes concerning the conviction of a person for murder. The programme strongly criticized the conduct of the police and, in particular, the Chief Superintendent, who was identified by name. A witness was interviewed, who claimed that she had provided an alibi for the convicted person, which the police ignore. The applicants then showed a photograph of the Chief Superintendent and asked a series of rhetorical questions. Nine out of the seventeen members of the Grand Chamber found that these rhetorical questions amounted to statements of fact, which the applicants had failed to prove. They considered that the nature and degree of the defamation was very serious and that the applicants had not taken sufficient steps to verify the truth of the witness’s story. As a result, they found that there was no violation of Article 10.
The remaining eight judges, on the other hand, considered the questions posed by the applicants to be ‘value judgments or provocative hypotheses’, for which there was a sufficient factual basis. The dissent in the case and the outcome of other cases before the Court (Schmidt v Austria, Erla Hlynsdottir, Brosa) highlights the problematic nature of the distinction that is drawn by the Court between a value judgements and a statement of fact.
Bernadette Rainey, Elizabeth Wicks, Clare Ovey
(Jacobs, White, and Ovey: The European Convention on Human Rights, Oxford University Press, 2017, la p. 500-1)