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Are politicians exempt from criticism in the media? The ECHR doesn’t think so. 

The right of citizens to be critical of the State and its government is an important one, and it’s a right that has been put in the spotlight by a recent ruling by the ECHR in the case Antunes Emídio and Soares Gomes da Cruz v. Portugal.

After being convicted and fined for defamation in two separate cases, Joaquim António Antunes Emídio and Dr Luís Manuel Soares Gomes da Cruz, applied for their cases to be seen by the European Court of Human Rights (ECHR). Their applications argued that their convictions constituted a violation of their freedom of expression.

At the heart of both cases is a delicate balance: does the right to one’s freedom of expression outweigh the protection of one’s reputation? 

A journalist’s right to criticise

When journalist Antunes Emídio wrote an opinion article in March 2011 for O Mirante, a regional weekly newspaper, titled “Only Chickens Were Left,” he was heaping criticism upon Portugal’s political class. In it, he mentioned in particular Rui Barreiro, the then State Secretary for Agriculture, Forests, and Development, writing 

Joaquim António Emídio (photo Omirante)

“…he is the most idiotic politician I know… It is known for certain that one day he will be Minister of Finance, or Education, or Justice of some government, trusting the apparatus of the Socialist Party, where it seems that all the good people have gone on holiday and only the chickens were left…”

Following the publication of the article, Barreiro filed a criminal complaint against Antunes Emídio, and in July 2012, the journalist was convicted of aggravated defamation under Articles 180 and 184 of Portugal’s Criminal Code. Interestingly, the judgment by Santarém Criminal Court found that the statements made by Antunes Emídio were value judgments and, having no connection with Barreiro’s conduct as State Secretary, “went beyond what could have been considered objective criticism.” 

The conviction was subsequently upheld by the Évora Court of Appeal in May 2013, further commenting that as the journalist’s use of the word ‘idiotic’ was not followed by any further clarification or examples, his use of it was not justified. He was ordered to pay a fine of 2,500€, and a further 2,500€ in compensation to Barreiro.

A doctor’s right to comment

Around the same time as the case against the journalist, as a doctor and managing director for the oldest clinic in Lourinhã (a district of Lisbon) providing occupational health services, it was Dr Soares Gomes da Cruz’s job to apply for the clinic’s accreditation to the Portugal’s Authority for Working Conditions. Lodged in 2000, the Clinic continued operations pending the outcome of the application, providing care to the local community. It was granted in 2010.

But in 2009, the Lourinhã Town Council set up their own occupational health service, holding negotiations with three local service providers. 

Dr Soares Gomes da Cruz’s clinic was not among them.

The Mayor of Lourinhã explained that the reason Dr Soares Gomes da Cruz’s clinic was not included in the initial negotiations was due to its lack of accreditation. This reasoning, however, was a bit strange; other companies included in the negotiations were similarly unaccredited. For this reason – inadequate to Dr Soares Gomes da Cruz – the doctor published ‘An Open Letter to Lourinhã Town Council’ in the local newspaper Frente Oeste. In it, he accused the Mayor of corruption, saying 

“…The reason for this letter lies in the huge anger (revolta) aroused by this total lack of honesty and seriousness and this cowardice on the part of the mayor. … The Town Council operates like a hunting ground where hunting is only allowed for those whom the mayor wants … This letter has nothing to do with politics, but with his lack of character and honesty and his cowardice, which I will publicly fight against… The citizens of Lourinhã missed a great opportunity to be happy when they did not elect … – a true leader, with integrity, not subject to influence-peddling that is harmful for Lourinhã.”

A week and a half later, Dr Soares Gomes da Cruz printed leaflets and handed them out at the local town hall, this time stating

“… The mayor is not worthy, nor does he deserve to be the highest representative of the citizens of Lourinhã, since he rarely defends the community’s legitimate interests; on the contrary, he invests in local tribal chiefs in exchange for a lentil dish…

It just so happens that the mayor, contrary to what he thinks and is told by his sycophants, is not loved among the serious and honest citizens of Lourinhã, but since most people are humble and poor, unfortunately you can mislead them with five cents’ worth of strained honey!

It’s time that you were properly reported, unmasked, in a loyal and honest way, for your cowardice and dishonesty which you have displayed throughout your previous terms of office!

But do we deserve such a cruel punishment? To have such an ungrateful and incompetent mayor?”

Criminal proceedings began following the lodgment of a civil suit by the Mayor and the Lourinhã Town Council, and in February 2013, Dr Soares Gomes da Cruz was convicted on two counts of libel through the media, and one count of insulting a legal entity. He was fined 27,000€ and ordered to pay 6,000€ in damages to the Mayor.

A delicate balancing act

What is in question in both cases is the extent of the right to freedom of expression. How do you balance ones right to freely express criticism, their opinion, or share ideas and information with the right to respect for private life and reputation, particularly when it comes to the political class? These are both rights that are enshrined and enforced by the Convention of Human Rights by the ECHR under Article 10 and Article 8, respectively.

Article 10’s wording is very specific:

“Everyone has the right to freedom of expression… without interference by public authority… The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions, or penalties as are prescribed by law and are necessary in a democratic society… [and] for the protection of the reputation or rights of others…” 

As is the wording of Article 8:

“Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society… for the protection of health or morals, or for the protection of the rights and freedoms of others.”

So in order to balance the protection of Article 8 with those encompassed by Article 10, the Court asked whether the  

“assertions contributed to a debate of general interest; how well known the person concerned was and the subject of the report; the prior conduct of the person concerned; the method of obtaining the information and its veracity; the content, form and consequences of the publication; and, lastly, the severity of the sanction imposed.”

As both cases involved statements against political figures, the Court noted that these statements should command a high level of protection under Article 10, which does not make any mention of limits on political speech – except those that are ‘necessary in a democratic society.’

Which begs the question: were those statements necessary for the democratic functioning of Portuguese society? 

The right to freedom of expression

Again, in both cases, the Court reasoned that yes, the statements made by both journalist and doctor were “clearly of general and public interest.”

With the scales tipping in favour of freedom of speech, the Court found that the Portuguese courts had violated Article 10 in both situations. It condemned Portuguese domestic courts, saying that matters of general and public interest “should have been accorded a high level of protection”.

Another issue raised by the court was the matter of journalistic freedoms. As a journalist, Antunes Emídio should have been afforded the journalistic freedom to criticise “to a degree of exaggeration, or even provocation,” according to ECHR case law. 

Interestingly, as both politicians were public figures, the Court further mentioned that the level of their celebrity “influences the protection that may be afforded to his or her private life.” 

Consequences of the ECHR’s ruling

It takes strong reasoning for the ECHR to substitute their ruling for a sovereign state’s own findings. And yet, in the case of Antunes Emídio and Soares Gomes da Cruz, it found sufficient justification to do so. The violation of Article 10 – as well as the disproportionate punishment of the crimes for which they were convicted – led to the overturning of the penalties imposed by the Portuguese Criminal Court. The Portuguese Government was ordered to repay the fines both men had paid in damages plus domestic court costs. 

But perhaps more importantly is the extension of the rights of freedom of expression in Europe. The phrase “you are the most idiotic politician I know” is now protected under Article 10 as freedom of speech. As far as political criticism goes, it’s an important protection indeed.

Chloé Braithwaite

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