Case Watch: Are Journalists Entitled to Honest Mistakes?

In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide quick-hit analysis of  notable court decisions and cases that relate to their work to advance human rights law around the world.

News is a perishable commodity, and journalists do not always have the time or ability to verify the watertight truthfulness of their statements. Is it enough that the journalist has a good reason to believe that allegations are substantially true? And if mistakes are made, who should bear the consequences? Two recent judgments of the European Court of Human Rights (ECHR) shed light on these vexing questions, at a time when journalistic ethics are themselves making headlines.

Aquilina and Others v. Malta, decided on June 14, 2011, deals with the case of Sharon Spiteri, a Times of Malta journalist found guilty of defamation in relation to her reporting on a court hearing involving a bigamy case. The reporter alleged that the accused’s lawyer, referred to only as Dr. A, had been found in contempt of court. Her statement was based on what she believed she had personally heard at the hearing and the confirmation of another reporter present. Spiteri had also attempted to review the records of the proceedings but could not obtain access to them because the court officials had already left their chambers. After receiving a complaint from the lawyer and consulting the reporter’s minutes of the proceeding, the newspaper issued an apology. The offended lawyer nonetheless initiated civil proceedings and even though the prosecutor in the bigamy case testified to having had the same impression as Spiteri, she was found guilty of defamation. A constitutional claim brought by the journalist was rejected, with the Maltese court ruling that journalists have a duty to provide true and verified facts.

The ECHR focused its discussion on whether the journalist had “had the means to verify the facts and whether she abided by her duty of responsible reporting”. Since all the available indications, except for the court transcript, suggested that the lawyer had been found in contempt of court, Spiteri could not have been reasonably expected to do more in the time she had before going to print. In addition, an apology had been issued as soon as the inaccuracy was confirmed. Taking these considerations into account, the court found that the applicant had at all times acted in good faith and in accordance with her duty of responsible reporting. Hence, her conviction violated Article 10 (freedom of expression) of the Convention.

Another recent case, Editorial Board of Pravoye Delo and Shtekel v. Ukraine, decided on May 5, involved journalistic use of unverified internet sources. Pravoye Delo, a Ukrainian newspaper, published an anonymous letter posted on an internet site that accused senior local officials of involvement in various criminal activities. The newspaper indicated the source of the information and specified that the content of the letter was not verified and might thus be false. One of the officials sought damages for defamation, resulting in an award against the editorial board and editor-in-chief of the newspaper.

Ukrainian legislation exempts journalists from civil responsibility for referencing materials that have already been published by another press outlet. However, the local courts held that the exemption does not apply to material obtained from internet publications that are not duly registered. At the same time, the law does not regulate registration of internet media.

The ECHR found that, since domestic law was not clear on the use of information received from the internet, the applicants could not have foreseen that the exemption did not apply. Therefore, the Ukrainian ruling failed to meet the Article 10 requirement that any limitation of freedom of expression should be based on a clear, accessible and reasonably foreseeable law.

Media freedom advocates argue that reporters should not be subjected to strict civil or criminal liability for factual errors made in good faith, especially on matters of legitimate public interest. (See, for example, the amicus briefs filed by the Justice Initiative in Herrera Ulloa v. Costa Rica and Kasabova v. Bulgaria).  To do so would also discourage reporting that is actually true due to fears that the reporter might not be able to prove truth in a court of law. The proper standard should be one of due diligence and responsible journalism. In practice, most self-respecting publications are prepared to admit and correct factual inaccuracies. After all, erring is only human.