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European Court of Human Rights affirms journalists’ rights of free expression

On Tuesday the European Court of Human Rights gave an important decision safeguarding the rights of journalists when investigating and reporting on the conduct of allegedly corrupt politicians and public officials. Somewhat strikingly, the case arose from bribery allegations made by and not about a pharmaceutical company.
 
A CEO of the Polish subsidiary of a major international drug company revealed to journalists that at meetings attended by employees and the head of the private office of the Ministry of Health, bribes had been requested for making an osteoporosis drug refundable under the Polish national health care scheme. The monies were allegedly to be used for financing osteoporosis clinics run by a company belonging to the official’s friend, who also attended the meetings.

After initially denying that he attended the meetings, the official then recalled being at one of the meetings, which he eventually admitted was inappropriate conduct but he denied asking for a bribe. The company’s employees stated that there had been discussion about a payment for a refundable drug linked to clinics but that the drug company declined to get involved. Other witnesses who attended the meeting stated that although there were discussions about a refundable drug they were not linked to the clinics and that something may have got lost in translation. The deputy minister of health went on record to state that the official, who suddenly resigned after the meetings, had no remit to attend negotiations with drug companies.

The story, which was published in the summer of 2003, resulted in criminal charges being brought against the official and a lengthy investigation, which eventually petered out for lack of sufficient evidence.
 
In 2005 the official commenced proceedings for infringement of his private rights. These failed at first instance but were successful in the appeal courts on the grounds that the journalists had not acted with sufficient due diligence to justify the infringement of the official’s rights. The paper was ordered to issue an apology and pay costs. The journalists and the paper then applied to the ECHR on the grounds that the judgments were in breach of their right of free expression enshrined in Art 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
 
In allowing the application, the ECHR observed, rather scathingly, that the domestic appeal courts had used the benefit of hindsight to determine the issue of whether the journalists’ information was reliable; had failed to take into account the wider limits of permissible criticism applicable to politicians or public officials and that the case had involved reporting rather than making allegations of corruption. Little or no account was taken of the propriety of a top official being involved in commercial negotiations in the absence of public sector involvement. Having failed to appreciate the role of the press as a “public watchdog”, the appeal courts had failed to carry out the careful balancing exercise between the right to impart information and reputational protection.

The ECHR concluded that the appeal court decisions amounted to unjustified interference and breached the journalists’ rights of free expression. The journalists’ alternative claim, that the appeal courts were partial on account of the official’s in-laws connections with those courts, was rejected for a failure to raise it with those courts.
 
The decision that the appeal courts had unlawfully interfered with the journalists’ rights of free expression, confirms a form of public interest defense under the Convention, which is essential for ensuring that officials and politicians are held properly accountable but plainly does not absolve journalists from ensuring that the source of reporting information remains reliable. It also provides an insight into why national health care procurement can prove such a challenging environment for compliance.

The decision of the European Court of Human Rights in the Case of Stankiewicz and others v. Poland (Application no. 48723/07) is here.

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Alistair Craig, a commercial barrister practicing in London, is a frequent contributor to the FCPA Blog.

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