2005/03/15 - I. ÚS 367/03: Public Persons

15 March 2005

HEADNOTE

It

can generally be stated that persons who are active in the public, that

is, politicians, public officials, media stars, etc., must bear a

greater degree of public criticism than other citizens.  There is a dual

basis for this principle.  On the one hand, it encourages the public

discussion of public affairs and the free formation of opinions.  So as

to allow for the greatest possible plenitude of discussion of public

affairs, it should be regulated by state authority solely to the extent

absolutely indispensable (compare Art. 17 par. 4 of the Charter of

Fundamental Rights and Basic Freedoms).  In addition, the state accepts

that its authoritative interference with the freedom of expression, for

the purpose of protecting the good name of other citizens, should be

subsidiary, that is, employed only in the case that such harm cannot be

cured by some other means.  Such harm can be cured by means other than

interference by the state, for example, by making use of permissible

opportunities to oppose controversial and misleading opinions.  Thus, it

is often possible to minimize the damaging consequences of

controversial statements by means that are more effective than a

judicial proceeding.


 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


On

this day a Panel of the Constitutional Court, composed of its

Chairwoman Ivana Janů, judge František Duchoň and Vojen Güttler in the

matter of the constitutional complaint of the complainant, J. R.,

represented by JUDr. P.Z., an attorney, against the 25 July 2002

judgment of the High Court in Prague, no. 1 Co 106/2002 – 69, and the 24

April 2003 judgment of the Supreme Court of the Czech Republic, no. 28

Cdo 2194/2002 – 89, with the participation of the secondary party, H.V.,

represented by Mgr. V. C., an attorney, decided as follows:

 

I.

The 25 July 2002 judgment of the High Court in Prague, no. 1 Co

106/2002 - 69, and the 24 April 2003 judgment of the Supreme Court of

the Czech Republic, no. 28 Cdo 2194/2002 - 89, resulted in a violation

of the complainant’s fundamental rights and basic freedoms flowing from

Art. 17 par. 2 of the Charter of Fundamental Rights and Basic Freedoms

and from Art. 10 of the Convention for the Protection of Human Rights

and Fundamental Freedoms.

II.

Therefore, the 25 July 2002 judgment of the High Court in Prague, no. 1

Co 106/2002 - 69, and the 24 April 2003 judgment of the Supreme Court

of the Czech Republic, no. 28 Cdo 2194/2002 - 89, are quashed.

 


REASONING

 


In

his constitutional complaint, which was timely submitted and formally

correct, the complainant sought the quashing of the above-indicated

judgments of the High Court in Prague (hereinafter “High Court”) and the

Supreme Court of the Czech Republic.  He stated in the constitutional

complaint that, in an interview for the daily newspaper, Lidové noviny,

he expressed an opinion which is based on the fact that in the 70’s and

80’s of the previous century, the field of popular music was restricted

politically (and he employed for this purpose, and with a certain degree

of exaggeration, the term “mafia”).  He further expressed the view that

H.V. also took advantage of these contacts from the former period.  In

this sense he was alerting the public to the fact that in the media

field there is a considerable degree of continuity of personnel from the

pre-1990 period, which otherwise followed from the evidence before the

ordinary courts.  The complainant criticizes the manner in which the

ordinary courts proceeded in that they did not assess all, rather only

some, of the admitted evidence and thereby infringed his right to fair

process.  Moreover, it is not clear from the reasoning of the ordinary

courts’ decisions why an apology should be printed also in MF Dnes, a

daily newspaper which was in no way connected with this dispute.  In the

complainant’s view, this case involves a conflict between two rights

and freedoms, namely the right to the protection of personhood, on the

one hand, and the freedom of expression on the other.  Ordinary court

jurisprudence up till now concerns itself rather with the protection of

personhood, whilst issues concerning the freedom of express are much

less frequently considered.  From a historical perspective that is in no

way surprising.  Also during the period of the Communist regime, the

courts often applied the provisions on the protection of personhood, but

naturally there could be no mention of some sort of protection of the

freedom of expression.  The ordinary courts thus violated his right to

the freedom of expression.  The complainant drew attention to the

divergent jurisprudence of the Supreme Court of the Czech Republic in

relation to other persons and made reference to the dispute, heard as

no. 30 Cdo 79/2001, with the former Prime Minister M.Z.  This divergence

constitutes an infringement of the principle of equality before the

law.
 

The complainant thus

proposed that the 25 July 2002 judgment of the High Court in Prague, no.

1 Co 106/2002 – 69, and the 24 April 2003 judgment of the Supreme Court

of the Czech Republic, no. 28 Cdo 2194/2002 – 89, be quashed.  They are

decisions in a dispute on the protection of personhood, heard before

the Municipal Court in Prague (hereinafter “Municipal Court”) under file

no. 32 C 10/2001, on the basis of the action filed by H. V.

(hereinafter “secondary party”) against the defendant-complainant.  In

its judgment, which is contested in the constitutional complaint, the

High Court modified the Municipal Court’s 14 January 2002 judgment

rejecting the claim, no. 32 C 10/2001 – 35, and ordered the complainant,

first, to send the plaintiff a personal letter of apology and, second,

at his own expense, to have an apology published in the dailies Lidové

Noviny and Mladá Fronta Dnes, in all cases the apology was to be worded

as it is in the statement of that judgment.  The complainant’s

extraordinary appeal against this High Court judgment was rejected on

the merits by the Supreme Court of the Czech Republic in its 24 April

2003 judgment, no. 28 Cdo 2194/2002 – 89.
 

In

conformity with § 42 paras. 3, 4 of Act No. 182/1993 Coll., on the

Constitutional Court, as subsequently amended (hereinafter “Act on the

Constitutional Court”), the Constitutional Court sought the views of the

parties to the proceeding and requested from the Municipal Court in

Prague its file no. 32 C 10/2001.
 

In its pleading, the High Court in Prague referred to its judgment in full.
 

The

Supreme Court of the Czech Republic stated that its judgment was based

on published case-law and that it did not find anything incorrect in the

decision of the High Court in Prague contested in the extraordinary

appeal.  The Supreme Court stated that it based its decision on

published case-law and found no error in the decision of the High Court

in Prague contested in the extraordinary appeal.
 

The

secondary party stated that the complainant’s thinking on what he meant

by the term, “Mafioso” is irrelevant.  The ordinary court decisions in

no way threaten the freedom of expression, as the complainant seems to

indicate, because the courts impose a sanction only in cases where the

freedom of expression has been abused.  Moreover, the manner in which

the complainant carried out his obligation to publish an apology in the

daily press was highly peculiar because, in addition to the text

required by the court, he also published his own attitude, including the

basic theses of the constitutional complaint itself.  She therefore

proposes that the constitutional complaint be dismissed as manifestly

unfounded.
 

As was

ascertained from file no. 32 C 10/2001 of the Municipal Court in Prague,

on 9 1 2001 the secondary party, in that case as the plaintiff, filed

against the complainant an action for the protection of personhood, in

which she sought, in the action’s three prayers for relief, that the

obligation be placed on the defendant: 1. to desist in his

unsubstantiated media attacks against the plaintiff, which both tied her

with unidentified Mafioso, and would otherwise create the impression

that in 1977 she signed the Anti-Charter [trans. note:  The Anti-Charter

was a document which the Communist regime pressed upon public figures

to sign to show their unqualified support for that regime, and to reject

the document to which it refers, Charter 77, signed by the most active

dissidents in the country]; 2. within three days of the judgment coming

into effect, to send the plaintiff a letter containing an apology

(formulated as proposed in the complaint) for the complainant’s

statements published on 6 October 2000 in an interview for Lidové noviny

within the context of the article “Girl’s War – Are Czech Singers still

even Singers?  Aren’t they just Painted Faces on Record Covers?”, as

well as for the statements in his submissions, on 16 and 23 October

2000, to the readers section of Lidové noviny; and 3. to publish at his

own expense in the dailies, Lidové noviny and MF Dnes, an apology

(formulated as proposed by the plaintiff), related to the defendant’s

statements made in Lidové noviny on 6, 16, and 23 October 2000, as these

submissions were capable of tarnishing her reputation among the wider

public.
 

The complainant

proposed that that action be rejected on the merits because in the

mentioned articles, he merely quotes from an 11 February 1977 ČTK [Czech

Press Office] report and from articles of the same date in the former

Rudé právo [trans. note, the former Communist Party daily newspaper] and

Mladá fronta, which make clear that the secondary party’s name was

listed among the signatories of the “Anti-Charter”.  As regards his

statement that H. V. did not lose “contact with the Mafioso who, in the

seventies and eighties, pushed her onto radio, television, and LPs”, and

that she is therefore now celebrating a “come back”, the complainant is

of the view that he has the right to express his view on the whole

cultural scene.  By this expression, he allegedly did not intend

anything other than that “unfortunately the existing practice in this

field is that, without contacts, even the very best singers will not get

into the limelight”.
 

The

Municipal Court took detailed evidence relating in particular to the

relations in Czechoslovak cultural scene, and popular music in

particular, in the 70’s and 80’s of the last century.  In its 14 January

2002 judgment on the merits, no. 32 C 10/2001 – 35, it then rejected

the claim in its entirety.  It did not find the first prayer for relief

to be well-founded because “the plaintiff chose the route of the media

to reproduce her views,” to which the complainant “repeatedly reacted”,

and such an exchange may not be judicially prohibited.  As regards the

requested relief of a letter of apology, the Municipal Court found that,

while the complainant’s statement on contacts “with Mafioso”

constituted an unjustified encroachment upon the secondary party’s

personal sphere.  Linking her with the mafia, when is generally

understood to mean “an international criminal syndicate”, connected with

“brutal violence, threats, abductions, etc.”, constituted a

disproportionate criticism.  The court concluded that, in terms of its

factual findings, the proposed wording of the apology did not correspond

to the ascertained unjustified encroachment, nor did it correspond to

the wording of the complainant’s statement.  As concerns the dispute

regarding her alleged signing of the Anti-Charter, the Municipal Court

observed that it is not evident why and for what reason the two parties

are engaging in a dispute as to whether or not she signed the

“Anti-Charter”.  It concluded that, at the end of the day, it is a

matter of taste as to which arguments music critics use in their music

critics.
 

In its 25 July 2002

judgment, no. 1 Co 106/2002 – 69, the High Court in Prague decided on

the plaintiff’s appeal against the Municipal Court’s judgment.  It

modified the Municipal Court’s judgment to the extent that it placed

upon the defendant the obligation, within three days of its judgment

coming into effect, to send the plaintiff a personal letter containing

an apology worded as follows:  “Dear Mrs. H.V., in my interview for

Lidové noviny, printed in the synoptic material on 6 October 2000, I

said of you, among other things:  ‘she evidently succeeded in not losing

contact with the Mafioso who, in the seventies and eighties pushed her

onto radio, television, and LPs.  She is now celebrating a come back in

Poland, and even with G. in Carnegie Hall.’  For this attack upon your

reputation I, therefore, apologize.  J. R.”
 

The

complainant was further ordered, at his own expense and within 15 days

of the judgment becoming final, to have printed in the daily newspapers,

Lidové noviny and MF Dnes, an apology reading:  In my interview for

Lidové noviny, printed on 6 October 2000 in an interview for Lidové

noviny in the article entitled “Girl’s War – Are Czech Singers still

even Singers?  Aren’t they just Painted Faces on Record Covers?” I said

of Mrs. H. V., among other things, that . . . she evidently succeeded in

not losing contact with the Mafioso who, in the seventies and eighties

pushed her onto radio, television, and LPs.  She is now celebrating a

come back in Poland, and even with G. in Carnegie Hall.  I therefore

apologize to Mrs. H. V. for this attack upon her reputation.  J. R.”
 

The

High Court rejected on the merits the proposal in the action that the

wording of the apology also contain the text:  “My speculation about

your not losing contact with the Mafioso was deceptive and was not

appropriate to your professional and social contacts”, as well as the

proposal that the word “good” be used in this context.
 

As

concerns the complainant’s statement about “contacts with Mafioso”, the

appellate court concluded that these are “factual assertions” and that

associating someone with the mafia, that is, members of an organization

that is generally conceived of as criminal, acting beyond the confines

of law, calls into doubt the honor and dignity of such person.  In the

given case the association of the plaintiff, a pop singer, and the mafia

is made in connection with her professional success, thus especially

her professional honor is cast into doubt.  In adjudging the meaning of

the word, “mafia”, what the complainant meant by it is not decisive,

since he would himself have had to analyze it in the article, which he

did not do.  The complainant did not prove the truth of his assertions,

that in the seventies and eighties the plaintiff had contacts with the

mafia, which she managed not to lost, and due to this she is enjoying a

come-back.  The appellate court did not agree with the complainant’s

objection that the plaintiff, who is a pop singer and thus a person of

public interest, must put up with lesser restrictions on the criticism

of her, since, in the appellate court’s view, even persons of public

interest are not obliged to tolerate untrue factual assertions, as was

the case in this matter.
 

The

appellate court devoted some attention to the relationship between Art.

10 and Art. 17 of the Charter, which rights are, in its view, in

principle equal.  With reference to judgment no. I. US 156/99, which the

complainant employed in his argument, the appellate court inferred

that, in weighing the priority of one right over the other, the

circumstances of the specific matter must always be taken into

consideration.  The appellate court stated “[p]recisely the

circumstances of the matter at issue argue in favor of the priority of

the plaintiff’s right to the protection of personhood, for to make

public information about the plaintiff, the truth of which was not

proven in the proceeding, is an abuse of the right to the freedom of

expression.”
 

The

complainant submitted an extraordinary appeal against the appellate

court decision.  He called attention to the fact that his statements

regarding the secondary party have a figurative meaning.  According to

him “it is simply not possible to believe that, when reading the survey

at issue, a reader who reached the word ‘Mafioso’ did not understand

this word in the way it was meant by the appellant (now complainant). 

No reasonably thinking reader could, in view of the context of the

statement, actually think that the complainant was accusing the

plaintiff of contacts with a classical criminal organization, a mafia of

the Italian or American type.”  The complainant emphasized he had not

stated that the plaintiff’s professional success could be attributed

solely to the mentioned contacts she had with “Mafioso”.  In the

complainant’s view, the factual finding to the effect that the

plaintiff’s professional reputation was harmed finds no support in the

evidence taken.
 

In its 24

April 2003 judgment, no. 28 Cdo 2194/2002 – 89, the Supreme Court of the

Czech Republic rejected the complainant’s appeal on the merits.  It

referred in its reasoning to, among other things, a decision published

as no. 15/1996 in the Collection of Judicial Decisions and Positions, in

which the Supreme Court of the Czech Republic adopted the unambiguous

proposition of law that the mere publication of false information,

touching upon the personality of a natural person, generally constitutes

an unjustified encroachment upon that person’s right to the protection

of her personhood, justifying the requirement of just satisfaction

pursuant to § 13 par. 1 of the Civil Code (hereinafter “CivC”). 

According to the Supreme Court of the Czech Republic, in principle every

untrue assertion or accusation is an unjustified encroachment that

impinges upon the rights of natural persons protected in the sense of §

11 of the Civil Code (with reference to the jurisprudence published in

Anthology III - The Supreme Court of the Czech Republic, SEVT, Prague,

1980, pp. 172 and 193).  In order to successfully assert the right to

the protection of personhood, it is sufficient to find that the

encroachment was, objectively considered, capable of disrupting or

threatening the right protected by § 11 CivC.  It is not required that

such encroachment resulted in consequences (with reference to the

constant jurisprudence).  The Supreme Court of the Czech Republic

concluded that the extraordinary appeal was not well-founded as “the

defendant published a statement that encroached upon the plaintiff’s

right to the protection of her personal rights, but it was not proven in

the proceeding that the defendant’s verbal statement corresponded to

the facts and that it was true.”
 

On

the basis of the final court order for the carrying out of the decision

the complainant apologized to H. V., both in his letter of 30 May 2003

and on the pages of the 23 June 2003 editions of Lidové noviny and MF

Dnes.
 

It was ascertained

from the appendix attached to the file that, on 6 October 2000, an

article entitled “Girl’s War – Are Czech Singers still even Singers? 

Aren’t they just Painted Faces on Record Covers?” was published on pp.

10-14 of the Lidové noviny Friday supplement.  The article dealt

extensively with the relations in Czech pop music; in particular, it

noted that Czech pop music “is ruled” by eight female singers who do not

allow any other aspirants to compete with them.  In this connection,

the introduction posed, among others, questions about the principles

upon which the world of Czech female singers functions, why “do the same

ladies always remain at the top”, to what extent does their popularity

depend upon their presentation in the media, etc.  In addition to those

of other personalities, the article also extensively cited the views of

the complainant, who already in the introduction was presented as “from

among the most critical of critics”.  The complainant there stated,

among other things, that he considered the world of Czech female

pop-music as a “strange community which is closed off and refuses to let

in anyone else from the world of Czech music”.  According to another of

the complainant’s statements “it’s as if in Czech show business there

is in place an opposition agreement. [trans. note – This is in reference

to an agreement (in effect for the years 1998-2002) between the two

largest political parties, which was commonly understood as an effort to

squeeze smaller political parties out of the political scene]  No new

talent can establish itself there. . . .  Behind everything is the

stable which supports the singers.  And the mentioned young ladies or

women are popular, even though nobody actually knows why” (p. 11 of the

mentioned Lidové noviny supplement).  The complainant then gave his

views altogether on eight of the most popular Czech female singers,

among others, of L. B. he said, “I must praise the manner in which she

managed to free herself from the tight clutches of various cads who were

taking advantage of her at the time when ‘Disobedient Tennis Shoes’ was

playing on the radio”; about I. B. he said, among other things, “[s]he

is a singer with good technical skills but, had it not been for Š., I

cannot imagine how she would have established herself”; about H. V., “We

can view her in several ways – also as on a person who like other men

and women of pop-music was entangled with the former regime.  Except she

evidently succeeded in not losing contact with the Mafioso who, in the

seventies and eighties pushed her onto radio, television, and LPs.  She

is now celebrating a come back in Poland, and even with G. in Carnegie

Hall.  To sing in a very moving way for the suspected buddy of Š, the

Czech-American, J. . . .  ” (this is the statement that became the

subject of the court dispute and is also the subject of this

constitutional complaint); about D. R., “Marvelous, advantaged girl from

Slovakia who was supported by the Štaidlian mafia, pardon, the selfless

ones ‘ringing out normalization bliss’ ” (quotation marks in the

original).
 

In addition to

the complainant, also one of the analyzed performers, the singer L. M.,

assessed what is happening behind the scenes in pop-music in the same

way:  “The world of show business is really very tough.  The harms,

lashes and intrigues, calling into doubt your results, the blurring of

the facts of the matter, the superficial evaluations . . . All this

occurs behind the scenes.  It is a contest among record companies, a

battle over how of them can manage to magnify their project or thwart

someone else’s project.  It is brutal and perverse.”
 

The

article is then concluded with the following observation:  “It may be

necessary to stand music critics on their head – and the world of Czech

female singers will continue to be a world that is impervious and

indestructible.  The one thing that can be wished is that the tabloids

endeavor to ‘make’ a star whom we can not only look at but also listen

to” (quotation marks in the original).
 

On

14 October 2000 Lidové noviny published in its weekend supplement an

extensive interview with the secondary party entitled “Was I Supposed to

Emigrate?” and the subtitle “H. V. – 35 Years at the Top”.  According

to the secondary party’s own pleading in her lawsuit, the interview was

conceived as a response to the complainant’s views appearing in Lidové

noviny on 6 October 2000.  The interview was published on two large

pages of the newspaper format.  In the interview, she reacted to the

complainant’s statement on “contacts with Mafioso” as follows:  “And

that second invective was from the pen of Mr. R, wasn’t it?  If he

writes about me scurrilously that I was the regime’s female singer, then

he must have been its scribbler, as in the same period he wrote his

articles and for that took money from the regime.  I don’t care in the

least what Mr. R. wrote.  I think that the results of my work speak for

me quite adequately, as does its reception by real and serious critics,

both here and abroad.  . . .  And these political attacks are just

feeble fabrication and slander.  And as you know, you can’t effectively

fight against a person’s slander.  My friends and colleagues in the

business know very well about my political positions.”  In that

interview the secondary party rebuffed the assertion that in 1977 she

perhaps signed the “Anti-Charter”.
 

The

complainant’s reaction to the mentioned interview was published on 16

October 2000 in the next following edition of Lidové noviny, in the

column “” with the title, “Ohh, that Memory of H!”  In a brief

contribution the complainant cited the 11 February 1977 edition of Rudé

právo as evidence of the fact that the secondary party is mentioned as

one of the signers of the “Anti-Charter”.  Her reaction to the

complainant’s contribution was published in Lidové noviny on 16 October

2000 with the title, “I am not a Liar”.  In it she emphasized that she

had never signed the “Anti-Charter” as she was on a tour abroad at the

time.  In the following issue of Lidové noviny (on 23 October 2000), the

complainant gave his response in a brief contribution entitled “Another

Attempt by H”, in which he rejected H. V.’s arguments.
 

With

reference to its constant jurisprudence, the Constitutional Court is

obliged in considering and deciding upon each constitutional complaint,

first and foremost, to respect the fact that it is not empowered to

intervene in the judicial work of ordinary courts as it is not the

summit of that court system (Art. 91 of the Czech Constitution) and,

therefore, may not arrogate to itself the right of review over their

decision-making.  The condition for respecting this principle, however,

is observance of the condition that, in their decision-making, courts

proceed in accordance with the constitutional order.
 

As this condition was not respected in the instant case, the constitutional complaint is well-founded.
 

According

to Art. 10 par. 1 of the Charter, everyone has the right to demand that

his human dignity, personal honor, and good reputation be respected,

and that his name be protected.  According to Art. 17 par. 1 of the

Charter, the freedom of expression is guaranteed.  According to the

second paragraph of that Article, everyone has the right to express his

views in speech, in writing, in the press, in pictures, or in another

form.  Both Article 10 and Article 17 of the Charter express basic

constitutional values in the legal order of the Czech Republic, a

democratic law-based state.  The constitutionally guaranteed right to

express one’s views is restricted in content by the rights of others, in

particular the rights laid down in Art. 10 of the Charter.  The

conflict of both rights plays out on the sub-constitutional plane, for

example, in the application of § 11 and following of the Civil Code, as

was the case also in this matter.  In applying such statutory

provisions, a judge must always bear in mind the constitutional

dimension of the application of a statute which expresses the

accommodation of those constitutional rights.  As the Constitutional

Court has repeatedly brought to their attention, one of the functions of

the Czech Constitution, more especially so the provisions concerning

fundamental rights and basic freedoms, is its “radiation” throughout the

entire legal order.  The spirit of the Czech Constitution consists not

only in laying down the fundamental rights and basic freedoms, as well

as the institutional mechanism and process of formation of legitimate

decisions by the state (or public authorities), not only in the directly

binding nature of the Czech Constitution and in its status as a direct

source of law, but also in the necessity for state bodies, or public

authorities, to interpret and apply law from the perspective of the

protection of fundamental rights and freedoms.  In individual cases that

entails the obligation of courts to interpret particular statutory

provisions in the first place from the perspective of the purpose and

spirit of the constitutionally guaranteed fundamental rights and basic

freedoms (compare, for example, Judgment No. III. US 139/98, Czech

Constitutional Court:  Collection of Judgment and Rulings, vol. 12, p.

97).
 

The importance in

individual cases of rights and freedoms that are in opposition is found

in the specific circumstances of the matter, the hierarchy of societal

values and the constitutional foundations of the legal order.  As legal

doctrine points out, “the problem of relative preferences is not - and

frequently even cannot or should not be – resolved by the route of

legislation in valid law, so that they tend to be resolved in further

developing the law by the route of interpretation when they are applied”

(Boguszak, J., On the Theory of Law Creation (values, norms, and legal

principles), in The Law Faculty of Charles University, 1348-1998,

Jubilee Festschrift, Prague 1998, p. 168).  In the case of a conflict

between the freedom of expression and the right to the protection of

personhood, that is, of fundamental rights which are of the same legal

force, first and foremost it will always be up to the ordinary courts to

resolve, taking into consideration the circumstance of each individual

case to carefully weigh whether one right has not unjustly been accorded

priority over the other right (compare, for ex., judgment no. IV. US

154/97, Constitutional Court of the Czech Republic: Collection of

Judgments and Rulings, Vol. 10, p. 112).
 

The

Constitutional Court may not intervene into the decision of an ordinary

court merely due to the fact that it would itself measure the

constitutional values and fundamental rights differently and would thus

reach a different conclusion.  However, the Constitutional Court shall

intervene and protect fundamental rights to the extent that the ordinary

courts committed error in assessing the significance of the fundamental

right or basic freedom.  As a general matter, the more serious the

ordinary court’s encroachment upon a certain right, the more

thoroughgoing must be the Constitutional Court’s review of the ordinary

court’s decision (compare, the analogous jurisprudence of the Federal

Constitutional Court, published as BVerfGE 42, 143 [pp. 148-149]).
 

The

Constitutional Court is of the view that the ordinary court did not

take sufficiently in to account the constitutional law nature of this

matter.  In its decision, the Supreme Court of the Czech Republic gave

no consideration to the constitutional aspect of this matter.  The High

Court, the appellate court in this matter, dealt with it in a single

brief paragraph in which it reached the conclusion, without any

arguments whatsoever, that the freedom of expression was not violated in

this matter.  The ordinary courts thereby accorded unjustified priority

to one basic right over another, while their encroachment upon the

complainant’s freedom of expression, as will be explained below, must be

evaluated as very serious and as a threat to public discussion on

events behind the scenes in popular music, which is a matter of public

interest.

The ordinary courts

considered the complainant’s statement, to the effect that H.B.

“evidently succeeded in not losing contact with the mafia, which in the

70’s and 80’s pushed her onto radio, television, and LPs”, as an

assertion of fact.  According to the ordinary courts, since the

complainant was unable to demonstrate the truth of this “fact”, he could

not prevail in this dispute.  As follows from the long-term

jurisprudence of the European Court for Human Rights, a value judgment

and an assertion of fact differ in a fundamental way.  Whereas the

existence of a fact can be proven, the truthfulness of a value judgment

is not demonstrable, because a value judgment does not describe a fact,

rather it more or less freely interprets it (this point was analyzed in

detail, for example, in the case of Lingens v. Austria (1986), par.

46).  While the assertion of certain false facts can, without more, even

be generally prohibited, the articulation of value judgments, even

controversial ones, in principle enjoys constitutional protection

(compare, for ex., BVerfGE 90, 241, on the one hand, and BVerfGE 90, 1,

on the other ).
 

In view of

the fact that it cannot be fulfilled, the requirement to prove the

truthfulness of a value judgment is, in and of itself, a violation of

the freedom of expression.  That does not mean that value judgments are

entirely incontestable in the context of a proceeding on the protection

of personhood.  Where some statement constitutes a value judgment, the

appropriateness of the interference with the rights of personhood can

depend upon whether there exists a sufficient factual basis for the

contested statement, since even a value judgment can be excessive, if it

lacks any factual basis whatsoever [compare the decisions of the

European Court of Human Rights in the matter, De Haes a Gijsels v.

Belgium (1997) and Oberschlick v. Austria (No. 2) (1997)].
 

The

issue whether the complainant’s statement concerning H. V.’s contacts

“with the Mafioso who, in the seventies and eighties pushed her onto the

media”, was an assertion of fact or a value judgment cannot be

established solely on the basis of one isolated sentence, as the

ordinary court have done.  The Constitutional Court has ascertained from

the above-mentioned appendices to the Municipal Court’s file that the

article, “Girl’s War – Are Czech Singers still even Singers?  Aren’t

they just Painted Faces on Record Covers?”, extensively and critically

dealt with the relation in Czech pop-music, especially various

behind-the-scenes influences and pressures of the most diverse music

managers and recording companies.  At another point, the complainant

says that he considers the world of Czech female pop-music as a “strange

community which is closed off and refuses to let in anyone else from

the world of Czech music”:  “Behind everything is the stable which

supports the singers.  And the mentioned young ladies or women are

popular, even though nobody actually knows why” (p. 11 of the mentioned

Lidové noviny supplement of 6 October 2000).  He also speaks to the

circumstance that important personages of Czechoslovak pop-music even

today influence the Czech media scene.  In this sense the Constitutional

Court concurs with the complainant that in no case can an average

reader, who reads the mentioned word in the overall context of the

article, understand the complainant’s critique of the secondary party

such that she is, as a singer, in contact with members of the mafia,

that is “an international crime syndicate” connected, in the words of

the Municipal Court in Prague, with “brutal violence, threats,

abductions, etc.”  In the overall context of the article, the

complainant’s statements are not assertions of fact, but value

judgments.  To the extent that the ordinary courts required that such

value judgment be proven, they proceeded unconstitutionally and violated

both Art. 17 par. 2 of the Charter and Art. 10 of the Convention.
 

In

order for a value judgment not to overstep the limits that are

constitutionally protected, it is generally required that it have a

certain foundation.  In evaluating the foundation of a value judgment,

it is necessary to take into consideration the entire article, and not

just the one or two sentences at issue as the ordinary courts have done,

as well as the overall societal context in which a certain statement is

made [compare the decision of the European Court of Human Rights in the

Feldek v. Slovakia (2001), par. 86, interpreting the value-laden

adjective, “fascist”].
 

It is

evident from the article that it was conceived as a critical

contribution and that the complainant, as a music critic, was sought out

as “from among the most critical of critics”, which is stated at the

very beginning of the article.  The complainant makes a very negative

evaluation of the producers from the period of the Communist regime, for

ex., where he says of L. B. that she was “in the clutches of various

cads who were taking advantage of her at the time when ‘Disobedient

Tennis Shoes’ was playing on the radio” (that is, at the end of the

1980’s), or of I. B. that her success in becoming established is

attributed, in particular, to the influence of “Š”.  The term, “mafia”,

is not employed solely in relation to H. V., but also in relation to D.

R. who, according to the complainant “was supported by the Š mafia,

pardon, the selfless ones ‘ringing out normalization bliss’.”  In this

statement appearing on p. 12 of the cited article, the complainant even

indicates what he means by the terms, “mafia” or “Mafioso”.  In the

Constitutional Court’s view there is no doubt that the complainant had a

definite foundation for the use of the terms, “mafia” or “Mafioso”, for

a expressive, polemical, and controversial evaluation of what went on

behind the scenes in popular music; a certain foundation was also

afforded him by the statements of one of the singers in the cited

article (“The world of show business is really very tough.  The harms,

lashes and intrigues, calling into doubt your results, the blurring of

the facts of the matter, the superficial evaluations . . . All this

occurs behind the scenes.  It is a contest among record companies, a

battle over how of them can manage to magnify their project or thwart

someone else’s project.  It is brutal and perverse.”).  Moreover, the

complainant’s value judgment rested upon information that was generally

known to the wider public (for ex., the comeback of producers who had

significant influence on popular music prior to 1990).
 

It

is true that publicly disseminated opinions should, in principle, not

overstep the line of the rules of decency generally recognized in

democratic society, otherwise they would lose their character as proper

judgments or commentary and, as such, could fall outside the bounds of

constitutional protection (compare judgment no. III. US 359/96, Czech

Constitutional Court:  Collection of Judgment and Rulings, vol. 8, p.

367).  The Constitutional Court concurs with the jurisprudence of the

European Court of Human Rights according to which the freedom of

expression represents one of the most important foundations of

democratic society and one of the main conditions of the advancement and

development of each individual.  As such the freedom of expression

relates not only to “information” or “ideas” that are favorably received

or considered as innocuous or insignificant, but even those which

injure, shock, or disturb:  such is required for pluralism, tolerance,

and a spirit of openness, without which there would be no democratic

society.  Compare, for example, the decision, Fuentes Bobo v. Spain

(2000).  It is a foundational principle of contemporary Euro-Atlantic

society that also exaggerated and excessive opinions, and even opinions

which are insulting to some, if they are presented in a public or

political debate, are constitutionally protected opinions [compare the

decisions of the Federal Constitutional Court, BVerfGE 61, 1 and BVerfGE

90, 1, or the decision of the Supreme Court of the United States in New

York Times C. v. Sullivan, 376 U.S. 254 (1964)].  The Constitutional

Court has repeatedly expressed the view that, due to the significance of

the freedom of expression under Art. 17 par. 1 of the Charter, each

opinion, viewpoint, or criticism is in principle permissible (compare

judgment no. II. US 357/96, Czech Constitutional Court:  Collection of

Judgments and Rulings, vol. 9, p. 355), and that any limitation placed

upon the freedom of expression is thus an exception which must be

restrictively interpreted and which can be justified solely by

qualifying circumstances.
 

Apart

from the above-stated arguments, the ordinary courts must also be

reproached for not giving sufficient consideration to the status of the

secondary party.  It can generally be stated that persons who are active

in the public, politicians, public officials, media stars etc., must

bear a greater degree of criticism than other citizens.  The

jurisprudence of the European Court of Human Rights is also built upon

this principle [in greater detail, for example, in the matter of Lingens

v. Austria (1986)], just as is the jurisprudence of the Supreme Court

of the United States – compare, for example, New York Times Co. v.

Sullivan, 376 U.S. 254 (1964) and Gertz v. Robert Welch, Inc., 418 U.S.

323 (1974).  There is a dual basis for this principle.  On the one hand,

it encourages the public discussion of public affairs and the free

formation of opinions.  So as to allow for the greatest possible

plenitude of discussion of public affairs, it should be regulated by

state authority solely to the extent absolutely indispensable (compare

Art. 17 par. 4 of the Charter).  In addition, the state accepts that its

authoritative interference with the freedom of expression, for the

purpose of protecting the good name of other citizens, should be

subsidiary, that is, employed only in the case that such harm cannot be

cured by some other means.  Such harm can be cured by means other than

interference by the state, for example, by use of permissible

possibilities to oppose controversial and misleading opinions.  Thus, it

is often possible to minimize the damaging consequences of

controversial statements by far more effective than by means of a

judicial proceeding.  For persons active in public life, whether they

are politicians or publicly known persons, it is generally the case that

they enjoy much easier access to the media and thus have far greater

possibilities to refute information which they themselves consider to be

fabricated.  For this reason as well, the judicial protection of the

good name of such publicly active persons is realized to a lesser degree

than the protection of the good name of anyone else, who has a far

smaller spectrum of opportunities to enter into public discussion than

persons who are publicly active.
 

These

theoretical premises are fully applicable in this case.  A discussion

of what goes on behind the scenes in Czech popular music is a discussion

on public affairs.  It is typically political issues which qualify as

public affairs, but so to do issues connected with societal, cultural,

sports, and other themes.  For this reason, state authority can regulate

the discussion of these issues only in exceptional cases and only to a

degree that is indispensably necessary.
 

It

is beyond doubt that, as the secondary party is a pop singer, she is a

person active in public life.  As such she has substantially easier

access to the media than does any “ordinary” citizen.  As the secondary

party otherwise herself admits in her 4 January 2001 complaint, the

two-page interview, printed in Lidové Noviny on 14 October 2000, was

conceived (in her words) as a “commensurate response” to the

complainant’s statements contained in the article, “Girls War”.  In this

sense it is not for the courts to intervene in the public discussion

between the complainant and the secondary party, as public discussion is

the very best means for the formation of opinion and the search for

answers to questions of the type which this matter concerns.  In similar

matters, a judicial decision will seldom be purposeful; on the

contrary, as a rule it will represent an unconstitutional restriction of

the freedom of expression.
 

The

Constitutional Court concludes that the ordinary courts acted

unconstitutionally, due to the fact that they interpreted the

significance of the word, “mafia”, as an assertion of fact,

corresponding to the alleged participation of the secondary party –

singer in organized crime, as they demanded, in conflict with Art. 17

par. 2 of the Charter and Art. 10 of the Convention, that a value

judgment be proved, which in essence is not possible.  Moreover, the

ordinary courts acted entirely arbitrarily by failing to take into

consideration other meanings of the words, “mafia” and “Mafioso”, the

meanings which the complainant proposed to them which bear no connection

to a criminal organization founded on murders and abductions, rather

criticizing a society founded on connections and non-transparent

relations.  With respect to the context of the whole affair as well as

of the significance of the complainant’s statements, these other and

broader meanings of the words, “mafia” and “Mafioso”, appear far more

probable than meaning to which the ordinary court judgments attributed

to them, which is entirely improbable and does not at all seem to fit in

the context of the article.  The Constitutional Court cannot fail to

take into account the fact that the secondary party, as a pop singer, is

a person known to the public who must bear a greater degree of

criticism than citizens who are not in the public eye; moreover, on her

own she has sufficient opportunities to present through the media her

disagreement with the complainant’s view.  It is up to the readers, and

not the court, to judge for themselves whether or not the complainant’s

assessment of the situation in Czech popular music is reasonable and

persuasive.
 

In view of the

other above-stated arguments, by this judgment the Constitutional Court

has, pursuant to § 82 par. 3 lit. a) Act No. 182/1993 Coll., on the

Constitutional Court, granted the constitutional complaint and quashed

the designated ordinary court decisions due to their conflict with Art.

17 par. 2 of the Charter of Fundamental Rights and Basic Freedoms and

Art. 10 of the Convention for the Protection of Human Rights and

Fundamental Freedoms.

Notice: A Constitutional Court judgment may not be appealed.

Brno 15 March 2005