2005/11/11 - I. ÚS 453/03: Human Dignity

11 November 2005

HEADNOTES

All

the agendas of state institutions, as well as the activity of persons

active in public life, e.g. the activity of local and national

politicians, officials, judges, attorneys, or candidates or trainees for

these offices are a public matter; of course, the arts, including

journalistic activities and show business, and everything which attracts

public attention, are also a public matter. These public matters, or

the public activities of individual persons, may be judged publicly. In

constitutional terms, the criticism of public matters carried out by

publicly active persons is subject to the presumption that the criticism

is constitutional. This is the expression of a democratic principle,

the expression of participation in public matters by members of a civil

society.     
The presumption of constitutionality protects only an

evaluative judgment, not the claiming of facts, which the critic himself

must prove by evidence to the degree that they served as the basis for

the criticism.
 

Another

general rule which can be derived from European case law is that if

anyone wishes to publish information of a defamatory nature about

someone else, his conduct can not be considered reasonable or legitimate

unless he proves that he had reasonable grounds for relying on the

truthfulness of the defamatory information which he disseminated, unless

he proves that he took proper available steps to verify the

truthfulness of that information, to a degree and in an intensity in

which it was possible for him to verify the information, and finally,

unless he himself had no grounds to believe that the information was

untrue.

The

publication of such information also can not be considered reasonable

if the disseminator of the information does not verify its truthfulness

by inquiring of the person whom the information concerns, and does not

also publish that person’s position, with the exception where such steps

are impossible or evidently unnecessary.

 

To evaluate the legitimacy of publishing information it is important to

examine the motive for its publication. It can not be concluded that

publication of information was legitimate if the dominant motive for it

was the desire to damage the defamed person, if the disseminator himself

did not believe the information, or if he provided it irresponsibly,

without due concern for whether it was or was not true.

 

Honor is also an integral and important component of human dignity. It

also forms the basis of many decisions made my members of a democratic

society, which are fundamental for it to function well. Honor plays a

role in relationships, such as whom an employer hires, or whom an

employee wants to work for, it is decisive in decisions about who is to

advance to higher employment or official positions; honor is important

for deciding with whom to begin business relations or whom to vote for

in political life. If honor is once sullied by an unsubstantiated

accusation expressed publicly, and all the more so in the media, a

person’s reputation and honor can be damaged forever, and especially in a

situation where there is no possibility of rehabilitation. If such a

situation arises, both the person himself and the society lose. And it

is precisely for that reason that one can not assume that protection of

reputation, or honor, is an important matter only for the affected

individual or his family. For these reasons the protection of reputation

or honor must be seen as protection of a public good. Therefore, it is

in the public interest for the honor and reputation of persons active in

public life not be discussed at factually altered levels. Both in the

field of politics and in the media a voter must be able to distinguish

good from evil, so that he can in the end make an informed choice in

relation to a politician and to the media.

 

The fundamental right to honor is exercised in multiple spheres: the

private sphere, the societal, civil and professional spheres; the last

three can be described as the social sphere. The first sphere actually

involves protection of privacy, where the right to honor is undoubtedly

also applied. It is fundamentally up to each individual, what from that

sphere, and to what extent, he will release as information for the

outside world.

 

The societal, civil and professional levels reflect the social nature

of the fundamental rights, or reflect the fact that an individual lives

in a society, and enters into communication with its other members, and

through his conduct, or even through his very existence, influence other

members of the society.

 


CZECH REPUBLIC

CONSTITUTIONAL COURT
JUDGMENT


IN THE NAME OF THE REPUBLIC

 


A

Panel of the Constitutional Court of the Czech Republic, composed of

its Chairwoman Michaela Židlická, judge Eliška Wagnerová

(Judge-Rapporteur) and Vlasta Formánková decided on 11 November 2005 in

the matter of a constitutional complaint filed by the complainant I. B.,

represented by JUDr. H. Ch., attorney, against a decision by the High

Court in Prague of 6 December 2001, file no. 1 Co 147/2001, and a

decision by the Supreme Court of the CR of 21 May 2003, file no. 28 Cdo

1395/2002, with the participation of the High Court in Prague and the

Supreme Court of the CR as parties to the proceedings, as follows:

 

I.

The decision of the High Court in Prague of 6 December 2001, file no. 1

Co 147/2001, and the decision of the Supreme Court of the CR of 21 May

2003, file no. 28 Cdo 1395/2002 violated the complainant’s fundamental

rights to preservation of his personal honor and good reputation

guaranteed by Art. 10 par. 1 of the Charter of Fundamental Rights and

Freedoms.

II. Therefore, these decisions are annulled.


 

REASONING


I.
 

In

a constitutional complaint sent to the Constitutional Court by the

deadline provided by Act no. 182/1993 Coll., on the Constitutional

Court, as amended by later regulations (the “Act on the Constitutional

Court”), the complainant seeks the annulment of the decisions cited in

the introduction because he believes that the decisions of the general

courts violated his constitutionally guaranteed fundamental rights,

specifically the right to personal honor and a good reputation under

Art. 10 par. 1 of the Charter of Fundamental Rights and Freedoms (the

“Charter”), and the right to judicial protection under Art. 36 par. 1 of

the Charter.
 

In the

decision cited in the introduction, the appeals court amended a decision

by the City Court in Prague of 28 February 2001, file no. 37 C 115/99 –

100 by denying the complainant’s complaint that the defendant (the

secondary party, Ing. M. Z.) arrange the publication of an apology in

the daily newspaper Mladá Fronta DNES within 15 days after the decision

went into effect, with dimensions of at least 8.5 cm (two columns ) x 3

cm, in the editorial section of the newspaper, with the following

wording: “I apologize to the journalist I. B. for untrue statements

saying that he wrote at the order of České energetické závody [Czech

Energy Company], with whom he had a confidential agreement, and for

accusing him of corruption” and that he pay the complainant CZK 300,000.

The appeals court also awarded compensation of trial costs.
 

The

complainant filed an appeal against this decision, on which the Supreme

Court of the CR ruled in the decision cited in the introduction, and

denied under § 243b par. 2 of the Civil Procedure Code.
 

In

his constitutional complaint, the complainant states that, in his

journalism he focuses primarily on ecological topics. The grounds for

the above-mentioned court dispute were several verbal attacks by the

secondary party, in the office of prime minister, against the

complainant, which took place in the Chamber of Deputies on 29 June

1999, in a Česká Televize [Czech Television] program on 30 June 1999, in

broadcasts on the station Český rozhlas – Radiožurnál on 3 July 1999,

and at a press conference in the Lidový dům [People’s House] on 16 July

1999. According to the complainant, the secondary party expressly stated

in the Chamber of Deputies, referring to testimony from the general

manager of ČEZ, Ing. Č., this claim: “Since you constantly want some

concrete evidence of corruption among journalists, let me give you some.

There is a journalist named I. B. This journalist wrote for the

magazine Reflex and may still write for it. This I. B. wrote articles in

support of the completion of the Termelín nuclear power plant. There’s

nothing wrong with that, of course. I, as you well know, also support

completion of that electric power plant. However, this I. B. had a

confidential agreement with České energetické závody, which means that

he wrote at the order of České energetické závody, and that’s what I

consider a form of corruption.” In the Česká televize program the

secondary party allegedly added to that claim: “And if you’ll allow me,

you will be the first journalists whom I’ll tell something which I have

not yet had an opportunity to say. You know that yesterday I accused the

editor I. B., who subsequently filed a criminal report against me, of

being paid – in whatever manner - for his articles supporting the

completion of the Temelín nuclear power plant, by the company ČEZ. I

know that the ČEZ press secretary denied this report. Of course, I also

know that about a month ago the general manager of ČEZ, Mr. Č., informed

me that the agreement had been entered into, and that he had cancelled

it. What does that indicate? In that case either the press secretary of

ČEZ is not telling the truth, or the general manager of ČEZ is not

telling the truth. And that alone is reason enough to investigate these

matters, whether they concern foreign countries, whether they concern

transportation, whether they concern energy, because corruption is

terribly hard to prove.” In the broadcast on Český rozhlas – Radiožurnál

the secondary party allegedly said this: “I publicly give you the

following information, that some time ago, about a month ago, I watched a

TV program which I think is called “Nahraně,” and that program

contained discussions about Temelín. There, with Mr. B. present, an

environmental activist accused him of writing articles supporting

nuclear energy for ČEZ, for ČEZ’s money. However, by coincidence,

shortly afterwards, because he was invited to a government meeting about

Temelín as an expert, I met with the new general manager of ČEZ, Mr. Č.

And I told him: look, Mr. Č., I support the completion of Temelín, but I

heard in this program that Mr. B. is writing about you for your money,

under an agreement. And I think that that isn’t right, that everyone

should promote himself through his opinions, not through corruption. Mr.

Č. then said to me, literally, and in the presence of witnesses: Mr. B.

is not our employee, he only has a contract with us. I took note of

that information. But allow me to continue. Mr. Č. is now saying that he

gave me erroneous information. He issued a statement to that effect.

Fine, then I will tell you something else. A few weeks after that – and

now, to tell the truth, I don’t know where, it was at some reception

where we met – the general manager, Mr. Č., came to me and told me: I

cancelled that contract with Mr. B. And I took note of that. And now I

ask you both, because you’re editors, a simple question: all right, I

admit that I could be mistaken and that perhaps no such contract exists.

To err is human. But can you cancel contracts that don’t exist?” At a

press conference in Lidový dům, in response to a direct question from

the complainant, whether there is evidence of his corruption, the

secondary party answered: “The course of your case has been the

following. Phase number one: in the TV program “Nadoraz” you were

accused by an environmental activist of writing propaganda materials for

ČEZ for money. You were present at that program, and I don’t want to

elaborate on it now, because that was really phase number one. In other

words, this accusation came from a different person, and publicly, even

before coming from me. Phase number two: in the presence of witnesses I

asked the general manager of ČEZ, Mr. Č., and said, although I support

nuclear energy, just like you do, but I consider it somewhat immoral

when your company pays for articles by journalists, if what was said in

the program “Nahraně” is true. I can publicly say that the general

manager of ČEZ said: Mr. B. is not our employed, but he has a contract

with us. And he said that in the presence of witnesses. And phrase

number three, Mr. B.: shortly afterwards Mr. Č. was in the presence of

witnesses again at some reception in the Lichtenštejn Palace and

informed me that he had cancelled the contract with you. So these are

three absolutely clear arguments on which I rely.”
 

The

complainant is aware that, just like politicians, so he too, as a

journalist, is subject to heightened scrutiny, and must bear possible

criticism for his opinions and positions; nonetheless, such criticism

may not be untrue, or, with regard to character, a dishonoring

accusation. Because the complainant considered the above-mentioned

accusation of corruption to be considerable detriment, which endangered

his honor and good reputation in professional circles and in society

(and he didn’t have long to wait for the consequences), he asked the

general courts to protect his honor and dignity.
 

The

above-mentioned decision by the court of the first level granted the

complainant’s complaint, but that decision was then changed by decision

of the appeals courts. The complainant criticizes the two appeals

courts, saying that their decisions interfered in his fundamental right

to personal honor and a good reputation, as well as in his right to a

fair trial. The complainant argues that he is aware that criticism of an

individual’s conduct which is based on circumstances about which true

information is given can not generally be considered inconsistent with §

11 of the Civil Code, even if the criticism used a corresponding

measure of irony, condemnation and repudiation of the criticized conduct

of the individual. In contrast, the use of criticism, irony,

condemnation and rejection of the conduct or activity of an individual

about which untrue information is given is generally palpable,

unjustified interference in the individual’s right to protection of his

personality, and this involves considerable intensity of unjustified

interference, which will usually have unfavorable consequences on the

afflicted person’s status. As the complainant says, the secondary

party’s accusation was the first accusation of corruption of a

journalist by name, and it involved suspicion of corruption by an

industrial concern, which, from the point of view of a journalist, is

considered the worst. The complainant is afraid that he will be

disadvantaged in any future expert dispute with environmental activists

for this reason. The complainant specifically disagrees with the opinion

of the appeals court which found the information about the corruption

of the complainant to be true, because the secondary party obtained it

from a trustworthy person. The complainant objects that the testimony

before the court of the first level and before the appeals court was

inconsistent on many points, and appears untrustworthy and self-serving.

He certainly cannot agree that calling a journalist corrupt was

actually the exercise of the right to criticize, which can not be

subject to proof of truthfulness. Primarily, however, the complainant

believes that the secondary party can not rid himself of responsibility

by pointing out that the source of information is relevant. In his

opinion, a mere reference to a relevant person can not be allowed to rid

the bearer of a report of responsibility. Only if he is performing his

reporting duties can it be allowed that, if he is conveying information

about a particular event of public interest, the right to information

and its dissemination can be given priority over protection of

personality. And in cases of conflict between these rights it is the

duty of the courts to weigh, taking into account the circumstances of

each case, whether one right was not given unjustified priority over the

other right. This case, however, did not concern the tradition conflict

of the media and a politician, as usually happens in cases of conflict

between the right to information and the right to protection of

personality; instead, in the instant case the journalist was a “target”

who unwillingly found himself in “a kind of long standing battle between

journalists and politicians,” and, moreover, was in an unequal

position. The complainant also disagreed with the claim that the court

evaluated the statements which followed the ČEZ statement and which

refuted the report of possible corruption or writing for pay as some

kind of statement at the request of the media or the plaintiff. On the

contrary, the complainant believes that these statements were an answer

to questions related to the fact that both ČEZ and its general manager

denied the report of a contract, and the questions related to evidence

of corruption. As regards the decision of the second appeals court, the

complainant says that he expected that the Supreme Court of the CR would

handle the objections which were set forth in the appeal on a point of

law, which did not happen. Although the second appeals court itself said

in the reasoning of its decision that the first appeals court did not

have an easy task, it only repeated the case law applied and concluded,

without justifying it, that the application of § 11 and § 13 of the

Civil Code and the interpretation of them can not be considered

inconsistent with the text of these provisions in the published case law

of courts.
 

In view of the

foregoing, the complainant proposes that the Constitutional Court enter a

judgment annulling both the decisions of the general courts cited in

the introduction.
 

On behalf

of the party to the proceedings, the High court in Prague, the

chairwoman of the panel, JUDr. N. Ž., responded to the constitutional

complaint; she said that she refers in full to the reasoning in the

contested decision.
 

On

behalf of the Supreme Court of the CR, the chairman of the panel, JUDr.

J. R., responded to the complainant’s filing; he said that the

constitutional complaint does not present any concrete criticism of the

steps taken by the first and second appeals courts in the proceedings in

terms of procedural regulations, or against the legal evaluation of the

matter in the decisions of these courts, that would contain anything

other than disagreement with the evaluation of the evidence admitted by

the appeals court. Therefore, in terms of the application and

interpretation of provisions of the Civil Code and the Civil Procedure

Code by the first and second appeals courts in the instant case, the

complainant’s constitutional complaint can not be seen as justified.

Evaluation in terms of constitutional law regulations is up to the

Constitutional Court, as the panel chairman stated.
 

The

secondary party, Ing. M. Z., responded to the constitutional complaint

to the effect that he relied on information from the then general

manager of ČEZ, and he regards the claim that he should have verified

that information as absurd. He also stated that he subjectively believes

that the information from the then general manager of ČEZ was true. Of

course, the Constitutional Court did not take this statement into

account, because the secondary party was not represented by an attorney

under § 30 par. 1 of the Act on the Constitutional Court.
 

The

Constitutional Court also determined from public sources that the

Syndicate of Journalists of the Czech Republic prepared a Journalist’s

Ethical Codex, which it called on all Czech and Moravian journalists to

observe voluntary, regardless of their membership in the Syndicate.

Under Art. 1 let. i) of that document, a journalist is obligated to

accept only assignments appropriate to his professional dignity, and

under Art. 2 let. d) he is obligated not to misuse the profession of

journalist for the work of an advertising worker and not to accept any

direct or indirect compensation from potential advertisers. The

Constitutional Court also determined form the Declaration of Principles

of Journalistic Conduct, promulgated as a norm for professional conduct

of journalists, which was approved at the 2nd world congress of the

International Federation of Journalists in Bordeaux held on 25-28 April

1954 and subsequently amended at the 18th world congress of the

International Federation of Journalists in Helsingore held on 2-6 June

1986, that a journalist shall consider the acceptance of any form of

bribe to be serious professional misconduct.
 


II.
 

The Constitutional Court determined the following information from the file no. 37 C 115/99:
 

In

1999 the complainant wrote an article on nuclear energy for the

magazine Reflex. Having been approached by the press secretary of ČEZ,

a.s. after the article’s publication, he gave consent to ČEZ using it

for its needs, on the condition that it would be printed with an

announcement that the article was being re-printed with the author’s

consent, without entitlement to payment (pp. 29, 64).
 

In

the television program “Nahraně” aired on 22 March 1999, the

environmental activist J. B. said to the complainant: “You are not an

objective journalist, because ČEZ is printing your articles as a paid

advertisement.”
 

On 12 May

1999 in the vestibule at the Office of the Government, the then general

manager of ČEZ, a.s. told the secondary party (then prime minister), in

response to his express question, that ČEZ did not employ journalists,

and did not employ the complainant. If journalists worked for it, then

it was “by contract” (pp. 50, 52).
 

The

next day the general manager issued an instruction to annul the

contract with the complainant, based on the information from the prime

minister, provided to him the day before, about the fact that ČEZ was

using the complainant’s article, and being convinced, without having

seen the actual publication of the article, that everything was being

respected, i.e. convinced that a payment must have been made to the

complainant on the basis of the contract with him (p. 50).
 

A

few weeks later, at an unspecified reception, the secondary party, the

former prime minister, met with the former manager of ČEZ, and the

general manager of ČEZ informed him about the above-mentioned actions

(pp. 30, 50, 52).
 

On 28 June

1999, after a meeting of the government, a press conference was held at

which the prime minister spoke about the corruption of journalists (p.

70) in connection with the presentation of politicians in the media. The

then minister of foreign affairs, J.K., spoke on the same issue,

directing his remarks at the person of the former minister of foreign

affairs, J. Zieleniec. The journalists present criticized the members of

the government for speaking of the accusations of ex-minister Zieleniec

publicly without presenting evidence (p. 77). The prime minister said

that he had received from the minister of foreign affairs a list of four

media agencies which were alleged to represent J. Z.; at the same time,

however, he said that he would disclose their names, in response to the

request of J. K. only after J. K. met with J. Z., and would investigate

the suspicion that excessive funds had been spent for the personal

promotion of J. Z. J. K. presented a critique of J. Z. and his work, and

informed the journalists that he was investigating the circumstances

surrounding the selection of agencies for promoting foreign policy

during the term of office of minister Z., as well as the reasons for

their high fees (pp. 71, 72). The prime minister then closed the answers

to the journalists by stating that he trusted the members of the

government and their information, and unless he were to be convinced of

the contrary, he had no reason to apologize to J. Z.
 

On

29 June 1999, in the vestibule of the Chamber of Deputies, journalists

again pressed the prime minister to disclose the list of agencies which

were alleged to have created a better image of ex-minister Z. for high

fees, which he refused to do, although he did say that he would disclose

a case of corruption of journalists. He then made the first statement

now contested by the complainant (pp. 2, 8, 9, 10, 14, 95, 96).
 

Reports

from ČTK and internet dailies from that day contain the complainant’s

denial of the accusation of corrupt conduct. (P. 10).
 

Media

reports of 30 June 1999 concerning the secondary party’s declaration of

29 June 1999, i.e. reports provided by the media the following day,

contain a statement from the press secretary of ČEZ, a.s. which says

that the current management of the company had never paid the

complainant and that there was nothing to suggest that the former

management of ČEZ, a.s. had done so. These reports also contain a

statement from the general manager of ČEZ, a.s. in which he stated with

regret that he had informed the prime minister erroneously about the

relationship between ČEZ and the complainant, based on incomplete

information, and he apologized to both gentlemen (pp. 11, 12, 15).
 

On

30 June 1999 the secondary party basically repeated the contested

statements in a program on ČT [Czech Television], and added that he was

aware of the denial given to the media by the press secretary of ČEZ,

a.s., and also said that about a month earlier the general manager of

ČEZ, a.s. had told him that the contract with the complainant had been

entered into and that he had cancelled it. The secondary party concluded

from the general manager’s information that either the press secretary

or the general manager of ČEZ, a.s. was not telling the truth (p. 2).
 

On

3 July 1999, in a panel discussion on Radiožurnál, the secondary party

described the genesis of the contested statements from the TV program

“Nahraně” after the general manager’s denial, and added, “I admit that I

could be mistaken, and that no such agreement existed; to err is human.

But how can you cancel a contract that doesn’t exist?” (p. 35).
On

16 July 1999, in response to the complainant’s question whether there

was evidence of his corruption, which he raised at a press conference in

the Lidový dům, the secondary party basically repeated what he had said

on 3 July 1999 on Radiožurnál, without, of course, adding the

information about the press release of ČEZ and the press lease of the

general manager (p. 3).
 


III.
 

Before

the Constitutional Court could turn to evaluation of the matter on the

merits, it was required, in view of its own case law (III. US 28/96),

consider the question whether the secondary party M. Z. (originally the

defendant) even had passive standing in the original suit. After

evaluating the matter, the Constitutional Court concluded that the

secondary party did have passive standing in the original suit, and that

the instant matter differs significantly from the above-mentioned

decision of the Constitutional Court.
 

The

suit by the weekly Respekt against minister J. L. (the former minister

of agriculture) concerned a refusal to provide information, which was

contained in a letter signed by J. L. In denying the constitutional

complaint, the Constitutional Court concluded, among other things, that

the minister’s letter must be considered to be a decision by an

administrative body.
 

The

matter being addressed today differs significantly from the matter in

file no. III. US 28/96. The minister’s decision to not provide

information fell within his ministerial jurisdiction as substantively

defined by statute. Minister L. was thus acting in a matter which was

within his jurisdiction. In contrast, the secondary party in the instant

matter was prime minister of the government of the CR at the time when

he made the contested statements, but the government, as a

constitutional body, can not be assigned responsibility for these

statements, because their content, i.e. giving information about the

results of an investigation led by the prime minister himself concerning

the complainant’s alleged conduct and evaluation of that conduct in

terms of criminal law is not, under any circumstances, a matter which

falls within the jurisdiction of the government. The government does not

have investigative authority at any of the levels in which it

functions, i.e. not if it is performing political functions, nor if it

is performing administrative functions. Therefore, if the government, or

any member of it, or even the prime minister, obtains information on

conduct which could be considered a crime, the government is not

authorized to handle it, in the sense of investigating it, and it is

even less so authorized to evaluate it legally and inform the public

about its conclusions. If any member of the government commits such

conduct, he is impermissibly stepping outside the bounds of his

authorization as a member of the government, or even prime minister.

Such conduct by a member of the government is conduct ultra vires in

terms of jurisdiction; it is not binding on the government, and the

government, as a body acting on behalf of the state, can not be held

responsible for it. Therefore, the member of the government who commits

such conduct is responsible for it as an individual – i.e., among other

things, in a potential lawsuit for protection of personality he himself

is a person with passive standing. This finding does not rule out taking

into account, in further substantive evaluation of the case, precisely

the fact that the contested statements were made by a member of the

government, or even its prime minister, (see below).
 

Because

the constitutional complaint met all the formal requirements required

by the Act on the Constitutional Court, the court could turn to

substantive evaluation of it.
 


IV.
 

The

subject of evaluation in the instant case is whether the general courts

(the High Court and the Supreme Court) interfered in the complainant’s

fundamental right to preservation of his honor and good reputation (Art.

10 of the Charter) by, on the contrary, providing protection to the

fundamental right to freedom of expression, to the benefit of the

secondary party, the original defendant.
 

A)

The fundamental right to freedom of expression must be considered a

constitutive element of a democratic, pluralistic society, in which

everyone is permitted to express his opinion on public matters and to

make evaluative judgments about them.
 

All

the agendas of state institutions, as well as the activity of persons

active in public life, e.g. the activity of local and national

politicians, officials, judges, attorneys, or candidates or trainees for

these offices are a public matter; of course, the arts, including

journalistic activities and show business, and everything which attracts

public attention, are also a public matter. These public matters, or

the public activities of individual persons, may be judged publicly. In

constitutional terms, the criticism of public matters carried out by

publicly active persons is subject to the presumption that the criticism

is constitutional. This is the expression of a democratic principle,

the expression of participation in public matters by members of a civil

society.
 

The presumption of

constitutionality protects only an evaluative judgment, not the claiming

of facts, which the critic himself must prove by evidence to the degree

that they served as the basis for the criticism.
 

The

requirement that the critic himself prove the claimed facts is a

European constitutional standard (e.g. decision of the House of Lords of

28 October 1999 in the matter Reynolds v. Times News Papers Limited, or

the decision of the German Constitutional Court (BVerfG) of 3 June

1980, 1 BvR 797/78 in the case of Böll, which is also confirmed by the

case law of the European Court of Human Rights – the ECHR – e.g.

decision of the Grand Chamber of 17 December 2004 in the matter Pedersen

and Badsgaard v. Denmark).
 

Another

general rule which can be derived from European case law is that if

anyone wishes to publish information of a defamatory nature about

someone else, his conduct can not be considered reasonable or legitimate

unless he proves that he had reasonable grounds for relying on the

truthfulness of the defamatory information which he disseminated, unless

he proves that he took proper available steps to verify the

truthfulness of that information, to a degree and in an intensity in

which it was possible for him to verify the information, and finally,

unless he himself had no grounds to believe that the information was

untrue.
 

The publication of

such information also can not be considered reasonable if the

disseminator of the information does not verify its truthfulness by

inquiring of the person whom the information concerns, and does not also

publish that person’s position, with the exception where such steps are

impossible or evidently unnecessary (see Reynolds, cited above).
 

To

evaluate the legitimacy of publishing information it is important to

examine the motive for its publication. It can not be concluded that

publication of information was legitimate if the dominant motive for it

was the desire to damage the defamed person, if the disseminator himself

did not believe the information, or if he provided it irresponsibly,

without due concern for whether it was or was not true.
 

Facts

alleged to be defamatory must always be evaluated comprehensively, from

many points of view, which can be expressed in the following points

(concurring, see Amicus Curiae Opinion of the Venice Commission of 17

March 2004, CDL-AD(2004)011):
1. The gravity of the charge. The more

serious the charge is, the more the public was misinformed and the

defamed person damaged, if the claim is not true.
2.The nature of the information and a consideration of the degree to which the problem at hand is a matter of public interest.

3. The source of the information. Some disseminators of information do

not have direct knowledge of the event. Some have their own reasons to

diffuse information or are paid for their stories.
4. The effort expended and concrete steps taken to verify the truthfulness of information.

5. The status of the information. The charge may already be the subject

of investigation, which must be taken into consideration.
6. The urgency of the matter. News is often a commodity which spoils quickly.

7. Whether comments were requested from the complainant (plaintiff). He

may have information which is not available to others or which they did

not disclose. A request to the complainant (plaintiff) need not always

be necessary.
8. Whether an announcement spread by the media

contained the substance of the matter seen through the eyes of the

complainant (plaintiff).
9. The tone of the announcement spread by

the media. The originator of information spread in the media can

initiate discussion or investigation. He need not present the charge as a

disclosure of fact.
10. The circumstances of the publication, including the timing.

As

regards the evaluative judgments, including exaggeration and hyperbole,

even if they were harsh, they are not in and of themselves a

non-permitted expression. Even the unsuitability of the critic’s

opinion, in terms of logic or the prejudice of the critic do not, by

themselves, permit the conclusion that the critic went beyond the bounds

of expression that can be described as appropriate. Only in the case of

criticism of matters of actions by public persons which completely

lacks a substantive basis, and for which no justification can be found,

is it necessary to consider such criticism disproportionate. It is

always necessary to evaluate the entire expression made in a literary,

reporting, or other format; one can never judge a single expression or

sentence taken out of context.
 

Only

if the free expression, thus understood, comes into conflict with other

legal values protected by the constitutional order (the immanent

limitation of fundamental rights – see judgment file no. Pl. US 42/02)

or statutes pass for a purpose for which free expression can be limited

under Art. 17 par. 4 of the Charter (rights and freedoms of others, the

security of the state, public security, public health, or morals), do

conditions exist for testing a concrete expression from the points of

view cited above. In evaluating these requirements in a concrete matter,

it is necessary to weigh the legal values generally and specifically

applied in the matter and standing in opposition to each other.
 

B)

A person’s honor and good name are values which belong in the cultural

heritage of our civilization, with its roots in Christianity and Judaism

(“A good name is to be chosen rather than great riches, loving favor

rather than silver and gold.” Proverbs 22:1). However the content and

scope of this value may change over time, we can conclude that it

includes the rules which appear in the ethical codices of various

professions, i.e. including the profession of journalist.
 

Honor

is also an integral and important component of human dignity. It also

forms the basis of many decisions made my members of a democratic

society, which are fundamental for it to function well. Honor plays a

role in relationships, such as whom an employer hires, or whom an

employee wants to work for, it is decisive in decisions about who is to

advance to higher employment or official positions; honor is important

for deciding with whom to begin business relations or whom to vote for

in political life. If honor is once sullied by an unsubstantiated

accusation expressed publicly, and all the more so in the media, a

person’s reputation and honor can be damaged forever, and especially in a

situation where there is no possibility of rehabilitation. If such a

situation arises, both the person himself and the society lose. And it

is precisely for that reason that one can not assume that protection of

reputation, or honor, is an important matter only for the affected

individual or his family. For these reasons the protection of reputation

or honor must be seen as protection of a public good. Therefore, it is

in the public interest for the honor and reputation of persons active in

public life not be discussed at factually altered levels. Both in the

field of politics and in the media a voter must be able to distinguish

good from evil, so that he can in the end make an informed choice in

relation to a politician and to the media. It is precisely in view of

these considerations that agreements on human rights, just like the

Charter, do no consider freedom of expression to be an absolute right

(see above).
 

The fundamental

right to honor is exercised in multiple spheres: the private sphere,

the societal, civil and professional spheres; the last three can be

described as the social sphere. The first sphere actually involves

protection of privacy, where the right to honor is undoubtedly also

applied. It is fundamentally up to each individual, what from that

sphere, and to what extent, he will release as information for the

outside world. In other words, this sphere is usually governed by

self-determination as regards information, which can not be intervened

in from outside.
 

The

societal, civil and professional levels reflect the social nature of the

fundamental rights, or reflect the fact that an individual lives in a

society, and enters into communication with its other members, and

through his conduct, or even through his very existence, influence other

members of the society. In this second level we can not insist on

complete self-determination regarding information; in other words, under

certain circumstances one can intervene at this level. Thus, the social

spheres can be interfered in through proportional interventions

undertaken for purposes of protecting the interests of society. Because

the rights to personal honor and a good reputation guaranteed by Art. 10

par. 1 of the Charter (this right is not independently guaranteed by

the Convention) can not be limited by ordinary statutes, whose purpose

would be set forth by the Charter as public values (as, for instance, in

the case of freedom of expression), potential limitations of this right

must be sought in the category of immanent limitations, i.e.

limitations arising directly from the constitutional order itself. Such

an immanent limitation of the fundamental right to honor can also be

found in the requirement for protection of freedom of expression, which

is also constitutionally protected (see above).
 


V.
 

In

evaluating the matter from a constitutional viewpoint, the

Constitutional Court began with the fact that the complainant, as a

journalist – a commentator – is a person active in public life, and

therefore his professional activity, in particular, may be subject to

public criticism. However, the secondary party must prove the

truthfulness of facts claimed in the critical statement, and the

critical opinion expressed by him is subject to a test under the

principle of proportionality.

The

Constitutional Court also evaluated the secondary party’s statements

and concluded that, with the exception of legal evaluation of the

complainant’s alleged conduct, they were claims of fact.
 

Thus,

the Constitutional Court subjected the secondary party’s statements,

insofar as their truthfulness was determined by the High Court, to the

test described in part IV.
 

Re

1) The Constitutional Court primarily reviewed the starting point of

the High Court, which based its decision on evaluating the contested

statements by the secondary party to the effect that the defendant

truthfully informed the journalists about the statement by the general

manager of ČEZ and also identified him as the source of his information.

Insofar as the secondary party described these statements as

corruption, this was his opinion, which, by its nature, is not subject

to proof of truthfulness.
 

This

evaluation of the secondary party’s statements appears to the

Constitutional Court to be flawed. In the first contested statement,

made on 29 June 1999, the secondary party did not limit himself to

repeating information which he had received form the general manager of

ČEZ, a.s. The manager testified as a witness before the High Court. The

witness never spoke of a “confidential contract” between the complainant

and ČEZ. In the opinion of the Constitutional Court, the use of the

term “confidential contract,” which the secondary party used in the

context of providing “evidence” about the corruption of a journalist,

can be classified as a statement containing a claim of fact, which was

intended to strengthen the argument about the impropriety of the

complainant’s alleged conduct. In contrast, as shown by the evidence

admitted by the High Court, the information from the general manager

about contracts with journalists, was neutral in terms of evaluating

contracts with journalists.
 

Also,

one can not conclude from the total context of the information provided

(originally this was an interview concerning alleged corruption of

journalists on the part of J. Z.) that the purpose of providing

information was to give information about what the general manager of

ČEZ told the secondary party.
 

However,

what is of primary importance is evaluation of the fact that it is not

the role of the prime minister to provide information to journalists

about a statement from the general manager of ČEZ, even though this was a

commercial company owned in considerable part by the state. It is

unacceptable for the statements of the prime minister to be evaluated as

if he were the press secretary of a private commercial company.
 

In

this light, the High Court’s comparison with the printed media received

by reports (“svodka”) of the Police of the CR appears quite

inappropriate. This is because an important function of the printed

media is precisely to provide un-commented information, i.e. reportage. A

paper owned by a private legal entity is fully entitled to rely on the

truthfulness contained in the official records of the Police of the CR,

because the truthfulness of official information provided by state

bodies needs to be presumed, for reasons explained below. However, the

secondary party provided at a minimum a report with comments, and

precisely through his commentary strengthened the gravity of the

accusation contained in his statement. It was clear from the evidence

admitted by the court of the first instance that this was a serious

accusation, affecting the area of the complainant’s good reputation and

professional honor under the journalistic codex, which also had serious

consequences for the complainant’s livelihood.
 

Likewise,

it is quite evident that the gravity of the accusation exceeded the

complainant’s personal interest, because the statement cast doubt upon

the community of journalists as a professional group. Again, one can not

overlook the context in which the statement was made, or the fact that

it was meant to serve only as an example of a widespread phenomenon –

corruption among journalists. Of course, creating an image of corrupt

media has a devastating effect on relationships in a civil society,

because individuals are generally completely reliant on information from

the media in forming their opinions and subsequently projecting them

into their daily decision making. However, the High Court did not

consider the gravity of the accusation made by the secondary party in

this context at all.
 

Re 2)

What was said under Re 1) is also connected to the evaluation of the

nature of this statement and its evaluation in terms of the public

interest. Its content – corruption among journalists, with the provision

of one piece of so-called evidence – is undoubtedly a matter of public

interest, for the reason stated above under Re 1). The number of media

reports which reacted to the prime minister’s statement also testifies

to this.
 

Re 3) As regards

the source of the information, the High Court relied on the

determination that the secondary party did not have direct knowledge of

the circumstances which were the content of his information. The High

Court then relied on a completely unrealistic opinion, based on pre

formalism, i.e. on the statement that if the secondary party was

informed by a “statutory body,” its information must be truthfully, and

it concluded immaterially that it was not necessary to verify it

further. In doing so it ignored the fact that ČEZ is an enormous

company, and no general manager can be informed about everything that

happens in it, and also that it is highly unlikely, even impossible,

that he will be informed about events which are not directly connected

to the company’s business activities or even about events which preceded

a particular person’s presence in the position.
 

Primarily,

however, the High Court did not at all evaluate the determined facts

relating to the way in which the general manager of ČEZ gave the

information to the secondary party, the prime minister. The undisputed

part of the testimony of the general manager of ČEZ (p. 138) indicated

that the prime minister asked the witness about the employment of

journalists in an “antechamber” after a government meeting, around

midnight, and the second meeting of the two men, which was said to last a

few seconds, took place at an unspecified reception, where the general

manager of ČEZ informed the prime minister, erroneously, as was later

shown, that he had cancelled the contract with the complainant.
 

The

time, manner and place of giving the “information” undoubtedly affected

its quality, in the sense of its precision and the resulting

truthfulness. And in fact, the subsequent verification of the content of

the statement by the really properly informed professional staff of ČEZ

showed that it was untrue.
 

The

Constitutional Court believes that information provided to the public

by persons holding high constitutional office can not be based on a

source in the form of oral statements in conditions which will evoke in

any reasonable person at least a suspicion that the person providing the

information might have, because of the time, place, or atmosphere, had

the impression that this was not serious information, and adapted his

degree of care accordingly. Likewise, one must take into account that

the person providing information, like the person receiving it, might

have been either exhausted after a long working session (the first

meeting of the two men) or distracted by the social atmosphere of the

event – a reception – in which he was taking part. The Constitutional

Court is convinced that information provided by high constitutional

officials, containing such explosive potential as in this case, should

be seriously verified by their professional staff before it is disclosed

publicly, which was evidently not done in this case.
 

The

High Court also did not evaluate the secondary party’s statement in

terms of the context of the political situation in the country, or from

the point of view of the political agenda of the government, of which

the secondary party was then prime minister. One of the main points of

the then government’s political agenda was the fight against corruption.

This publicly very beneficial agenda, however, also forms the context

for this matter, and it must be evaluated in terms of evaluating the

secondary party’s motivation for making his statement. Fulfilling the

political agenda could undoubtedly have been a strong motive for

providing the information. The context for evaluating the motive must

also be formed by evaluation of the truthfulness of the secondary

party’s statement, which had a similar content in relation to J. Z., as

this statement is inseparably contextually tied to the statement being

contested.
 

Re 4) In contrast

to the High Court, for the reasons given under Re 3, the Constitutional

Court considers the secondary party’s demonstrably expended effort to

verify the truthfulness of his subsequent statement completely

inadequate in view of the defamatory potential it contained. On the

contrary, it considers the demonstrated effort to be inadequate in

relation to the secondary party’s opportunities to verify the

truthfulness of the information. At that time the secondary party could

rely on the work of an enormous administrative apparatus which arranged

or could arrange background materials for public appearances for him.

Re

5) The status of the information was explained under point III of this

judgment, i.e. as conduct ultra vires in relation to the jurisdiction of

the government of the CR. Exceeding the bounds of government

jurisdiction, however, always has, and in this case had, serious

consequences. Information provided by the prim minister is always given

greater weight by the citizens that information coming from other

persons, including the media. A citizen of a democratic law-based state

quite naturally expects truthful information from constitutional

officials and also expects that constitutional officials will maintain

absolute respect for individual persons who are members of the civil

society.
 

This principle is

also a starting point for the very idea of a democratic law-based state.

The cited, rightfully expected respect of course completely rules out

the defamation of individuals by the state power (which constitutional

officials represent). Therefore, the representatives of state authority

are required to make public only thoroughly verified information which,

in addition, relates only to matters which fall under their areas of

jurisdiction. If a constitutional official has not had his claims of

fact thoroughly verified as to their truthfulness, he is not entitled to

make them public. These starting points apply all the more so in the

case of claiming facts which threaten to defame individual persons, even

if these persons are active in public affairs.
 

No

state which is to be considered democratic and law-based can function

without meeting this fundamental requirement. Defamation of individuals

by representatives of state power and the resulting misinformation of

all members of society is, in contrast, a technique well-known to

totalitarian regimes. Therefore, our experience from the period before

1989 also dictates that it is necessary to insist quite firmly on the

observance of the above-mentioned principles, which the High Court

overlooked.
 

Re 6) Evaluation

of the urgency of the information provided by the secondary party must

be performed in the context of the considerations set forth above,

especially those contained under Re 4 and 5.
 

Re

7) The High Court did not even pose the question whether the secondary

party asked the complainant for comments on his intended statement, and

therefore, of course, it did not consider this aspect. Although it can

be conceded that the secondary party did not have to ask for the

complainant’s comments, this would apply only if he had verified the

truthfulness of the intended statement in the ways indicated above. The

same applies for the evaluation of the High Court from the point of view

of point 8 of the test cited above.
Re 9) The tone of the secondary

party’s first contested statement was that of an announcement. In

addition, the secondary party introduced his claim with the sentence:

“Since you constantly want some concrete evidence of corruption among

journalists, let me give you some.” His statement contains not even a

suggestion of doubts, which could be interpreted as an invitation for

subsequent discussion about the alleged corruption among journalists.

However, for reasons given under Re 5), it can not be conceded that a

person holding constitutional office would be permitted, even by posing

rhetorical questions, to initiate discussion to the detriment of the

honor and reputation of a private person. Such an action, and only with a

large dose of caution, can be permitted, under certain circumstances,

with, for example, investigative journalism. However, the position of

prime minister is not comparable with the purpose of the activities of

an investigative journalist.

Re

10) The High Court did not consider the circumstances under which the

first contested statement was made at all in the sense set forth above

(in particular under Re 3 and 5), and for that reason too its

conclusions must be considered defective.
 

At

the close of the tested first statement by the secondary party the

Constitutional Court says, borrowing the words of a writer who

penetrates deep under the surface of events and things, that the general

courts which will decide the matter again should bear in mind that even

the ground of mere determination of facts is muddy and slippery and it

is difficult to stand on it. Even a fact is not something clear and

unprejudiced (Salman Rushdie, essay “When The Prisoner Is the Facts,”

Mladá Fronta Dnes, 25 June 2005, p. E-II).
 

As

regards evaluation of the High Court’s decision relating to the

secondary party’s claim made on 30 June 1999 on ČT, 3 July 1999 on

Radiožurnál, and 16 July 1999 at a press conference in Lidový dům, to

this extent it is a non-reviewable decision, because it is given

practically no justification, or only a general one, without individual

statements being analyzed, although they differ from the statement which

the secondary party made on 29 June 1999, i.e. from the first

statement, and moreover were made in a considerably different situation

than the first statement.
 

In

the case of the second statement, it will thus be necessary to evaluate

especially the fact that the secondary party completely neglected to

reproduce the explanatory apology from the general manager of ČEZ,

published together with a statement from the press secretary of ČEZ,

which he mentioned, and likewise neglected to deal with the published

statement by the complainant himself. If the secondary party had

honestly mentioned all these statements, he could not have continued to

pose rhetorical questions, in which the Constitutional Court can not

find any purpose other than continuing to cast doubt on the

complainant’s honor and good reputation.
 

In

the third case, the secondary party added to the description of the

genesis of his accusation relating to the claimant information about the

content of the program “Nahraně” aired by ČT on 22 March 1999. This

information is also a claim of fact which, however, as the file

indicates, was not true. The secondary party stated that an

environmental activist accused the complainant of writing articles

favoring nuclear energy for ČEZ, for payment from ČEZ. However, as the

Constitutional Court determined from the file, the environmental

activist J. Beránek only said that ČEZ was printing the complainant’s

articles as paid advertising. This untrue claim of fact set forth by the

secondary party in connection with the original statement by the

general manager of ČEZ, which had been quite reliably refuted by that

time, i.e. after his apology, which was well known to the secondary

party, in and of itself represents considerable interference in the

complainant’s honor and reputation. It also testifies to the fact that

the secondary party quite incomprehensibly refused to take cognizance of

the explanation and apology by the general manager of ČEZ, as he began

to perform a kind of quasi-analysis of the steps taken by the general

manager of ČEZ, in the conclusion of which, without any kind of

substantiation, he cast doubt on the truthfulness of the apology, and on

the contrary, worked only with his original, untrue information. A

question arises which will have to be considered, whether, on the

contrary, by adding untrue information on the content of the program

“Nahraně” was not intended to compensate for the objectively weakening

ring of the original information provided by the secondary party on the

basis of the original untrue information from the general manager of

ČEZ. Again, the High Court did not ask this question, although answering

it was essential for evaluating the third statement comprehensively and

in the context in which it was made.
 

As

regards the fourth statement, the secondary party repeated the

untruthful claim about the content of the television program “Nahraně”

and repeated his version of the course of events, and then described

everything as “completely clear arguments,” on which he relied. All this

was in response to the complainant’s question whether there was

evidence of his corruption. This time he completely omitted any mention

of the denial provided by ČEZ, the apology by its general manager, as

well as the complainant’s own statement. These circumstances too

remained outside the attention and evaluation of the High Court.
 

In

evaluating the secondary party’s expression made in the first statement

that he considers the conduct he described to be a form of corruption,

the Constitutional Court states that one can agree with the High Court

to the extent that this was an expression of an opinion, the

truthfulness of which fundamentally can not be verified. However, it can

not be overlooked that this was an expression of a particular kind of

opinion, i.e. a legal opinion. The proportionality of the expressed

opinion can be reviewed, in fact it must be tested, but the High Court

did not even try to conduct such a test. Yet it is evident that even

when evaluating the proportionality of an expressed legal opinion the

then official position of the secondary party must be taken into

consideration.
 

Errors in

the legal evaluation of the complainant’s alleged conduct are scarcely

tolerable in the case of the secondary party. There were several lawyers

in the government of which he was prime minister at that time; he had

an opportunity, even an obligation, to discuss the matter with them,

regardless of any desirable or even required consultations with the

professional staff of the office of the government. In other words, the

heightened requirements for the proportionality of the secondary party’s

statement again develop from his then official position, and they can

not be subject to parameters applied, for example, to the media, where a

certain degree of imprecision in the legal evaluation of actions by

persons on whom they report can be tolerated, though even in that case

the tolerance can not be unlimited. However, the general courts did not

determine whether the secondary party had any consultations with legal

experts regarding the legal classification of the complainant’s alleged

conduct.
 

For all the

above-mentioned reasons, and weight the importance of freedom of

expression on one side, and the importance of the honor and reputation

of persons on the other side, the Constitutional Court must state that

the High Court’s verdict completely ignored the importance of the latter

value, which led to flagrant interference in the complainant’s

subjective right, the fundamental right to protection of honor and good

reputation, which is guaranteed by Art. 10 par. 1 of the Charter.
 

The

secondary party’s statement did not hold up under the test conducted by

the Constitutional Court; therefore, neither did the decision of the

High Court, which approved it, both in terms of evaluating the

truthfulness of the contested statements as regards the facts claimed,

and as regards the proportionality of the opinion expressed. The High

Court did not provide protection for the claimant’s honor and good

reputation, and, surprisingly for the Constitutional Court, provided

protection to the secondary party’s fundamental right to freedom of

expression, although in the instant case that right was exercised in

conflict with a number of principles whose observance is a condition for

protecting that right.
 

As

regards evaluation of the decision of the Supreme Court of the CR, which

denied the claimant’s appeal on a point of law, that decision continued

the interference in the claimant’s fundamental rights. The

Constitutional Court considers it necessary to point out that it does

not understand the reasoning of that decision, which is composed of

quotations from judicial case law primarily from the 1980s, and is more

reminiscent of a post-modernist collage open to many interpretations

than the reasoning of a court decision in the sense of evaluating a

particular case in light of constitutional values and principles,

interpreted in the context of contemporary European case law on

analogous matters. It is evident from such case law how the approaches

by individual European states in interpreting the principles applied to

resolving conflicts between the right to freedom of expression and the

right to honor and a good reputation approach each other. because the

Supreme Court of the CR did not meet the above-mentioned requirements,

it was also necessary to annul its decision.
 

In

view of the foregoing, the Constitutional Court granted the

constitutional complaint under § 82 par. 2 let. a) in connection with

par. 3 let. a) of the Act on the Constitutional Court, and annulled the

contested decisions, because it found that the decision of the High

Court in Prague and of the Supreme Court of the CR violate the

complainant’s fundamental right guaranteed by Art. 10 par. 1 of the

Charter.

Notice: Decisions of the Constitutional Court can not be appealed

 

Brno 11 November 2005
 

 



Dissenting Opinion

of judge Michaela Židlická

I

do not agree with the verdicts of the judgment; Nevertheless, I

consider it beneficial to address in this form a question which I

consider fundamental and which was not given attention in the reasoning

of the decision.
 

In the

instant case, the substance of the problem was the legal opinion of the

High Court in Prague that the information made public by the secondary

party, Ing. M. Z., was truthful, and therefore not capable of causing

unjustified interference in the complainant’s personal rights. The High

Court concluded that the secondary party, by identifying the source of

the information, only truthfully reproduced the content of his

conversation with Ing. Č.; this was not affected at all by the fact that

the information provided by Ing. Č. was shown to be untrue. Of course,

such an interpretation is unacceptable from a constitutional viewpoint,

because it gives priority to formal logic over the realistic meaning of

the communication, as it is understood by the hearers, and it overlooks

the possible negative effects of such conduct on the sphere of the

complainant’s personality.
 

The

secondary party’s statement, leaving aside his evaluative judgments,

can be considered truthful in terms of logic; nonetheless, we can not

overlook that it completely lacks completeness, which is decisive for

evaluating the truthfulness of information in its material sense. An

erroneous impression was created among the recipients of the information

mediated by the secondary party that the information provided to the

secondary party by Ing. Č., was also truthful, because the secondary

party’s statement did not contain even a suggestion that this need not

be the case. It is completely non-decisive whether the secondary party

should or could have verified the actual situation, because liability

for unjustified interference in personal rights is strict liability,

which does not require causation in any form.
 

There

is not the slightest doubt that the entire incident could negatively

affect the complainant’s personal sphere. For that reason too the High

Court’s interpretation can not be accepted, because this would result in

a situation where the person who made the statement would not be

responsible for real interference in the complainant’s personality

rights, nor would the person who provided the initiative for it, because

his communication was not public, and therefore it would obviously not

be possible to conclude a causal connection between the conduct of the

person communicating the information and the subsequent interference in

personality rights.
 

Fundamental

rights and freedoms may be limited if they conflict, even if the

constitutional framework does not expect such limitation. In these

situations it is necessary to set forth conditions under which one

fundamental right or freedom has priority, and conditions under which

the other has priority. In this regard there is a fundamental maxim that

a fundamental right or freedom may be limited only in the interest of

another fundamental right or freedom (Constitutional Court judgment of

17 February 1999, file no. Pl. US 16/98, published in the Collection of

Laws as no. 68/1999 Coll.). In the event of balancing two fundamental

rights and freedoms it is always necessary, in view of Art. 4 par. 4 of

the Charter of Fundamental Rights and Freedoms, to preserve the essence

and significance of the right which is to cede to another right. The

interpretation of the High Court in Prague does not meet this

fundamental condition, because it provides protection for the expression

of the secondary party, while ignoring the true significance of his

communication, and permits the complainant to be denied an opportunity

to defend himself against actually existing interference in his

fundamental right to protection of his honor and good name under Art. 10

of the Charter of Fundamental Rights and Freedoms. For that reason I

voted to annul the contested decision of the High Court in Prague, as

well as that of the Supreme Court of the Czech Republic, which did not

recognize the foregoing lack of constitutionality .

Brno 11 November 2005