The public interest in scrutinising public authorities (OOO Memo v Russia)

Defamation proceedings were brought against the applicant online news media company Kavkaxskiy Uzel (KU) by the executive authority of the Volgograd region (Volgograd Administration) before Ostankinskiy District Court of Moscow (the District Court). The District Court ordered the applicant to publish a retraction on the KU website. The District Court also ordered KU to publish the ‘operative’ part of its judgment on the KU website. Upon appeal, the Moscow City Court subsequently upheld the District Court judgment. KU argued before the European Court of Human Rights (ECtHR) that there had been a breach of Article 10 of the European Convention on Human Rights (ECHR). The ECtHR held that there is a difference between state authorities and (for example) a privately owned company. Therefore, the Volgograd Administration was not entitled to bring defamation proceedings and had breached Article 10 of the ECHR. 

OOO Memo v Russia [2022] ECHR 229

What are the practical implications of this case?

In reaching its conclusion, the ECtHR has adopted the same approach as it did in Steel and Morris V the United Kingdom No 68416/01.

In Steel and Morris, the ECtHR stated what it described as a ‘general principle’ that any trading or non-trading corporation is entitled to sue in defamation. The ECtHR then went on to state the exceptions to the general principle which are local authorities, government-owned corporations and political parties. It confirmed that those organisations were not entitled to sue in defamation because of the public interest that a democratically-elected organisation, or a body controlled by such an organisation, should be open to uninhibited public criticism.

Therefore, public authorities, or a body controlled by such an organisation will not ordinarily be able to sue in defamation.

The ECtHR did also consider a comment by the Council of Europe Commissioner for Human Rights which indicated that Strategic Lawsuits Against Public Participation (SLAPPs) had been used to ‘intimidate journalists’ and that they were used by ‘powerful people’. This was quite novel for the ECtHR.

What was the background?

In 2008, the Volgograd Administration suspended a subsidy which was to be paid to the town of Volgograd. The reasoning given was that it had already exceeded its financial budget for subsidies.

In July 2008, KU published an article based on an interview with Mr S, who was an expert at the Fund for the Development of Information Policy.

The Volgograd Administration brought defamation proceedings before Ostankinskiy District Court of Moscow (the District Court). The words complained of were:

‘(a) “... there are two main reasons for the financial conflict that stemmed from the order of the Administration of the Volgograd Region to suspend allocation of subsidies from the regional budget to the City of Volgograd. ... Undoubtedly, the first reason is a political one. It is linked to the [results] of the regional elections [of 2 March 2008]. The second reason is not widely known. It is of a purely economic character.”

(b) “Recently the Mayor’s Office held an open call for tender to buy buses. The Administration of the Volgograd Region lobbied the Volzhanin’s interests to win the call for tender, but it was won by another company.”

(c) “The officials of the Administration came down on the Mayor’s Office, saying, ‘How come you did not support the local producer!’ It appears to me that the Mayor’s Office’s refusal to do business with the Volzhanin factory was one of the main reasons of the regional officials’ anger.”

(d) “... the suspension of allocation of subsidies to the City of Volgograd from the regional budget was an act of revenge for the lost call for tender.”’

The Volgograd Administration was successful in its defamation claim against KU and the Russian appeal court upheld the judgment of the lower court.

KU brought a claim before the ECtHR that the Russian state had not protected KU’s Article 10 rights under the ECHR.

What did the court decide?

The ECtHR decided that the reputation of a body of the executive was different to that of a natural person and that included a body of the executive involved in commercial activities.

In reaching its decision, the ECtHR considered the above comment by the Council of Europe Commissioner for Human Rights on the use of SLAPPs and concluded that Member States have an obligation to protect Article 10 rights and that there is a positive obligation to protect freedom of expression.

The ECtHR adopted the same approach as had been adopted in the earlier Steel v Morris litigation.

The ECtHR stated at para [49]:

‘(T)he Court finds that the civil defamation proceedings instituted by the Administration of the Volgograd Region against the applicant company did not pursue any of the legitimate aims enumerated in paragraph 2 of Article 10 of the Convention. Where it has been shown that the interference did not pursue a “legitimate aim”, it is not necessary to investigate whether it was “necessary in a democratic society”’

The ECtHR handed down judgment and stated that bodies of the executive vested with State powers are different from legal entities. Therefore, the Volgograd Administration was not entitled to bring defamation proceedings because of a breach of Article 10 of the ECHR.

This analysis was first published on Lexis®PSL on 28 April 2022