There is no express provision guaranteeing the right to reputation in the European Convention on Human Rights (ECHR). If there was such a right, at first sight, it would be protected by Article 8, which enshrines the right to respect of private and family life. The Universal Declaration of Human Rights (UDHR), from which the ECHR draws its inspiration, contains an express provision protecting the right to reputation. Article 12 states “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation”. Article 8 ECHR is almost a direct replica of Article 12 UDHR save for the mention of reputation. The key question is therefore whether a right to reputation derives from the general right to privacy under Article 8 ECHR.
Reputation under Article 8 ECHR
A false allegation based on the “revelation” of purported information about a person will typically be a breach of that person’s general right to privacy. In privacy cases, the Court will (a) ask whether the information revealed about someone was damaging enough to constitute an interference with their rights protected under Article 8,
(b) weigh that damaging interference against whether it is in the public interest to reveal the information.
If the allegation contained in the purported information is false (as in a case of false allegations causing reputational damage), then the test of public interest is certain to be failed because no public benefit can result from false information. However, it remains debated whether there is a right not to have your reputation damaged even where that damage would not sufficiently affect any other aspect of your private life as to constitute a breach of your general right to privacy in the absence of a sufficient public interest defence.
Reputation vs Freedom of expression
Furthermore, reputation is also unsurprisingly covered by Article 10(2) ECHR, not as a right, but as an express limitation of the freedom of expression. A literal reading of this article leads to understand that the state could be justified in taking measures to prevent defamatory statements, as there would be no violation of Article 10. However, individuals could not bring a claim for violation of their right to reputation. Therefore, the issue at stake is to strike a balance between these two rights. In the original drafting of the ECHR, the balance was struck in favour of freedom of expression. Since the 1950s, the huge increase of media power and accessibility of information has been reflected in the case law of the Court and has resulted in reputation being afforded more and more protection under the Convention. The Court first tried to address this conflict of rights rather passively in the case of Lingens v Austria,1 where it was ruled that “there is … no need in this instance to read Article 10 in the light of Article 8.” In other words, the interaction between the two fundamental rights was denied. Nonetheless, the case of Lindon v France (2007)2constituted a strong shift towards the protection of the right to reputation, Judge Loucaides stating that the right to reputation had “the same legal status as freedom of speech” and subsequently demanded effective protection, as “the right to reputation should always have been considered as safeguarded by Article 8 of the Convention, as part and parcel of the right to respect for one’s private life”.
The case of Pfiefer v Austria (2009)3emphatically gave it the status of a right, considering that reputation formed part of one’s “personal identity and psychological integrity”. Therefore, it held that “a person’s right to protection of his or her reputation is encompassed by Article 8 as being part of the right to respect for private life”. As a whole, it seems that the word “defamatory” implies damage to the person in question’s “activities of a professional or business nature” or their “personal identity and psychological integrity”4 – these being established facets of the right to private life. Consistently, in A v Norway,5the Court held that “for Article 8 to come into play…the attack on reputation must…prejudice…personal enjoyment of the right to respect for private life”.
Yet, these decisions triggered a great deal of criticism, Article 10 being considered to be marginalised by the protection of reputation. Therefore, in Karakó v. Hungary (2009),6the Court weakened the right to reputation under the Convention, by holding that “reputation has only been deemed to be an independent right sporadically and mostly when the factual allegations were of such a seriously offensive nature that their publication had an inevitable direct effect on the applicant’s private life.” The Court held that “in the instant case, the applicant has not shown that the publication in question affecting his reputation, constituted such a serious interference with his private life as to undermine his personal integrity”. It therefore concludes that it was “the applicant’s reputation alone which was at stake in the context of an expression made to his alleged detriment”. While no violation of Article 8 was found, it seems that the damage to reputation alone could be considered as an interference with article 8.7
This rather radical judgment gave rise to a new wave of criticism, but was reaffirmed in 2010 through Polanco Torres and Movilla Polanco v. Spain.8 The Court,while confirming Karako, emphatically stated that the right to reputation was protected by Article 8. For the right to reputation be engaged, the defamation must be subject to a “threshold of seriousness”. Article 8 only prevails if the expression constitutes a direct attack on a person’s private life of such a gravity as to compromise his or her personal integrity. The precise definition of this threshold remains to be established. However, This judgment shows at least that, although the right to reputation is not expressly contained in the ECHR, it is derived from its Article 8.
Question of hierarchy?
At this point, another debate arises: if the right to reputation is not technically part of the ECHR, does it have a lesser importance compared to Convention rights? David Kennedy claims that every right is important in its own way and should never be disrespected, even where it conflicts with a right that has a more primary status, as all legal principles are a derivation of a ground principle – human dignity.9 Therefore, as the ECHR has its roots in the concept of human dignity and the right to reputation is derived from the Convention, the right to reputation is practically encompassed in the Convention, even as just a derivation from it.
Despite there clearly being no right to reputation in the express terms of the ECHR, the Court has adapted to the evolution of the contemporary society and established this right. The test of whether there is a specific right to reputation under the ECHR is whether a claim that your rights have been breached will be successful when there were false allegations of fact made about you10 and: (a) the allegations were damaging enough to constitute an interference with your right to a private life, (b) there were insufficient attempts to validate the allegations11, and (c) it is the effect on your reputation alone, rather than any other effect of the allegations on any other aspect of your private life that creates the breach.
The law’s current stance is that the right to reputation falls under the scope of Article 8, so long as the defamatory statement is of a “seriously offensive nature”. In order to establish an effective, specific right to reputation, the ECtHR will need to go beyond establishing that damage to reputation is itself an interference with privacy. It will need to establish that a false allegation can have a serious effect on reputation violating the rights protected by Article 8 ECHR, even where the allegation does not have significant other effects on the subject’s private life. This, the Court has not yet done. However, the right to reputation is not given a less important legal status, as it was created as a human right, even if only indirectly, based on a fundamental principle – human dignity.
Matthiew Foster, Helin Laufer Gencaga (President of KCL Amnesty International) Jeremy Letwin, KCL LL.B. students