Right of legal entities to their honour
Freedom of expression
Rules of conduct for journalists
Ruling No. 292/2008
Case no. 459/07
Rapporteur: Justice Ana Guerra Martins
Ruling of the 3rd Section of the Constitutional Court
I – REPORT
1. In the present case, in which A., SA and others are the appellants and B. the respondent, under the terms of Article 70(1)b of the Law governing the Constitutional Court (the LTC) the former are appealing to this Court against a ruling of the Supreme Court of Justice (STJ). The appellants argue that the rule which results from the conjugation of Articles 484 and 483(1) of the Civil Code and 14a, c and h of the Statute governing Journalists (and not the Press Law, to which the appellants incorrectly referred), when interpreted such that when the right to information is at stake, it is enough to determine that a journalist’s fault was unwitting or fell below the median threshold of fault applicable to a journalist for there to be fulfilment of a precondition for the existence of a duty to pay compensation for injury to the good name of a legal person, and the rule set out in Article 494 of the Civil Code, when interpreted such that when the right to information is at stake, the amount of the compensation for moral damages can be greater than the amount that is usually awarded in relation to the value of human life, are both unconstitutional because they are in breach of the freedom of expression and of information and the freedom of the press set out in Articles 37(1) and (2) and 38(1) and (2), while the second rule is also unconstitutional because it violates the principle of proportionality set out in Articles 2 and 18, all of the Constitution of the Portuguese Republic (CRP).
2. The Rapporteur ordered that the appellants be notified that, under the terms of Article 79(1) and (2) of the LTC, they should submit their arguments to this Court in relation to the question of the unconstitutionality of Articles 484 and 483(1) of the Civil Code and 14a, c and h of the Statute governing Journalists (and not the Press Law, to which the appellants incorrectly referred). She also issued a Summary Decision that the Court would not hear the appeal in relation to Article 494 of the Civil Code, inasmuch as she considered that the appellants had not identified any specific question concerning the unconstitutionality of a rule, or concerning a normative interpretation by the court against whose decision the appeal was lodged, but had instead sought to attack that decision – which had already transited in rem judicatam because it had not been opposed – both in absolute terms and by comparing it to other decisions handed down by the same or other courts.
3. The appellants submitted arguments, which ended with the following conclusions:
“I – The present appeal is lodged against the ruling in which the STJ ordered the appellants herein to pay B. the sum of € 75,000.00 for injury to his good name and reputation caused by the publication of news about the existence of a tax debt owed by the aforementioned club.
II — The appellants believe the rule which was applied in that ruling and which results from the conjugation of Articles 484 and 483(1) of the Civil Code and 14a, c and h of the Press Law, when interpreted such that when the right to information is at stake, it is enough to determine that a journalist was at fault unwittingly or in a way that fell below the median applicable to a journalist, for there to be fulfilment of a precondition for the existence of a duty to pay compensation for damage to the good name of a legal person under the terms of Articles 37 and 38 of the CRP, is unconstitutional because it is in breach of those same Articles 37 and 38.
III — The STJ considered that there was an absence of “due diligence” – which constitutes “unwitting fault” and was the determinant factor in the decision – because “the proven facts do not reasonably permit the conclusion that the respondents conducted the process of publicising the news in scrupulous compliance with the legis artis that apply to the work of a journalist”.
IV — Given the key nature, in a democratic society like ours, of the freedom of expression and information in relation to matters that are of public importance, if “unwitting fault” were to be grounds for journalists to be held civilly liable for any damages caused, this would structurally endanger the freedom of expression, of information, and of the press enshrined by Articles 37 and 38 of the CRP and laid down by Article 10 of the European Convention on Human Rights (ECHR).
V — This violation of the constitutional precepts in question is further enhanced by the fact that that which is at stake is not the honour of a natural person, but a legal person’s right to a good name and reputation.
VI — The understanding that, in cases in which the right to information and the credit and good name of a legal person are at stake, it is enough for the civil liability derived from Articles 483 and 484 of the Civil Code to exist for there to be unwitting fault on the part of the agent, is in breach of the provisions of Articles 37(1) and 38(1) and (2) of the CRP, because it undermines the essential cores of those freedoms and thus also violates the principle of safeguarding the essential core enshrined by Article 18(3) of the CRP.
VII — As such, the Court should declare the rule that results from the interpretation in question unconstitutional.”
4. The respondent submitted the following conclusions as part of his counter-arguments:
“1 – The present appeal cannot be heard due to a procedural issue, inasmuch as the question of unconstitutionality which was raised in the counter-arguments that were submitted to the STJ was whether the truth and the public interest in being informed are reasons for excluding any illegality; whereas in the request to be allowed to appeal to the Constitutional Court and the subsequent arguments, it was whether unwitting fault and the argument that the fault fell below the median constitute preconditions for the existence of subjective liability for injury to a good name.
2 – Under the terms of Article 76(2) of the LTC the present appeal cannot be admitted because the question of unconstitutionality (unwitting fault and whether the fault fell below the median) was not raised during the previous proceedings (Articles 280b of the CRP and 70b of the LTC), the case-file document was not identified (Article 75-A of the LTC), and the appeal is manifestly lacking in grounds.
3 – The argument that the decision against which the appeal has been brought was a surprise or unpredictable should not be upheld as justification for the fact that the question of unconstitutionality was not raised before the STJ, inasmuch as the STJ’s interpretation is backed up by the law itself – Article 484 of the Civil Code is a specific aspect of subjective liability and unwitting fault is sufficient for that liability to exist.
4 – Just in case, we would also say that the STJ considered that unwitting fault is a motive for criticism and reproof for the lack of foresight and the lack of awareness of the occurrence of the injurious event when, with due diligence and in the light of the rules that govern the work of a journalist, that occurrence was to be expected; unwitting fault is also a psychological state that is reflected in a relaxation of the wilful effort to act lawfully – something that is deserving of reproof.
5 – The STJ also felt that due diligence can be determined by the criterion set out in Article 47(2) of the Civil Code – the behaviour of a good family man, the average man, or a typical journalist in the concrete circumstances in question; and thus, in the light of the rules laid down by Articles 14a, c and h of the Statute governing Journalists and 3 of the Press Law, that an average journalist should be required to foresee the damage.
6 – The STJ used two distinct criteria to determine the preconditions for there to be subjective liability for damage to a good name: that of unwitting fault, as the nexus needed to attribute the unlawful act to the agent, and that of whether the fault fell below the median, as a criterion for setting the amount of compensation under the terms of Article 494 of the Civil Code, which provides for attenuating circumstances to be taken into account when calculating the compensation in the concrete case in question (see attached expert opinion).
7 – These two criteria cannot be confused with one another, and at the end of the day the criterion of whether the fault fell below the median is only applicable for the purposes of the effects of Article 494 of the Civil Code. However, it is no longer possible for the courts to consider the amount of the compensation – the real reason why the appellants have brought the present appeal – because the time limit for doing so has now passed.
8 – In short, the STJ used the abovementioned concepts and criteria as grounds for its decision, which does not suffer from any form of unconstitutionality caused by a breach of the provisions of Articles 37 and 38 of the CRP, given that the court’s interpretation was supported both by Articles 483, 484, 487(2), 494 and 496(3) of the Civil Code, and by Articles 14a, c and h of the Statute governing Journalists and 3 of the Press Law, as well as Articles 18 and 26 of the CRP.
As such, and in accordance with the rest of the law, the present appeal should not be upheld.”
5. Inasmuch as the respondent invoked the exception under which the present appeal should not be heard due to its object, the appellants were notified under the terms of Articles 702(2) and 704(2) of the Code of Civil Procedure (CPC), which are applicable ex vi Article 69 of the LTC, that they should respond to that part of the respondent’s counter-arguments. Their response was as follows:
“1. The respondent’s arguments are not correct, not only in relation to the unpredictability of the content of the STJ decision, but also as regards the dichotomy he establishes between unlawfulness and fault in order to argue that there is no unlawfulness in the present case.
2. As regards the first of these two issues, we would only say that an appellant is not required to foresee all the possible hypothetical solutions and raise the question of any possible unconstitutionalities in all of them.
3. In reality, before the STJ the appellant – which had won the case in both the court of first instance and the Court of Appeal – envisaged as general a hypothesis as possible, under which the STJ’s decision would be unfavourable to it. Under this hypothesis the unfavourable decision would be based on an unconstitutional interpretation of the rules in question, in which the appellant particularly emphasised the question of lawfulness/unlawfulness.
4. In the end the STJ did rule in the highly improbable sense that the appellant had envisaged in this way. However, because it considered that the truth or otherwise of the news was irrelevant, and because it did not consider that it was in the public interest to disseminate that news, instead of focusing on the issue of unlawfulness the STJ based itself on fault on the part of the journalist, which it said resulted from an alleged lack of diligence, the existence of which was in turn founded on a set of facts that did not actually prove it.
5. Given the content of the decision, and without prejudice to the fact that what was at stake was the right to information – i.e. the issue was an item of news which was essentially true, or which the journalist was convinced was true – the appellant then felt that, where the issue of public interest was concerned, the appeal on the grounds of unconstitutionality should essentially address the question of fault, because this was the aspect on which the STJ based its decision.
6. This not only means that the appeal, in the terms in which it was couched, should be admitted because the STJ’s decision was in fact unexpected and unpredictable, but also that it should be analysed not only from the point of view of fault, but also from that of unlawfulness, given that when the appellant specifically said that what was at stake was the right to information, it included the veracity of the news and its public interest therein.”
The Court must thus now consider and decide.
II – GROUNDS FOR DECISION
A) Delimitation of the object of the appeal on the grounds of unconstitutionality
6. First of all, it is important to clarify the fact that, as the appellants have posed it, the object of the appeal to this Court is the alleged unconstitutionality of the rule which results from the conjugation of Articles 484 and 483(1) of the Civil Code and 14a, c and h of the Statute governing Journalists (and not the Press Law, to which the appellants incorrectly referred), when interpreted such that when the right to information is at stake, it is enough to determine that a journalist’s fault was unwitting or fell below the median threshold applicable to a journalist, for there to be fulfilment of a precondition for the existence of a duty to pay compensation for injury to the good name of a legal person. According to the appellants, this interpretation would be in breach of the freedom of expression and of information and the freedom of the press (Articles 37 and  and 38 and  of the CRP).
This – and only this – is the question of constitutionality that can be considered in the present appeal, given that in concrete constitutionality review cases this Court’s powers to hear an appeal are limited to consideration of the constitutionality of rules or normative interpretations, excluding judicial decisions (solely as examples, see Rulings no. 702/96 of 22 May 1996, no. 336/97 of 23 April 1997, no. 361/98 of 13 May 1997, and more recently, Rulings no. 52/08 of 23 January 2008, no. 103/98 of 19 February 2008, and no. 110/08 of 20 February 2008 [all available at www.tribconstitucional.pt]). This means that here we cannot – and do not want to – question the subsumptive findings of the applicability of the rules to the facts made by the court against whose decision the present appeal has been brought.
Our Constitution did not create a constitutional appeal system based on complaints or the provision of protection, but rather one that conducts normative reviews of constitutionality. So this Court cannot hear cases involving allegations that judicial decisions may be unconstitutional in their own right due to a violation of fundamental rights that are protected by the Constitution.
It is thus taken for granted that the decision against which the present appeal was brought deemed that all the preconditions for the existence of civil liability in the case before us were met, and we say again that this is not in question here.
We should recall that for the court whose decision is the object of appeal: the journalistic dissemination of the news in question involved unlawfulness; the actions of the respondents did not meet any conditions that would have justified them; the respondent journalists acted in a way that deserves reproof from an ethical/legal point of view; the appellant is entitled to demand compensation for moral damages; and the amount of the compensation should not be that sought by the appellant (€ 498,797.90), but rather € 75,000.
In order to better understand that which is at stake in the present appeal, it is important to reproduce the text of some of the passages from the grounds for the decision that is its object. The purpose of doing so is to gauge the exact meaning of the normative dimension of the precepts whose unconstitutionality is alleged in this case.
The beginning of the section of the STJ ruling that sets out the grounds for its decision reads as follows:
“The essential question before us is whether or not the appellant is (entitled) to demand compensation from the respondents in the sum of € 498,797.90 for moral damages.
Without prejudice to the fact that the solution to one question may make solving one or more of the others unnecessary, the answer to the aforesaid core question requires prior analysis of the following sub-issues:
- the freedom of expression and of information within the framework of the Universal Declaration of Human Rights (UDHR), the European Convention on Human Rights (ECHR), and the Constitution of the Portuguese Republic.
- the freedom of expression and of information in the Press Law and the Statute governing Journalists.
- the preconditions for the existence of civil liability in relation to the case before us.
- did the journalistic dissemination involve any unlawfulness?
- did the respondents’ actions fulfil the criteria for there to be a cause for their justification.
- did the respondent journalists act in a way that deserves reproof from an ethical/legal point of view?
- is the appellant entitled to demand compensation for moral damages from the respondents?
- should the aforementioned compensation be set at the amount requested by the appellant?
- a summary of the solution to the case before us derived from the proven facts and the law.”
After first analysing the content of the freedom of expression and of information as set out in the CRP, the UDHR, the ECHR, the Press Law, and the Statute governing Journalists, the STJ ruling addresses the preconditions for the existence of civil liability “in relation to the concrete case in question”.
On the subject of unlawfulness the STJ concluded that:
“Article 484 of the Civil Code especially provides for an unlawfulness in the broad sense of the term, derived from damage to credit or good name. It says that anyone who states or disseminates a fact that is capable of prejudicing the credit or good name of any natural or legal person is liable for the damage caused thereby.
We are thus in the presence of a provision that makes it unlawful to divulge facts whose nature makes them capable of damaging the credit or good name of such persons, be they physical people or merely legal entities.
The capacity of legal persons embraces all the rights and obligations that are necessary or convenient to the pursuit of their purposes, save only those that are precluded by law, or are inseparable from natural persons – the case of rights and obligations of a family nature, for example (Article 160 of the Civil Code).
Certain personality rights are thus not excluded from a legal person’s capacity to enjoy rights. These include the right to freedom, and the right to a good name and honour from the social-standing point of view (Articles 26 of the Constitution and 70 and 72 of the Civil Code).
This means that within the framework of the business they engage in, the law protects the image, business honesty, credibility, and social prestige aspects of the good name of legal persons.
Credit is damaged when the fact that is disseminated has the effect of reducing confidence that the subject in question will fulfil its obligations; a good name is damaged when that fact has the effect of undermining the prestige which the body enjoys or the positive light in which it is held in the social environment of which it forms a part.
That prestige is the same as social standing – i.e. the worth that persons or bodies, be they physical people or merely legal entities, are considered to possess in their social environment, or in other words, their social reputation.
Whether the fact that is disseminated is true or not is irrelevant to the existence of the unlawfulness to which this rule refers, on condition that its structure and the circumstances surrounding it are such as to render it capable of affecting the credit or reputation of the person or body concerned.”
In its decision the STJ goes on to determine whether there is any cause that would absolve that which would otherwise be unlawful:
“As a result of the constitutional legal rules mentioned earlier, at the level of the fundamental rights we have on the one hand the right of people and bodies to credit and their good name and reputation; on the other, and within the overall framework of the freedom of the press, we have the journalist’s right to inform.
It is clear that a large part of the media, including the press, intervenes on the social level using means of dissemination that are quite effective and therefore capable of having a serious negative effect on the aforesaid personality rights.
Within this area of liberty and this instrument of power there necessarily arises a conflict between the freedom of expression and of information that is inherent to it, and the rights of the persons who are brought into question by that freedom’s exercise – particularly the personal right to moral integrity, including good name or reputation.
This is a permanent conflict between the right to the freedom of the press and the right to personality – rights which the Constitution ranks equally with one another. However, the former is not absolute in terms of implying that it has the effect of overcoming the latter – apart from anything else, because the latter is structurally inherent to people, who are the measure of all things.
And – as must be the case, because everything serves Man – the law sets limits on the right to express thought and to inform, particularly by means of the institution of civil liability, so as to safeguard the rights that are capable of being injured as part of the work of the media.
It is thus not possible to invoke the right to be informed and to inform the public when what is at stake is an activity that is concretely intolerable because it violates the essential content of another fundamental right or community value which is guaranteed by the Constitution.
This leads to the ranking of the aforementioned rights, in which there can be no doubt that the freedom of the press, of information, and of the expression of thought is subject to an immediate restriction in the form of the fundamental right to personality. In other words, as a rule, the latter cannot be affected by the former.
This means that the jurisprudence has considered that, on the one hand, because it must exist alongside other fundamental rights which possess equal value in the eyes of the Constitution, the freedom of expression and of information must be subject to the limits required by the needs of an orderly social coexistence (Constitutional Court Ruling no. 74/84 of 10 July 1984, Series II of the Diário da República of 11 September 1984).
And, on the other hand, that one of the immediate limits on the freedom of press, of information, and of expression of thought is the fundamental right to a good name and reputation and to the protection of personal life, as enshrined by the Constitution (STJ Ruling dated 26 September 2000, CJ, Year VIII, Vol. 3, p. 42).
As is only natural, this does not entail questioning the media’s right to inform and the public interest of the media’s work, but rather ranking that right and interest in accordance with both the principles that derive from the law in the light of the right to personality, and the provisions of Article 335 of the Civil Code.
In the case before us there is a concrete conflict between the aspect of the personality right concerning the credit and good name of a legal person with public utility status, and the freedom of information via the mass media – a conflict that must be resolved in terms of the prevalence of the former over the latter.
The existence of a breach of the provisions of Article 484 of the Civil Code does not depend on whether or not the disseminated fact is true, so the unlawfulness of the act of dissemination is not precluded by fulfilment of the requirements for truth.
Be that as it may, neither the objective structure of the facts that were presented as news, nor the meaning that readers could reasonably attribute to them, matched the situation that was actually involved in the legal fiscal relationship between the appellant and the tax authorities.
The various courts considered that that which was transmitted to the public opinion was the idea that the appellant was not fulfilling its fiscal obligations, that it was improperly withholding taxes and social security contributions, that it was failing to fulfil its obligations to the tax authorities, and that its managers had committed the crime of abuse of fiscal trust, which is punishable by a heavy prison term.
We can thus see that the content of the news was not limited to the mere communication of facts that had occurred in the past, but undoubtedly entailed an aspect that made it a journalistic opinion piece.
The difficulty involved in obtaining information about this matter, which naturally existed due to the absolute fiscal secrecy which prevailed at the time and which shrouded the matter, cannot justify the failure to determine the truth, inasmuch as it meant that there was a requirement for greater diligence on the part of the journalists before the media publicised the facts.
What is more, on the eve of the publication the chairman of the appellant’s executive board told one of the respondents that the appellant was not in a situation involving any failure to fulfil fiscal obligations, and the proven facts do not show that the respondents then did anything to avoid the publication, or at least to modify its content in such a way as to avoid the damage.
So, contrary to the opinion of the earlier courts, the respondents’ actions did not take place with the benefit of an absolving justification for unlawfulness in the shape of the exercise of a right or the fulfilment of a duty.
In the face of a fluid situation as regards the appellant’s effective failure to fulfil any tax-related obligation to the state, in concrete terms there was no public interest in publicising that which was publicised, and therefore nor was there any shortcoming or excess that was deserving of public attention.
Consequently, the respondents – with A. SA acting through the others – not only formally, but also materially, acted unlawfully in a way that breached the provisions of Article 484 of the Civil Code, which covers the interest (protected by the civil law) constituted by the credit and good-name aspects of the appellant’s right to personality.”
On the subject of fault as a precondition for the existence of civil liability – and after distinguishing between fault in the broad sense of the term from fault in the narrow sense (which the decision against which the present appeal has been brought saw as “mere fault” or “negligence”), both witting and unwitting, and after saying that in our legal system, in the absence of any other legal criterion, fault is assessed by comparison with the diligence of a good family man in the circumstances applicable to each case (Article 487 of the Civil Code) – the Ruling goes on to apply these criteria to the concrete case in question:
“Within the framework of the case before us, in which the media engaged in their activities within the scope of the journalistic trade, the standard person to whom the law refers is the person who works in that particular field.
So the diligence which is relevant to the determination of fault is that of a normal person, but specifically of a diligent journalist who knows the rules of his profession – particularly those set out in both the general and the special law and the journalist’s deontological code – as they apply to the circumstance of the concrete case in question, along with the structure of the normal sensibility of persons involved in the social milieu that serves as a point of reference.
From that which has already been said about the Press Law, we can see that journalists are bound by the fundamental duty to engage in their work with respect for professional ethics, accurate and unbiased information, the requirement not to make accusations without proof, the presumption of innocence, and the requirement not to engender unreal situations by abusing good faith (Article 14a, c and h).
What is more, on the deontological level, and naturally in harmony with the specific nature of the journalist’s profession, people who exercise that profession are under a duty to relate facts with rigorous accuracy, interpret them with intellectual honesty, prove them by listening at opportune moments to the parties who are directly interested in them, refrain from sensationalism and making accusations without evidence, safeguard the presumption of innocence until a judicial sentence transits in rem judicatam, and not humiliate people or disturb them when they are in pain or suffering.
The news in question here, with the headline on the front page of the newspaper, involved the dissemination of facts which indicated that the appellant was not fulfilling its fiscal obligations, that it was improperly retaining the amount owed in social security contributions, and that its managers were being investigated under the criminal law.
Given their professionalism and the deontological rules to which they are subject in their journalistic activities, and notwithstanding the investigative work in which they engaged using sources they accessed, which were not absolutely determinant, and following the denial issued by the chairman of the appellant’s executive board, the respondent journalists could and should have expected or said that the publication in question would mean that they would unlawfully injure the credit in general and the good name in particular aspects of the appellant’s right to personality.
The proven facts do not reasonably permit the conclusion that the respondents conducted the process of publicising the news in scrupulous compliance with the legis artis that apply to the work of a journalist.
It is consequently important to conclude that when they issued the news in question, the respondent journalists acted with fault in the strict sense of the term – i.e. in a way that deserves reproof from an ethical/legal point of view.
The second precondition for the existence of civil liability referred to by Article 483(1) of the Civil Code – that is to say fault, at least in its unwitting form – is thus fulfilled.” (our underlining)
Finally, in the part concerning the sub-question of how much compensation for moral damages should be awarded to the appellant in its dispute with the respondents, the court begins by summarising the conclusions it had previously reached in its ruling, as follows:
“Given the unlawful and culpable publication of the news in question and the moral injury to the appellant that resulted in a sufficiently causal manner therefrom, there can be no doubt that the preconditions for the existence of an obligation to compensate within an extra-contractual civil liability framework are met (Articles 483, 484, 496 and 562 of the Civil Code).
We are thus in the presence of voluntary facts that could be controlled by the will of the agents responsible for them, were unlawful, were deserving of reproof from an ethical/legal point of view, and caused compensatable moral damage within the framework of a causal and sufficient connection between that damage and those facts.”
The court goes on to describe the criteria for setting the amount of the compensation:
“In its suit the appellant asked for compensation in a sum equivalent to four hundred and ninety-eight thousand seven hundred and ninety-seven euros and ninety eurocents.
But the pecuniary amount of the compensation that has to be set must be determined fairly, and in any case must take account of the circumstances referred to by Article 494 of the Civil Code (first part of Article 496 of the Civil Code).
Thus, in the event that the liability is based on mere fault – as it is in the case before us – the compensation can be fairly set at an amount below the value of the damages caused, on condition that this is justified by the degree of the agent’s culpability, its economic situation and that of the injured party, and the other circumstances of the case (Article 494 of the Civil Code).
So the circumstances which, in any event, Article 496(3) requires us to bear in mind in relation to the principle of fairness are the degree of the agent’s culpability, its economic situation and that of the injured party, and the other circumstances of the case.
The respondent is a legal person with public interest status that takes part in first-division football matches, so it allocates considerable assets or income to that activity.
A. SA owns a newspaper with a considerable public reputation and print run, which means that it must allocate considerable assets or income to that business activity.
The respondents C., D., E. and F. are journalists who work for company A – C as a director – but their economic and financial situation are not revealed by the proven facts.
The facts do not demonstrate that negative consequences of an asset-related nature were caused to the appellant by the journalistic publication act in question, but we do know that soon after its initial appearance, the news was denied by media outlets that are similarly effective in disseminating information.
The degree of unlawfulness of the facts that affected the appellant’s legal sphere is thus below the median.
In turn, given the circumstances surrounding the action – particularly as regards the conviction they gained from the information they obtained before the publication occurred – the degree of fault of the respondent journalists is also below the median.
As such, and bearing in mind the nature of the unlawful, culpable act perpetrated by the respondent journalists, its effect on the appellant’s legal sphere, and the remaining circumstances of the case, including the fall in the value of the currency between the time when the facts occurred and the present day, and seen within a framework of judgements of fairness or justice in the concrete case before us, we find that it is sufficient to set the amount of the aforementioned compensation which the respondents owe the appellant at € 75,000.”
7. In order for the decision in this case to be a good one, it is important to begin by clarifying the meaning that should be given to the expressions “unwitting fault” and “fault below the median”, as used in the ruling that is the object of the present appeal. This is because they are not synonymous, as the appellants would apparently have us believe.
This meaning can only be found in the ruling itself. We can see from reading the latter that unwitting fault is used in the part of the sentence dedicated to qualifying the form of fault that is at stake as a precondition for the existence of civil liability; there can be no doubt that for the purposes of both interpretation and application, Articles 483(1) and 484 of the Civil Code are of particular significance here. This is much more doubtful when it comes to fault below the median, given that this expression only appears in the part of the ruling concerning setting the amount of the compensation for moral damages, when the court applies Articles 494 and 496 of the Civil Code; in other words, at the point when the court assesses the degree and seriousness of the fault, and then uses that assessment to justify reducing the compensation to one seventh of the amount the appellants asked for.
Inasmuch as Articles 494 and 496 of the Civil Code do not form part of the object of the present appeal, for those who believe that the duty to compensate is not based on whether the journalist’s fault lies below the median, but only on the existence of fault, at least in its unwitting form, any thoughts on the seriousness of the fault lie outside this Court’s powers to consider given aspects of the case.
Indeed, the decision does not even directly exclude the existence of witting negligence (or “mere fault”), inasmuch as the court says that it deemed that the existence of “fault in the strict sense of the term” (which, throughout its decision, the STJ had seen as “mere fault” or “negligence”) had already been demonstrated.
So the decision which is the object of the present appeal considers that the occurrence of one of the possible forms of negligent behaviour (“witting” or “unwitting”) had been proven. However, in order to reinforce the grounds for that finding, it added that there was “at least” unwitting negligence. This means that the court considered that the facts definitely revealed that negligent conduct did exist, at least in the “unwitting negligence” form, but that the existence of “witting negligence” was not excluded.
But even for those who feel that despite the fact that references to fault below the median are systematically found in the part of the decision concerning the calculation of the compensation, particularly for the purpose of qualifying the form or degree of fault, the decision does not permit the establishment of any equivalence between fault below the median and slight or very slight fault, for example. In the absence of any express or implicit statement by the STJ of such an equivalence, the Constitutional Court could only say that one existed if it were to autonomously assess the facts – something that it is totally forbidden to do.
Thus, in interpreting Articles 483 and 484 of the Civil Code, which is what we are talking about here, the fact that this Court cannot reconsider the subsumption of the facts to the rules, let alone the evidence that was produced in the case prior to the present appeal, means that we must base ourselves on the principle that there was fault on the part of the journalists, at least in the unwitting form.
8. Thus, from the constitutional-law point of view the question is whether – given that the freedom of expression, of information, and more specifically, of the press, is at stake here – it is possible to interpret Articles 483(1) and 484 of the Civil Code and 14a, c and h of the Statute governing Journalists in such a way as to permit the award of compensation for damage to the good name of a legal person when there is only unwitting fault.
So let us see what those precepts say:
Article 483(1) of the Civil Code reads as follows:
“1. Whomsoever, be it with malice or with mere fault, unlawfully breaches another’s right or any legal provision designed to protect third-party interests, shall be obliged to compensate the injured party for the damage that results from the said breach.”
Article 484 of the Civil Code states that:
“Whomsoever states or disseminates a fact that is capable of prejudicing the credit or good name of any natural or legal person shall be liable for the damage so caused.”
Article 14 of the Statute governing Journalists, as approved by Law no. 1/99 of 13 January 1999 (in the version applicable to the case that is the object of the present appeal, which preceded the current version, as derived from Law no. 64/2007 of 6 November 2007), read as follows:
“Whatever the provisions of the respective deontological code, the duties of journalists shall be:
a)To engage in their work with respect for professional ethics, and to inform accurately and without bias.
c)To refrain from making accusations without evidence, and to respect the presumption of innocence.
g) To refrain from falsifying or staging situations with the intention of abusing the public’s good faith.”
In order to decide the question of constitutionality referred to earlier, it is necessary to consider what protection the Constitution affords to the following aspects:
- he right to a good name (B).
- Possession of the right to a good name by legal persons that are “public figures” (C).
- The freedoms of expression, information, and the press (E).
- The collision between the rights to a good name and the freedom of information (F).
Only after this excursion will we be in a position to resolve any conflict that may exist between a legal person’s right to a good name and the freedoms of expression, information, and the press, in the concrete case before us (F).
B) Constitutional protection of the right to a good name
9. The right to a good name and reputation is enshrined by Article 26(1) of the CRP. It “consists of the right for one’s honour, dignity and social standing not to be offended or injured by an allegation made by someone else, and of the right to defend oneself against such offence and obtain the consequent reparation” (GOMES CANOTILHO / VITAL MOREIRA, Constituição da República Portuguesa, Anotada, vol. I, revised 4th edition, Coimbra, 2007, p. 466).
This Court has already had occasion to pronounce itself on the right to a good name several times (see Rulings nos. 319/95 of 20 June 1995, as published in Series II of the Diário da República [DR] no. 253 dated 2/11/95; 480/98 of 1 July 1998, as published in Series II of DR no. 275, dated 25/11/99; no. 249/00 of 12 April 2000, as published in Series II of DR no. 256, dated 6/11/2000; and more recently Ruling no. 407/07 of 11 July 2007, as published in Series II of DR no. 166, dated 29/08/2007).
This right possesses a very broad legal scope and constitutes a limit on other rights – particularly the freedom of expression, the freedom of information, and the freedom of the press. This is why “[the] constitutional importance of the protection of a good name and reputation legitimates criminalising forms of behaviour such as libel, defamation, calumny, and abuse of the freedom of the press, or the fact that within the scope of civil liability it is acceptable for there to be compensation for moral damages caused by unlawful actions that offend the good name and reputation of natural and legal persons” (JORGE MIRANDA / RUI MEDEIROS, Constituição Portuguesa Anotada, Vol. I, Coimbra, 2005, p. 289).
A good name is thus protected by both the Criminal Law (see JORGE DE FIGUEIREDO DIAS, “Direito de Informação e Tutela da Honra no Direito Penal da Imprensa Português”, in Revista de Legislação e Jurisprudência, no. 3697-9, pp. 100 et seq.; 133 et seq.; and 170 et seq.; and MANUEL DA COSTA ANDRADE, Liberdade de imprensa e inviolabilidade pessoal – uma perspectiva jurídico-criminal, Coimbra, 1996, passim) and the Civil Law (for example, see R. CAPELO DE SOUSA, “Conflitos entre a liberdade de imprensa e a vida privada”, in Ab uno ad omnes, 75 anos da Coimbra Editora, Coimbra, 1998, p. 1123 et seq.; and PEDRO PAIS DE VASCONCELOS, Direitos de Personalidade, Coimbra, 2006, p. 72 et seq.).
The Press Law itself (Law no. 2/99 of 13 January 1999, as amended by Law no. 18/2003 of 11 June 2003) refers to the general rules on civil (Article 29) and criminal (Article 30) liability for the solution to issues involving voluntary, unlawful and culpable acts by intermediaries acting for the press.
While, in the concrete case before us, the Criminal Law rules are only of interest in order to underline the negative value that both the constitutional and general legal systems attach to the conduct of anyone who breaches someone else’s right to a good name and reputation, which they go so far as to qualify as a crime, it is the Civil Law rules that were applied to this case, so they are the ones to which we must pay more attention.
The Civil Law rules protect good name and reputation by means of the general protection of personality, which protects natural persons against any unlawful damage, or threat of damage, to their moral personality (Article 483 of the Civil Code). This takes concrete shape in the form of the rule governing damage to credit or a good name (Article 484 of the Civil Code): “When both these preconditions and those for the existence of fault and a causal link are met, this leads to the activation of the mechanisms concerning the civil liability of the one who has breached the right, whereupon there may be scope for compensation for material or moral damages, depending on the case” (in this respect, see JÓNATAS E. M. MACHADO, Liberdade de Expressão – Dimensões constitucionais da esfera pública no sistema social, Coimbra, 2002, p. 765).
This was the journey which the STJ’s decision took when the court found that there was a breach of the respondent’s right to a good name and the preconditions for the existence of civil liability were met, and that the party that breached the right to a good name should pay compensation for moral damages.
C) Possession of the right to a good name by legal persons
10. The right to a good name is included in Article 26 of the CRP, which covers nine different rights – to a personal identity, to the development of personality, to civil capacity, to citizenship, to a good name and reputation, to image, to speak out, to protect the privacy of one’s personal and family life, and to legal protection against any form of discrimination. All of these rights are linked to the sphere of existence that is at the core of people and their lives, and are collectively described as “other personal rights”. As such, we must ask ourselves whether the right to a good name pertains solely to natural persons (most of the legal theorists see it as being derived from the idea of the dignity of the human person), or whether it can also be possessed by a legal person.
This question is particularly important in the case before us, inasmuch as the respondent B, whose name the sentence that is the object of the present appeal says was affected, is a legal person.
Given that Article 12(2) of the CRP states that “Legal persons shall enjoy such rights and be subject to such duties as are compatible with their nature”, our Constitution “expressly recognises the capacity of legal persons to enjoy rights, thereby overcoming a concept of fundamental rights that is exclusively centred on natural persons” (GOMES CANOTILHO / VITAL MOREIRA, Constituição..., op. cit. p. 329).
Having said this, legal persons cannot possess all the fundamental rights and duties, but only those that are compatible with their nature. This means that the question of whether a given right can be exercised by legal persons must be answered on a case-by-case basis. Some rights – the right to life, the right to personal integrity, or the right to constitute a family, for example – are automatically excluded, because they can only be conceived of in relation to natural persons (in this sense, see Ruling no. 539/97 of 24 September 1997, available at www.tribunalconstitucional.pt).
But this is not the case of the right to a good name. Just like natural persons, legal persons are entitled to a name, and naturally they have every interest in not seeing their name damaged, or associated with an unlawful, illicit, libellous, defamatory or any other kind of fact that would somehow undermine their position in society. This means that the right to a good name does not belong exclusively to natural persons, but can also accrue to legal persons.
The Constitutional Court has already had occasion to consider whether or not a given rule affected a company’s good name.
“9.There remains, however, the fundamental question which goes to the heart of the appellant’s allegation: whether the publication of the sentence that prohibits the inclusion of a given clause in the contract affects the right to a good name and reputation (and, as such, constitutional Rights, Freedoms and Guarantees).
Civil Procedure is subject to a general principle of publicity (see Article 167 of the Code of Civil Procedure – CPC). The ultimate justification for this is, in particular, the need to establish security in the relations between private subjects. In the present case the court has ordered he publication of the judicial decision which prevents the appellant from using clauses that are prohibited by law, and in doing so promotes the security which the mere public nature of the proceedings would not fully ensure.
There is no fact whatsoever that damages the appellant’s good name and reputation, inasmuch as the inclusion of prohibited clauses in the contracts is itself a fact, responsibility for which has been proven (in court proceedings) to be attributable to the appellant itself. At the same time, because these are general contractual clauses targeted at an undefined and all-embracing circle of subjects, the decision will only be fully effective if it is also possible for it to be made known to the interested parties; and it is not a sanction in the real sense of the term, but only a means – derived from the principle of publicity contained in the Civil Procedure – of making the contracting parties aware of their rights in advance.
10.In short, this is just a rule that regulates the publicising of a judicial decision in a particular sector of the Civil Law, with a view to ensuring the effectiveness of the sentence in situations in which certain particularities of the case call for it (see António Menezes Cordeiro, op. cit., pp. 385 and 386, who says that the issue here is the regulation of aspects concerning the decision part of a sentence).
Not only does the rule in question not unlawfully affect the company’s good name or reputation, but its nature is not that of a sanction, but rather just an implementation of the principle of publicity contained in the Civil Procedure, and in itself does not regulate the restriction of constitutional Rights, Freedoms and Guarantees.” (Ruling no. 249/00, ibid., our underlining).
In summary, the right to a good name that accrues to a legal person (like B., which is the respondent in the case before us) warrants constitutional protection.
11. Now the fact is that this is not just any legal person, but rather a sports club with a significant social and media position that enables us to ask ourselves whether we are not in the presence of a “public figure”? Although this expression is normally used for natural persons, such as political officeholders, artists, or members of royal families, the truth is that a legal person can also be well enough known that it must be included in the “public figures” category for the purposes of the protection of its good name and reputation, failing which one might be affording greater protection to legal persons than to natural persons.
If we accept that the respondent is a “public figure”, it is important to ask whether this means that the right to a good name and reputation is ab initio subject to limitations or restrictions, or whether it is even excluded in this case.
In pronouncing itself on the question of the protection of public figures’ right to honour (the case in question referred to a political officeholder – i.e. a natural person), in Ruling no. 113/97 of 5 February 1997 (published in Series II of DR no. 88, dated 25/4/1997) this Court said:
“Let us not forget that, as we have perhaps already touched on, in situations in which public figures and candidates for, or holders of, political office are concerned, it is possible that even before one starts thinking in a way that attempts to harmonise the “conflicting” rights (with respect for the principle of proportionality and the requirement not to reduce the essential content and scope of the right that may come to prevail at the end of the process), one must conclude that the protective sphere of one of those rights – in the case before us, the so-called right to honour – is somewhat reduced to start with. And so, that which, if those situations were not at stake, would mean that as part of the balanced optimisation of the two rights one would consider a given word, expression, image or judgement to be deserving of legal/criminal reproof, this would not be exactly the same in other situations, such as the one described here.
In the latter situations a finding of reproof would have to be based on a ‘finer net’, and should only occur in cases in which, in reality, although it has not yet fully occurred, the positioning in question is on the way to injuring the essential content of the right to a good name and reputation.
In the case before us the question is simply whether this Court must accept the value judgement / factual finding contained in the ruling that is the object of the present appeal. The ruling unquestionably concludes that the expressions used by the appellant constitute a personal insult and exceed the limit of the right to inform and to form public opinion, to political debate, or to an opinion about the ideas of the civil party to the case; instead they injure the latter’s personal image by denigrating it, and constitute an offence to his moral integrity.”
So public figures continue to benefit from the right to protection of their good name and reputation, although in a more attenuated form than that applicable to anonymous citizens. Thus in the event of a conflict with other rights, such figures may find it more difficult to secure a balanced optimisation of the opposing rights. This will only not be the case when a reduction in the protection of the right to a good name and reputation implies a failure to respect the essential content of that right.
Having reached this point, it is now important to move on to the subject of the constitutional protection of the freedom of expression, information, and the press.
D)The constitutional protection of the freedom of expression, information, and the press
12. The CRP deals with the freedom of expression and of information in general in Article 37, and the freedom of the press in particular in Article 38.
The Constitutional Court has already pronounced itself on these three freedoms on various occasions (for example, see Rulings nos. 113/97, cit.; 178/99 of 22 March 1999, as published in Series II of DR no. 157, dated 8/7/1999; 201/04 of 24 March 2004; and 407/07, cit.).
In the abovementioned Ruling no. 113/97 the Constitutional Court said:
“1. As we know, the roots of the expressions “freedom of expression” and “freedom of the press” lie deep in history (on this subject, see Leite Pinto, “Liberdade de imprensa e vida privada”, in Revista da Ordem dos Advogados, year 54, April 1994, 27 et seq.). It is in the Constitution of the United States of America that we find the first legal text to clearly refer to these “freedoms” (See the Bill of Rights containing the First Amendment to the US Constitution, as proposed by Congress and ratified by the various States in accordance with Article 5 thereof). In the same year of 1789 the “free communication of thoughts and opinions” was formally enshrined in the Declaration of the Rights of Man and of the Citizen that emerged from the French Revolution (and still constitutes the theoretical basis of the French Constitution today), but this time with provision for holding citizens liable for abuses of the freedom to speak, write and print freely.
It is also well known that where the freedoms that are of interest to us here are concerned, that Declaration constitutes the template for various legal systems – particularly in Europe (see, verbi gratia, Article 5 of the Grundgesetz (GG), Article 21 of the Italian Constitution, Article 20 of the Spanish Constitution, and Articles 37 and 38 of the Constitution of the Portuguese Republic) – as well as for a number of International Law documents on “human rights” (see Article 19 of the Universal Declaration of Human Rights; Article 10 of the European Convention on Human Rights; and Article 19 of the International Covenant on Civil and Political Rights – ICCPR).
However, perhaps in the wake of the Declaration of the Rights of Man and of the Citizen and using different terms in each case, the texts that embodied the formal establishment of those “freedoms” also provided for reservations in relation to them. In other words, they enshrined those freedoms subject to legally established limits designed to repress abuses of them. Nor can we fail to mention that the first two texts we referred to address the binomial freedom of expression and the press / the sanctions for abuses thereof in different ways. In reality there are no great difficulties with the view that the Declaration of the Rights of Man and of the Citizen is clearer when it establishes predetermined limits (the limits with which the law seeks to repress abuses) on the freedom in question, whereas the First Amendment to the US Constitution places the greater emphasis on the freedom itself, whose existence (here it is the existence of the freedom that is predetermined) prevents the Congress itself from passing legislation to restrict it.
In addition to any of the other comments that one could always make, this means that it can be no surprise when we find occurrences such as the existence of limiting clauses derived from the general laws, the legal rules on the protection of youth, those on the protection of the right to honour referred to by Article 5(2) of the GG, the references to good customs mentioned by Article 21 of the Italian Constitution, and to respect for the other rights recognised by the Title that includes Article 20 of the Spanish Constitution (particularly the right to honour, to privacy, to one’s image, and to the protection of youth and childhood), and the provision in Article 37(3) of our own Constitution for the existence of infractions in the exercise of the rights of freedom of expression and of information.
Similarly – and precisely because exercise of the right to freedom of expression “carries with it duties and responsibilities” – Article 10(2) of the ECHR says that it can be subject to such "penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others"; while Article 19(3)a of the ICCPR says that the right to freedom of expression (whose content can be deduced from paragraph  of the same Article) can be subjected to certain restrictions (which must in any case be expressly laid down in the law), on condition that they prove necessary "for respect of the rights or reputations of others ".
2. Under the heading “Freedom of expression and information”, the current Portuguese Constitution (Article 37) proclaims that everyone has the right "to freely express and publicise his thoughts in words, images or by any other means, as well as the right to inform others, inform himself and be informed without hindrance or discrimination".
In the words of Gomes Canotilho and Vital Moreira (Constituição da República Portuguesa Anotada, 3rd edition, p. 225), and under the general umbrella of the “right of expression”, this is a right which, as a negative right or a right to a defence against public authorities, implies "the right not to be prevented from expressing oneself", the positive aspect of which also instils a right “of access to the means of expression” (see the thoughts of the aforementioned authors in relation to the outcroppings of this aspect in Articles 37, 40, and 41); and where the general “right to information” is concerned, the right to inform "consists to start with of the freedom to transmit or communicate information to others, and to disseminate it without hindrance" – a right which, in its positive guise, implies the “right to the means of informing” (on this point too, see Leite Pinto, op. cit., p. 54).
While Article 37(2) allows us to draw the unequivocal conclusion that the Constitution does not permit that the exercise of the rights of free expression and dissemination of one’s thoughts by words, image, or any other means be prevented or limited in any way whatsoever by any kind of censure, one cannot simplistically follow a line of thought that perhaps (given that paragraph  of the same Article also mentions that such rights must be implemented without hindrance or discrimination) points to an absence of any limits on that exercise.
In reality, it is easy to deduce from Article 37(3) that the Constitution accepts that these rights cannot be seen as rights whose exercise is not subject to limits, inasmuch as if this were to be the case it would not be possible to make provision for the commission of infractions during that exercise – infractions which paragraph (3) says must be subject to the general principles of the criminal law.
What is not envisaged in the event that the aforesaid exercise remains within the limits which the Constitution imposes on it, is that obstacles be raised against it (G. Canotilho and V. Moreira, op. cit., 226).
2.1. In the present decision we cannot fail to mention, albeit in a perfunctory fashion, that, as has been recognised in the past, if one looks at the various different aspects of the “right to information” it is possible to distinguish between the “freedom of expression” (Leite Pinto [idem p. 54] calls this “the core underlying right as regards both the right to information and the freedom of the press, to the extent that the whole of the constitutional rules governing the former are projected onto the other two) and the “right to information, the object of the latter being the legal asset “information” (on this differentiation, see Artur Rodrigues da Costa, “A liberdade de imprensa e as limitações decorrentes da sua função”, in Revista do Ministério Público, year 10, no. 37, p. 15 et seq., where he distinguishes between the "right to chronicle", which he says is akin to the “right to information”, and the “right to an opinion and to criticise”, which are spin-off expressions of the “freedom of expression”).
The freedom of the press, which is in turn expressly enshrined in its own right in the Constitution, has long been considered to be a privileged form of both the freedom of expression and the right to information. In this respect the latter (among other aspects) is seen in terms of the constitutional guarantee of the right to freely form public opinion (Gomes Canotilho and Vital Moreira [op. cit., p. 230] call it a “form of qualifying” the right to information and the freedom of expression; on the question of whether, in addition to being included in the constitutional Rights and Freedoms, the rights to a defence, or the defensive rights, the freedom of the press ought not to be treated as an institutional guarantee, also see Solobal Echevarria, “Aspectos constitucionales de la libertad de expresión y el derecho a la información”, in Revista Española de Derecho Constitucional, year 8, p. 23, 1988; also Charles Debbasch in “Il Conseil Constitutionnel - la legge 23 ottobre 1984 e la libertà di stampa”, in the translation by Michela Manetti in Documentazione e Cronaca Straniera, in Giurispridenza Constituzionali, Year XXX, p. 1811).
(...) so it is possible, without insurmountable objections, to accept that the exercise of the freedom of the press – when it goes beyond a mere account, based perhaps on "a duly justified belief that it is true" (to use the expression that Figueiredo Dias employs in “Direito de Informação e Tutela da Honra e Direito de Informação no Direito Penal da Imprensa Português”, in Revista de Legislação e Jurisprudência, year 115, nos. 3697, 3698 and 3699) – “affects” or “collides with” other rights, even those that are enshrined by the Constitution, amongst which the one that is relevant to us here is a third party’s right to honour, which the Constitution (Article 26) calls the “right to a good name and reputation.”
So the freedom of expression implies the right to express thought – in other words, ideas, opinions, points of view, value judgements, criticisms, and positions on any matter, whatever the purposes thereof and the valuation criteria employed therein – and does not presuppose “even so much as a duty of truth in the face of the facts, although this may come to be relevant in the case of value judgements in the event of a conflict with other rights or purposes that are protected by the Constitution” (GOMES CANOTILHO / VITAL MOREIRA, Constituição..., op. cit., p. 572). This means that the dissemination of false news that injures someone else’s good name, reputation, honour, or private life will be taken into account when the time comes to weigh up any eventual collision with other rights.
The freedom of information comprises the right to inform, to inform oneself, and to be informed. The first of these three consists of the right to transmit or communicate information to other people, without hindrance; the second consists of the right to gather information and look for sources of information; and the third consists of the right to be kept appropriately and truthfully informed by both the media and the public authorities. Lastly, there are even people who talk about a fourth dimension of the freedom of information, which takes the shape of a negative conception thereof – i.e. a right to refuse to express an opinion, to inform, or to be informed by any person (in this respect see MANUEL DA COSTA ANDRADE, “Liberdade de Imprensa e Inviolabilidade Pessoal – Uma perspectiva jurídico-criminal”, op. cit., p. 45).
The freedom of the press “is a complex or constellation of rights and freedoms: the right to create media bodies, the rights of journalists in those bodies, and the rights of the media bodies themselves, etc.” (GOMES CANOTILHO / VITAL MOREIRA, Constituição..., op. cit., p. 580).
“Like the other freedoms, the freedom of the press began by being a freedom of resistance against the public authorities. (...) Today, while the freedom of the press is still a right to a defence against those authorities, it has also become the constitutional guarantee of the free formation of public opinion in a democratic constitutional state”. (GOMES CANOTILHO / VITAL MOREIRA, Constituição..., op. cit., p. 581).
Like any other constitutional Rights, Freedoms and Guarantees, the freedoms of information and of the press are not unlimited or absolute rights. The Constitution itself accepts this (Article 37), as does the general law (see the Press Law and the Statute governing Journalists).
13. Indeed, among the main European legal systems there are others that provide for the existence of “restrictive sets of rules” on the freedom of the press, with a view to the protection of other fundamental rights.
In France the “Loi no. 1881-07-28, Bulletin de Lois no. 637, p. 125 (Loi de Presse)” expressly includes a chapter on offences against natural persons that are committed via the press, which comes on top of any criminal liability that may result from such commission. Article 29 of the “Loi de Presse” says that “any allegation or attribution of a fact that entails offence to honour or damage to the standing of a person or organisation to which the fact is attributed constitutes defamation. Publication of that allegation or attribution, either directly or by reproduction, shall be punishable even if it is done in a dubitative manner, or if it is aimed at a person or organisation that is not expressly named but can be identified on the basis of the content of the discourse, threats, writing, or printed or publicly displayed documents, which are the object of incrimination. Any outrageous expression or disrespectful or vituperative words that do not consubstantiate the attribution of any fact shall constitute libel.” In situations that are identical to the case before us, where the issue is an injury to the good name and standing of a legal person and its representatives, application of Article 32§1 of the “Loi de Presse” (as amended by “Loi no. 2004-1486, du 30 décembre 2004”) would permit the imposition of a pecuniary civil sanction of up to 12,000 euros.
We should also note that in France, under Article 35 of “Loi de Presse” demonstration of the veracity of the facts that have been disseminated by a media body eliminates the unlawfulness of the act of dissemination, except when what is at stake is/are: i) protection of the privacy of the personal life of the objects of the news; ii) facts that occurred more than 10 years before; iii) facts concerning infractions which have been pardoned, for which the prescriptive deadline for prosecution has passed, or the conviction for which has been replaced by a rehabilitation measure or is the object of an extraordinary judicial review.
In Germany, Article 5§2 of the “Grundgesetz” says that freedom of the press can be subject to restrictions provided for by the general law, on condition that they are intended to safeguard the rights of minors or the right to the inviolable nature of honour.
In addition to punishing commission of the crime of defamation and imposing civil liability for the commission of unlawful acts – the rules for which are quite similar to their Portuguese equivalents – the German system includes a Press Council (“Deutscher Pressrat”), whose regulatory powers and responsibilities include considering complaints by natural or legal persons who are the subject of information in the media. This Council has adopted a Press Code (PressKodex). Among other guidelines for journalists, the latter says that:
- Anyone who works as a journalist must seek out the truth of the facts, thereby preserving the press’s reputation and reliability (Article 1).
- Diligent investigation is a fundamental and indispensable journalistic tool, and this diligence must be adapted to the concrete circumstances of each case. In this respect, unconfirmed information, rumours and presumptions must be recognisable as such by the persons who are expected to see the news (Article 2).
-The press must respect the various personality rights, including that to the protection of the privacy of personal life (Article 8).
-The ethics of journalistic work are not compatible with offense to the honour, and injury to the standing, of third parties (Article 9).
14. In addition to this, International Human Rights Law does not provide unlimited and absolute protection for the freedom of the press. Both the European Convention on Human Rights and the International Covenant on Civil and Political Rights – international instruments to which the Portuguese state is bound by Article 8(2) of the CRP – accept the existence of restrictions, limits and conditions on the freedom of expression, within which they include the freedom of the press.
Thus Article 10(2) of the European Convention on Human Rights states that “The exercise of these freedoms (the freedom of expression, which is deemed to include the freedom of the press), since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”; while Article 19(3) of the International Covenant on Civil and Political Rights says that “The exercise of the rights (the freedom of expression, which is deemed to include the freedom of the press), provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
a) For respect of the rights or reputations of others;
b) For the protection of national security or of public order, or of public health or morals.”
In short, the possibility that the freedom of the press may conflict with other rights – particularly the right to honour, to a good name, to reputation, or to the privacy of personal life – is addressed in the Constitutional Law of many states, as well as in their various ordinary national legislations and in International Law as well.
E)The collision between the rights to a good name and to the freedom of information
15. To recapitulate, our Constitution simultaneously protects a legal person’s right a good name (even when the body in question is a so-called “public figure”) and the freedoms of expression, of information, and of the press. However, these are not two rights that are always able to get along peacefully. On the contrary, in certain concrete life situations they collide, so we must discover what solution our Constitutional Law offers for this problem.
Let us see how the Constitutional Court has decided the question of the conflict between rights which are close to the ones that are at stake in the present appeal. In Ruling no. 113/97, to which we have already extensively referred, the Court said:
The legal theorists have looked in depth at the question of how to resolve situations in which, prima facie, there is a conflict (at this point it is not necessary to know whether the conflict is a real one, or merely apparent) between various constitutional rights, or between rights and other constitutional values (for more details, see José Carlos Vieira de Andrade, Os direitos fundamentais na Constituição portuguesa de 1976, p. 220 et seq.; and G. Canotilho, Direito Constitucional, 6th edition, p. 641 et seq.). This question obviously falls within the field of the so-called “constitutional law of conflicts”.
If one accepts – as we do – that in constitutional terms the freedom of the press can be subject to limits (in this respect, see the explanations given above, and also Constitutional Commission Ruling no. 175, as published in Boletim do Ministério da Justiça no. 294, p 157 et seq.), and that the same is true of the right to a good name and reputation, one must begin looking at this point from a perspective which says that the limits on the freedom of the press must be laid down by law, in the wake of a constitutional authorisation to do so (see Leite Pinto, op. cit.). In doing this, one must put another perspective, which is based on a ranking of rights (the ones that are in conflict here), on hold.
We must also note on the one hand that, for the courts that belong to the “common judicial system”, the circumstances of the case (in which the situation of someone – the civil party – who was said to be [the extent to which this was true is of no interest now] a party’s candidate for a position of a political nature) are of particular importance; and on the other, that it is necessary to emphasise that we are not unaware of positions which might suggest that the situation outlined here may be the reflection of a mere apparent conflict (see G. Canotilho, Direito Constitucional de Conflitos e Protecção de Direitos Fundamentais, 39 et seq., and examples given therein); and that there are others who would wish to address the question of whether the origin of the so-called “inherent limits” of the fundamental rights lie in the rights themselves, or only in the fact that the Constitution establishes and consents to them (either directly, or by requiring the ordinary law to do so); and finally, there are still others who argue that there are no limits on the freedom of the press (see Anthea Jeffrey, “Free Speech and Press: An Absolute Right?”, in Human Rights Quarterly, Vol. 8, 1986, p. 225 et seq.), as well as those who defend the principle that no right is absolute and unlimited and the freedom of expression is no exception to that principle (see Ruiz Vadillo, “Los derechos fundamentales a la libertad de expresión, a informar e ser informado y su incidencia en el campo juridico-penal”, in Revista de la Facultad de derecho de la Universidad Complutense, 11, 1986, p. 602 et seq.).
3.1. Within this positioning, from which the appellant distances himself to some extent – at least in terms of the position he took during the appeal which was decided by the ruling that is now being challenged – it must be said that some legal theorists (Leite Pinto, op. cit.) are of the opinion that in the event of a conflict between these two rights, and assuming that it has not been possible to find a balanced and balancing optimisation between them (a process that presupposes the concrete weighing up of the interests at stake), and having concluded that it is impossible to achieve practical agreement (a criterion that necessarily implies respect for the principle of proportionality in terms of the fact that one must not reduce the extent and scope of the right which may be overcome in that weighing-up process), in certain situations it is possible to conclude that the sphere of protection of one of the two rights is somewhat reduced to start with. This is the case of the right to honour that accrues to public figures and particularly political officeholders – a right whose extent must be seen as being smaller than that of other citizens when the two come into conflict.
Figueiredo Dias (op. cit.) takes the position that if a conflict arises between the right to honour and the right to information, Article 37(3) of the Constitution (which at the end of the day is a constitution in which there is a core concern about defending human dignity and which, in its current version, refers such cases to the criminal law) means that one is forced to impose limits on the latter right. This is why it is possible to envisage the existence of the crimes of libel and defamation; but in order to ensure that the strength of the protection provided by the criminal law does not irremediably prejudice the core content of both the freedom of expression and of information and the freedom of the press itself – the essences of which must be safeguarded – it is necessary to pursue certain paths; however, these cannot entail increasing the standard applicable “as regards the affirmation of the subjective element” (e.g. by requiring specific malice as a precondition for the existence of crimes against honour committed via the press), or a different set of regulations for proving the truth of the facts published in the press.
Given these parameters, Figueiredo Dias suggests that the route to resolving this issue is to be found in the exercise of the fundamental right to information – i.e. the “exercise of the constitutional-law right to information must count in the same way as the ‘exercise of a right’ which the Penal Code sees as justification for a fact” (see Article 31b of the Penal Code). So one must require: that the allegation which constitutes the offense to honour is both an appropriate and reasonable means of performing the public function of the press (to democratically and pluralistically form public opinion in relation to a social, political, economic or social matter), and one that causes the least possible damage to the victim’s good name and standing; that proof be given of "the animus or the intention (at least inherent) to perform" that public function, or at least “that one cannot exclude the possibility that such performance was the reason for the agent’s action”; and that the allegation is true (or the agent had reasonable grounds to believe it was true, which means that he must have fulfilled the duty to seek clarifications), which in turn provides the outline of a “subjective element of the cause that justifies the conduct – something that should on the other hand at least be considered absent whenever the conduct was governed by an intention to defame or libel, in which case there is a reduction in the useful content that might still be attributed to the old and now passé ‘specific malice’ format in crimes against honour”; and finally, on the subject of the so-called “proof of truth”, Figueiredo Dias, whose position we have been describing, goes on to conclude that the “truth” “is only one element among several that determine the way in which the right to information should be exercised”.
Writing in a sense under the (seemingly acknowledged – see note on p. 14) influence of Figueiredo Dias, Rodrigues da Costa (op. cit.) says that in the balanced weighing-up process that ought to take place in the conflict between the freedom of the press and the right to honour, the press should not possess the unlimited rights that it sometimes calls for in its mission to inform and form public opinion, nor should the repression undertaken in the name of the protection of honour extend so far as to be capable of annihilating the said freedom. Consequently, and given that he accepts that the two rights are located on the same plane, he argues that the right to honour and standing can only be sacrificed if, despite the fact that that right has been injured by the exercise of the freedom of the press, the offensive act was justified – i.e. if it was derived from a cause that was duly justified within the framework of the social and cultural function attributed to the press, and the limits of need, appropriateness and proportionality were respected. For this author it is thus not acceptable, even in the field of political criticism, for discussion about a person to include unnecessary denigration of that person (in a very similar sense, also see Ricardo Martin Morales, El derecho fundamental al honor en la activida politica, Granada, 1994, points 6 to 11; and Michele Polvani, La diffamaziona a mezzo stampa, Padua, 1994, in the section on the contents and limits of the rights to chronicle and to criticise).
In Ruling no. 81/84 (published in Series II of the Diário da República of 31 January 1985, and in Volume 4 of Acórdãos do Tribunal Constitucional, p. 225 et seq.) – albeit the issue in that case was the binomial freedom of expression / right to honour and not the binomial freedom of the press / right to honour – this Court also had occasion to say:
9 – Like the other fundamental rights, the freedom of expression is not an absolute or unlimited right. To begin with, the protection which the Constitution affords to such a right does not encompass every imaginable situation, form or manner in which it can be exercised. It has inherent limits. The protected domain ends at the point at which it is capable of endangering the essential content of another right or causing intolerable injury to social morals or the fundamental values and principles of the constitutional order (in this sense see J.C. Vieira de Andrade, Os Direitos Fundamentais na Constituição Portuguesa de 1976, Coimbra, 1983, p. 213 et seq.) Then, acting in a social context and therefore having to exist side-by-side with the rights of other right-holders, the freedom of expression must be subject to the limitations imposed by the need to implement the other rights. And then, in the event that there is a collision or conflict with other rights – particularly those that are seen as being directly linked to the dignity of the human person (e.g. the right to moral integrity [Article 25(1)], and the right to a good name and reputation and to protection of the privacy of personal and family life [Article 26(1)]) – it must be limited in such a way as to allow those other rights to find forms of expression too.
To say this is to acknowledge that, while all forms of censure are prohibited (Article 37), it is nonetheless lawful to repress abuses of the freedom of expression....................................
10 – To our mind, Article 37 indicates that one should not permit limitations on the freedom of expression other than those that are necessary for it to exist alongside other rights, nor should one impose sanctions that are not required by the need to protect the legal values which are in general seen as being covered by the protection of the criminal law. However, this does not mean that the legislative authorities cannot organise the protection of those values by establishing sanctions of another kind (civil, disciplinary ...).
We must once again note that the fact that we have included the above transcription does not mean that in the present Ruling we are taking a position on the questions of whether the “inherent limits” are genetically linked to the fundamental rights in their own right (something that might lead to us to the question of unwritten constitutional rights – ungeschriebene Grunderechtsbegrengzungen), whether such “limits” must necessarily be based on either the Constitution or the ordinary law whose passage the Constitution requires, or finally, whether the fundamental rights ought not to be seen as rights whose “expansion is unlimited”, at least in the case of the freedom of expression, given that the latter is like a "functional basis" of the democratic order, or whether, as Alexy (Theorie des Grundrechte, 1985, p. 493) says, the freedom of expression should be seen as something that excludes certain contents which, from the legal point of view, would then become essentially impossible (however this may be, for the “freedom of expression” and the acceptability of limits thereon, see Constitutional Court Rulings nos. 74/84, published in Acórdãos do Tribunal Constitucional, Vol. 4., p. 49 et seq., maxime p. 57, and in Series II of the Diário da República of 11 September 1984; 99/87, in Acórdãos do Tribunal Constitucional, Vol. 12., p. 499 et seq., and in Series I of the Diário da República of 21 January 1989; and 636/95, in Series II of the Diário da República of 27 December 1995).
3.2. We have thus established that it is possible to accept limits on the “freedom of expression” and, obviously, on its qualified form of conveyance – the “freedom of the press”. The reasons that lead to this position can also be transposed, mutatis mutandis, to the case of the “right to participate in political life”, which is exercised via those two “freedoms”.”
So conflicts between rights cannot be resolved by means of an abstract preference, merely resorting to the idea of a hierarchical ranking of constitutional values. First of all, because it is difficult to abstractly establish a ranking of the values that are protected by the Constitution. In the majority of hypotheses, such a ranking can only be determined by considering the concrete circumstances in each case. If the Constitution protects various different values or assets, it is not lawful to sacrifice one of them in favour of the others; rather, there must be a concrete weighing up of the values or assets in question, which may lead to varying results depending on the circumstances. In other words, conflicts between rights must be resolved using a principle of harmonisation or practical concordance.
Application of the principle of practical concordance cannot imply that the essential content of any of the rights at stake is affected, nor does it require the optimal fulfilment of all of them.
To quote JOSÉ CARLOS VIEIRA DE ANDRADE:
“So the principle of practical concordance is implemented by means of a criterion of proportionality in the distribution of the costs of the conflict.
On the one hand, the sacrifice made by each of the constitutional values must be appropriate and necessary in order to safeguard the others. If this is not the case, no real conflict even arises.
On the other hand – and here we are in the presence of the idea of proportionality in the strict sense of the term – the choice between the different ways of resolving the issue in the specific case (the “concrete preference”) must be made in such a way as to compress each of the values in play as little as possible and depending on its weight in the situation – according to the intensity and extent of the effect that its compression has on the protection which the Constitution affords it (in Os Direitos Fundamentais na Constituição Portuguesa de 1976, 3rd edition, Coimbra, 2004, p. 326).
F)The concrete case before us
We should recall that the interpretation of Articles 483(1) and 484 of the Civil Code, whose constitutionality is being questioned in the present appeal, does not concern the issue of unlawfulness as a precondition for liability, but rather the form of fault that is at stake. This means that everything which the court whose decision is the object of the present appeal said about unlawfulness and the causes thereof, and about the grading of the seriousness of the fault involved, must be taken for granted here.
Now the truth is that in the ruling against which the present appeal was lodged, the court weighed up conflicting rights when it addressed the issue of unlawfulness as a precondition for the existence of civil liability and the causes that justified that judgement. The court decided that the right of the legal person with public interest status to a good name and reputation prevailed over the freedom of information – a decision that might be debatable from a constitutional point of view. However, it is not this interpretative aspect of the rules that is being questioned in the case before us, but another one related to the form of fault as a precondition for the existence of liability.
To recapitulate, on the subject of fault as a precondition for the existence of civil liability, the ruling before us begins by distinguishing between fault in the broad sense of the term and fault in the strict sense (“mere fault” or “negligence”), in both the witting and the unwitting forms; it then says that in our legal system, and in the absence of any other legal criterion, fault is assessed in terms of the diligence of a good family man in the light of the circumstances in each case (Article 487 of the Civil Code); the court goes on to apply these criteria to the concrete case in question, and concludes that “(…) the second precondition for the existence of civil liability referred to by Article 483(1) of the Civil Code – that is to say fault, at least in its unwitting form – is thus fulfilled.” This seems to mean that the court implicitly accepted that the possibility of witting fault was not entirely excluded.
17. Inasmuch as it is not within the power of this Court to consider the subsumptive findings of the applicability of the rules to the facts, we can only begin with the principle that, as the STJ decided, the proven facts show that there was fault on the part of the appellants, at least in its unwitting form.
The question of constitutionality that poses itself is thus whether, when the right to inform is at stake, the expression “mere fault” employed by Article 483(1) of the Civil Code can be taken to mean unwitting negligence, in such a way as to provide grounds for the existence of a duty to compensate on the part of someone who states or disseminates a fact that is capable of prejudicing the credit of a natural or a legal person (Article 484 of the Civil Code) – in the present case, the dissemination of news by the appellants.
The civil-law theorists are in agreement that when Article 483 of the Civil Code talks about “malice and mere fault”, it accepts the existence of two forms of fault: malicious fault, and negligence, which may be either witting or unwitting. In witting negligence, by breaching the duty of diligence to which he is subject, the agent considers the factual outcome to be a possible consequence of his conduct, but acts without taking this into account, whereas in unwitting negligence, the agent does not even consider the factual outcome – i.e. the injury to the third party’s right (in this sense, see: PESSOA JORGE, Lições de Direito das Obrigações, 1975-76, Lisbon, p. 562; RIBEIRO FARIA, Direito das Obrigações, 1990, Coimbra, p. 461; ANTUNES VARELA, Das Obrigações em Geral, Vol. I, 7th edition, Coimbra, 1991, pp. 565 and 566; LUIS M. T. MENEZES LEITÃO, Direito das Obrigações, Vol. I, 6th edition, Coimbra, 2007, p. 315).
As ANTUNES VARELA (op. cit., p. 566) says, even if it is unwitting, a negligent action is always legally subject to reproof, albeit to a lesser extent than a malicious action:
“So mere fault (be it witting or unwitting) expresses a connection between the person and the fact that is less incisive than malice, but one that is still subject to reproof. The degree of reproof is greater to the extent that the possibility that the person could have acted in another way was greater and the duty to have done so was stronger or more intense. In the words of a number of authors, a prominent danger requires redoubled attention.”
But is the civil-law interpretation of this precept compatible with the constitutional rules when the right to inform is at stake?
As we said earlier, in the case before us there is a conflict between a legal person’s right to a good name and reputation and a journalist’s right to inform. This conflict of rights must be resolved using a weighting criterion based on the principle of practical concordance, which presupposes proportionality in the distribution of the costs of the conflict. I.e. the sacrifice made by each of the rights must be appropriate and necessary to the safeguarding of the other one.
Moreover, the fact that the legal person in question is also a “public figure” does not imply so drastic a reduction in its right to a good name that, in the weighing up of that right against the right to information, only the latter must be taken into account. The truth is that one cannot reduce the right to compensation in such a way that the essential content of the right to a good name and reputation is irremediably affected.
The question is whether, given the normative interpretation that is at stake in the present appeal and bearing in mind Articles 37(1) and 38(1) of the CRP, the existence of a breach of the right to a good name via the press depends on whether or not the agent failed to foresee – due to a lack of foresight or neglect – the possibility that the unlawful fact would occur. In its role as a limit on the freedom of the press, the right to a good name must operate independently of the form of fault which the agent may have committed; in other words, whether the agent failed to take the precautions needed to avoid the damaging result (witting fault), or whether he did not even foresee the possibility that the unlawful fact might occur (unwitting fault).
To accept the contrary would be to accept such a large compression of the right to a good name that it would not appear to us to comply with the Constitution. When the latter is faced with a conflict between rights, instead of trying to rank them, it seeks to compress each one as little as possible in the light of the intensity and extent to which, in the case in question, that compression affects the constitutional protection enjoyed by each one.
Even if the sphere of protection of the right to a good name that accrues to “public figures” is somewhat diminished to begin with, this cannot imply that that right is totally eliminated, even in the confrontation with the freedoms of expression, of information, and of the press, which play an extremely important role in a democratic society. To put it another way, not even the freedoms of expression, of information, and of the press can justify such a reductive interpretation of the right to a good name and reputation.
Nor is it of any use to invoke the European Court of Human Rights’ jurisprudence on conflicts between these two rights – that is to say in relation to acceptable criticism by the media when what is at stake is the protection of the privacy, good name, reputation and honour of “public figures” (see: Observer and Guardian vs. The United Kingdom, Case no. 13585/88 of 26/11/1991; Castells vs. Spain, Case no. 11798/85 of 23/04/1992; Prager and Oberschlick vs. Austria, Case no. 15974/90 of 26/04/1995; Lopes Gomes da Silva vs. Portugal, Case no. 37698/97 of 28/09/2000; Özgür Radyo-Ses Radyo Televizyon Yayin Yapim Ve Tanitim A.S. vs. Turkey, Case nos. 64178/00, 64179/00, 64181/00, 64183/00 and 64184/00 of 30/03/2006; Kobenter and Standard Verlags GMBH vs. Austria, Case no. 60899/00 of 02/11/2006; Colaço Mestre and SIC – Sociedade Independente de Comunicação, S.A. vs. Portugal, Case nos. 11182/03 and 11319/03 of 26/04/2007 – all of which are available at www.echr.coe.int/echr) – in order to argue a contradiction between it and the jurisprudence of the Constitutional Court. There can be no doubt that the ECHR’s jurisprudence accepts the existence of broad restrictions on the rights we are talking about when what is at stake are the freedoms of expression and of the press, on condition that: (i) those restrictions are justified by an imperative social need; and (ii) they are proportional to the goals that are being pursued.
The truth is that there is no such contradiction, given that the scope of the two courts’ jurisdictions is completely different, inasmuch as the Constitutional Court’s powers to hear a given matter are restricted to the question of unconstitutionality that is raised before it – and to that question alone – and the Court cannot, on its own initiative, consider either any other question, or any subsumptive findings of the applicability of the rules to the facts.
So, for example, given the question of constitutionality that has been posed in the present case, this Court cannot consider whether the news was of public interest or not, or whether the concrete amount of the compensation set by the STJ is too heavy a sacrifice for the appellants – those judgements are in the hands of the court against whose decision the present appeal has been lodged.
Returning to the concrete case before us, if the essential content of the right to a good name cannot be affected, the same is true of the essential content of the freedoms of expression, of information, and of the press. We must therefore gauge whether the latter are irremediably compromised by the fact that it is accepted that mere fault – in its unwitting negligence form – can presuppose the existence of extra-contractual civil liability in a case in which there has been an injury to a legal person’s right to a good name.
One could always argue that holding journalists civilly liable for negligence (and necessarily finding them liable in pecuniary terms) for publishing news under the cover of their right of journalistic investigation would either restrict the essential content of the freedom of information and of the press, because journalists would then refrain from publishing news and investigating unless they were absolutely certain of the veracity of the facts, or would at least restrict those freedoms in a disproportionate manner. At the end of the day the rules governing civil liability for mere negligence (and in the present case, in the unwitting form thereof) could come to function as a self-censure mechanism to the detriment of democracy.
This is not so, however. In the case before us it was proved that the journalists did not fulfil all the rules of care that they ought to have respected, either on the deontological level, or on the legal one (for example, they did not accept the denial issued by B.’s chairman, but contented themselves with the refusal of the tax authorities to give any information – these facts are classified as proven in the case file, so the Constitutional Court cannot do anything that would contradict that proof).
As such, although the normative interpretation before us restricts the right to inform, it does not affect its essential content, nor does it do so disproportionately, given that the journalists still possess the right to inform, on condition that throughout their journalistic investigations they comply with the rules imposed by both the “lege artis” and the law.
To accept the contrary would be to deny the deontological duties of journalists, which require them to act with zeal, diligence and care in the exercise of their profession, and not to affect the rights of third parties, such as the right to the presumption of innocence, the right to one’s image, and the right to the protection of the privacy and intimacy of personal life (see Article 14 of the current version of the Statute governing Journalists).
In short, the rule that is the object of the present appeal is not unconstitutional.
On the grounds set out above, the Court hereby decides to deny the appeal.
Costs to be borne by the appellants. Under the terms of Article 7 of Executive Law no. 303/98 of 7 October 1998, the court fee is hereby set at 25 Units of Account.
Lisbon, 29 May 2008
Ana Maria Guerra Martins
Carlos Fernandes Cadilha
Maria Lúcia Amaral (dissenting, as per the attached opinion)
I dissented from the majority opinion for the following reasons:
1.The freedom of expression and of information enshrined by Article 37 of the CRP is certainly first and foremost a right of defence against abusive interventions by the state – as are all the other personal Rights, Freedoms and Guarantees. However – and because of the particular legal asset this freedom protects – it is also much more than that. It possesses an objective and institutional dimension that must be taken into account whenever the scope of the protection offered by the constitutional rule which enshrines this type of freedom is determined. The fact is that the legal asset or value which the Constitution protects here is none other than the formation of a robust public opinion, without which the correct functioning of democracy is inconceivable. This is why the obstacle-free exercise of this freedom not only constitutes an asset for whoever exercises it at a given moment in time; its continued practise is objectively of value to the political community itself. Indeed, that this is so is demonstrated by the text of the Constitution, which provides – immediately following the rule that enshrines the freedom – for a set of institutional guarantees and forms of organisation and procedure (Articles 38, 39 and 40) which clearly reveal the importance to the constitutional system of the basic objective which this fundamental right contains. To see it as something distinct and separate (and completely fenced off) from another set of fundamental rights that such a opinion would consider to be the only ones that were close to personal dignity (as a constitutionally protected value) is something that appears to me to be incomprehensible. There can be no doubt that the Constitution sees the exercise of the freedom of expression as something that also contributes to the perfection of the principle of dignity, in relation to which it is not an aliud. This is demonstrated by the superior function which this freedom objectively possesses, in its role as a precondition for the constitutional concept of democracy itself.
2.The legal asset “formation of public opinion” undoubtedly includes another asset which also enjoys constitutional protection – that of the search for the truth. This is particularly evident in the case of the right to inform, which, together with the right to express and freely disseminate thought, is included within the scope of the protection provided by the Constitution. The difference between the exercise of the “right to express thought” and that of the “right to inform” corresponds to the difference between the dissemination of opinion and the dissemination of news. There can be no doubt that the latter, which concerns facts and not value judgements, must be true. However, the question is what standard should reasonably be imposed when it comes to proving the truth, bearing in mind the objective dimension of the right (the freedom of expression) and the consequent broad “type” of the scope of its constitutional protection. It is clear to me that such a standard must presuppose good faith and reasonable diligence on the part of he who informs. It seems to me that to demand more than this – as if news could only be transmitted following an exhaustive verification and proving of its veracity – is to demand more than that which is permitted by the scope of the protection provided by the constitutional rule, precisely because of the inhibiting effect that the opposite would entail for the exercise of the right to inform.
3.Everything that I have said so far is in the form of a thesis. It is impossible to attribute the – a priori and invariable – status of a “preferential” freedom to the freedom of expression (and specifically the right to inform), compared to that of other constitutional Rights and Freedoms. There is nothing in the Constitution that would legitimate it. As the Court says in the Ruling, problems involving collisions between fundamental rights must be resolved in the light of the relative weight that each of them possesses in the concrete case in question.
In the present case, the right to inform was opposed by the right to a good name of a legal person that is publicly known or occupies a leading place in the public area. The decision against which the present appeal was brought resolved the problem of this collision by attaching preference not to the freedom of expression, but to the right to a good name. It did so on dual grounds: (i) the special proximity between the latter right and the constitutional “value” of personal dignity; and (ii) a special interpretation of the scope of the protection which the Constitution affords to the right to inform, which was satisfied by the existence of fault on the part of the journalist (a fault, clearly, concerning failure to fulfil the duty to look for the truth), at least in its unwitting form, as a precondition for the existence of civil liability and the duty to compensate. This was the way of resolving the problem (of a collision between rights) that the Court eventually adopted when it decided – as it did – to deny the appeal and uphold the sentence that was the object of appeal. I was unable to agree with that decision. Firstly, because I felt that in the case in question it was not possible to invoke the principle of dignity as a reason for attaching preference to the right to a good name. As we have seen, the freedom of expression is not an aliud in relation to such a principle: to my mind, to say that the latter is valid only for personality rights (or their interpretation) and not for communicational rights (or determining the scope of the protection they offer) is to take a disjunctive view of the status of the person and the status of a person’s communicational freedoms that has no basis in the text of the Constitution. There can be no doubt that the Constitution enshrines communicational freedoms, and that one of the grounds for the latter is personal dignity. I also dissented from the decision because I felt that the requirement for there to be “fault” (“at least in its unwitting form”) on the part of the journalist, as a precondition that suffices for there to be a duty to compensate, led to a standard for verifying the veracity of the news that exceeded that which is permitted by the scope of the protection provided by the rule set out in Article 37 of the CRP.
Quite apart from the question of whether the boundaries which, in cases like this one, must be established between appeals on the grounds of unconstitutionality on the one hand and constitutional complaints, for which Portuguese law makes no provision, on the other – a question that I will not address here – one thing appears to me to be clear. When the Court agreed to hear the present appeal, it also accepted that it possessed the competence to re-examine the solution which the earlier court had decided to impose in relation to the question of the collision of rights. Nor could it have done otherwise, given that the “rule” which that court applied in the concrete case before it – with the “interpretation” of the case in question – was only applied and interpreted because the court had already arrived at a certain result in relation to the prior question of how to resolve the conflict between the right to inform and the right to a good name. Agreeing to hear this appeal – in other words, agreeing to address the constitutionality of the “concrete dimension” of the rule that had been applied in the case – therefore also meant accepting that the Court was competent to re-examine the way in which the question of the collision of rights had been resolved in the same case. In my opinion the result of that re-examination should have been a different one.
Maria Lúcia Amaral