Right of legal entities to their honour
Freedom of expression
Rules of conduct for journalists
RULING Nº 292/08
29 of May of 2008
The right to one's honour and reputation is enshrined in the Constitution and has a very broad scope, restricting other rights such as freedom of expression, information and the press.
Natural and legal persons are entitled to their honour and are wronged if their honour is insulted or tarnished by illicit, unlawful, offensive, defamatory or other acts which in some way undermine their position in society.
The right of legal entities to their honour, even if they are bodies "in the public eye", and freedom of expression, information and the press do not always co-exist harmoniously. In certain specific circumstances, they can conflict with one another.
Legal conflicts cannot be settled through abstract choices, based simply on the idea that there is a hierarchical system of constitutional values, as it is difficult to establish an order of precedence of values protected by the Constitution on a theoretical basis alone. In most cases, this kind of hierarchy can be identified only by taking account of the actual circumstances of a case. The Constitution protects different values and interests and there can be no justification for favouring one of them to the detriment of others. Instead, the interests at stake must be weighed up empirically and this can yield results that vary according to the circumstances. Conflicts between legal rules must therefore be resolved through a process based on the principle of harmonisation and practical concordance.
However, the application of this principle must never undermine the essential content of any of the rights at issue and will not necessarily mean that it is always the most practical solution that is adopted.
The case related to the constitutionality or otherwise of a rule derived from a combination of the articles of the Civil Code relating to civil liability for unlawful acts (particularly in relation to affronts to the reputation or honour of natural or legal persons) and journalists' professional rules, under which unthinking or aberrant misconduct on the part of journalists in the exercise of their right to inform constituted sufficient reason for legal persons to be compensated for an affront to their honour.
In the case in question, an article published in a national newspaper with a wide readership alleged that a well-known legal entity had failed to fulfil its tax obligations. This article was said to have undermined this entity's right to its honour and reputation and attributed legally and criminally reprehensible acts to it.
In view of the fact that the Portuguese Constitution did not provide for a system of appeals whereby individuals could assert their rights and the constitutionality of rules could be reviewed at the same time, or a constitutional complaints system, but a system based on the review of the constitutionality of legislation, the Constitutional Court did not have the authority to determine the constitutionality or otherwise of judicial decisions in themselves according to whether they constituted infringements of constitutionally protected fundamental rights. It was not therefore appropriate to consider whether, in the decision of the Supreme Court of Justice that was disputed in the case in question, all the conditions needed for the party's civil liability to be incurred had been met.
The Court against which the complaint had been made had reached the following four findings:
1. publication of the information at issue in the newspaper had been unlawful;
2. there had been no justification for the applicants' action;
3. the applicant journalists had acted in an ethically and legally questionable manner;
4. the applicant had been entitled to demand compensation from the defendant for non-pecuniary damage.
From a constitutional viewpoint, the question was whether, in cases where freedom of expression, information and the press were concerned, it was possible to interpret the relevant articles of the Civil Code and the journalists' professional rules to mean that compensation for an affront to a legal entity's good name could be demanded where the impugned conduct had merely been unthinking.
International human rights law did not afford unlimited, absolute protection to freedom of the press. The European Convention on Human Rights and the International Covenant on Civil and Political Rights - which were international instruments that were binding on the Portuguese state under the Constitution - allowed restrictions on freedom of expression and freedom of the press.
The constitutional question in this case was whether, in cases where the right to inform was at issue, the term "negligence" used in the Civil Code could be considered to cover unthinking misconduct and hence imply that anyone acting in this manner who announced or spread word of a fact capable of undermining the honour or reputation of a natural or legal person could be ordered to pay compensation. In the case in question, such information had been disseminated by the applicants.
The conflict between a legal entity's right to its honour and reputation and the journalists' right to inform had to be resolved by a system of weighting based on the principle of practical concordance, in which it was assumed that the burden of the conflict would be shared proportionately.
The fact that the legal entity in this case was a body "in the public eye" could not radically reduce its right to honour if, when this right was weighed against the right to information, only the latter was taken into consideration.
The question that was raised was whether, bearing in mind the interpretation of the law that had been at issue in this case and in view of the relevant , the infringement of the right to honour by the press stemmed from the fact that the perpetrator, through lack of foresight or negligence, had not anticipated the possibility that an illegal act would be committed. The point was, however, that, when limiting the freedom of the press, the right to honour had to be upheld irrespective of the type of negligent act committed, in other words regardless of whether the perpetrator had failed take the necessary care to avoid the prejudicial result (conscious wrongdoing) or had not even anticipated that an unlawful act was possible (negligence).
While the case-law of the European Court of Human Rights allowed extensive restrictions on this right where freedom of expression and the press were at issue, it had to be borne in mind that the context of the Constitutional Court was quite different.
The essential content of the freedoms of expression, information and the press should not be undermined, any more than the essential content of the right to honour. Consequently, it needed to be established whether these freedoms were irremediably undermined in the case of an infringement of a legal entity's right to its honour, where simple, negligence was considered a reason for the perpetrator's non-contractual civil liability to be incurred. It could be argued that holding journalists civilly (and financially) liable for negligence in publishing information under cover of the right to journalistic investigation would undermine the essential content of freedom of information and the press, because journalists would then refrain from publishing information and investigating unless they were absolutely certain of the truth of the facts reported, or at least disproportionately restrict their freedom. Basically, it was argued that holding journalists civilly liable for simple (and, in this case, unknowing) negligence could constitute a mechanism of self-censorship that would be detrimental to democracy.
The Constitutional Court did not share this view. In this particular case, there was evidence that the journalists had broken some of the rules of conduct they were expected to comply with, with regard to both professional standards and legal requirements.
Even if the interpretation given in this case restricted the right to inform, it did not therefore affect its essential content or restrict it disproportionately. Journalists preserved their right to inform provided that they complied with professional standards and the law in the course of their investigations.
According to the Constitutional Court, to allow the contrary would be tantamount to disavowing journalists' professional obligations. It did not consider the impugned legal rule to be unconstitutional.
One judge voted against the judgment because he considered that freedom of expression and information was not just a right that protected people from wrongful interference by the state, as was the case with all other individual rights, freedoms and guarantees, but also had an objective, institutional dimension because the legal interest or value protected by the Constitution included the formation of the type of stable public opinion without which democracy was impossible. In view of the objective nature of the right concerned (freedom of expression) and hence the extent of the constitutional protection afforded to this right, the requirement was, according to the dissenting judge, that journalists show good faith and reasonable diligence, and not that they carry out exhaustive checks as to the truth of the facts they described. According to the dissenting judge, a requirement to do so went beyond the scope of the protection afforded by the constitutional rule, precisely because of the inhibitive effect that it would have on the exercise of the right to inform.