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Article 10 of ECtHR (Freedom of Expression) and the Limitations in the Light of the Case of Independent Newspapers (Ireland) Limited v. IrelandECtHR 15.06.2017 (Final on 15.09.2017),
 Application no. 28199/15”

AİHS Madde 10 (İfade Özgürlüğü) ve Independent Newspapers (İrlanda) Limited v. İrlanda Kararı Işığında Bu Özgürlüğün Sınırlamaları AİHM Kt.: 15.06.2017 (Sonuç 15.09.2017), Başvuru No: 28199/15

Mehmet Can TOK

Independent Newspaper Limited was publishing a newspaper. That newspaper had published a story about a minister and a public relations consultant claiming that the two had a relationship and abused their positions because of that relationship. The photographs that were used in the story were altered. In the lawsuit against the company, the court awarded EUR 1,872,000. In the appeal, the award was reduced to EUR 1,250,000. The ECtHR found that the award was disproportionate and unreasonable. The Court stated that the system was not able to prevent such awards; therefore, there was a breach of Article 10.

Art. 10 ECtHR, Freedom of Expression, Limitations of Freedom of Expression, Disproportionate Awards, Media.

Independent Newspaper Limited gazete yayımcısı bir şirkettir. Bu şirketin yayımladığı gazetede, bir bakan ve halkla ilişkiler danışmanı arasında bir ilişki olduğu ve sonucunda yolsuzluk yapıldığına dair haberler yayınlandı. Bu haberlerde kullanılan fotoğrafların ise üzerinde oynanmıştı. Şirkete karşı açılan davanın sonucunda EUR 1,872,000 tutarında tazminata hükmedildi. Temyiz sonucunda ise bu tazminat EUR 1,250,000’ye indirildi. AİHM ise bu tazminatı çok ağır ve olayla bağdaşmaz bulmuştur. Mahkeme sistemin bu çeşit tazminatları önlemek için yetersiz olduğunu ve dolayısıyla Madde 10’un ihlal edildiğini söylemiştir.

AİHS m. 10, İfade Özgürlüğü, İfade Özgürlüğünün Sınırları, Orantısız Tazminat, Basın.

A. Background

Independent Newspapers Limited, the applicant company, publishes a newspaper named the Herald. That newspaper was named the Evening Herald at the time of the events that gave rise to this case.

Between 30 November and 17 December 2004, the Evening Herald had published a series of articles in regards with awarding of some government contracts to a public relations consultant, Ms. L. These articles claimed that Ms. L was well acquainted with Mr. C, a prominent political figure and the Minister for the Environment, Heritage and Local Government at the time. Ms. L was hired as a consultant by the Ministry after Mr. C was appointed as the minister. Furthermore, the manner in which the tender procedures were handled, Ms. L’s qualifications, the level of remunerations, and Ms. L’s business trips abroad are questioned in these articles.

The story was developed in 11 articles, that are published in 9 editions of the newspaper, within a period of two weeks. The story also became headline news and formed the subject matter of an editorial that calls for an inquiry1 .

The articles referred to rumours of an intimate relationship between Mr. C, who was separated from his wife at the time, and Ms. L, who was married with two teenage children. In addition, there were remarks of Ms. L’s attractive appearance2 .

The Evening Herald used some photographs to support the story. In one photograph, Mr. C and Ms. L was seen alone in evening wear in a manner that may suggest they were a couple. Another image showed them standing close to each other side by side with Ms. L in evening wear that has a slit reaches her hip. However, those photographs were manipulated and changed by photomontage in certain manners.

This issue was addressed by other parties in Irish media and lead to a report that was published in 2005 at the request of Irish Parliament. That report states that while there were certain shortcomings in the way that the contracts had been awarded and the work done had been monitored and recorded, there were not any infringement of relevant norms, guidelines, or practices3 .

B. Legal Issue

The primary legal issue in this case is whether the jury decisions in Ireland have an unpredictable nature, and if so, that nature constitutes a breach of Article 10 of the Convention by creating a chilling effect for the media.

C. Decisions of the High Court, the Supreme Court, and ECtHR

Ms. L sued the company for defamation, and the case was brought before the High Court. The trials were held before a jury. The jury determined that the articles had implied the existence of an extra-marital affair between Ms. L and Mr. C. This implication constitutes defamation, and damages the position of Ms. L as a businessperson, and negatively affects her family and private life. The trial judge gave the jury a very general outline about how they should determine the award, as directed by the law. On these grounds, the jury determined the quantum of damages as EUR 1,872,000, and the judge awarded that amount with an additional EUR 100,000 as legal costs. This amount is one of the highest awards ever made in a defamation case in Ireland.