In Scott v Sampson (1882) 8 QBD 491, [1881-5] All ER Rep 628 the Divisional Court was concerned with the question as to the evidence which might be called by a defendant relating to the character of the plaintiff. Cave J explained the nature of the right which is concerned in an action for defamation (8 QBD 491 at 503, [1881-5] All ER Rep 628 at 634):
'Speaking generally the law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action.'
But, as was pointed out in the Faulks Committee Report of the Committee on Defamation (Cmnd 5909) para 62, the word 'discredit' is itself incapable of precise explication. Nevertheless, in Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 Scrutton LJ said that he thought that it was difficult to improve upon the language of this definition. (Berkoff v Burchill and another [1996] 4 All ER 1008, [1997] EMLR 139 Court Of Appeal (Civil Division))

 

CRITIQUE
 

 

 

42. Freedom of the press furthermore affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention.
The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt Article 10 para. 2 (art. 10-2) enables the reputation of others - that is to say, of all individuals - to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.

 

 

59. The limits of acceptable criticism are accordingly wider with regard to a politician acting in his public capacity than in relation to a private individual. The former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance, especially when he himself makes public statements that are susceptible of criticism.
A politician is certainly entitled to have his reputation protected, even when he is not acting in his private capacity, but the requirements of that protection have to be weighed against the interests of open discussion of political issues (see the above-mentioned Lingens judgment, Series A no. 103, ibid.).

 

 

47. However, as also observed by the Supreme Court, even in debate on matters of serious public concern, there must be limits to the right to freedom of expression (see paragraph 27 above). Despite the particular role played by the applicants as representatives of professional associations and the privileged protection afforded under the Convention to the kind of speech in issue, the applicants had to act within the bounds set, inter alia, in the interest of the “protection of the reputation or rights of others”. What is in issue is whether the applicants exceeded the limits of permissible criticism.

 

 

65.  En conséquence, la Cour considère qu'alors que la liberté d'expression d'un journaliste comprend le recours possible à une dose d'exagération, voire même de provocation (Dalban c. Roumanie, recueil 1999-VI, § 49), un homme politique qui répond par la voie de la presse à des critiques émises à son encontre doit pouvoir le faire selon les mêmes principes.

PERSONS OF PUBLIC INTEREST (PUBLIC FIGURES)

 

In answer to a special question, the jury found that the plaintiff had not proved actual malice, and a general verdict was returned for the defendant. On appeal the Supreme Court of Kansas, in an opinion by Justice Burch, reasoned as follows (78 Kan., at 724, 98 P., at 286):
"It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great, and the chance of injury to private character so small, that such discussion must be privileged."
The court thus sustained the trial court's instruction as a correct statement of the law, saying:
"In such a case the occasion gives rise to a privilege, qualified to this extent: any one claiming to be defamed by the communication must show actual malice or go remediless. This privilege extends to a great variety of subjects, and includes matters of [376 U.S. 254, 282] public concern, public men, and candidates for office." 78 Kan., at 723, 98 P., at 285.

 

 

And while participants in some litigation may be legitimate "public figures," either generally or for the limited purpose of that litigation, the majority will more likely resemble respondent, drawn into a public forum largely against their will in order to attempt to obtain the only redress available to them or to defend themselves against actions brought by the State or by others. There appears little reason why these individuals should substantially forfeit that degree of protection which the law of defamation would otherwise afford them simply by virtue of their being drawn into a courtroom. The public interest in accurate reports of judicial proceedings is substantially protected by Cox Broadcasting Co., supra. As to inaccurate and defamatory reports of facts, matters deserving no First Amendment protection, see 418 U.S., at 340 , we think Gertz provides an adequate safeguard for the constitutionally
protected interests of the press and affords it a tolerable margin for error by requiring some type of fault.
...
In Gertz v. Robert Welch, Inc., supra, at 352 we noted that an individual can be a public figure for some purposes and a private figure for others. And we found two distinguishing features between public figures and private figures. First, we recognized that public figures have less need for judicial protection because of their greater ability to resort to self-help; "public figures usually enjoy significantly greater access
to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy."
...
The second, "more important," consideration in Gertz was a normative notion that public figures are less deserving of protection than private figures: That although "it may be possible for someone to become a public figure through no purposeful action of his own," generally those classed as public
figures have "thrust themselves to the forefront of particular public controversies" and thereby "invite[d] attention and comment." Id., at 344-345. And even if they have not, "the communications media are entitled to act on the assumption that . . . public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them."

TOTAL PUBLIC FIGURES x VORTEX PUBLIC FIGURES

 

 

 

33. The Court also notes the Commission’s reasoning that civil servants acting in an official capacity are, like politicians, subject to the wider limits of acceptable criticism (see paragraph 28 above). Admittedly those limits may in some circumstances be wider with regard to civil servants exercising their powers than in relation to private individuals. However, it cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent to which politicians do and should therefore be treated on an equal footing with the latter when it comes to the criticism of their actions (cf. the Oberschlick v. Austria (no. 2) judgment of 1 July 1997, Reports 1997-IV, p. 1275, § 29).
What is more, civil servants must enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks and it may therefore prove necessary to protect them from offensive and abusive verbal attacks when on duty. In the present case the requirements of such protection do not have to be weighed in relation to the interests of the freedom of the press or of open discussion of matters of public concern since the applicant’s remarks were not uttered in such a context (see paragraph 32 above; and cf. the above-mentioned Lingens judgment, p. 26, § 42 in fine).

 

 

68. The Court notes the differences in the parties' position concerning the public-figure status of Ms Laanaru. It observes that Ms Laanaru resigned from her governmental position in October 1995 in the wake of the affair of the secret tape recordings by Mr Savisaar, for which she claimed responsibility (see paragraph 13 above). Despite her continued involvement in the political party, the Court does not find it established that the use of the impugned terms in relation to Ms Laanaru's private life was justified by considerations of public concern or that they bore on a matter of general importance. In particular, it has not been substantiated that her private life was among the issues that affected the public in April 1996. The applicant's remarks could therefore scarcely be regarded as serving the public interest.

 

 

 

72. The Court finds it hard to agree with the domestic courts’ interpretation of section 23(1) of the Copyright (Arts Domain) Act, which consists in describing a person as such as a figure of contemporary society “par excellence”. Since that definition affords the person very limited protection of their private life or the right to control the use of their image, it could conceivably be appropriate for politicians exercising official functions. However, it cannot be justified for a “private” individual, such as the applicant, in whom the interest of the general public and the press is based solely on her membership of a reigning family, whereas she herself does not exercise any official functions.
In any event the Court considers that, in these conditions, the Act has to be interpreted narrowly to ensure that the State complies with its positive obligation under the Convention to protect private life and the right to control the use of one’s image.
73. Lastly, the distinction drawn between figures of contemporary society “par excellence” and “relatively” public figures has to be clear and obvious so that, in a State governed by the rule of law, the individual has precise indications as to the behaviour he or she should adopt. Above all, they need to know exactly when and where they are in a protected sphere or, on the contrary, in a sphere in which they must expect interference from others, especially the tabloid press.

PUBLIC FIGURES PAR EXCELLANCE x RELATIVELY PUBLIC FIGURES

 

 

 

It can generally be stated that persons who are active in the public, that is, politicians, public officials, media stars, etc., must bear a greater degree of public criticism than other citizens. There is a dual basis for this principle. On the one hand, it encourages the public discussion of public affairs and the free formation of opinions. So as to allow for the greatest possible plenitude of discussion of public affairs, it should be regulated by state authority solely to the extent absolutely indispensable (compare Art. 17 par. 4 of the Charter of Fundamental Rights and Basic Freedoms). In addition, the state accepts that its authoritative interference with the freedom of expression, for the purpose of protecting the good name of other citizens, should be subsidiary, that is, employed only in the case that such harm cannot be cured by some other means. Such harm can be cured by means other than interference by the state, for example, by making use of permissible opportunities to oppose controversial and misleading opinions. Thus, it is often possible to minimize the damaging consequences of controversial statements by means that are more effective than a judicial proceeding.