FOURTH SECTION
CASE OF SIC - SOCIEDADE INDEPENDENTE DE COMUNICAÇÃO v. PORTUGAL
(Application no. 29856/13)
 
 
JUDGMENT
Art 10 • Freedom of expression • Disproportionate civil defamation judgment against media firm in respect of television reports on network of child sexual abusers wrongly alluding to the involvement of well-known politician • Applicant company’s failure to act in accordance with the tenets of responsible journalism • Compelling reasons to impose sanction in circumstances • Excessive award vis-à-vis level of injury to reputation suffered • “Chilling effect” on freedom of expression and of the press
 
STRASBOURG
27 July 2021
FINAL
 
02/11/2021
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of SIC - Sociedade Independente de Comunicação v. Portugal,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Yonko Grozev, President,
 Faris Vehabović,
 Iulia Antoanella Motoc,
 Gabriele Kucsko-Stadlmayer,
 Pere Pastor Vilanova,
 Jolien Schukking,
 Ana Maria Guerra Martins, judges,
and Andrea Tamietti, Section Registrar,
Having regard to:
the application (no. 29856/13) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Portuguese company, SIC – Sociedade Independente de Comunicação (“the applicant company”), on 30 April 2013;
the decision to give notice to the Portuguese Government (“the Government”) of the complaint concerning Article 10 of the Convention and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 15 June and 6 July 2021,
Delivers the following judgment, which was adopted on that 
last-mentioned date:
INTRODUCTION
1. The case concerns a judgment given against the applicant company in defamation proceedings, in relation to a news report about a paedophile network. The applicant company complained of a breach of its right to freedom of expression under Article 10 of the Convention. THE FACTS
2. The applicant company is a media firm whose registered office is in Oeiras (Portugal). It was represented by Mr R. Correia Afonso, a lawyer practising in Lisbon. 3. The Government were represented by their Agent, Ms M.F. da Graça Carvalho, Deputy Attorney General. Background to the case
4. On 6 and 7 December 2003 SIC and SIC Notícias, two major television channels in Portugal, opened their news broadcasts with a report on the “paedophilia in the Azores” case, likening it to the Casa Pia case that was under investigation in mainland Portugal[1]. 5. The source of the news was a report produced jointly by the applicant company and Expresso, a leading weekly newspaper in Portugal, following an investigation on São Miguel Island. 6. In the news broadcast at 8 p.m. on 6 December 2003, the applicant company reported as follows:
“notable [notáveis] people from the Azores have been implicated in the scandal ... Last week a team of reporters from SIC and Expresso heard various accounts on São Miguel Island. The majority of young people mentioned the same names as those who are being investigated by the police. Among the list of suspects are politicians known throughout the country, and also teachers, a priest, a magistrate, two doctors, an architect, a lawyer and several businessmen.”
7. Following this introduction, a journalist, D.S., was shown interviewing some of the alleged victims. Referring to a certain M., she reported as follows:
“At 13 years old, M. could already recognise all the men who came looking for him. It was at the old fishing port in Calheta, where he lived, that he met a lawyer who was to become a member of the Government of the Azores.”
8. In the same news segment a reporter, E.C., then stated, standing in front of the building of the Regional Government of the Azores:
“the SIC/Expresso investigation has collected and registered several references to the involvement of renowned figures of society, including at an institutional level in the region, and these references point to the involvement of a member of the current regional government: a politician who is currently serving and in power... We have been informed by the Socialist Party and the Regional Government that there will be no comments for the time being. There is no official response, but it is obvious that in homes across the Azores people are not talking about anything else.”
9. On 7 December 2003, during the primetime news broadcast on both the SIC and SIC Notícias channels, the alleged paedophile ring in the Azores was once again the topic of the opening report. Within the news report, the reporter E.C. stated:
“... there is silence in the government offices. There is no official reaction to the alleged involvement of political figures in the case. ... Some of the accused individuals spent the long weekend far away from the Azores, and there were no new developments on the judicial front.”
10. On 8 December 2003 R.R. resigned from his position of Regional Secretary of Agriculture and Fisheries in the Regional Government of the Azores, making the following statement:
“I have nothing to do with proceedings that have come to the public’s attention, mentioned on some media platforms, relating to any case of sexual abuse of minors. I cannot, however, ignore the existence of rumours, insults directed at me, connected with the proceedings in question.”
11. The caption at the bottom of the screen for the news report read:
“Paedophilia scandal in the Azores brings down a member of the Regional Government of the Azores”
12. R.R.’s resignation was the subject of the opening segment of the news broadcast by the applicant company at 7 p.m. on 8 December 2003. In reply to a question from the newsreader, the journalist reporting from the Azores, E.C., stated:
“This is a declaration of innocence, but at the same time, in political terms, it is absolutely extraordinary, in that we have a government member who has decided to quit on the basis of rumours.”
13. R.R.’s resignation was again the subject of the opening segment of the 8 p.m. news broadcast by the applicant company that same day. In a voice-over, the news report mentioned:
“[R.R.] says he has nothing to do with the cases reported on in the last few days regarding the sexual abuse of minors in the Azores. He admits, however, that he cannot ignore the onslaught of rumours, harmful statements and references implicating him as Regional Secretary of Agriculture and Fisheries. Therefore, he explains that even though he considers this to be unfair and disgraceful, his personal honour has been damaged, as have his authority as a government member and the image of the Regional Government of the Azores. For this reason, and even though he is not under investigation by law enforcement, he has taken the decision to quit so that the Regional Government and President C.C. would not be adversely affected by this false news.
... The scandal broke out last Friday, when the SIC/Expresso investigation was published, and soon after the release from prison of J.P., who is suspected of having gathered children from the poor neighbourhoods of the island. He was arrested last month for pimping and sexual abuse of minors. Most young people spoken to by SIC and Expresso mention the same names that are now on the list held by police. Among the suspects listed are politicians known in the region, teachers, a priest, a magistrate, two doctors, an architect, a lawyer and several businessmen.”
14. This news was shared by various communication outlets, both written and spoken, in the Azores and in mainland Portugal, in newspapers, on the radio and on television, for several successive days. 15. It was also shared by the international television channel SIC International in the United States of America and in Canada, where thousands of emigrants from the Azores reside, in particular from São Miguel Island. 16. In the 10 a.m. news broadcast on SIC Notícias on 9 January 2004, SIC reported that twelve suspects had been questioned by the police until 2 a.m. of that day. The report added:
“Of the twelve suspected of sexual abuse of minors, eight will remain in pre-trial detention ... Of the twelve suspects arrested and questioned yesterday by the police, only four were not held in pre-trial detention. This was the case of the Regional Secretary of Agriculture, who resigned from government [and] who had already left the court at about 3 a.m. (2 a.m. Azores time).”
17. Later that day, in the news broadcasts of 12 noon and 1 p.m. on SIC Notícias, the applicant company rectified its statement, explaining that R.R. had not been present in court that day, and neither had he been detained or indicted. Civil proceedings against the applicant company
18. On 6 November 2006 R.R. instituted civil liability proceedings in the Ponta Delgada District Court (Azores), against SIC Notícias and the journalist E.C. for damaging his reputation and honour. He sought 65,758.97 euros (EUR) in compensation for pecuniary damage and EUR 400,000 for non-pecuniary damage, including interest applicable from 3 April 2007, the date on which the summons was served on the applicant company. 19. On an unknown date the case was referred to the Oeiras District Court. Judgment of the Oeiras District Court of 20 August 2010
20. By a judgment of 20 August 2010, the Oeiras District Court considered the following facts established:
“... C.D. The reporters from SIC and SIC Notícias knew that it was false that the claimant was involved in the proceedings in question, that he was a defendant or that he had been questioned. C.E. This is because on the day and on the evening when the questioning took place (8 January), at least two reporters were present in the vicinity of the Ponta Delgada District Court, one of them being [E.C.].
... C.H. The claimant was known in the whole country, for various social and civic initiatives that he had developed. He is the best known Regional Secretary, both regionally and nationally. C.I. He was the only lawyer from São Miguel Island who served as a member of the Regional Government of the Azores. C.J. He was the only government member who, at the time, was far away from the region: in Mauritius, in the Indian Ocean. C.K. Several people identified him through those statements and personal traits. C.L. It was widely discussed among the public that the politician – or the lawyer – was the claimant.
... C.Q. Considering the context of the news and his identification by people who had seen the reports, the claimant called the regional president of the Azores to inform him that he had decided to resign from his position as Regional Secretary. C.R. The president also considered that the reports aired by SIC and SIC Notícias on 6 and 7 December had alluded to [the claimant].
... C.T. The claimant felt that his honour, his good name and his personal dignity were being harmed ... D.S. Only after the public charges in the criminal proceedings in the paedophilia case had been formulated did the claimant sense some relief, because it became apparent within public opinion that he was not part of the proceedings
... D.W. Even though it was made clear that [R.R.] was not linked to the facts being investigated in the proceedings, to this day there are still references to his involvement in the case, in online blogs and in the regional social media.
... E.P. News of the present case came about as a result of a journalistic investigation, quite separate from the police investigation as regards the means employed and the aims pursued. E.Q. The journalistic reports in issue were limited to sharing facts considered to be truthful by those who produced them. E.R. Before their dissemination, they were subject to journalistic investigation. E.S.  [This took place] through contact with different sources. E.T. The facts disseminated had already been studied by journalists and published in the 6 December edition of the Expresso newspaper. E.U. This also influenced the behaviour of E.C., who believed that their dissemination was appropriate.
... F.H. The reference to the claimant as one of the ‘suspected detainees’ who was questioned between the night of 8 January and the early hours of 9 January 2004 was a mistake [lapso]. F.I. This mistake was rectified through a correction broadcast on the 12 noon and 1 p.m. editions of the news by the defendant SIC Notícias on 9 January 2004. F.J.  [R.R.] is a member of parliament in mainland Portugal.
...”
21. On 20 August 2010 the Oeiras District Court found partially for R.R., ordering the applicant company and E.C. to pay him compensation of EUR 145,758.97, made up of EUR 80,000 in respect of non-pecuniary damage and EUR 65,758.97 in respect of pecuniary damage. The court apportioned liability between the applicant company at 60% and the defendant E.C. at 40%. Lastly, the applicant company was ordered to provide R.R. with airtime at a peak viewing time, to allow him to reply to the accusations. 22. On an unknown date the applicant company and E.C. appealed against that judgment to the Lisbon Court of Appeal. Judgment of the Lisbon Court of Appeal of 10 January 2012
23. By a judgment of 10 January 2012, the Lisbon Court of Appeal varied the previous decision. It dismissed the journalist E.C. from the case and ordered the applicant company to pay R.R. EUR 10,000 in compensation for non-pecuniary damage, alongside interest with effect from the date of the judgment. The Lisbon Court of Appeal also rejected the claim in respect of pecuniary damage on the grounds of the lack of a causal link between R.R.’s voluntary decision to resign from his government role and the applicant company’s actions, owing to the voluntary nature of his resignation. The court based its decision solely on the news report broadcast on 9 January 2004. 24. The Court of Appeal explained that the various facts in the case could not be interpreted as a whole, in contrast to the first-instance court’s decision. Instead, it considered that it was analysing a “dynamic reality”, and split the sequence of events into three distinct moments, as follows:
“[T]he first moment took place on 6 and 7 December 2003, concerning the SIC/Expresso investigation about paedophilia in the Azores; the second moment on 8 December 2003 related to [R.R.]’s letter of resignation ... and lastly the third moment occurred on 9 January 2004.”
25. The Court of Appeal clarified that the first moment referred to the “F.” criminal case, which was already under police investigation. The news report itself had been broader than that case, resulting as it did from the work of investigative journalism. Furthermore, the Court of Appeal concluded as follows:
“as concerns words, sentences, references, or even comments made before or during the report that may still be classified within the framework of investigative journalism, it cannot be concluded, nor has it been alleged, that the author was expressly identified, or that any defamatory statements concerning him were made.
... It was stressed in the decision being appealed against that the various references to the claimant’s personal characteristics allowed for his identification, in the context of the insinuations heard, alluding to the fact that he was a lawyer – the sole member of the government exercising that professional activity – and was absent from the Azores at the time of the reporting, and if indeed it was established that several people identified the claimant through those statements, it cannot be concluded that any possible associations or rumours that may have occurred should be imputed as defamatory information, such as to justify the obligation to award compensation ...”
26. The Court of Appeal identified the second moment as R.R.’s resignation from his government position, when he himself had linked his resignation to the previous reports. On this point the judgment read as follows:
“It is understandable that the event should be on the news, with reference to the previous news reports, and also that, since it concerned a relevant political matter, it should be subject to scrutiny by the media, and specifically news commentators ... While it is not in dispute that after the claimant had tendered his resignation, he did not receive the same income as previously while the holder of a political office, it is clear that, even if the news reports – referred to as the first dynamic moment of the facts in question – may have prompted him to resign, there was nothing unlawful, for we cannot ignore that this was an act of free will, and the appeal is to be determined accordingly; nor, therefore, does there exist a causal link justifying the award of pecuniary damage.”
27. The Court of Appeal described the third moment as the news report broadcast at 10 a.m. on 9 January 2004, in which it had been falsely stated by the television reporter that R.R. was one of the suspects who had been arrested and questioned by the police. In that case, despite the rectification of that fact in the news broadcast of 12 noon and 1 p.m. that same day, the Court of Appeal considered that there had been a grave violation, caused by a lack of diligence. 28. On an unknown date the applicant company and R.R. lodged an appeal against that decision with the Supreme Court. Judgment of the Supreme Court of 23 October 2012
29. On 23 October 2012 the Supreme Court found in favour of R.R. and varied the decision of the Lisbon Court of Appeal. It held that, regardless of the applicant company’s rectification of the false information about R.R.’s arrest and questioning which had been broadcast on 9 January 2003, the applicant company was nevertheless liable under Articles 70 and 484 of the Civil Code. The Supreme Court pointed out that when reporting on R.R.’s arrest, the reporters from SIC and SIC Notícias had been aware that the information they were providing was false. 30. As to the analysis of the merits of the case, the relevant parts of the judgment read as follows:
“In the light of these established facts, and the entirety of the remaining facts that undeniably point in the same direction, there is no doubt that the claimant’s right to honour and a good name was undermined by the (illicit) conduct of the reporters of SIC Notícias (namely the third reporter), who, without mentioning the claimant by name, but providing a series of characteristics that would allow him to be easily identified, ascribed to him, in the reports produced and broadcast by the television channel on 6 and 7 December, facts that objectively caused serious harm to his fundamental rights to a good name and to honour, without, as they should have done in accordance with ethics and professional conduct, having taken care beforehand to investigate whether those facts were true or not, and maintaining and reiterating the dissemination of such news even after they knew that it was not true that the claimant was (judicially) involved in the proceedings in question ... [such] illegality ... therefore stems from negligent behaviour (breach of the duty of care) in broadcasting facts that were not shown to be true, and whose veracity was not carefully verified, and in not protecting, in any event, the identity of the claimant ...
[N]ot only, as the previous judgment found, the report mentioning the claimant as being one of the ‘suspected detainees’ questioned between the night of 8 January and the early hours of 9 January (later rectified on the 12 noon and 1 p.m. news broadcasts on SIC Notícias on 9 January 2004), but also the dissemination of the attribution of the facts to the claimant in the form in which it took place on 6 and 7 December 2003 (at this point not yet referring directly to the name, but making identification possible through the reference to individual and identifiable elements and characteristics), cannot be considered anything other than serious violations by the journalists in the service of SIC, on account of the lack of diligence and failure to comply with the duties that govern the profession of a journalist, namely the duty to provide truthful information, having in this way affected the claimant through implications that, by being broadcast on SIC’s television channel, damaged his honour and good name; accordingly, ... the defendant SIC has an obligation to pay compensation.”
31. The Supreme Court further clarified that the amount of compensation should not be merely symbolic but should also ensure proper compensation for the damage caused, holding as follows:
“To any person with an average notion of sensibility, reasonableness and common sense, it is clear that the (unfounded) imputation, made publicly and repeatedly, through a media outlet (in the present case, a television channel), to a citizen – in the present case a citizen with a proven and acknowledged record of engagement at civic, public and political levels – of involvement in paedophile activities and the sexual abuse of minors, even though this information was later rectified, constitutes, as a whole, much more than minor inconveniences of no legal relevance, amounting instead to severe damage to essential elements of fundamental personality rights, damage that by its severity, by the way in which it affects the personality rights of a person, significantly undermining his honour and dignity, is worthy of legal protection.”
32. The Supreme Court considered that the grave offence to R.R.’s good name, which had caused suffering both to him and to his direct family, justified an award of compensation of EUR 50,000 in respect of 
non-pecuniary damage. 33. With regard to pecuniary damage, the Supreme Court considered that R.R.’s resignation was connected to “unlawful facts harmful to his honour and his good name, which are SIC’s responsibility”. It thus ordered the payment of EUR 65,758 in respect of pecuniary damage to R.R., with interest of 4% per year, with effect from the date when the summons had been served on the applicant company, namely 3 April 2007 (see paragraph 18 above). On that point, the judgment read as follows:
“Even though the claimant’s resignation and the consequent loss of income are not a direct and immediate consequence of the facts damaging his honour, the truth is that these consequences would not have occurred without those facts; the damaging facts gave rise to proceedings that undoubtedly led to damage; there is therefore sufficient causality between the facts and the pecuniary damage suffered by the claimant, which was correctly quantified by the first-instance court in the amount of EUR 65,788 (corresponding to EUR 71,041.86 for the amount that he would have received in the position he had held, less EUR 5,282.89 for what he in fact received by practising as a lawyer after his resignation).”
34. The applicant company appealed against that judgment to a bench of three judges (Conferência) of the Supreme Court, arguing that the decision had been null and void in various respects – insufficient grounds, exceeding the scope of the case (excesso de pronúncia) and contradictory reasoning – and that there had been irregularities in the allocation of the case within the Supreme Court, through the existence of a situation violating the principle of the natural judge. 35. On 16 April 2013 the bench of three judges of the Supreme Court allowed the applicant company’s appeal in part, but only with regard to the lack of reasoning of the decision regarding the interest from the date of the summons, rectifying that defect. 36. Between May and October 2013 the applicant company paid R.R., in six monthly instalments, the compensation he had been awarded plus interest of EUR 30,230.28, amounting to a total of EUR 145,988.28. Subsequent developments
37. Between 10 March 2005 and 4 November 2013 R.R served as a member of the national parliament, representing the Azores. He was elected mayor of Vila Franca do Campo in September 2013, and was re-elected in October 2017. RELEVANT LEGAL FRAMEWORK
The Constitution
38. The relevant provisions of the Constitution provide as follows:
Article 26 § 1
“Everyone shall possess the right to a personal identity, to the development of his or her personality, to civil capacity, to citizenship, to a good name and reputation, to his or her own image, to speak out, to protect the privacy of his or her personal and family life, and to legal protection against any form of discrimination.”
Article 38
“1. Freedom of the press is guaranteed. 2. Freedom of the press implies:
(a)  freedom of expression and creativity on the part of journalists and other staff, as well as journalists’ freedom to take part in deciding the editorial policy of their media entity, save when the latter is doctrinal or religious in nature;
(b)  that journalists have the right, as laid down by law, of access to sources of information and to the protection of professional independence and secrecy, as well as the right to elect editorial boards;
(c)  the right to found newspapers and any other publications without the need for any prior administrative authorisation, bond or qualification ...”
The Civil Code
39. The relevant provisions of the Civil Code read as follows:
Article 70
“The law shall protect individuals against any unlawful interference or threat of harm to their person or character.”
Article 484
“Anyone who states or spreads [knowledge of] a fact that is capable of harming the reputation of another natural or legal person shall be liable for damages.”
Article 496
“1. When determining the amount of compensation, regard shall be paid to 
non-pecuniary damage that, by its seriousness, deserves the protection of the law ... 4. The amount of compensation shall be determined fairly by the court ...”
The Code of Civil Procedure
40. The relevant provisions of the Code of Civil Procedure read as follows:
Article 696
“A decision that has become res judicata may be the subject of an application to reopen proceedings [recurso de revisão] only where
... (f)  it is incompatible with a final decision given by an international appeal body and by which Portugal is bound.”
The Press Act
41. Section 3 of the Press Act, enacted through Law no. 2/99 of 13 January 1999, provides as follows:
“Freedom of the press has as its only limits those that derive from the Constitution and the law, in order to safeguard the accuracy and objectivity of information, to guarantee the rights relating to a person’s reputation, private life, image and words and to defend the public interest and democracy.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
42. The applicant company complained that the judgments given against it had been in breach of its right to freedom of expression. It invoked Article 10 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, 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.”
Admissibility
43. The Court notes that the applicant company’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicant company
44. The applicant company recognised that the interference with its right to freedom of expression had been prescribed by law, but argued that it had not been necessary in a democratic society. 45. It contended that the various news reports broadcast by its television channel could not be interpreted as a whole. It admitted that R.R.’s honour and reputation had been damaged only with regard to the news report broadcast at 10 a.m. on 9 January 2004 mentioning that R.R. had been arrested and questioned by the police. It argued that the previous reports had not directly identified R.R., and that the rumours emerging as a result of those reports could not be imputed to the applicant company, whose journalists had simply summarised the information they had collected through their investigation. In terms of the reference to R.R.’s resignation, the applicant company stressed that the resignation of a politician was always newsworthy and, as a political issue of relevance, it would be subject to comment and discussion by journalists. 46. The applicant company affirmed that the piece of news in question had been of relevant public interest, as had been acknowledged by both the first-instance court and the Lisbon Court of Appeal. 47. Lastly, the applicant company contended that the amount of compensation awarded had been excessive and disproportionate, observing that it was the highest amount anyone had ever been ordered to pay for damaging a person’s reputation and honour. It had had a chilling effect on the exercise of the freedom of expression. (b)   The Government
48. The Government did not contest the fact that there had been an interference with the applicant company’s exercise of its right to freedom of expression, but submitted that the interference had been “prescribed by law” and had pursued a “legitimate aim”. As to the necessity of the interference in a democratic society, they maintained that the protection of the right to respect for personal honour and reputation was also a duty of the State, since the applicant company had reported false information, without adequately verifying the veracity of the statements, thus violating the duties of ethics, professional conduct and care which journalists were obliged to abide by. 49. The Government affirmed that a false news story of that nature would naturally cause great damage both to the person who was the subject of the news and to society as a whole, destroying trust in the media. 50. The Government further submitted that in the present case the journalists had not observed the duties and responsibilities of their profession to provide information with rigour, objectivity and truth, but had instead acted negligently. They referred, in particular, to the news report claiming that R.R. had been arrested and questioned by the police at the Ponta Delgada District Court. In their submission, even though this news had later been rectified, it had revealed a manifest breach of the duty of care. 51. The Government concluded by submitting that the interference with the applicant company’s exercise of its right to freedom of expression had been “necessary in a democratic society” to ensure the protection of the honour and rights of another, as provided for in Article 10 § 2 of the Convention.

Outcome for Article 10: violation