THIRD SECTION
CASE OF DROUSIOTIS v. CYPRUS
(Application no. 42315/15)
 
JUDGMENT
This version was rectified on 24 August 2022
under Rule 81 of the Rules of Court. Art 10 • Freedom of expression • Insufficient reasons and disproportionate damages award in defamation action against journalist for newspaper article on high-ranking attorney in the Law Office of the Republic of Cyprus • Excessiveness of expressions used weighing heavily in domestic courts’ proportionality assessment without adequate importance to other factors relevant to the balancing act between competing rights at stake • Unusually large award capable of discouraging open discussion on matters of public concern • Eventual payment of award by publishing house not affecting disproportionality finding
 
STRASBOURG
5 July 2022
FINAL
 
05/10/2022
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Drousiotis v. Cyprus,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Georges Ravarani, President,
 Georgios A. Serghides,
 María Elósegui,
 Darian Pavli,
 Anja Seibert-Fohr,
 Peeter Roosma,
 Andreas Zünd, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 42315/15) against the Republic of Cyprus lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Cypriot national, Mr Makarios Drousiotis (“the applicant”), on 24 August 2015;
the decision to give notice to the Cypriot Government (“the Government”) of the complaint concerning the applicant’s freedom of expression and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 14 June 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns a judgment given against a journalist in civil defamation proceedings. The applicant complained of a breach of his right to freedom of expression under Article 10 of the Convention. THE FACTS
2. The applicant was born in 1959 and lives in Nicosia. He was represented before the Court by Ms L. Cariolou and Mr C. Velaris, lawyers practising in Nicosia. 3. The Government were represented by their Agent, Mr G. Savvides, Attorney General of the Republic of Cyprus. 4. The facts of the case may be summarised as follows.
background to the case
5. The applicant is a journalist by profession. At the relevant time he wrote articles for Politis – a national daily newspaper – and had his own column entitled “ΕΝ-ΣΤΑΣΕΙΣ”, in which he commented on current political affairs. 6. On 13 November 2001, following a recommendation of the Attorney General, the Public Service Commission decided to proceed with the compulsory retirement of S.P., who at the time was a high-ranking attorney in the Law Office of the Republic of Cyprus. 7. On 31 January 2003, following a recourse (no. 1004/2001) lodged by S.P., the Supreme Court set aside the Public Service Commission’s decision and S.P. was reinstated to his position as of that date.[1]
8. On 20 January 2005, following a request by S.P. to that effect, the Council of Ministers decided to extend his term of service by one year, for reasons of public interest. The decision noted that S.P. had been deprived of his right to exercise his duties in full during the fifteen months in which he had been removed from office, and that the Public Service Commission’s decision had been set aside by the Supreme Court. 9. On 9 March 2005 Politis published an article entitled “They changed their mind” (“Άλλα έλεγαν τότε κι άλλα κάνουν σήμερα”). The gist of the article was that although in the past it had been the regular practice of the AKEL and DIKO parties to submit amendments during the voting of the State budget which were aimed at banning the employment of retired persons by the State, nonetheless, under the presidency of T.P. (former member of DIKO) and the support of ministers from AKEL, the Council of Ministers had extended the service of S.P. for one year beyond retirement age. According to the article, this was not the first time that the service of a public servant had been extended. However, what was now deemed a matter of “public interest” by the Council of Ministers had been considered in the past by the coalition government to be an “unacceptable form of political favour” (“απαράδεκτο είδος ρουσφετιού”). The article stated that, legal though that decision might have been, it was politically wrong (“Άλλο όμως η νομοθεσία και άλλο το ιερό και όσιο του κάθε ενός βουλευτή, υπουργού ή προέδρου της Δημοκρατίας και των κομμάτων”). 10. On 9 March 2005 the same newspaper published an article containing the opinion of S.P., who believed that the main aim of the above-mentioned article had been to cause disruption and reduce the chances of his being appointed to the position of Attorney General. The Council of Ministers’ decision had been in accordance with the law and was similar to decisions in respect of other civil servants who had had their service extended. 11. Other publications also reported the opinion of a politician who described the decision as a scandal and unlawful, as it did not serve the public interest. The General Secretary of the Pancyprian Public Employees’ Trade Union requested that the decision be declared void, complaining that the union had not been consulted on the matter – which constituted a breach of contractual agreement – and nor had the Attorney General. Other politicians highlighted the contradictions of the coalition government, characterised the decision as “a scandal” and “a peculiar case”, as it appeared to have been made in the absence of the Attorney General, or without having been requested by him, and that it had been aimed at favouring certain causes and had been driven by clientelism (“προφανέστατα εξυπηρετεί ευνοιοκρατικούς σκοπούς και σκοπιμότητες και υπηρετεί ουσιαστικά μια λογική πελατειακών σχέσεων”; “σε περιπτώσεις που κάποιοι θεωρούνται δικά μας παιδιά δείχνει μια ελαστικότητα, κατά την άποψή μου, ανεπίτρεπτη”). 12. On the same day, the government spokesman explained that the decision whether to extend the term of office of a civil servant belonged to the Council of Ministers. It was fair that S.P. should be allowed to offer his services for a prescribed period given his absence from the service on account of the previous unlawful decision. On the question of whether the Attorney General had been consulted on the matter, he replied that he “[thought] that when the decision was taken, the Attorney General was abroad” (“νομίζω ότι όταν ελήφθη απόφαση ο Γενικός Εισαγγελέας έλειπε στο εξωτερικό”). THE PUBLISHED ARTICLE
13. On 10 March 2005 the applicant, a journalist by profession, published an article titled “The regime (of the south) promotes paranoia” in Politis. The article read as follows:
“The Council of Ministers approved in secret the extension of service of the attorney of the Republic [S.P.] for reasons of public interest! No one knows what those reasons are. Attorney General [S.N.], [S.P.’s] superior, did not request such an extension. He was not even informed afterwards about the decision of the Council of Ministers. So much for the respect shown to the institutions by the current government. In his statements to the media, the interested party [S.P.] said that he himself had submitted a request to the Council of Ministers. He also said that because he had entered the service at the age of 33, it was not fair for him to retire at the age of 60! So, the public interest is whatever Mr [S.P.] feels is fair or unfair for himself. Today’s government is the most unreliable and inconsistent government Cyprus has ever had. With the votes of AKEL and DIKO [political parties that supported the coalition at the time], Parliament cut the salary of the secretary of the Council of Ministers [C.F.] during the presidency of [G.C.], when the government at the time had decided to extend his term of office. Now they are extending [S.P.’s] term of office because he is kissing up to [γλείφει] [D.C., the President of the House of Representatives], who is preparing him for the position of Attorney General! [S.P.] also complained that the opposition was making noise [δημιουργεί θόρυβο] in order to damage his candidacy for the position of Attorney General. We don’t know if [T.P., the President of the Republic of Cyprus] will do that too. But, as we wrote yesterday, the current government has only one inviolable principle: the quid pro quo [Τη συναλλαγή]. Personally, I do not believe that [T.P.] has the slightest appreciation for [S.P.], nor would he have taken him into account if that decision had not been a part of a broader quid pro quo [συναλλαγή] with [D.C.]. Only if [S.P.] had not met the patriotic criteria would [T.P.] not have done a political favour [ρουσφέτι] for [D.C.]. But [S.P.] is the author of the great work, The Falsified Annan Plan and Rosemary’s Baby. For those who don’t know, Rosemary’s baby is the devil’s child. This 1,482-page book is a monument of incoherence and turbulent thought and was presented to the public by his friend [D.C]. Enjoy an excerpt from the book written by [S.P.]: ‘But, Mr President, [D.C.], friend of the Then and Then and in the Then-Then, I remember the things of the Then-Then, that you were saying and doing and proclaiming [λαλούσες] publicly and privately, both to the outside and to the inside, to those with a complex or without, the corrupted of the corruption ... [κομπλεξικά και μη διαπλεκόμενους της διαπλοκής].’
 The problem, dear readers, is not the inconsistency of the reasons and actions of the duo [T.P.] and [D.C]. Nor is it the lack of respect for the institutions, or the favouritism [κουμπαροκρατία] and gerontocracy [γεροντοκρατία]. The problem is much more serious, and, I am afraid, incurable. The current regime – because it is a regime – spits on logic, insults common sense [λοιδορεί τη σωφροσύνη] and promotes paranoia. If you haven’t understood that, we are in deep trouble.”
CIVIL DEFAMATION PROCEEDINGSFirst-instance proceedings (civil action no. 2560/05)

14. On 30 March 2005 S.P. brought civil defamation proceedings before the Nicosia District Court against the applicant and the publishing house of the newspaper Politis in relation to the article of 10 March 2005. 15. It appears from S.P.’s and the applicant’s written submissions to the District Court that on 1 May 2008, while the proceedings were pending, S.P. was appointed to the position of Deputy Attorney General. 16. S.P. argued that the article had been written in bad faith to damage his image and the public’s opinion of him; the extension of his service had been based on the law and was the result of the unfairness he had suffered owing to the unlawful termination of his service. According to S.P., he had only later realised from the articles in the newspaper that the Attorney General might not have been aware of the decision, but there was no such obligation to inform him under the law. He also asserted that his personal and professional reputation as an attorney, a writer and a person publishing articles concerning political, legal and current happenings in Cyprus had been harmed. 17. The applicant argued that his article had been published in the context of a wider public debate concerning the extension of S.P.’s service. It had been aimed at criticising the inconsistencies of the coalition government and the political, as opposed to the legal, correctness of the decision to extend S.P.’s mandate, at a time when S.P. was also being considered for the post of Attorney General. He had written the article having regard to the previously published opinions on the matter, including that of S.P. He felt that the decision at issue had not respected the State institutions, as it appeared from the publications at the time that it had been made in the absence and without the prior knowledge of the Attorney General and had been supported by political parties which had strongly opposed similar actions in the past. He further argued that he had used strong expressions with the aim of shocking the reader and raising concern over the development of the country and the need to restore its institutions. He had therefore contributed to a political discussion in accordance with the duties of the press on a matter of public interest concerning a public person, and although his expressions might have been harsh or shocking, they should be afforded greater protection. 18. The applicant also contended that the expression that S.P. had “kissed up” to D.C. had been used to indicate the close relationship between S.P. and D.C. He had based that opinion on information that he had borne in mind during that period, such as the fact that D.C. was the only person who had presented S.P.’s books to the public; that D.C. and his party, AKEL, had openly criticised the decision on S.P’s early retirement as an attempt to “eliminate” S.P.; that S.P. shared similar politically left-wing ideals with D.C.; and that in his books, S.P. had praised or excessively flattered D.C. while heavily criticising other politicians. On the basis of these facts, the applicant believed that D.C. wanted S.P. to be the next Attorney General. As regards the excerpt from S.P.’s book, according to the applicant, the entire book was hard to follow and contained incoherent language, hence the expression “monument of incoherence and turbulent thought”. The title of the article, as well as the terms “regime”, “spits on logic” and “promotes paranoia”, had been aimed at pointing out the contradictory actions of the two men, T.P. and D.C. The expression “patriotic criteria” was supported by the fact that both T.P. and S.P. had been against the Annan Plan of 2004, as was also evident from S.P.’s book The Falsified Annan Plan and Rosemary’s Baby. 19. On 4 May 2011 the Nicosia District Court held that the publication was defamatory and ordered the applicant and the publishing house to pay damages, jointly and/or severally, in the amount of 25,000 euros (EUR), plus statutory interest calculated from the day on which the civil action had been brought until payment. The court also ordered the applicant and the publishing house to pay, jointly and/or severally, legal costs amounting to EUR 3,472.59, plus statutory interest from the day on which the civil claim had been brought until payment, plus value-added tax (VAT). 20. The District Court dismissed the applicant’s testimony. The court was not convinced that the expression “kissing up” had been aimed merely at portraying the relationship between S.P. and D.C. and in any event, the explanations provided to the court were not contained in the article. Nor did the article contain any reference to the excerpts from the book which had allegedly given the applicant the impression that S.P. was excessively flattering D.C. (see paragraph 18 above). According to the court, the article clearly stated that the extension of S.P.’s service had been granted “because he [was] kissing up to [D.C.]” (emphasis added by the domestic court), giving the impression to the reader that the extension had been the result of S.P.’s flattery of D.C. Τhe court further considered that the imputation that the writer of the book was a paranoid person was not limited to a criticism of the book itself. From the article, one might assume that S.P. had managed to secure the extension by “kissing up” to D.C., who had then turned to T.P. seeking to exchange political favours in the context of a broader political deal between the two. 21. The court noted that the decision to extend the service of S.P. had indeed been a matter of public interest. However, the references in the article were factual allegations and the small excerpt from S.P.’s voluminous book had been used to reinforce the idea that S.P. was a paranoid person unsuited to holding a public post. The court further noted that even assuming that the reference to the general ethical and social duty of journalists to publish such articles had been adequate, the article was not limited to criticising either the circumstances of the extension or the Council of Ministers’ decision. Instead, it contained various allegations and innuendos concerning S.P. Its tone was aggressive, mocking and ironic. The court concluded that the publication, as it was written, exceeded what was reasonably appropriate under the circumstances. 22. Lastly, in calculating the amount of damages to be awarded, the court considered S.P.’s personality, his ‘serious and responsible position’ (μια σοβαρή και υπεύθυνη θέση) in the Law Office, the seriousness of the defamation, the lack of an apology by the applicant, the absence of aggravating factors for the applicant and the number of copies of the paper sold on the day (6,697 copies). Appeal proceedings (no. 236/11)
23. On 14 June 2011 the applicant lodged an appeal with the Supreme Court. He reiterated the arguments raised before the District Court and challenged the amount awarded in damages as excessively high. 24. On 6 March 2015 the Supreme Court dismissed the appeal. It upheld the District Court’s assessment, finding that S.P. was a public person, not because of his position in the Law Office, but because he systematically wrote articles in the Cypriot press on various social and political issues, and he was the author of the political book which was “commented on” in the disputed article. According to the Supreme Court, S.P. had chosen to reveal to the general public further aspects of his personality which had attracted public interest – an element which was directly linked to possible interferences with his personality rights. He had therefore laid himself open to public scrutiny, which he should have been able to tolerate. However, the court held that such scrutiny should not unduly harm S.P.’s honour and reputation and that the freedom of expression and the right to reputation should be balanced, having regard to the principles of necessity and proportionality. 25. The court considered that the applicant had not criticised S.P.’s book, nor was the article focused on criticising other political persons who might have been involved in the extension of S.P.’s mandate. Instead, it impinged on the honour and reputation of S.P. by presenting him as a paranoid person and therefore incapable of holding, or unfit to hold, a public post. To that end, the applicant had chosen four out of the 1,482 pages of S.P.’s book to mock his writing style. The Supreme Court also held that the defamatory references to S.P. in the article were not comments, but rather allegations of fact or insults (Ύβρεις, θα λέγαμε εμείς.). The court saw no reason to alter the amount awarded in damages at first instance. Payment of damages and costs
26. The amounts awarded in damages, as well as the costs of the legal proceedings ordered against the applicant and the publishing house, were paid in full by the publishing house. RELEVANT LEGAL FRAMEWORK
27. The relevant constitutional provisions concerning freedom of expression, as well as legislative provisions concerning the law of defamation, are set out in Alithia Publishing Company Ltd and Constantinides v. Cyprus (no. 17550/03, §§ 34-39, 22 May 2008). THE LAW
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
28. The applicant complained that the domestic decisions had breached his right to freedom of expression as provided in 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
29. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicant
30. The applicant submitted that the domestic courts had failed to conduct a proper balance of the right to freedom of expression against the right to respect for private life in conformity with the criteria laid down in the Court’s case-law. 31. He submitted that through the impugned article he had expressed value judgments as a journalist on matters of public interest concerning a public person and the government’s actions at the time, warranting heightened protection under Article 10 of the Convention. He asserted that his article ought to be interpreted in the context of the political debate at the time. Instead, the domestic courts had based their decisions predominantly on their disapproval of the characterisation of S.P. as a sycophant and the tone of the article in general. 32. He further submitted that the amounts he had been ordered to pay in damages and costs were excessively high. (b)   The Government
33. The Government endorsed the reasoning of the civil and appeal courts and maintained that there had been no violation of Article 10 in the present case. They further argued that the applicant had failed to comply with his duty to act in good faith and to provide reliable and precise information, as well as to verify factual allegations before disseminating them to the public. Specifically, the article did not make mention of certain information available to the applicant, such as the fact that S.P. had been wrongly dismissed from office; the Supreme Court had set aside the dismissal and restored him to his previous position; the Pensions Law gave the Council of Ministers discretion to extend the term of office of civil servants for reasons of public interest; S.P.’s extended term of office had not been a novelty nor had it been unlawful or illegal; and the extension was a means of restitution on the part of the Council of Ministers in view of S.P.’s unfair dismissal. Furthermore, the applicant had made no effort to contact S.P., but instead had focused only on S.P.’s position in the publication of 9 March 2005; nor had the applicant tried to establish whether the Attorney General had indeed been unaware of the extension. 34. The Government further argued that the interference had been in accordance with the law and necessary for the protection of the reputation of others. S.P. was a civil servant, not a politician, and he could not therefore be treated on an equal footing with politicians. He was considered a public person on account of his publications, but the defamatory article at issue had not concerned his writings, but rather the extension of his term of service.

Outcome for Article 10: violation