CASE OF THOMA v. LUXEMBOURG
Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
Christos Rozakis
9. On 6 November 1991 Tageblatt, a Luxembourg daily newspaper published in German, printed an article by journalist Josy Braun on various reafforestation techniques that had been used after the storms in early 1990 that devastated part of the Luxembourg woodlands. The article appeared under the title “Wiederaufforstung ... das ganze noch einmal” (“Reafforestation ... all over again”) and included the following: [Translation from a French translation provided by the applicant] “The cynicism really knows no limits, since it should not be forgotten that these forest gardeners cut down trees, buy, plant, ‘treat’ with public funds, to the tune of millions of francs. (Ministers, lend an ear!) What does all this hide? Of course, there will be a full denial by all concerned, but the conclusion to be drawn after various discussions with people in the industry should be this: It is better to replant two or three times with plants from a seller who gives a generous percentage than once with plants from a firm that has the nerve to refuse to pay bribes. (Comment from someone familiar with the system: ‘I know of only one person who is incorruptible.’ He gave the name of the forest warden from ‘Bambësch’.) ‘Naturally’, it’s a case of the tabloid press yet again publishing ‘unsubstantiated monstrosities’; ‘naturally’, there is no truth in any of it, but the owners of the woodlands, whether the State, municipalities or private individuals, should be aware of one thing: they are the ones who must pay for the repeated reafforestation of dubious benefit; and they the ones who should demand that the political authorities remove the dung from Augeas’s Stables, instead of continually trying, with mixed success, to muzzle those who have the nerve to put the public interest before the private interests of a few ‘fleas in the scrotum of the Welfare State’ (dixit Degenhard).” 10. The applicant was at the time a journalist on a national radio station, RTL 92.5, for whom he presented a weekly programme in Letzeburgesch entitled “Oekomagazin” dealing with nature and the environment. He had raised the subject of the problems connected with reafforestation after the 1990 storms on a number of occasions on the programme and had alluded, along with other Luxembourg publications, to a breakdown in the system. 11. The applicant had chosen reafforestation as the subject matter for his “Oekomagazin” programme of 6 November 1991. He began the programme with an introduction in which he reminded listeners that he had spoken the previous week about “the temptation for Forestry Commission people to take advantage when an opportunity present[ed] itself” and had referred to “a series of telephone calls from people all over the country who [had] interesting tales to tell”. He went on to say “in any event, one thing is clear: the woodland management chapter is much thornier than people might think”. He also reported, indicating that he was giving an example, that a person who had had work done in woodland he owned by a private contractor “no longer knew which way to turn” after receiving a bill for the work from the Forestry Commission responsible for the sector rather than the private contractor. After that introduction, he quoted certain passages from the aforementioned article, which he said was “strongly worded”. He said, inter alia: [Translation from a French translation provided by the applicant] “But there is money to be made at the sawmill as well as in wood. The same applies to the plantations, because they can be counted in millions. In a two-page article in today’s edition of Tageblatt, Josy Braun does not mince his words in denouncing various plantation practices used by the Water and Forestry Commission and he makes no concessions. The journalist writes, and I quote: ‘One already requires a certain dose of cynicism not to forget that these gardeners of the forest do not clear out, buy, plant, and (in inverted commas) treat the publicly owned woodlands with their own money, but with public funds to the tune of millions.’ Josy Braun then provides the proof (fazit) of the proposition: ‘It is better to replant two or three times with plants from a seller who pays a percentage than once with plants from a firm that has the nerve to refuse to pay a percentage.’ The Tageblatt journalist then cites an authoritative source from the industry who is quoted as saying: ‘I know of only one person who is incorruptible.’ The name of the forest warden from Baumbusch is given in that connection. ‘The owners of our forests, whether the State, municipalities or private individuals should be aware of one fact: they are the ones who must pay for umpteen questionable reafforestation projects’, to quote again from the Tageblatt journalist, ‘It is they who ought to demand that the political authorities clean out Augeas’s Stables once and for all’ ...” 12. The applicant explained that with that “strongly worded” article, Josy Braun had implicitly referred to the provision in the Criminal Code relating to intermeddling, which prohibits civil servants working for the State or the municipalities to use their official status to derive personal gain. He added that people working for the Water and Forestry Commission “have a reasonable salary and can under no circumstances claim a hand-out and get rich at the expense of public-owned woodlands or of private owners, buyers of wood or tree nurseries”. 13. He then proceeded with the theme of the programme and put questions to W., a Water and Forestry Commission engineer, before asking R., a private woodlands owner: [Translation from a French translation provided by the applicant] “In a strongly worded article by journalist Josy Braun this morning, it is said: ‘It is better to replant two or three times with plants from a seller who is generous with bribes than once with plants from a firm that has the nerve to refuse to pay bribes.’ Mr R., what do you think of that strongly worded phrase. You also work a little in this branch: what is your experience in this sphere? Is what Josy Braun says true?” 14. After R. had expressed his opinion on that point, the applicant questioned him further on the subject of the importation of plants, a matter he had previously raised with W., the engineer. He asked R. the following questions: [Translation from a French translation provided by the applicant] “And what is your opinion on the delivery of plants from abroad, possibly through Luxembourg traders? Is it possible that the plants, which come from Hungary or Spain, for example, are delivered without being checked?” 15. After R.’s reply, the applicant ended his programme with a long debate on the theme of public tenders. 16. In a press release on 19 November 1991, the Association of Luxembourg Foresters announced its intention to lodge a complaint for defamation against the applicant. However, it did not do so. 17. Between November 1991 and February 1992 fifty-four forest wardens and nine forestry engineers brought civil actions in damages against the applicant alleging that he had damaged their reputation. They each claimed 1,000,000 Luxembourg francs (LUF) in compensation complaining that he had quoted accusations from the article published in the 6 November 1991 edition of Tageblatt without in any way toning them down, correcting them or commenting on them “the slightest bit critically”, and that he had passed them off as his own. He had thus suggested publicly that all forestry wardens in Luxembourg (of whom there were eighty at the time) and all Luxembourg forestry engineers were, with only one exception, corruptible and corrupt. In their writs, they quoted from a Luxembourg judgment of 1989, in which it was held as follows: “By establishing freedom of the press, the Constitution does not impose any restriction on the fundamental principle contained in Articles 1382 and 1383 of the Civil Code. Freedom of the press is not unlimited and ends where it infringes the legitimate rights and interests of others. Journalists do not enjoy any immunity exempting them from their obligation to exercise care towards all individuals and even the State and its institutions, and any breach, albeit slight, of that obligation is unlawful under the aforementioned Articles of the Civil Code which oblige anyone who, through his wrongdoing, or negligent act or omission causes damage to another, to make reparation. Journalists may be held severally liable for any breach of their obligation to be truthful and objective” (judgment no. 9.637 of 13 November 1989, Cepal v. Bever). 18. The sixty-three statements of claim were couched in more or less identical terms. 19. The applicant requested that the various actions against him be joined and declared inadmissible on the ground that he had merely quoted statements made by a clearly identified person. He offered to adduce witness evidence to show that his investigations revealed numerous offences in the sphere concerned. He also lodged a counterclaim against each of the claimants for payment of LUF 25,000 as an allowance for preparing the case for trial and LUF 100,000 for abuse of process and vexatious proceedings; he also claimed costs and expenses. 20. The Luxembourg District Court examined the sixty-three cases at a single hearing and handed down sixty-three almost identical judgments on 14 July 1993. It awarded each of the claimants one franc in nominal damages, dismissed the counterclaims and ordered the applicant to pay the costs and expenses. 21. After examining the text of the aforementioned passage from the Tageblatt article and the aforementioned quotations from the transcript of the applicant’s radio programme, the District Court held, inter alia: “The journalist, Thoma, seized upon the article by Josy Braun and, in particular, the impugned passage, to persuade the public that the legislation in force was not being complied with and to adopt Josy Braun’s ‘fazit’ conclusion. This Court considers that the use of the words ‘Forstleit, Forstverwaltung’ to restrict the circle of people concerned by the programme, the use of Braun’s conclusion to support the assertions, citing a person who was supposedly familiar with that circle (Berufener Stemm aus dem Milieu), the assertion that that person knew only one person – from that background – who was incorruptible, meant that those against whom the accusation was made are sufficiently identifiable. In view of his position (as a Forestry Commission employee), the claimant has sufficiently established in law that Thoma’s remarks were directed against him. This Court must analyse whether by so acting the defendant has committed an act that falls to be dealt with under the provisions of Articles 1382 and 1383 of the Civil Code. It is true that the press has the right, and even the duty, to criticise abuses that come to light in public life (CSJ 23 March 1912 P.8, p. 346). It is incumbent on professional journalists to publish breaking news, news items and, generally, anything which seems to them to present an interest as soon as they can (Luxembourg District Court, 14 February 1990, no. 100/90). The press must preserve its right to criticise the social activity of individuals, that is to say all those whose dealings directly concern the community. The press is entitled to say what it thinks about their activities, provided that it does not attack their reputation and provided that it acts in good faith (Luxembourg District Court, 27 October 1986, Feuille de liaison de la conférence St Yves no. 69, p. 43). Marc Thoma was, accordingly, perfectly entitled to investigate the problems posed by the reafforestation of our woodlands after the storms and to denounce and to criticise practices which he considered to be inconsistent with the laws and regulations. Indeed, through a series of articles in the press, the Luxembourg journalists have not missed the opportunity of drawing the attention of the public and the public authorities to matters which they believe it was their duty to criticise. While it is true that absolute objectivity cannot be required of journalists, in view of their relatively unreliable means of investigation, they nonetheless have an obligation to act on information that has been verified to the extent the means available to them reasonably permit. The law requires journalists to act in good faith and does not seek to give immunity to persons who through spite, malice or foolishness seek by publication to discredit others. A mala fide intention may appear when a journalist had reasons to doubt the truth of the facts or his ability to produce evidence establishing them (Civ. Bruxelles, 29 June 1987 J.T. 1987). In the instant case, it was for Thoma to prove that he had obtained sufficient evidence to enable him to adopt Braun’s allegations and to assert that the claimant had been guilty of corruption in connection with the reafforestation of the woodlands.” 22. After rejecting an offer by the applicant to adduce evidence as being too vague, the District Court concluded: “Marc Thoma has, accordingly, not established that he has sufficient evidence to show that the claimant was guilty of corruption in connection with the reafforestation of the woodlands. It is not for this Court to order or complete investigative measures of its own motion in order to assist the journalist to carry out ex post facto the investigations and research which he should have performed before publishing the impugned article. By giving the impression without evidence and without qualification that all the Water and Forestry Commission officials concerned by the reafforestation work were, with but one exception, corruptible, Thoma has overstepped the boundaries of his right to impart bona fide information and has, accordingly, committed a tort.” 23. The applicant appealed against all sixty-three judgments. In his appeal submissions, he requested the joinder of the fifty-four cases brought by the forestry wardens and the nine actions brought by the forestry engineers. His opponents contested that request. The applicant did not renew the offer to adduce evidence which he had made at first instance. 24. The Court of Appeal of the Grand Duchy of Luxembourg (Seventh Division) gave its decision in almost identical judgments delivered on 30 January 1996. It acceded to the applicant’s request for joinder and upheld the impugned judgments. In support of its decision to award each of the claimants nominal damages of one franc, the Court of Appeal added the following grounds to those that had been relied on by the District Court: “By attributing the phrases ‘Ich kenne nur einen der unbestechlich ist. Sie nannte den Namen des Baumbusch-Försters’ not to a particular individual, but to a ‘berufene Stimme aus dem Milieu’, that is to a person in the know, someone from the background who is aware of confidential matters and can be relied upon not to provide false information, the text of Braun’s article quoted by the appellant suggests to the public and leads it to believe that, apart from the forest warden responsible for Baumbusch there was not one other Water and Forestry Commission official, whether ordinary forest wardens or even members of its management, who was incorruptible. It follows that, contrary to the appellant’s assertion, the text quoted by him qualifies as corruptible ‘a defined group of identified people’, since he suggests that all Water and Forestry Commission officials are in that position and together they constitute a defined group of identified persons. It follows from the foregoing that the claimants at first instance and respondents to this appeal – on whom the burden of proving the merits of their claims lies – have, in view of their position (as Forestry Commission staff), established that Josy Braun’s text quoted by the applicant was directed at them. Further, the applicant fails in his attempts to deny liability by arguing that his remarks are no more than a quotation from the impugned article by Josy Braun. A journalist cannot escape liability by arguing that the impugned article which he has published is merely a reproduction of one already published by someone else since, by choosing to reproduce the article, he appropriates the allegation contained in the reproduced text and thus incurs personal liability. That is the position and a journalist who merely quotes from an article that has already appeared will only escape liability if he formally distances himself from the article and its content and if in terms of newsworthiness an interest exists in communicating the content of the article that has already been published. In the instant case it is quite clear that in repeating in the ‘Oekomagazin’ programme of 6 November 1991 in Letzeburgesch the impugned passage from Josy Braun’s article in that day’s edition of Tageblatt, the appellant did not distance himself from the quoted text and, in particular, the aforementioned allegation which it contains. It follows that even supposing that the appellant had merely quoted the impugned passage from Josy Braun’s article, that quotation nonetheless rendered him liable. Finally, the Court of Appeal holds below that the appellant has failed to establish the merits of the allegation of corruption contained in the impugned passage in Josy Braun’s article which he quoted from without formally distancing himself from it. Under these circumstances, that allegation establishes by itself that when in the 6 November 1991 edition of ‘Oekomagazin’ the appellant repeated the passage from Braun’s article containing that allegation unreservedly, there was, contrary to what he asserts, no ‘lack of malice’ on his part ... It follows that by leading public opinion to believe without evidence that the entire staff of the Water and Forestry Commission from forest wardens to the director were corruptible, the only honest employee being the forest warden from Baumbusch, the appellant has not complied with his obligation to impart bona fide information and has consequently committed a tort rendering him liable under Articles 1382 and 1383 of the Civil Code ...” 25. The applicant appealed to the Court of Cassation, which dismissed his appeals in two judgments of 20 March 1997. The Court of Cassation said, inter alia, that Articles 1382 and 1383 of the Civil Code established a system of reparation and that, subject to the last sentence of Article 24 of the Constitution and of section 16(2) of the Law of 20 July 1869 on the Press, the scope of those Articles in press cases was unlimited since, as in every other sphere, the courts would take account of the special nature of the activity of journalists in deciding whether a tort had been committed. It added that the courts below had justified their decision in law for finding a tort. 26. The relevant provisions of the Luxembourg Civil Code concerning liability under the general law read as follows: “Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.” “Everyone is liable for the damage which they have caused not only through their acts, but also through their negligent omissions or acts.” 27. For the purposes of Articles 1382 and 1383 the tort may result from a violation of a rule of criminal law. In that eventuality, the victim may either bring a civil action, or institute or be joined to criminal proceedings as a civil party. 28. The offence of damaging a person’s reputation is laid down by Article 443 of the Criminal Code, which provides: “Anyone who, in the circumstances set out hereafter, maliciously accuses another of something that is liable to damage that person’s reputation or expose him to public scorn shall be guilty of calumny if, in cases where it is possible by law to plead a defence of justification, no admissible evidence supporting the accusation is adduced. He shall be guilty of defamation if the law does not allow of a defence of justification.” 29. Section 16 of the Law on the Press provides: “Everyone who shall have taken part, as a principal, co-offender or accomplice in press offences shall incur criminal and civil liability. However, if the principal is of known identity, a Luxemburger and domiciled in the Grand Duchy, the printer, editor and any accomplice shall be immune from suit.” 30. That provision introduced the notion of “indirect liability” in proceedings against the press. According to legal commentators, the system obviates the need for the author’s work to be subjected to prior censorship by the editor, printer or distributor. It is not a question of liability being diluted but of its attaching to one person, that person being the author, if his identity is known and he is domiciled in Luxembourg, or, failing that, the editor, printer or distributor. 31. Section 18 of the statute provides: “No one shall be entitled to invoke by way of excuse or justification the fact that the writings, printed material, pictures or emblems are merely a reproduction of materials published in the Grand Duchy or abroad.”