Fernandes v Portugal: decision that a fiction book is defamatory within Member State’s margin of appreciation

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Introduction

In Fernandes v Protugal (available only in French), the European Court of Human Rights considered a case where an author had been fined and made to pay damages because of a fiction book she had authored. The European Court seemed to place a lot of emphasis on the fact that the dispute was local, with the book being disseminated amongst a close knit community. As a result, it found that the decision reached by the domestic courts fell within the State’s margin of appreciation. In deferring to the balancing of the rights under Articles 8 and 10 by the domestic courts, the European Court seemed to ignore the fact that elements of the case which lessened the level of interference the book had with the family’s private life were effectively ignored by the domestic courts.

The Facts

The applicant, Maria de Fátima Almeida Leitão Bento Fernandes, is a Portuguese national who was convicted following the publication of a novel. Her book was called “The Palace of the Flies” which detailed the story of a family from Guilha, a town in Trás-os-Montes in the north of Portugal, who had emigrated to the United States of America. The book was written under the pseudonym Bento Xavier and was distributed among family and friends. In the preface to the book, the applicant indicated that the facts recounted in her book were the product of her imagination and that all similarities to real life events were purely coincidental.

The mother, sister, uncle, aunt and cousin of the applicant’s husband (the “complainants”) filed a complaint alleging they had been defamed by the book, alongside two deceased members of their family. They seised the public prosecutor at the Criminal Investigation Court in Torre Moncorvo, asking that they be allowed to intervene in criminal proceedings (as assistentes) and appoint themselves as civil parties. They alleged that the book told the story of their family and that certain passages contained untruths which had damaged their reputation and the honour of two family members who had died. The public prosecutor joined the private action to the case.

The plot of the book follows António Baptista, who immigrates to the United States on three occasions, where he finds his fortune. He marries three times. His first marriage to Brígida results in the birth of two daughters, Inocência and Aurora. Inocência marries a doctor, Floro, and Aurora marries a man called Rogério. Aurora and Rogério have two daughters, one of which is called Beatriz. Inocência and Floro have a daughter called Imaculado, among many other children. All these characters live or spend short periods in the United States.

Although initially the Criminal Investigation Court dismissed the complaint, the Court of Appeal found on appeal that the court had not followed due process by not hearing two of the complainants’ witnesses. Subsequently, after the case returned to the lower courts, the Court of Criminal Investigation confirmed the indictment against the applicant and committed the case for trial. The Court noted that the applicant was not on good terms with that side of the family, and that she chose their city to launch the book as a way of offending them. This decision was unsuccessfully appealed by the applicant to the Court of Appeal.

During the criminal hearing, the Criminal Investigation Court heard an expert, among other witnesses, who told the court that the novel was by nature a fiction and that the genre still drew elements from reality. The Criminal Investigation Court came to the conclusion that certain facts and value judgments in the book infringed the honour and dignity of people named by the complainants. For example,  the character alleged to be based on the applicant’s mother-in-law (Inocência) is described as being ambitious, greedy and constantly in conflict with her parents and sisters. Having abandoned her husband who is dying of AIDS, she starts an affair with the brother of her husband. Her husband (Floro) deprives his children of money and sleeps with prostitutes.

The Criminal Investigation Court found that there were enormous and flagrant similarities between these characters and members of the family, at certain points it was a pure and simple reproduction or photograph of their life. In finding that the applicant had violated the family’s honour and reputation, the court balanced the right of the applicant to freedom of expression with the right of the complainants to respect for their private life. The court noted that many of the relevant facts corresponded with those experienced by the family. Therefore, if these facts are known to the public who then identify these as real life events, then the public would also be inclined to take the other facts and opinions presented in the book that they have no direct knowledge of as being real as well. The court conceded that the applicant could draw on real life inspiration when coming up with character traits and personalities to build a fiction. However, in this case, it found that she had exceeded the limits of what was reasonable, appropriate and proportionate.

The court found the applicant guilty of defamation and violating the honour of two deceased members of the family. She received a cumulative 400 day-fine amounting to 4,000 EUR, and was ordered to pay damages of 53,500 EUR to the complainants; namely, 1,000, 2,500 and 10,000 EUR to her husband’s uncle, aunt and cousin respectively, and 20,000 EUR to her mother-in-law and sister-in-law. In coming to these sums the court took into account the fact that the applicant was a teacher and her husband a dentist. Mrs Fernandes unsuccessfully appealed to the Court of Appeal.

Judgment

The applicant alleged that her conviction for defamation and violating the honour of two deceased persons violated her right to freedom of expression under Article 10. The applicant also complained of a violation to her right to freedom of artistic expression. The European Court reiterated that artistic expression was covered by Article 10 in that it affords the opportunity to take part in the public exchange of cultural, political and social information and ideas of all kinds. As a result, a state cannot unduly restrict this freedom [40].

It was agreed between the parties that there had an interference with Article 10, and the European Court had little difficulty finding that the interference was provided by law and pursued the legitimate aim of protecting the rights and reputations of others [44 and 45]. The European Court confirmed that among these rights is the right to respect to private life under Article 8.

In assessing whether the interference had been necessary in a democratic society, the European Court looked at whether the authorities struck a fair balance between freedom of expression, on the one hand, and the right of the in-laws to respect for their private life, on the other [46]. In this regard, the European Court noted that novels are usually aimed at a public that is much narrower than the print media [48].

The European Court found that the national courts had properly conducted this balance, and that the conviction was based on reasons that were “relevant and sufficient”. The European Court noted that only 100 copies of the book had been published and freely distributed to mainly friends and family [51]. The distribution was, therefore, restrained and in this case circulation seemed to have been limited to those close to the applicant and her in-laws. The domestic court noted that the family were known in their area, and were not public figures. Consequently, the European Court concluded that the margin of appreciation for deciding the necessity of the sanction against the applicant was large [52].

The European Court noted that the nature and severity of the penalty imposed are to be taken into consideration when assessing the proportionality of the interference in relation to the legitimate aim being pursued. The European Court noted that the criminal penalty was close to the minimum provided under that provision in the penal code. Furthermore, the European Court stated that the sum of 53 500 EUR in damages was a reflection of the fact that the book affected the reputation of seven individuals in total, and the domestic court took into account the socio-economic position of the applicant [59].

There was, therefore, no violation of the applicant’s rights under Article 10.

Comment

The European Court recognised that the domestic courts had met the criteria that are to be followed when there is a conflict between Articles 8 and 10.  It, therefore, did not want to depart from the analysis of the domestic courts. The domestic court first approached the case by determining whether certain facts and value judgments given in the book could be regarded as defamatory. The domestic courts then went on to consider whether there existed a link between the characters in the book and the complainants’ family, following which it was concluded that there were blatant similarities between them. Having balanced the conflicting interests, the domestic courts concluded that the applicant had gone beyond the limits of artistic creation, and disregarded the right of the complainants to respect for their private life.

However, the European Court has found previously, in Jelševar v Slovenia, that books which are written as works of fiction rather than biographies “would not be understood by most readers as portraying real people”. This is where the contradiction in Fernandes v Portugal comes to life; the complainants alleged that the characters of a fiction book were written with enough factual bases to allow a reader to identify them as real people, yet at the same time included a number of untruths which ultimately damaged and violated the family’s reputation. This may not at first seem to be a complete contradiction, as the facts which aid identification do not need to be the same as those which are defamatory. However, it is also important to note that the book was distributed among family members and friends of the applicant and complainants. The European Court has on previous occasions recognised that the extent of dissemination of a publication can be an important factor in considering the repercussions for a person’s private life (Gurgenidze v. Georgia, [55]). Moreover, it was distributed amongst a class of people far more likely to dismiss the offensive untruths as being purely products of the author’s imagination. An example of this was given in Jelševar v Slovenia, where the European Court noted that “the applicants’ family acquaintances, [who] perceived certain similarities between the literary characters and, in particular, the applicants’ mother, mostly denied the possibility that the character in the book represented a truthful depiction of the actual person concerned”. Therefore, in that case, the European Court could not find that the applicant’s reputation had been seriously affected by the book.

Aside from this, neither the European Court nor the domestic courts seemed to place any significance on the fact that the applicant had used a pen name and had made a disclaimer in the preface of her book. The domestic courts came to the conclusion that readers who knew certain facts about the family, and who could identify them as being characters in the book, would read those passages that they did not know the truth of as being fact as well, thus blurring the lines between fiction and reality. The European Court seemed to accept this analysis, as it was generally deferential to the domestic courts under their margin of appreciation, and so did not recognise that this was quite a significant assumption. It is the very nature of a successful novel that readers see themselves, and even other people, in the characterisations therein. By linking elements of the book to reality, the court was inevitably going to find similarities; not least because the applicant would have drawn on elements of her own life experience to write the book. Furthermore, no significance was placed on the fact that the applicant clearly stated that the book was a work of fiction and used a pen name. Surely by doing this, the applicant would have removed much of the ‘sting’ from conclusions an objective reader might have drawn as to whether parts of the fiction were, in fact, true. If such a ‘sting’ was removed, then arguments pursuant to Article 8 would be much less weighty as a result.

Instead, the European Court seemed to favour deferring to the domestic courts’ analyses under their margin of appreciation doctrine. The European Court explained that the margin given in this case would be wider because the complainants were known in their local area rather than to the general public, suggesting that sometimes disputes are just too small for the European Court to get involved in.

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