Slovenia, Ustavno sodišče Republike Slovenije (Constitutional court of the Republic of Slovenia), Up-472/20-23, constitutional, 14 February 2024

Member State
Slovenia
Topic
freedom of expression
Sector
Freedom of Expression and Association; role of national higher courts
Deciding Court Original Language
Ustavno sodišče Republike Slovenije
Deciding Court English translation
Constitutional Court of the Republic of Slovenia
Registration N
Up-472/20-23
Date Decision
14 February 2024
ECLI (if available)
N/A
National Follow Up Of (when relevant)
N/A
EU legal sources and CJEU jurisprudence
N/A
ECtHR Jurisprudence

European Convention on Human Rights, Articles 8, 10.

ECtHR jurisprudence:

Axel Springer AG v Germany of 7. 2. 2012
Piermont v France of 27. 4. 1995
Jerusalem v Austria of 27. 2. 2001
Lombardo and others v Malta of 24. 4. 2007
Kubaszewski v Poland of 2. 2. 2010
Otegi Mondragon v Spain of 15. 3. 2011
Sanchez v France of 15. 5. 2023
Féret v Belgium of 16. 7 .2009
Lingens v Austria of 8.7. 1986
Le Pen v France of 20. 4. 2010
Khadija Ismayilova v Azerbajdžan of 7. 5. 2020
Barata Monteiro de Costa Nogueira and Patricio Pereira v Portugal of 11. 1. 2011
Handyside v the United Kingdom of 7. 12. 1976
Sanocki v Poland of 17. 7. 2007
Delfi AS v Estonia of 16. 6. 2015
Oberschlick v Austria of 1. 7. 1997
Bodrožić v Serbia of 23. 6. 2009
Magyar Tartalomszolgáltatók Egyesülete in Index.hu Zrt v Hungary of 2. 2. 2016
Gavrilovici v Moldavia of 15. 12. 2009
Uj v Hungary of 19. 7. 2011
Tuşalp v Turkey of 21. 2. 2012
Otegi Mondragon v Spain of 15. 3. 2011
Fuentes Bobo v Spain of 29. 2. 2000
Savva Terentyev v Russia of 28. 8. 2018
Lopes Gomes de Silva v Portugal of 28. 9. 2000
Mesić v Croatia of 5. 5. 2022
C8 (Canal8) v France of 9. 2. 2023

Subject Matter
Freedom of expression; political speech; journalists and freedom of expression; women journalists; limitations of freedom of expression; protection of public figures in relation to freedom of expression
Legal issue(s)
In the case at hand, the main issue was whether the Supreme Court judgement applied the balancing test correctly in relation to the applicant’s right to dignity and reputation and the defendant’s freedom of expression. As the applicant was a publicly known journalist and the defendant the leader of the biggest opposition party in the country at that time, the Constitutional Court had to decide where the limitations of the freedom of expression should be struck in light of these circumstances as well as what prompted such speech; was the topic in the public interest; were both parties public figures; and what were the nature and the consequences of the speech concerned.
Request for expedited/PPU procedures
N/A
Interim Relief
N/A
National Law Sources
Constitution of Republic of Slovenia, Articles 34., 35. 39.

Constitutional Court, decisions:
U-I-226/95 and Up-407/14 of 14. 12. 2016;
U-I-191/09 and Up 916/09 of 30. 9. 2010; 
Up-538/20 of 19. 1. 2023; 
Up-530/14 of 2. 3. 2017; 
Up-417/16 of 18. 3. 2021;
Up-584/12 of 22. 5. 2014; 
Up-46/99 of 18. 12. 2002; 
Up-515/14 of 12. 10. 2017; 
Up-1128/12 of 14. 5. 2015; 
Up-614/15 of 21.5. 2018; 
Up-1019/12 of 26. 3. 2015; 
Up-349/14 of 16. 5. 2019; 
Up-570/09 of 2. 2. 2012; and 
U-I-40/12 of 11. 4. 2013. 
 
Constitutional Court, order, Up-13/92 of 15. 2. 1995
Supreme Court, judgement, II Ips 22/2021 of 1. 9. 2021
Facts of the case
Janez Janša, the leader of SDS, the biggest opposition party in the Slovenian parliament, posted a Tweet (currently known as X) on 21 March 2016, in which he wrote: ‘’Na neki FB strani javne hiše ponujajo poceni usluge odsluženih prostitutk Evgenije C in Mojce PŠ Eno za 30 Eur, drugo za 35 eur. #ZvodnikMilan’’ (translation of the author: “On a FB page of a public house cheap services of decommissioned prostitutes Evgenija C and Mojca PŠ are offered, one for 30 EUR, the other for 35 EUR. #PimpMilan” – public house is a direct translation for “javna hiša”, which is a synonym for a brothel in the context of this tweet). The two women mentioned were, at that time, well-known journalists for the Slovenian national radio and television broadcaster (RTV Slovenija). Mojca Šetinc Pašek, the applicant in the studied case, was the Editor-in-Chief of the daily news programme of RTV Slovenija, and Eugenija Carl reported for the Dnevnik (daily news) broadcast. “Milan” refers to Milan Kučan, the first president of the Republic of Slovenia, and former Chairman of the Central Committee of the Union of Communists of Slovenia. The SDS party sees him as a shadow engineer of the Slovenian left-wing political reality. The post on Twitter came as a response to a part of Dnevnik, in which the journalist revealed a Facebook group called Legija smrti (translation of the author: Legion of death) and that the members of the group included prominent members of the opposition party SDS. The group incited hatred and intolerance. The two journalists filed separate lawsuits due to the mental harm suffered by defamation through the Twitter post. In the case of Mojca Šetinc Pašek, the first and second instance court ruled in her favour, however, after an appeal by the defendant, the Supreme Court overruled the two instance judgements and decided to reject the applicant’s legal claims. The applicant filed a constitutional complaint to the Constitutional Court, stating that her personality rights were infringed. In the case of Eugenija Carl, the first, second and third instance courts all ruled in her favour. The defendant (Mr Janša) filed an appeal before the Constitutional Court which was later denied (Constitutional Court, Decision Up-950/21 of 14 March 2024). In the criminal proceedings regarding the same historical event, the ordinary courts (the District Court, the Higher Court of Celje and the Supreme Court) all agreed that the tweet went to far. As a result, the defendant was found guilty of defaming the two journalists under Article 158 of the Criminal Code and was given a suspended sentence of 3 months imprisonment (see judgment of the Higher Court, VSC II Kp 14840/2016-246 of 24 May 2022 and judgment of the Supreme Court, I Ips 14840/2016 of 13 December 2023).   
Reasoning (role of the Charter or other EU, ECHR related legal basis)
The Constitutional Court tried to find a balance between the right to personal dignity and freedom of expression based on the relevant facts in the case at hand. Since these two rights are protected by the Slovenian constitution, it uses its own case law, but also the European Court of Human Rights’ (hereinafter: ECtHR) case law, to interpret the two clashing rights and apply the balancing test on to the case in question. The Constitutional Court took into account the following circumstances: whether the statement at issue contributed to a debate in the public interest; the social role of the addressee of the statement; the context in which the statement was made; whether the statement may have been in response to previous conduct of the addressee of the statement; the content, form and consequences of the statement.

On the social role of the complainant as the addressee of the statement

The Constitutional Court emphasised that being a political public figure means one is responsible for avoiding comments promoting intolerance due to the politician’s duty to protect democracy and its principles. A distinction is made between absolute and relative public figures, politicians belonging to the former and other people engaged in public life, to the latter. Implying that the levels of allowed criticism are different for the two groups. However, the Constitutional Court agreed with the Supreme Court that such limitations should be assessed on a case-by-case basis. It noted that in view of the great importance of public debate on a particular issue, a greater degree of tolerance of criticism of one’s work must be shown by a public official acting in the capacity of Editor-in-Chief. Therefore, a certain degree of criticism is acceptable even for journalists.

On the content and broader context of the statement

The tweet in question was deemed to have sparked an important debate in society regarding the issue of alleged political bias in the editorial policy of the daily news programme of the public broadcaster RTV Slovenija. However, the Constitutional Court emphasised that such an important topic must not be abused in order to personally attack a journalist.
Even though the general public did not understand the post literally, the Constitutional Court concluded that due to a high degree of offence in the post in question, the average person would understand the meaning of the post mostly as an attempt to discredit and shame the applicant not only as a journalist but also as a woman. An average reader was defined by the Constitutional Court as everyone who can become familiar with the Tweet independent of the fact the person is a follower, or the posting person has an open profile or the person came into contact with the content through reposts on other social media platforms. Regarding the applicant’s claims of contempt and shaming via the social media post, the Constitutional Court emphasised that a defamatory statement is one which is aimed at a person and the public discourse is only of marginal importance in that context. Calling the applicant a prostitute, and even indicating the prices of her services, indicate the intent to discredit her on a personal level and merely used the public issue of the independence of the RTV Slovenija as a pretext, thus such speech cannot be considered as being highly protected political speech. On this matter the Constitutional Court also emphasised that it is important to prevent humiliating sexist speech and the systemic disadvantaging of women by such speech. The Constitutional Court further noted that the defendant did not explain his reaction to the public or the courts, as he did not respond to the lawsuit. He did not explain what was insulting in the news report, even his claims regarding the lack of political independence of the RTV Slovenija were unfounded, thus the post in question was unprovoked.

On the importance of the specificity of expression on the social network X


However, the Constitutional Court did take into account the peculiarity of the communication on Twitter, mainly the style of language used and the word limit per post. The prevalence of colloquial and often expressive, hyperbolic language on social media undoubtedly influences how the average reasonable public understands a particular tweet. However, this does not mean that any opinion, however vulgar, directed against a specific person on a social network should therefore be protected in a particularly broad manner, without taking into account the specific circumstances of the individual case. The Constitutional Court also stated that if it is not obvious from the post the user is using satire or aims to entertain, they could at least indicate such circumstance accordingly by using a hashtag. This was not done in the case at hand. The Constitutional Court built on this argument by stating that since the post is written down, the user has the opportunity to think about what and when to post, unlike in a direct discussion. Since this was a public political figure and an important ‘’opinion leader’’, the expectation to think about the way he will express himself is all the more warranted.

On the intent to disparage and shame another

Concerning the usage of the term prostitute, the Constitutional Court considered the judgement of the Supreme Court in the case where the applicant was Eugenia Carl, the other journalist mentioned in the post in the case at hand. There it was argued that the defendant did not show the high degree of provocativeness of the news report written by Eugenia Carl to warrant such a harsh response aimed at her. In this case the Constitutional Court thus deemed that raising an important social issue, such as drawing attention to the incitement to hatred, violence and intolerance, and problematising hate ideologies and movements, referring to the Legija smrti and the membership of SDS members in that Facebook group, is clearly not in itself provocative conduct that could justify such a harsh response from the respondent. In the Constitutional Court’s opinion, it would undoubtedly be possible to state the defendant’s opinion regarding the alleged political bias of RTV Slovenia journalists in a less offensive way.

On the responsibility of politicians in conducting political debate on social networks

The Constitutional Court further addressed what importance should be prescribed to the fact that the speech was made by a politician on the social media platform Twitter. Being a politician with a significant public influence was given a lot of importance, especially in light of the assessment of what kind of speech is acceptable for such a person on social media platforms. In view of the Constitutional Court, the insulting posts, albeit common on social media platforms, cannot be acceptable for such an important ‘’opinion leader’’ that has almost 40.000 followers. Because of the great public image of politicians, their words have a stronger impact, thus they are responsible for creating a tolerant environment on social media.

On the effects of the disputed statement

As for the impact of the statement concerned, the Constitutional Court noted that such statement and the hostile online environment aimed at female journalists breach their personal dignity and cause them to move out of the public and political life, which in itself undermines the freedom of expression in a democratic society this is then further linked to the negative impact on the public interest of keeping the public informed.

Taking all the above-described arguments into account, the Constitutional Court repealed the judgement of the Supreme Court and referred the case back to it.
Relation of the case to the EU Charter
N/A
Relation between the EU Charter and ECHR
N/A
Use of Judicial Interaction technique(s)
proportionality, comparative reasoning with foreign legislation or foreign caselaw, consistent interpretation
Horizontal Judicial Interaction patterns (Internal – with other national courts, and external – with foreign courts)
The Slovenian Constitutional Court cited with approval the German Constitutional Court (no. 1 BvR 2397/19 of 19 May 2020 and no. 1 BvR 1073/20 of 19 December 2021) regarding the need for the side-effects of defamatory statements on democracy to be taken into account and that it is in the public interest to prevent the defamation of public figures on social media, as their engagement in society depends on the protection of their rights.
Vertical Judicial Interaction patterns (Internal – with other superior national courts, and external – with European supranational courts)
The Constitutional Court relied on ECtHR case law in order to interpret the rights and freedoms to conduct a balancing test between them.

The Constitutional Court also referred to the case before the Supreme Court in which it was upheld that Eugenia Carl is eligible to compensation due to the defendant’s statements in the same historical event as in the case before the Constitutional Court. In that case, the Supreme Court found that there was a clash between the applicant’s private sphere and the defendant’s freedom of expression. It did not explicitly recognise the statements by the defendant as having caused a chilling effect on the applicant’s journalistic freedom of expression. Nevertheless, the Supreme Court underlined the freedom of the press and took into account the fact that the applicant is a journalist and that such remarks by visible politicians could impact not only the journalist’s personal reputation but also her journalistic esteem in the eyes of the general public (see Supreme Court, Judgment II Ips 22/2021 of 1 September 2021, paras. 37-38, 42). In the present case (the case concerning Mojca Šetinc Pašek) the Constitutional Court went one step further and referred to the “silencing effect” that could work to the detriment of society as a whole if defamation against journalists were to remain unpunished (para. 58). Moreover, the Constitutional Court noted that the allowing of sexist statements by an important political figure can not only negatively impact the contribution to public debate by female journalists, but also by other women engaged in public discussion. The Constitutional Court noted that the statements in question devalue the applicant as a journalist and as a woman. The condemning judgement was aimed at the personal defamation of the journalist and not the criticism of the RTV Slovenija by the defendant or the lack of argumentation of his opinion.
 
The Constitutional Court also refers to the appealed Supreme Court judgement in the case at hand. Since that judgement was repealed, the Supreme Court had to take up the case again and decided in favour of the applicant.
Strategic use of judicial interaction technique (purpose aimed by the national court)
Using the ECtHR case law, the Constitutional Court gave detailed and supported argumentation of its decision and provided guidance for the Supreme Court for properly balancing the values in conflict in its judgment, following the decision of the Constitutional Court. 
Impact on Legislation / Policy
N/A
Notes on the national implementation of the preliminary ruling by the referring court
No preliminary reference had been sent to the CJEU in relation to this dispute.
Did the national court quote case law of the CJEU/ECtHR (in particular cases not already referred to by the CJEU in its decision) or the Explanations?
N/A
Did the national court quote soft law instruments, such as GRECO Reports, Venice Commission, CEPEJ Reports, or CCEJ Reports?
The Constitutional Court took into account the Recommendation CM/Rec(2016)4 of the Committee of Ministers to member states on the protection of journalism and safety of journalists and other media actors; GREVIO General Recommendation No. 1 on the digital dimension of violence against women; Report on Gender Justice and the Right to Freedom of Opinion and Expression; and the Recommendation CM/Rec(2019)1 of the Committee of Ministers to member states on preventing and combating sexism.
The Constitutional Court also took into account its own case law on freedom of expression, as well as ECtHR and the German Constitutional Court’s case law.
Did the national court take into account national case law on fundamental rights?
N/A
If the court that issued the preliminary reference is not a last instance court, and the “follow up” was appealed before a higher court, include the information
N/A
Was there a consensus among national courts on how to implement the CJEU's preliminary ruling; and were there divergences between the judiciary and other state powers regarding the implementation of the preliminary ruling?
N/A
Impact on national case law from the same Member State or other Member States
N/A
Connected national caselaw / templates
N/A
(Link to) full text

Repealed Supreme Court judgement:
sodnapraksa.si


Judgement of the Constitutional Court and separate opinions (English translation):
us-rs.si

Supreme Court judgement after the Constitutional Court’s judgement:
sodnapraksa.si



Author
Asta Gerjevič Debevec, University of Ljubljana
History of the case: (please note the chronological order of the summarised/referred national judgments.)
1.    Higher instance Court, judgement, no. Cp 296/2018 of 5 December 2018
2.    Supreme Court, judgement, no. II Ips 75/2019 of 6 February 2020
3.    Constitutional Court, judgement, no. Up-472/20-23 of 14 February 2024
4.    Supreme Court, judgement, no II Ips 19/2024 of 8 May 2024
 
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