The Czech Supreme Court recently issued an interesting ruling concerning defamation (Ref. 25 Cdo 3423/2018). In its decision from 29 August 2019, the court held that even if a statement is not vulgar or in itself defamatory, it may still be unlawful if its context creates a wrongful impression.

Factual background

The Claimant in this case was a famous Czech actor and theatre producer, whose name was used in an article, published by the national newspaper MF DNES, entitled “How to earn money on the Holocaust“. The article implied that the Claimant’s motivation to participate in the upcoming memorial project, commemorating the killing of Jews in Europe during World War II, was for his own benefit. In the article, the Claimant was also said to be a person who has a “nose for a good deal”. The legal question in this particular case was whether such statements violated the claimant’s personality rights or not.

Factual allegations v subjective evaluation judgments

Under Czech law, violation of a person’s right to honour, dignity, privacy or respect (personality rights) can occur when, firstly, false factual allegations of a defamatory nature are made about the person and, secondly, there has been a publication of improper ‘subjective evaluating judgments’ in respect of this person. When assessing the proportionality of any violations of personality rights, it is important to distinguish between these two, since the conditions for the admissibility of each of these categories differ.

Factual allegations are based on facts objectively existing in reality, the truth of which can be verified with evidence. In principle, disclosure of truthful information does not infringe personality rights, unless the information is misrepresented or is intimate in nature, in which case its disclosure would be contrary to the right to privacy and human dignity.

On the other hand, ‘subjective evaluating judgments’ express an opinion of an individual author who holds a certain view on that fact, based on his/her own subjective criteria. Unlike with factual allegations, the validity of an evaluating judgment cannot be proved and it is necessary to consider whether such a judgment is based on truthful information, whether its public presentation is proportionate and finally whether interference with personality rights is an inevitable part of that criticism.

Criteria for assessment of evaluating judgments

In this particular case the Court considered whether: (i) the evaluating judgment was founded on a factual basis; (ii) it interfered with the individual’s personality rights; and (iii) the means of expression used were proportionate to the publicly criticised purpose.

According to Czech case law, when the limits of factual and concrete criticism are not exceeded and such criticism is proportionate in content, form and place, i.e. it does not go beyond the limits necessary to achieve the objective pursued, then the evaluating judgments may come within the scope of just and acceptable (justified) criticism, and subsequently, there will be no violation of one’s personality rights.

However, it is not a factual criticism, in particular, where the criticism is based on false facts and derives its own judgments from them. In these cases, if the subjective evaluating judgment is abusive, criticism can no longer be considered acceptable. Similarly, when expressions are largely disproportionate to the objective of the criticism, or if the content of the criticism is totally inadequate to the criticised conduct of the criticised person, and intends to discourage or offend the criticized person, such criticism is disproportionate. If the criticism is found to deviate from these limits, it is an excess that represents an unauthorized interference with the person’s personality rights.

Conclusion

In this case, the Court concluded, on the basis of the printed statements, that the reader is forced to think that the claimant intended to earn money on the event commemorating the Holocaust, which undoubtedly has grossly negative connotations. The Claimant had not received anything in return for his participation in the project, so the statement was also factually untrue. As such the statement was found to be offensive and to have affected not only his honour but also his dignity.

What is noteworthy is that the statement itself was not vulgar or in itself defamatory, but was found to be unlawful as its context created a wrongful impression.