The Venice Commission, the Council of Europe’s body consisting of international experts in constitutional law, has adopted a reference paper prepared at the request of the Constitutional Court of Georgia.

The paper compares different approaches in different countries and legal systems to the issue of legal protection of the reputation of a deceased person – analyses the interests of the deceased, of society and of the relatives, and emphasizes the need to balance the reputation’s interest and freedom of speech, as well as rules to be applied when the speech concerns public figures and matters of public debate. It also looks at legal remedies that should be implemented to protect the reputation of the deceased, and who must have the right to start legal proceedings.
Georgian Journal had the privilege to discuss important aspects of the reference paper with DR. JUR HERDIS THORGEIRSDÓTTIR, Vice-President of the Venice Commission.

"Article 10 of the European Convention protects all opinions, including those that shock, offend and disturb."

– In controversial cases, when determining “The one and complete truth” is not possible, the line between a view and an accusation/slander often are blurry. How does one determine that other person’s subjective belief qualifies as defamation of other’s dignity?

– You have to look at this in this context – there must be a clear distinction between value judgments on one hand and facts on the other hand. If I express an opinion on something and the facts are completely wrong this can be easily demonstrated. Article 10 of the European Convention protects all opinions, including those that shock, offend and disturb. The overall background against which the statements are expressed must be looked into; the seriousness of the allegation, the context of the published statement, whether it is contributing to the public debate and the person regarding whom you are expressing an opinion about. If it is an opinion about a politician or a business person who is very influential and therefore a public figure, they are considered to have entered the limelight at their own will and must be ready to accept any kind of criticism, views and opinions coming from the society. There has only been one case before European court of human rights where a conviction of a journalist for defamation of politician was upheld and this was for not verifying the facts that she published. Criticism in harsh, polemical language is protected. The limits of criticism are much wider with regard to politicians and those who are in the limelight. But as I said there must be some factual arguments you can support your opinion with. There is always this dilemma when you are assessing whether what you are doing can be evaluated as invading a person’s private life – on one hand there is the right to privacy and on another, there is the right of freedom of expression. Public figures may have some rights to privacy but much less than ordinary people. The freedom of expression is absolutely vital for democratic society. More than that, everyone has the right to his/her opinion, including those that shock others as democratic society must be based on tolerance, pluralism and broadmindedness.

"As for Georgia, it can be put together with the United States and the United Kingdom; these countries have common law tradition that dictates that if people are dead they have no rights."

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