Protecting the Reputation of Universities Part II: War and Peace in Russia and Strasbourg

December 11th, 2015

In 2013 I did a blog post about the case of Duke v University of Salford [2013] EWHC 196 (QB) which concerned a defamation claim by Salford University against a Dr Duke for blog postings which (inter alia) made unfavourable comparisons between the university and the leadership of Hezbollah, a suggestion that it was “adopting some of the more odious policies of the great Chinese bureaucratic dictatorship”, and allegations of secretive behaviour.  I’m sure you recall it as if it were yesterday.

Anyway, a recent decision of the European Court of Human Rights in Kharmalov v Russia (Application no. 27447/07) concerns a similar spat in Russia and is a reminder that such dissent, if not an inherent part of academic life, is at least not confined to these shores.  More relevantly from a legal point of view, it illustrates the freedom of speech protection afforded by the European Convention on Human Rights and makes some important points about universities’ reputations and debates of public interest.

The applicant was Mr Kharmalov, a tenured professor in the physics department of the Orel State Technical University in Russia.  Unhappy about the lack of consultation regarding candidates for the academic senate, he made a speech at the university’s public conference which included the following:

“… the elected academic senate may not be considered a legitimate body and its decisions likewise cannot be considered legitimate. All of them can be challenged in courts. The problem is that the staff or departments did not know anything about the candidates to the academic senate or of their academic achievements; no one nominated those candidates. This is some kind of a private party that is going on, some people have gathered and elected themselves. My rights have been violated: I, as a member of the faculty, have been excluded from the procedure which is of great importance both for me and for the university as a whole – the election of the academic senate. My rights have been breached, and I will complain to courts about the breaches of my rights. The rights of ordinary university employees, ordinary lecturers, have been breached, too: they were removed from the election to the academic senate, this is discrimination. Any discrimination is a form of war; you have declared war to the people, and sooner or later you will get the results of this war in some way or another, in your own families.”

The university sued him for defamation and the claim was upheld, the Russian court holding that he had done more than express an opinion and had publicly accused the university of a violation of applicable laws and the commission of a dishonest act.  The university was awarded 20,000 roubles in damages (approximately £200).

The ECtHR held that this amounted to a violation of the applicant’s right to freedom of expression under Article 10 of the Convention, the interference not being necessary in a democratic society, and awarded him EUR 7,500 (approximately £5,400).  It said the domestic courts had:

  • failed to perform a balancing exercise between the need to protect the University’s reputation and the applicant’s right to impart information on issues of general interest;
  • wrongly equated the “dignity” of an institution with that of human beings, a mere institutional interest of the University not necessarily being of the same strength as “the protection of the reputation or rights of others” within the meaning of Article 10(2);
  • failed to establish a “pressing social need” for putting the protection of the university’s reputation above the applicant’s right to freedom of expression;
  • overstepped the narrow margin of appreciation afforded to them in matters of debate of public interest.

The domestic courts’ decisions had been based on the finding on the evidence that the elections had been run in full compliance with the relevant regulations, but the ECtHR said that was irrelevant as there had been a factual basis for the concerns expressed.

The Court also noted the applicant had used “a certain degree of hyperbole in his address” but said that employees engaging in a debate of public interest are entitled to have recourse to exaggerations as long as they do not overstep the limits of admissible criticism.  The court did not consider the language in this case to be offensive or intemperate or to go beyond “the generally acceptable degree of exaggeration”.  Sadly no guidance was given as to what might constitute an unacceptable degree of exaggeration.

As a final note on this subject, attention is drawn to a recent House of Lords Library Note on “Freedom of Speech in Higher Education Institutions”, available here.

Paul Greatorex

 

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