Defamation and privacy invasion of deceased persons of contemporary history and the public figure doctrine

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1 Defamation and privacy invasion of deceased

persons of contemporary history and the

public figure doctrine

Masters’ thesis Lutske Holthuis Student no. S2001233 IJsselstraat 42a, 9725 GG Groningen Telephone no. 06-21488980 Word count: 26.177 (without footnotes)

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Acknowledgement

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Abstract

In the present work, the concepts of posthumous privacy and posthumous reputation are studied in relation to the ‘public figure doctrine’. This doctrine proposes that even though absolute public figures, like heads of state and government, have a private sphere which should not be invaded and a reputation that should not be defamed, they should tolerate a lot more pressure on their privacy and reputation than private figures.. In this thesis, however, I ask to which extent this public figure doctrine is applicable to absolute public figures that are dead. I composed a theoretical framework in which posthumous privacy and reputation, defamation, privacy invasion and ‘the right to the truth’ were key concepts. I applied these concepts to seven legal cases, which were all about some form of defamation, privacy invasion or the right to the truth and involved deceased heads of state and other politicians. I adopted a historical perspective by asking in the various chapters how the verdicts in the courts affected the historical profession. After an analysis in which I used various variables to compare cases, I concluded that the public figure doctrine is easy to apply to the cases in which the impugned statements were part of – or focused on – a political or historical discussion. Even though the debate about posthumous privacy and reputation still has many grey areas, I also concluded that the public figure doctrine was hard to apply when a statement that defamed or invaded privacy was harmful because it constituted a personal attack or because it was illegal. Moreover, I concluded that the debate among historians about posthumous reputation and privacy should be expanded, since historians are the ones who write about figures of contemporary history (of which heads of state are the most important).

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5 Introduction

When I am dead, I hope it may be said: “His sins were scarlet, but his books were read”.

Grave inscription of Hilaire Belloc (1870-1953)

ankind has always been preoccupied with death and the dead. This is, for instance, illustrated by the fact that most people care about their posthumous reputation whilst still alive. Hilaire Belloc, the famous Anglo-French historian and writer, hoped that, regardless of his sins, people would still remember him as an inspiring author. Philosophically, the dead cannot be worried about their reputation or privacy. However, we still feel like we owe respect to the dead, because they are reminiscent of the living. There are certain responsibilities we have toward the dead, because the dead possess dignity. Exemplary are the responsibilities to “protect the physical integrity of the dead” and “to bury or cremate the dead decently and not to disturb their rest”.1

This feeling of responsibility has resonated in the Universal Declaration of Human Rights (UDHR, adopted by the United Nations General Assembly in 1948) and the International Covenant on Civil and Political Rights (ICCPR, 1966), albeit indirectly. The argument is that both the declaration and the covenant offer us the tools to defend the position that we have the duty to respect posthumous dignity and the memory of the dead.

In a key paper about death and posthumous harm, “The Rights of Animals and Unborn Generations”, the moral philosopher Joel Feinberg argued that someone without interests cannot be harmed. He reasoned that posthumous harm does exist because the dead can have interests. Many historians and philosophers have disputed this since.2 In response to Feinberg, Ernest Partridge claimed that an individual’s interests do not reach beyond his death, although we do have a moral duty to “give the dead their due”.3

Next to Feinberg and Partridge, there are a lot of philosophical works about the question “what does death mean”? Famous scholars such as James Frazer and Carlo Ginzburg wrote about the meaning of death and the perils of

1_{These responsibilities have been thoroughly surveyed and argued for by Antoon De Baets. See Antoon De}

Baets, Responsible History (Bergahn Books: New York, 2009), p. 123.

2_{See for instance Ernest Partridge, “Posthumous Interests and Posthumous Respect”, Ethics 91, no. 2 (January,}

1981), pp. 243-264; Antoon De Baets, “A Declaration of the Responsibilities of Present Generations Toward Past Generations”, History and Theory, Theme Issue 43 (December 2004), pp. 130-164; and Antoon De Baets, “Posthumous Privacy”.

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Partridge, “Posthumous Interests and Posthumous Respect”, p. 264.

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mourning.4 Last year, the Oxford Handbook of Philosophy of Death was published and many scholars, like Brecher – who insists that posthumous interests do exist and that we have obligations to the dead – and De Baets, who does not agree with Brecher on the posthumous interest part, but very much so on the topic of the obligations of present generations towards the dead, published their findings. Furthermore, scholars like Grover and Wisnewski published their insights on the question of posthumous interests and the responsibilities of historians.5

However, unrelated to the corpus of philosophical works about death and the thesis that the living have obligations toward the dead, there has not been a lot of writing about two particular, very intriguing aspects of the dead: posthumous privacy and posthumous reputation. Paul Bahn, the renowned archaeologist, stated in 1984 that archaeologists had by and large ignored the wishes of the dead which they encountered: “Yet all such studies inevitably ignore the wishes of the deceased and their prima facie right to privacy”.6

In Bahn’s opinion, the peculiar relationship between the protection of privacy and reputation and the right to freedom of expression has not been much debated by historians. Every individual has a right to privacy and reputation and a right to freedom of expression, but a human’s right to the latter has in potential the ability to harm the right to the first.

The right to privacy and reputation and the right to freedom of expression are both included in resp. Articles 17 and 19 of the ICCPR, but whilst nobody is ever completely cut loose from international human rights regulations, historians seem reluctant to place the subject of posthumous privacy and posthumous reputation in a historical or international human rights context. Very recently, however, Antoon De Baets published an article (February, 2016) on the right to be forgotten and its implications, in which he uses the concept of the ‘public figure doctrine’ and emphasizes the issue of absolute public figures and

4_{James Frazer, The Golden Bough: A Study in Magic and Religion, volume 2, Taboo and the Perils of the Soul}

(first edition 1890; London: Macmillan, third edition 1911, 1914), 138–145 (names of mourners), 349–374 (names of the dead.) and Carlo Ginzburg, “Representation: The Word, the Idea, the Thing” (originally French 1991), in: Wooden Eyes: Nine Reflections on Distance (originally Italian, 1998; New York: Columbia University Press, 2001), 63–78, 201–207.

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Ben Bradley, Fred Feldman & Jens Johansson, eds., The Oxford Handbook of Philosophy of Death (Oxford: Oxford University Press, 2015). See, for recently published articles, for instance: Bob Brecher, “Our obligation to the dead,” Journal of Applied Philosophy, 19, 2002 (109–119); Antoon De Baets, “Posthumous Privacy” (For personal use only); D.H. Flaherty, “Privacy and Confidentiality: The Responsibilities of Historians”, Reviews in American History 8, no. 3 (September, 1980) pp. 419-429; D. Grover, “Posthumous Harm”, The Philosophical Quarterly 39, no. 156 (July, 1989), pp. 334-353; and J.J. Wisnewski, “What We Owe the Dead”, Journal of Applied Philosophy 26, no. 1 (2009), pp. 54-70.

6_{Paul Bahn “Do Not Disturb? Archaeology and the Rights of the Dead” in Journal of Applied Philosophy, vol.}

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defamation and privacy intrusion.7 De Baets explains why, according to the public figure doctrine, ‘absolute public figures’ should endure more attacks on their reputation and the invasion of their privacy than ordinary citizens. Historians have a large interest in gathering knowledge and writing freely about absolute public figures, such as heads of state, because the latter exert such an enormous influence on society and, thus, contemporary history.

This is all very clear when it comes to heads of state and government who are alive, but what about deceased absolute public figures? In his essay “A Declaration of the Responsibilities of Present Generations Toward Past Generations”, De Baets argues – like Brecher and Partridge – that we have responsibilities to past generations. We have a duty to respect posthumous privacy and to respect the memory of the dead. De Baets argues that the dead should not be subjected to attacks on their dignity and reputation.8 However, it is widely accepted that, although absolute public figures do possess privacy, they sacrificed a part of their privacy to the public. The public interest in gathering knowledge about public figures such as politicians is large; thus the protection of their privacy and reputation is less extensive. But, as De Baets argues, even absolute public figures have a universal right to privacy, “which is applicable to everyone”.9

This raises some interesting questions: are public figures in history excluded from the responsibilities which we, as the present generations, have toward past generations?10 Are we allowed to expose certain historical figures to the public disclosure of private and reputational facts “without the consent of these dead persons when they were alive or without their relatives’ consent?”11

Regarding the discussion above, I now posit the following research question:

To which extent is the ‘public figure doctrine’ applicable to deceased politicians and heads of state and government?

In the last two decades, several historians, journalists and authors have been taken to court for defamation or the invasion of privacy of absolute public figures, usually heads of

7_{Antoon De Baets, “A historian's view on the right to be forgotten”, International Review of Law, Computers &}

Technology (2016), p.3. Absolute public figures are the counterpart of private figures, who are unknown to the general public.

8_{Antoon De Baets, “Laws Governing the Free Expression of Historians”, State-Sponsored History (manuscript,}

to appear in Berber Bevernage & Nico Wouters, State-Sponsored History: A Handbook [Basingstoke: Palgrave-Macmillan, [2017]), p. 3.

9_{Idem, p. 19.}

10_{For a thorough survey and analysis of these responsibilities, see Antoon De Baets, Responsible History, part II}

(see footnote 1).

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state and government or other politicians.12 An interesting example of a defamation case is one held before the European Court of Human Rights in 2014. It concerned the supposed defamation of Joseph Stalin. His grandson had filed suit against the Russian opposition newspaper Novaya Gazeta and the authors of two articles which he believed had slandered his grandfather in 2009. He sued them for defamation. The District Court of Moscow ruled in favor of the journalists in 2009 and the European Court of Human Rights confirmed this in 2014.13 This is an example of the type of legal cases I want to examine here.

According to the NGO Article 19, defamation laws are often abusive because they have illegitimate purposes such as preventing criticism of state officials. In practice, defamation laws often represent “unnecessarily and unjustifiably broad restrictions on freedom of expression”.14

In this light, historians should pay more attention to international human rights and the implications that defamation laws could have for their profession. Apart from the fact that all historians are bound by Articles 17 and 19 of the ICCPR (on the European level, Articles 8 and 10 of the European Convention on Human Rights basically have the same provisions), they are, after all, the ones who write frequently about figures of contemporary history. A balance has to be struck between the right to privacy and reputation and the right to freedom of expression. In balancing, they should take into account the question of historical significance: what would be lost if something is not published: would it change our view upon history?

In this Master’s thesis I will focus on the balance between Articles 17 and 19: the right to privacy and reputation on the one hand and the right to freedom of expression on the other. I will also indicate some of the implications of privacy and defamation regulations for the historical profession. To answer my research question (To which extent is the ‘public figure doctrine’ applicable to deceased politicians and heads of state and government?), I will analyze five reputation (defamation) cases (in which the defamed are Franz Josef Strauss, Liese Prokop, Joseph Stalin, Mahatma Gandhi, and Mustafa Kemal Atatürk), one invasion of privacy case (François Mitterrand and relatives) and one case about the right to information

12_{For a survey of most of the cases in which the prosecuted are historians (or others who write about history) see}

http://www.concernedhistorians.org/content/le.html, last visited 10-03-2016. In a country like France, between 1993 and 2015, as many as twenty-five historians were involved in legal cases. Nine of those cases concerned (posthumous) defamation, the right to privacy, the right to mourn or the right to bury one’s relatives. In the Netherlands, between 1998 and 2014 there have been eight legal cases about posthumous defamation, posthumous privacy, the right to be forgotten and even ‘controversial commemoration’. See

http://www.concernedhistorians.org/content/le.html, ‘France’ and ‘Netherlands’, last visited 10-03-2016.

13_{Dzhugashvili v. Russia, European Court of Human Rights, Final decision, 4 June 2010.}

14_{Article 19, Defamation ABC. A Simple Introduction to Key Concepts of Defamation Law (London: Article 19,}

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(Thomas Sankara and relatives). I will analyze these legal cases with the help of the public figure doctrine as described by Antoon De Baets and, no less important, a detailed set of questions as a framework for my analysis. I chose these specific cases because they all focus on posthumous defamation, posthumous privacy and the right to the truth after a person’s death. Furthermore, I chose these seven cases because of their ‘main characters’. Strauss, Prokop, Stalin, Gandhi, Atatürk, Mitterrand and Sankara are all absolute public figures. In addition, I did not find any other such legal cases. A historians’ interest in gathering knowledge and writing about them is beyond dispute. I will introduce the subjects more elaborately in chapters two, three, four and five.

Besides the public figure doctrine, I will use six defense strategies commonly used by historians in defamation cases as identified by Antoon De Baets in Responsible History: the defenses of truth, due care, fair comment, public interest, privilege, and good faith.15 Besides these defenses, I will also include the commonly used defense of ‘fact versus opinion’: the assertion of opinions receives a stronger degree of protection under the free expression regime than the assertion of facts. My main research question will be supplemented by three sub-questions:

How do the overall main perspectives of the plaintiffs and defendants in legal cases diverge?

Why do the main perspectives of the plaintiffs and the defendants in legal cases diverge?

Did the legal judgments affect our view upon history?

To establish the overall main perspectives and to give an answer as to why they diverge, I will use the following analytical framework for each case:

- Plaintiffs and defendants: background and context - Complaint and defense: evaluation

- Evaluation (by the judge) of the defense of both parties - Verdict and motivation

- Follow-up (for some cases) - Importance for Historians

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Chapter 1.

Some Key Concepts

In this chapter I will introduce some key concepts, which are central to the analysis of the legal cases in chapters 2−5. I will explore the public figure doctrine, which I assessed shortly in the introduction. Also, I will go into the concepts of reputation and defamation, privacy and privacy invasion and the right to the truth. Finally, I will also explain how the ‘lapse of time’ affects all these concepts in a legal and moral way. But first, I will begin with an important argument for the assumption that dignity and privacy are characteristics of the dead. It is important that this is established, before I can go on to say anything at all about posthumous privacy and reputation.

All things considered, the dead are not human beings: they are former human beings with many characteristics of a human being. When people die, they are still reminiscent of human beings – they are more than just bodies or objects. Although the dead have no rights – and therefore they are not included in the Universal Declaration of Human Rights – they do possess dignity and posthumous privacy. They are still defined by their former human being characteristics. Although they are reminiscent of human beings, they do not have a right to privacy and dignity because they cannot have any rights. Dignity and privacy are characteristics of the dead. Out of respect for these characteristics, the living still feel they have responsibilities towards them. The UDHR is a very important inspiration for defining the moral and legal duties of the living towards the dead.16 For instance, the living have the duty to “protect the physical integrity of the dead” , the duty “to weigh the privacy and reputation of the dead against public interest when depicting them” and the duty to decently bury and not disturb the rest of the dead.17

A. The ‘Public Figure Doctrine’, posthumous reputation and the concept of defamation Besides Articles 17 and 19 in the International Covenant on Civil and Political Rights (and Articles 8 and 10 of the European Convention on Human Rights), the influence of the UDHR and the responsibilities of the present generation towards past generations we can

16_{De Baets, “Postume Privacy en Reputatie”, pp. 112-113.} 17

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distill from it, is also visible in the public figure doctrine. Heads of state and government are absolute public figures. They are people “who because of their status or relevance or public function are famous outside a certain context or irrespective of a certain contemporary event”.18

Examples of absolute public figures, besides heads of state and government, are certain celebrities (think of Elvis Presley). German courts often speak of public figures as ‘figures of contemporary history’; they also subdivide them in absolute and relative public figures. Contrary to absolute public figures, relative public figures are individuals “whose fame is related to a particular event, often a crime or public trial”.19

Private figures are unknown to the wider public. Because of their position, absolute public figures have less privacy and a lesser right to their reputation than private figures: “the more prominent persons are, the smaller the protection of their private sphere”.20

Absolute public figures, by the nature of their profession and because of their status and relevance on the public scene, sacrificed part of their privacy to the public. Absolute public figures should endure more when it comes to criticism to their reputation.21 However, as absolute public figures, even former political leaders have a “sphere of intimacy that nobody may intrude because privacy is a universal right applicable to everyone”.22

This is also mentioned in Article 17 of the ICCPR (itself derived from art. 12 UDHR), which states:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.23

This article does not stipulate what happens to this right when one dies, but Article 17 has been used in many defamation and privacy invasion lawsuits, like the ones I will analyze in the following chapters. In the European Court of Human Rights, Article 8, which is about the respect for private and family life, is also referred to. The purport of Article 8 of the

18_{De Baets, “A Historians View”, p. 3.} 19_Ibidem.

20_Ibidem.

21_{Bo Zhao, “Public Figures and their Posthumous Reputation”, in Storia della Storiografia, 59-60 (2011), p. 84.} 22_{De Baets, “Laws Governing the Free Expression of Historians”, p. 19.}

23_{The ICCPR on the United Nations Human Rights Website,}

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Convention is the same as Article 17 of the ICCPR.24 In short, although the posthumous reputation and right to privacy of political leaders has to endure more when it comes to the first provision of Article 17, they, like everyone else, have the right to protection against some forms of interference upon their sphere of utmost intimacy – which is outside the public figure doctrine.

Article 17 also mentions honor and reputation. Honor is a person’s self-esteem, reputation is one’s good name or fame.25

A statement is defamatory when it is false and of a factual nature (for example, when someone calls you a murderer, when it can be proven that you are not). In order to be defamatory, a statement must cause damage to the reputation of an individual.26 As such, there is a potential clash between Article 17 and Article 19 of the ICCPR. The latter (itself derived from art. 19 UDHR) states:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

The third part of Article 19 provides some restrictions which under (a) also protect the rights mentioned in Article 17, but the upcoming chapters will prove that, in many cases, the matter is too complicated to just rely on Article 19.3. It is not always entirely clear which provisions should be preferred: the right to freedom of expression or the right to privacy and reputation. In the Strasbourg reports of the European Court of Human Rights, there are a lot of references to Article 10 of the Convention, which is also about freedom of expression and

24

Article 8 of the European Convention states: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. European Convention on Human Rights (1950), Article 8.

25_{De Baets, “Laws Governing the Free Expression of Historians”, pp. 19-20.}

26_{Article 19, Defamation ABC. A Simple Introduction to Key Concepts of Defamation Law (London, November}

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has the same scope and purpose as Article 19 of the ICCPR.27 Defamatory statements can be uttered orally (slander) or on paper (libel). A common flaw in defamation laws is the protection of feelings rather than reputations. Defamation is not the same thing as insult: reputation is an objective concept. It is possible to prove damage in case of a defamatory statement, contrary to damage to someone’s feelings. The same thing goes for criticism. It is not the same as defamation, because defamatory statements are meant to harm a person in his or her reputation.

The word ‘attacks’ in Article 17 implies that only intentional and malicious interferences with honor and reputation are covered by the article. Moreover, only false factual statements can count as defamation. Truthful statements can never be counted as attacks, because a wrongfully obtained ‘good reputation’ is not a deserved reputation. Someone cannot be held liable for true statements. Opinions can, likewise, never constitute an attack, because of their subjective nature.

According to the NGO Article 19, a person’s reputation is “direct and personal in nature”. It cannot be inherited. Relatives of a deceased public figure may have an interest in the reputation of a deceased person, but it is “fundamentally different from that of a living person in their own reputation”. The right to file suit according to national defamation laws for the reputation of a deceased absolute figure might “prevent free and open debate about historical events”. Therefore, Article 19 argues, public bodies of all kinds should be prohibited from “bringing defamation actions”.28

The dead cannot sue, others have to take care of this.29 Still, there are examples in which criminal charges were brought on behalf of dead public figures. In this thesis, I will analyze cases like Tuljapurkar (about Mahatma Gandhi) and Yildirim v. Turkey (about Kemal Atatürk), in which the reputation and privacy of dead public figures – represented by Government officials – is defended. In fact, deceased prominent political figures are well represented in defamation cases. In spite of the public

27_{Article 10 of the European Convention states: shall include freedom to hold opinions and to receive and impart}

information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for

preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. European Convention on Human Rights (1950), Article 10.

28_{Article 19, Defining Defamation: Principles on Freedom of Expression and Protection of Reputation (London,}

July 2000), pp. 6-7.

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figure doctrine, many politicians and heads of state and government tolerate less rather than more criticism of their reputation.

B. Privacy invasion and posthumous privacy

Contrary to defamation, ‘privacy invasion’ is not concerned with the “falsity of statements”.30

An invasion of posthumous privacy is about the disclosure of private information, which results in a loss of privacy irrespective of whether it is true or not. Article 19 gives us the following definition of privacy laws: “Privacy laws are laws which prohibit unauthorized intrusion into or publication of the details of a fellow citizen’s private life [...] privacy laws can be used to prevent the dissemination of truthful facts”.31

However, there is always a potential overlap. For example, someone might draw false conclusions from a photograph taken by paparazzi. This could be both privacy invasion (namely the subtype of privacy invasion called “false light”) and defamation.

Privacy is in fact respect for one’s private life, residence and correspondence. These concepts are dealing with the intimacy, integrity and autonomy of a person.32 They constitute legitimate grounds for the possible restriction of Article 19, although restrictions always have to be necessary, proportionally and provided in the law of the country.33 According to William Prosser, there are four types of interference with one’s privacy: intrusion into private life, public disclosure of private facts, publication in a false light in the public eye, and appropriation of one’s name.34

The false light cases differ from the other three types of intrusion. Protection against false light is mostly about the interest in one’s reputation. As such, it has much in common with defamation (see above). Privacy rights and the rights to free expression usually support each other. “The protection of privacy bolsters the autonomy of persons and encourages their free expression which in turn becomes a source of information for scholars”.35

Therefore, the possibility to restrict free expression under the “rights of others” provision (Article 19.3) is a very important attempt to balance both interests.

30_{Peter Jaffey, “Rights of Privacy, Confidentiality, and Publicity, and Related Rights”, P.L.C. Torremans (ed.) in}

Copyright and Human Rights: Freedom of Expression, Intellectual Property, Privacy (The Hague: Kluwer Law International, 2004), p. 171.

31

Article 19, Defamation ABC, pp. 1-2.

32_{De Baets, “Postume Privacy en Reputatie”, p. 112.} 33_{Human Rights Committee, 102d session, p. 6.}

34_{William Prosser, “Privacy”, California Law Review, 48, no. 3 (August 1960), p. 389.} 35

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C. The lapse of time and the ‘right to the truth’

According to De Baets, most responsibilities have a “built-in time factor”: duties seem to fade over time.36 According to the Defamation ABC compiled by the NGO Article 19, a “statute of limitations” is a reasonable defense in defamation cases: “After a certain lapse of time, evidence may have been lost and witnesses’ memories will have faded”.37 This statute of limitation is generally not more than one year. A longer time span to submit a defamation complaint could serve to chill freedom of opinion and expression. The defendant would encounter great difficulty in his defense, and it would discourage a critical public debate.38 Besides the statute of limitation, there is also a certain period of time ascribed to the right to mourn (which is an important aspect of the right to privacy). In general, most jurisdictions agree that the time of mourning is a period in which the feelings of the mourners should be spared. Mourning should be respected, as estimated by De Baets, for a period of twelve to twenty-four months after death (for private persons). More in general, the posthumous privacy of the deceased (private persons again) should legally exist for approximately two generations – then it gradually faints.39

It is reasonable to believe that after two generations, there are no longer caretakers or surviving close relatives of the deceased person. There is, of course, a difference between the time limit ascribed to posthumous privacy and the duration of the protection of this privacy. According to De Baets, the balancing should be based on three principles: first, for public figures the public interest is stronger, second, there should be respect for the period of mourning, and third, “the balancing should be done with a gradually increasing presumption in favor of disclosure”.40

To summarize; the right to free expression is individual and can be restricted under the provisions of Article 19.3. The time lapse is important to determine whether other rights actively counterbalance free expression. However, apart from invasion of privacy and defamation, there is another posthumous ‘harm’ which can cause a lot of grief for living close relatives. The neglect of the right to information about the dead, including the right to the truth, grieves relatives in their right to mourn. The right to the truth seems very similar to the right to free expression, but they are, in fact, different. The right to the truth can be individual and collective, can never be restricted in any circumstances, and has no time limit. The right to the truth is so important for historians, because the right to the truth is in fact a right to

36

De Baets, “A Declaration of the Responsibilities of Present Generations Toward Past Generations”, p. 140.

37_{Article 19, Defamation ABC, p. 19.} 38_Ibidem.

39_{De Baets, “Posthumous Privacy”, p. 25.} 40

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historical truth, it is an important part of a ‘right to history’.41 This will become clear in the fifth chapter, in which I will explore the case of Thomas Sankara, the former president of Burkina Faso.

In the following chapter, I will begin with the analysis of the cases about defamation of deceased heads of state and government: Joseph Stalin and Kemal Atatürk.

41_{Antoon De Baets, De Universele Verklaring van de Rechten van de Mens en de historicus (Pallas Publications,}

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17 Chapter Two

Defamation of Deceased Heads of State and Government 2.1 Joseph Stalin

Plaintiff and defendants: background and context

The case Dzhugashvili v. Russia is about the supposed defamation (libel) of Joseph Stalin, the former leader of the USSR (1878–1953). The complaint of defamation was lodged in 2009 by Stalin’s grandson (1936-), Yevgeniy Yakovlevich Dzhugashvili, a Russian national and resident of Moscow. Dzhugashvili was represented by a lawyer practicing in Moscow, L.N. Zhura. The judgment I am analyzing for this thesis, consists of a description of the domestic proceedings and, after an application of the plaintiff against Russia, of the final decision by the European Court of Human Rights. Initially, the plaintiff sued the newspaper Novaya Gazeta and one of its journalists for defamation. Novaya Gazeta is a well-known opposition newspaper in Russia for its critical investigations into social and political affairs.42 On April 22, 2009, Novaya Gazeta published an article with the title ‘Beria pronounced guilty’. This article, about the shooting of Polish prisoners in Katyń in 1940,was written by a journalist described as “Mr. Ya”, who was preoccupied with the rehabilitation of victims of political prosecution.43 “Mr. Ya”, was the author of an article called “Beria Pronounced Guilty”, which dealt with the shooting of Polish prisoners in Katyń in 1940. After the domestic courts judged that there had been no defamation, Novaya Gazeta published another article: “Historical Trial”. The author, “Mr. Kh”, expressed his opinion on the outcome of the trial described above. He argued that “no one was forbidden to call him [Joseph Stalin] a ‘bloodthirsty cannibal”.44

Subsequently, Dzhugashvili also sued “Mr. Kh” for defamation, but to no effect.The defense in this case shifted when the plaintiff lodged an application against Russia with the European Court of Human Rights, stating that the Moscow courts had failed to protect the reputation of his notorious grandfather.

42_{For the English version of their website, see}_{http://en.novayagazeta.ru/}_{, last visited 23-03-2016.}

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Complaint and defense: evaluation

In the article, “Mr. Ya” accused Stalin and the Chekists (members of the then security service Cheka) of being “bound by much blood, by the extremely serious crimes they committed, first of all, against their own nation”.45

Furthermore, the author claimed that Stalin and his consorts “evaded moral responsibility” for the shooting at Katyń. But the most important statement was that the former Soviet leader was “as a matter of fact” a “bloodthirsty cannibal”.46

The applicant considered this formula a defamation, for the information in the article was “false, fanciful and completely unsubstantiated”.47

On 13 October 2009, the District Court of Moscow dismissed the claim and ruled in favor of the journalist, emphasizing that the public interest in a historical debate about Stalin and his leadership outweighed the concept of posthumous reputation. Unfortunately, I do not have the original reports of the District Court of Moscow. Therefore, I will use the final judgment report provided by Strasbourg, which is not as lengthy on the specific defenses of Novaya Gazeta and “Mr. Ya” as the original reports. In the Strasbourg report, there are only (translated) cut-outs from the original case. I will do my best to complement according to other sources where needed.

Evaluation of the defense of both parties

According to the District Court of Moscow, the accusations which where uttered in the article were no statements of fact “as they present the author’s judgment of complex and contradictory events in the Soviet history differently interpreted by the parties”.48

The District Court ruled that the author’s judgment was subjective and was in fact a personal assessment of Stalin as a historical figure. In the District Court, the debate between the two parties was subjective and irreconcilable. Both their views on the line “bloodthirsty cannibal” and the part in history Stalin played differed immensely. The District Court deemed it “unacceptable to find whose views – [the applicant’s or the journalists’] – are more important or better reasoned”.49

Moreover, the judge found that the phrases “bloodthirsty cannibal” and “bound by much blood” were “solely metaphorical”.50

In other words, the Court ruled that the phrases where opinions, even though the journalist formulated the accusation of Stalin being a

45_{Dzhugashvili v. Russia, paragraph 5.} 46

Ibidem.

47_{Dzhugashvili v. Russia, paragraph 6.} 48_{Idem, paragraph 9.}

49_Ibidem. 50

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bloodthirsty cannibal “as a matter of fact”.51

The defense of opinion was used because, according to the NGO Article 19, sometimes a statement may contain elements “which, taken literally, are of a factual nature, but which are clearly intended to be understood as an opinion”.52

Being opinions, the phrases’ truthfulness could not be checked.

Furthermore, it was ruled that reflections on the role of Stalin in history and the part that his personality played in history cannot be restricted. In short: the public interest in knowledge about an important historical political figure like Josef Stalin was too big to restrict any writings about him. The District Court referred to Article 10 of the European Convention on Human Rights. It emphasized that “Politicians, unlike private persons, have to have a higher tolerance of acceptable criticism”.53

This is the core truth of the public figure doctrine, which is eminently applicable to a figure like Stalin, who dictated part of twentieth century history. “The issues touched upon […] presented significant interest for the society [..] and his judgment does not upset a fair balance [..] between the dignity of a political figure and the journalist’s right to impart information of public interest”.54

Verdict and motivation

The District Court of Moscow dismissed the allegations of defamation. According to the Court, nothing suggested that Novaya Gazeta or the two journalists had opinions that were expressed “with a view of insulting Joseph Stalin in an obscene or indecent form”.55 Dhzugashvili appealed. In a final judgment on 16 March 2010, the Moscow City Court of Appeals held that “[T]he expression ‘a Moscow district court has acknowledged the right to consider Joseph Stalin a criminal’ does not constitute a statement of fact as it represents an expression of [the author’s]view on the outcome of the first-instance trial …”56

In this quotation, the author was “Mr. Kh.”, the second journalist who wrote the article “Historical Trial”. The District Court also mentioned the journalists’ freedom of expression. Journalistic freedom covers “possible recourse to a degree of exaggeration, or even provocation”. Besides the Moscow District Court, the NGO Article 19 also underlines the qualified privilege of

Article 19, Defamation ABC, p. 17.

53_{Dzhugashvili v. Russia, paragraph 10.} 54_Ibidem.

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journalists. Journalists have a ‘qualified privilege’, that is, they should be “exempt from liability unless it is proven that they were made with ill will or spite”.57

Dzhugashvili lodged an application to the European Court of Human Rights under Articles 6, 10 and 14 of the European Convention on Human Rights (the right to a fair trial, the right to freedom of expression and the right to prohibition of discrimination), complaining that the domestic courts had approved of his grandfather’s slander. The European Court of Human Rights found that the allegation should be examined “as in essence relating to an alleged breach of his rights under Article 8 of the Convention [that is, Dzhugashvili’s right to privacy]”.58

Strasbourg recognized the direct and personal nature of a person’s reputation: a reputation cannot be inherited and as such it followed that the applicant did not have “the legal standing to rely on his grandfather’s rights under Article 8 of the Convention because of their non-transferable nature”.59 It might chill freedom of historical debate. Moreover, the Court noted that the right to seek historical truth was an integral part of the freedom of opinion and expression. The historical events debated in this case (Katyń etc.) were a matter of general interest for society, for they “affected the destinies of multitudes of people, as well as the historical figures involved therein”.60

In sum, the right to respect for private life had to be balanced against the right to historical truth and freedom of expression. In this case, the right to historical truth and freedom of expression was much larger than the right to privacy of Dzhugashvili. Moreover, the European Court of Human Rights reiterated that Stalin’s historic role “called for a higher degree of tolerance to public scrutiny and criticism of his personality and his deeds”.61Accordingly, the European Court of Human Rights decided that the domestic courts “struck a fair balance”.62

The application was unanimously declared inadmissible and there was no further follow-up.

Importance for historians

The public figure doctrine applies to Stalin as a deceased political figure. Even absolute public figures who are generally despised for their role in historical events do possess privacy. As such, Stalin is not excluded from these past generations towards which

57_{Article 19, Defamation ABC, p. 18.} 58

Dzhugashvili v. Russia, paragraph 20.

59_{Idem, paragraph 24.} 60_{Idem, paragraph. 32-33.} 61_{Idem, paragraph 35.} 62

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we have a responsibility to respect their privacy and dignity. However, Stalin died in 1953, that is, 56 years before the newspaper article was written. Article 8 was used by the Strasbourg court to refer to Stalin’s grandson. Dzhugashvili had a right to privacy at the time of the procedure. However, the protection of the posthumous privacy of Stalin had long faded, even more so because he is such an important historical figure. Knowledge of him and the historical context in which he had an important role are part of the right to historical truth. The public interest in this case is much stronger than the right to privacy and reputation. Restricting the journalist and Novaya Gazeta would serve to chill freedom of opinion and expression.

It is exactly from the free exercise of the right to historical truth that we know that Stalin is responsible for millions of deaths in the USSR during his dictatorship. Hence, in this sense the phrase “bound by much blood” is true. A good reputation proven not to be true is falsely acquired and not a deserved one and a statement which is proven to be true can never by defamatory. If, despite of all this, the defense of truth cannot be invoked, then the defense of fair comment certainly can. The opinions of journalists and historians should have a factual basis, but if the opinions are nevertheless disputed they could argue “that the opinion was formulated as an honest contribution to a public debate about matters of general interests in the historical sphere”.63

It is clear how a debate about the historical role of Stalin in the Katyń shootings fits in this defense: the history of the USSR and its leadership has been – and is still – much debated by historians. The fact that first the District Court of Moscow, later the City Court of Moscow, and later the European Court of Human rights ruled in favor of the opposition newspaper Novaya Gazeta and the authors of the articles affirms that journalists and historians should always have the freedom to deliver opinions about an absolute public – and in this case even historical – figure.

63

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2.2. Kemal Atatürk

Plaintiffs and defendants: background and context

Atatürk (1881-1938) was the founder and first president of the modern Republic of Turkey. In Turkish, the name ‘Atatürk’ means “Father of Turks”. After the downfall of the Ottoman Empire, Turkey’s new leader Atatürk led a massive westernization campaign. In so doing, he succeeded in restoring pride in being Turkish. Also, he established a sense of accomplishment when the somewhat backward Turkish nation was “brought into the modern world”.64

In Turkey, there is a special memory law which protects the memory of Atatürk. Offences against the memory of Atatürk are prosecuted under Turkish Criminal Law no. 5816 of 25 July 1951.65 In Turkey, Atatürk and “Kemalism” are still revered and publicly insulting or denouncing either of them can be criminalized in accordance to this law. In Turkey, there have been several legal cases regarding the memory of Atatürk. In one of them, a political science professor was prosecuted for criticizing the legacy of Atatürk. In November 2006, Attila Yayla, professor of politics, political philosophy and political economy at Gazi University (Ankara) described the single-party era between 1923 and 1945 (which was mainly led by Atatürk) as “regressive in some respects”.66 Eventually, he faced a suspended sentence of fifteen months in jail for treason. In June 2008, Nuray Bezirgan, a Turkish student, faced jail-time over critical remarks on Atatürk on TV. The student wore an Islamic headscarf (a symbol of political Islam) and said that “you cannot expect me to like Atatürk.”67 She possibly faced charges for “crimes committed against Atatürk”. This shows that people have been prosecuted for fairly innocent criticism of the legacy of Kemal Atatürk.

Since 2010, there have been several legal cases in Turkey about insulting the memory of Atatürk. In this chapter, I will discuss two of them. The first is the case of Cengiz and Others v. Turkey, of which the ruling became final in December 2015. This case was about the blocking of access to YouTube because of some videos which were supposedly insulting to the memory of Atatürk. Unfortunately, the only sources I have for this case are two Press Releases from Strasbourg. There is a Strasbourg full report in French, a language which I do

64_{Encyclopaedia Britannica Online, lemma ‘Kemal Atatürk’ (last visited 29-03-2016).} 65

Yildirim v. Turkey, European Court of Human Rights, Final Decision, 18 March 2013, paragraph 15.

66_{“Turkey jails academic for insulting Ataturk”, The Guardian Online, published 28 January 2008 (last visited}

29-03-2016).

67_{“Turkish student faces jail over anti-Ataturk TV remarks”, The Guardian Online, published 16 June 2008 (last}

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not understand sufficiently. The second case is also about the blocking of an internet site. In the case of Yildirim v. Turkey (final in March 2013), the applicant was a collateral victim in a measure taken by the Turkish Authorities. For this case, I do have the full report in English. I will begin with the Press Release regarding the case of Cengiz and Others.

In the Press Release (in English) – issued by the registrar of the Court – of 1 December 2015 about forthcoming judgments and decisions, there is a notification of a case of private persons (who all occupy academic professions) versus Turkey. The applicants, Serkan Cengiz, Yaman Akdeniz and Kerem Altıparmak, were Turkish nationals who were born in 1974, 1968 and 1973 respectively and live in İzmir, Istanbul and Ankara (Turkey).68 They were all academics positioned in different universities, where they taught law. The case concerned the blocking of access to YouTube, in accordance to national law, because some of the videos were deemed to be insulting to the memory of Atatürk. The defendants argued that the restriction interfered with their rights under Article 10 of the Convention and they asked for the blocking to be lifted. The Ankara Criminal Court of First Instance rejected their request. The scholars applied to the European Court of Human Rights in 2010, relying on their right to freedom to receive and impart information and ideas. On the first of December 2015, the Court unanimously held that there had been a violation of Article 10 of the European Convention. The Court also stated that “YouTube was a single platform which enabled information of specific interest, particularly on political and social matters, to be broadcast and citizen journalism to emerge”.69

In a country like Turkey, where journalistic freedom is not always guaranteed, the imparting of political and social information by academics – in this case scholars who teach law – besides the conveyance of information by the traditional media could be important for a public debate about various social and political topics. The Press Release about the decision in this case also mentioned the case of Yildirim v. Turkey and reiterated that domestic law does not authorize the Turkish authorities to block an entire internet site.70

The case of Yildirim v. Turkey was about the unjustified infringement – ordered by Turkish national authorities – of a private citizen’s rights under (amongst others) Article 10 of the European Convention on Human Rights. The applicant in the European Court of Human Rights, Ahmet Yildirim, was born in 1983 and lived in Istanbul. He owned and ran a website with academic work of his own writing. On 24 June 2009, Turkish authorities blocked all the

68_{Press Release issued by the Registrar of the European Court of Human Rights, “Blocking without a legal basis}

users’ access to YouTube infringed the right to receive and impart information”, 01-12-2015, p. 1.

69_Ibidem. 70

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websites of sites.google.com because of a page which was deemed to be offending to Atatürk. One of the websites which was hit as collateral damage, was the website owned by Yildirim. On 1 July 2009 Yildirim, defendant in the Criminal Court of First Instance (and later applicant to the European Court of Human Rights), asked for the blocking order to be relieved: “He pointed out that he used the website regularly in order to publish his academic work and his opinions on various topics, and that the measure had barred all access to his site which had no connection to the offending website”.71 On 13 July 2009, the Denizli Criminal Court dismissed this complaint. Yildirim applied to the European Court of Human Rights and wrote on 25 April 2012, that he was still unable to access his website. As such, he lodged an application in Strasbourg, and successfully so. The measures taken by the Turkish national authorities were deemed disproportionate by the Court. The Court concluded that, although the judicial proceedings against Yildirim had a statutory basis (was “prescribed by law”), the interference resulting from the application of the Atatürk memory law “did not satisfy the foreseeability requirement under the Convention and did not afford the applicant the degree of protection to which he was entitled by the rule of law in a democratic society”.72

The Court unanimously declared the complaint concerning the interference with the applicant’s freedom to receive and impart information admissible and held that there had been a violation of Article 10 of the Convention. The Court awarded the applicant the sum of EUR 1,000 of compensation.

In this case, Yildirim was a collateral victim who protested against the blocking of his website on which he published his academic work and opinions, and which had no connection to the offending website. However, what is clear from this case is that the Atatürk memory law represents “unnecessarily and unjustifiably broad restrictions on freedom of expression”73 and it is very encouraging for historians worldwide that the European Court of Human Rights recognized it as such. The public interest outweighs the reputation of a deceased absolute public figure. The ‘offending’ website – just like the YouTube channel of in the case of Cengiz v. Turkey – should not have been blocked at all, because the public interest in a historical debate about the founder and first president of the Republic of Turkey, the man who reformed legal and educational systems in Turkey, cannot be overstated. Atatürk is an

71_{Yildirim v. Turkey, paragraph 12.} 72_{Idem, paragraph 67.}

73

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absolute public figure, whose name and fame is inevitably connected to historical debate about the Turkish nation and its Kemalist legacy. Atatürk, by leading Turkey in the years 1923-1938, and because of his status and relevance (even as a deceased public figure) for the public, sacrificed part of his privacy to the public debate. Moreover, a person’s reputation is direct and personal, it cannot be inherited. Maybe a relative of a deceased absolute public figure could have a privacy related interest in the reputation of said public figure, but surely a ‘government’ cannot. As Article 19 already argued: public bodies of all kinds should be prohibited from filing suit because of defamation. Luckily, the European Court of Human Rights recognized the importance of an open and free debate in which journalists and scholars can freely impart – and receive – information and ideas and they ruled in favor of a balance shifting towards the public interest.

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Defamation of Other Deceased Politicians 3.1 Mahatma Gandhi

Plaintiffs and defendants: background and context

The poem ‘Gandhi Mala Bhetala’ (‘I met Gandhi’ or ‘Gandhi met me’) was published by a member of the All India Bank Association Union in its Bulletin in 1994: Devidas Ramachandra Tuljapurkar. The poem was meant as a satirical critique of “those who falsely claim to follow the path of Mahatma Gandhi”.74

It was meant for private circulation amongst all members of the union. Tuljapurkar was the publisher and printer of the poem, the author of the poem was Vasant Dattatraya Gujar (who wrote it in 1983). Initially, a complaint was lodged by the police of the Latur district against both publisher and author. The matter was brought before the Chief Judicial Magistrate in Latur and the defendants filed an application for discharge, which was declined. Subsequently, the High Court of Mumbai also dismissed the application. This decision by the High Court of Mumbai was the subject of an appeal in the Supreme Court of India by Tuljapurkar in 2015, in which the State of Maharashtra and others were the defendants (or respondents).75 Mr. Gopal Subramanium, a senior counsel, appeared for Tuljapurkar. Mr. F.S. Nariman functioned as amicus curiae and submitted an opinion about Tuljapurkar’s statements.

The case of Tuljapurkar was about the question whether the author and publicist of the poem ‘I met Gandhi’ was allowed to use the name “of a historically respected personality by way of allusion or symbol”.76

It was foremost a case about the question whether ascribing words and acts to a historical figure with a worldwide reputation, which could appear obscene to a reader, can be tolerated.77 In this context, uttering obscene words through the voice of Gandhi could be seen as an ‘indirect’ form of defamation or as an attack on his posthumous reputation. For instance, in the poem the author (Gujar) wrote:

74_{English translation of the poem ‘I met Gandhi’ or ‘Gandhi met me’ via}

http://www.kractivist.org/translation-of-vasant-dattatreya-gurjars-poem-gandhi-mala-bhetla-gandhi-met-me/, last visited 03-04-2016.

75_{Maharashtra is a state in west-central India, Mumbai is the capital of the state.}

76_{Supreme Court of India Criminal Appellate Jurisdiction, Criminal Appeal NO. 1179 of 2010: Devidas}

Ramachandra Tuljapurkar versus State of Maharashtra & Ors, paragraph 1.

77

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“Gandhi met me

On the common man’s earth

With abandoned kids, he was playing the game of husband and wife He said:

What is the definition of a secular country? Forget chastity, fuck all of them”.78

Firstly, it is very unlikely that Gandhi used that kind of language when he was alive. Secondly, the line “With abandoned kids, he was playing the game of husband and wife” the average reader would understand that Tuljapurkar is implying that Gandhi was a pedophile. If so, this is defamatory. Likewise, it is very unlikely – as was stated in the poem – that Gandhi ever masturbated in a public street: “I saw Gandhi masturbating in the memory of Hema Malini on a public street”.79

Hema Malini was an actress and politician who was born nine months after Gandhi was assassinated (in January 1948). Logically, “in memory of Hema Malini” is not to be taken literally. However, in a way, even if it is allegorical or symbolical speech, one could say that Gandhi’s posthumous reputation is harmed by putting obscene words in his mouth and making him perform obscene acts (pedophilia and masturbation).

Complaint and defense: evaluation

As this was not explicitly a defamation case, the defenses which were listed in the introduction were not used by the counsel of the appellant. However, another defense – next to freedom of speech –was consistently used by Subramanium: artistic freedom. According to Subramanium, poetry is part of free speech and expression “as perceived under Article 19(1)(a) of the Constitution”.80

The idea of poetic freedom is a fundamental right and the Supreme Court should “not detract and convert it into a permissive license”.81

Poetic freedom consists of thought, feeling, creativity and expression. As such, it can never be ‘permissible’; it is a fundamental right. Subramanium argued that the name of Gandhi was used as a “surrealistic voice”, the poet used the ‘obscene’ language as a medium of expression. Subramanium submitted that an article “is deemed to be obscene if its effect [..] is to tend to

78_{English translation of the poem ‘I met Gandhi’ or ‘Gandhi met me’ via}

http://www.kractivist.org/translation-of-vasant-dattatreya-gurjars-poem-gandhi-mala-bhetla-gandhi-met-me/, last visited 03-04-2016.

79_Ibidem.

80_{Tuljapurkar, paragraph 1. With Article 19 of the Constitution, the Court meant the Constitution of India, this}

article is not the same as Article 19 of the ICCPR.

81

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deprave and corrupt persons, who are likely [..] to see or hear matters contained or embodied in it”.82

After generally referring to the meaning of ‘obscenity’, Subramanium referred to various ‘tests’ adopted in different countries to determine the occurrence of obscenity. This led him to argue that the Supreme Court could not treat the instant poem as obscene.83

Nariman functioned as amicus curiae in this case. He supported the Supreme Court, because the Constitution of India did not recognize absolute freedom of speech.84 He submitted that “what is to be seen is whether the poem prima facie exhibits obscenity, especially, in the context of Mahatma Gandhi”.85

The initial complaint was that, despite poetic license and freedom of expression, the poem was obscene by using allusion and symbolic language related to Gandhi. According to the Supreme Court, freedom of writing was not in question in this case. Artists are, as Nariman argued, not immune for the limitations to free expression. He submitted that the effect of an artistic image or text cannot be judged according to the message that the creator wanted to convey, it should merely be judged according to “the effect of the visible image on the observer”.86 Moreover, Nariman referred to another legal case, which stated that just like “we exclude insults from freedom of speech, so we must exclude from the legitimate expression of artists insulting pictures that undermine the reputation or dignity of others”.87

According to Nariman, artistic freedom must always be subordinated when a conflict appears between this freedom and the rights and reputations of others.88

Evaluation of the defense of both parties

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could the memory of any historical personality restrict a transcendental right such as freedom of speech and expression.90

The Supreme Court judged that freedom of expression gives no freedom to offend. The right is not absolute and has its limitations in a context in which obscenity is attributed to a historically respected personality.

Nariman submitted the exact opposite of Subramanium’s statements and argued that the poem “refers singularly and exclusively to Mahatma Gandhi in every stanza”.91

This is correct, as explained above. However, Gandhi is often mentioned in a respectful way. There are only a few mentions which are offensive. Nariman argued that if it were an everyday, average man whose voice was used it would not be deemed obscene. But, since there was no doubt that the character was supposed to be Mahatma Gandhi, the words were obscene. The poem, according to Nariman, did not serve an artistic purpose. Hence, artistic freedom did not count in his arguments. The Supreme Court followed this report of the amicus curiae.

Verdict and motivation

In the perspective of the Supreme Court, freedom of speech and expression are guaranteed by the Constitution. However, when this right collides with existing laws, exceptions are made in favor of laws which might impose restrictions on the right to freedom of speech and expression in the interest of public decency.92 This is the case when obscenity comes in to play, which has little or no value in a general public debate. The ‘test’ that is most commonly applied in India (formulated by C.J. Cockburn), is whether “the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall”.93

But does this test clash with the freedom of speech and expression which is guaranteed in the Constitution of India? According to the Supreme Court, a balance should be struck between the interest in public decency and freedom of speech. The balance should be maintained by applying not (only) the Cockburn test but (also) the ‘contemporary community standards test’, the “factum of obscenity” should be judged from the perspective of an average person.94

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that the first is primarily focused on the ‘weak minds’ which are open to immoral influences, whilst the latter is preoccupied with the context of contemporary social mores and the “socio-moral attitude of the community”.95

According to the Cockburn test, the authorities will determine whether something is obscene or not. The contemporary community standards test, however, starts from the position that the community itself will determine whether something is obscene or not.

In Article 19(2) of the Constitution it is said that freedom of speech and expression have “reasonable restrictions” in relation to public order (and decency) and defamation.96

The author of the poem chose “historically respected persons as medium to put into their mouth obscene words and, ergo, the creativity melts into insignificance and obscenity merges into surface”.97

Hence, according to the Supreme Court, the view of the High Court was correct. However, because of the immediate written apology of the appellant when he learned about the reactions of those who had read the poem and because of the passing of two decades, the concept of lapse of time played a role and the accusations were discharged by the Supreme Court.

Follow-up

Although the publisher of the poem, the current appellant, was acquitted, the author of the poem, Vasant Dattatraya Gurjar, was still facing trial when the judgment was written (May 14, 2015). I have not found a report on the trial of Gurjar on the website of the Supreme Court of India or elsewhere.98

This case is not as much about protecting the public body which is in power, as it is about disrupting public order and common decency, through (according to the Court) not respecting the memory of an absolute public figure. What was foremost at stake was the posthumous reputation of Mahatma Gandhi. What is sure, is that the judgment of the Supreme Court of India is questionable when one compares it to the judgments of the European Court

95_{Tuljapurkar, paragraph 58.} 96_{Idem, paragraph. 62.} 97_{Idem, paragraph 104.} 98

Defamation and privacy invasion of deceased persons of contemporary history and the public figure doctrine

1