The European Court of Justice (‘ECJ’) has rendered a fine judgment in the case between Spanish football club Real Madrid and French newspaper Le Monde, with which (Dutch) media can defend themselves against the enforcement of judgments from other countries.
Earlier this year we wrote about the opinion of AG Szpunar in the same case. The reason for the dispute between Real Madrid and Société Éditrice du Monde, the company behind the French daily newspaper Le Monde, was an article in Le Monde from 2006 in which Real Madrid was accused of working together with the Spanish doping doctor Fuentès. Real Madrid then brought proceedings. Spanish courts ruled in several instances that the article was defamatory and detrimental, and ordered both Société Éditrice du Monde and the journalist who wrote the article to pay high damages (EUR 390,000 and EUR 33,000, respectively).
However, things went wrong for Real Madrid upon the enforcement of the judgments in France. The French court considered the judgments to be in conflict with French international public order and refused to enforce them. The case was taken to the highest French court, which asked preliminary questions to the ECJ. The key question was whether a court could refuse enforcement of a judgment from another Member State due to violation of the freedom of expression. A-G Szpunar answered this question positively and has now been followed in this by the ECJ.
In the judgment, the ECJ firstly emphasized that the ‘principle of mutual trust’, which means that Member States have to presume that fundamental rights are observed in another Member State. This entails that a Member State cannot apply a higher level of protection than EU law requires. Enforcement of a judgment from another Member State should only be refused if that would give rise to a manifest breach of a fundamental right (grounds 42-44).
Next, the ECJ discussed the importance of the freedom of expression and freedom of the press in a democratic society. It emphasized that media are under the obligation – while observing the reputation and rights of others and in accordance with their responsibilities – to disseminate information and ideas about matters of public interest. According to the ECJ, the role of the media as a public watchdog should be attached considerable weight to when assessing whether interference with the freedom of the press serves a legitimate aim (ground 55). With reference to case law of the ECrtHR, the ECJ considered that the most careful scrutiny is called for when sanctions are concerned that may deter the media from covering similar topics of public interest in the future (grounds 60 and 61).
The ECJ held that large damages awards that were unpredictable or high compared to awards made in comparable libel cases may have a chilling effect (ground 62). Even more so if compensation exceeds the material or non-material harm actually suffered by the injured party (ground 63).
In conclusion, the ECJ held that the enforcement of a judgment ordering a newspaper publishing house and a journalist to pay high damages must be refused if this would give rise to a manifest breach of the freedom of the press. Although in practice it will not always be obvious when such a situation exists, the judgment offers clear guidelines for the future, and may be used by the media as a defence in disputes on enforcement.
