The Dangerous Implications of the “Naked Rambler” Case: On FEMEN Activists and Throwing Paint on Atatürk Statues

By Stijn Smet

On 28 October 2014, the European Court of Human Rights ruled that the numerous convictions of Mr. Stephen Peter Gough – better known as “the naked rambler” – for insisting on appearing naked in public at all times, did not violate Mr. Gough’s freedom of expression.

Quite a bit of ink has already been dedicated to Mr. Gough’s case and to explaining why the ECtHR judgment warrants criticism. Particularly worth highlighting are the insightful contributions by Hugh Tomlinson over at Inforrm’s Blog and Marko Milanovic on EJIL: Talk!. Here, I will not regurgitate their poignant critiques. Instead, I set out to question a few specifically troubling passages in the Court’s judgment by indicating the dangerous implications they could have for other, analogous situations.

But first, as tradition dictates, I will briefly summarise the facts of the case and highlight the relevant passages of the Court’s judgment.

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Imposing Costs on Newspaper in Successful Source-Protection Case Did Not Violate Article 10

By Ronan Ó Fathaigh

In the summer of 2009, the Irish supreme court issued a landmark opinion, overturning an order issued against a newspaper to answer questions about a leaked document it had received from an anonymous source. However, four months later, the same supreme court ruled that the newspaper was required to pay the legal costs of the government-created body that had sought the order, because the newspaper had destroyed its copy of the leaked document before the legal action had commenced. In a surprising majority opinion, the Fifth Section of the European Court has now ruled in Keena v Ireland, that the imposition of costs on the newspaper, even though its action was successful, was not a violation of Article 10.

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Conviction of journalist for reporting about sex abuses in a Christian rehabilitation centre violated Article 10 ECHR

By Flutura Kusari * and Dirk Voorhoof **

In Erla Hlynsdottir v. Iceland (no. 2), an Icelandic journalist had been convicted for defamation after reporting that the director of a Christian rehabilitation centre and his wife had been involved in sex games with patients of the centre. The European Court of Human Rights found a violation of Article 10 of European Convention on Human Rights, arguing that the national courts did not pertinently balance the right to freedom of expression with the right to reputation. According to the Court “the most careful scrutiny” is called for when the measures taken by national authorities are capable of discouraging the participation of the press in debates over matters of legitimate public concern. The Court also refers to “the essential function the press fulfils in a democratic society” as a central factor for its determination in the present case.

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German Court Injunction Banning Political Leaflet Violated Article 10: Brosa v. Germany

This guest post was written by Ronan Ó Fathaigh* and Dirk Voorhoof**

In a victory for free expression, the European Court has ruled that a court-imposed injunction banning a political activist from distributing leaflets targeting a political candidate violated Article 10 of the European Convention. The Court in Brosa v. Germany criticised the German courts for refusing to hold that the leaflet was a fair comment on a matter of public interest, as the threshold for proving fair comment was “disproportionately high.” Continue reading

If you can’t stand the heat, don’t turn up the oven: Strasbourg Court expands tolerance for criticism of xenophobia to criticism of homophobia

This post was written by Sander Steendam, Ph.D. Researcher at the Human Rights Centre of Ghent University. Sander works on the IAP project ‘The Global Challenge of Human Rights Integration: Towards a Users’ Perspective’. In his research, Sander focuses on LGBT rights.

On the 17th of April 2014, the European Court of Human Rights issued a judgement in the case of Mladina v. Slovenia. In this case, the Court further develops its standing case law on “public statements susceptible to criticism”. When assessing defamation cases, the Court has in the past found that authors of such statements should show greater resilience when offensive statements are in turn addressed to them.

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Human Rights Centre Supports Request for Referral to the Grand Chamber in Delfi AS v. Estonia

The Human Rights Centre of Ghent University has expressed its support for the request for referral to the Grand Chamber in the freedom of expression case of Delfi AS v. Estonia. The Human Rights Centre has submitted its considerations in a joint letter to the European Court of Human Rights, signed by an impressive list of 69 media organisations, internet companies, human rights groups and academic institutions.

As indicated in the joint letter to the Court

The [Delfi] case involves the liability of an online news portal for third-party defamatory comments posted by readers on the portal’s website, below a news item. A unanimous chamber of the First Section found no violation of Article 10, even though the news piece itself was found to be balanced and contained no offensive language. The portal acted quickly to remove the defamatory comments as soon as it received a complaint from the affected person, the manager of a large private company.

A few excerpts from the letter to the Court are reproduced below. The full text of the letter can be found here. The full text of the referral request is available here. Finally, a critical post on the Chamber judgment in Delfi AS v. Estoina – written for Strasbourg Observers by Professor Dirk Voorhoof – can be found here.

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Criminal conviction for denying the existence of the Armenian “genocide” violates freedom of expression

This guest post was written by Dirk Voorhoof*. The post is a shortened version of an original contribution by the same author, which first appeared on the ECHR Blog. It is reproduced here, in shortened version, with permission and thanks.

In Perinçek v. Switzerland, the European Court of Human Rights ruled on 17 December 2013, by five votes to two, that Switzerland had violated Doğu Perinçek’s right to freedom of expression by convicting him for publicly denying the existence of a genocide against the Armenian people. On several occasions, Perinçek – at the time chairman of the Turkish Workers’ Party – had described the Armenian genocide as “an international lie”. He had particularly insisted that whatever massacres had taken place did not meet the definition of genocide under international law.

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