April 21, 2017
By Galina Arapova, Director of Mass Media Defence Centre, senior media lawyer, Russia
On 21 February, the Court delivered its judgment in the case of Orloskaya iskra v. Russia, concerning the use of electoral laws to curb or restrict media reporting at election time and the circulation of critical opinions and information about candidates, their programs and political views.
The case deals with the applicant’s conviction for an administrative offence for publishing critical articles about a politician during the 2007 parliamentary election campaign in Russia. The applicant, regional newspaper “Orlovskaya iskra”, whose political affiliation was specified on the front page, had published two critical articles. Both articles focused on the then governor of the region, who stood as a candidate for parliament for a ruling political party, and were strongly critical of the governor, including accusations of corrupt and nepotistic practices, that he had closed down a publicly owned newspaper which had been critical of him and that he had prosecuted an individual who had spoken out against him in public.
The regional electoral committee, which controls the respect for electoral legislation by candidates for the office and media covering elections, concluded that both articles contained elements of “election campaigning” because they were focused on one candidate, were critical and had not been paid for by the official campaign fund of any political party participating in the election campaign, as was required by Russian election law. The applicant was found guilty of an administrative offence and fined. Applying to the European Court, the applicant alleged a violation of Article 10 of the Convention because of the classification of its reporting as “election campaigning” rather than journalistic work.
Under Russian election law, media outlets and journalists are entitled merely to inform voters on the campaign and the political views of candidates and any publication which is not sponsored by any political party or a candidate running for the office is very likely to be considered as “election campaigning” rather than journalistic work, i.e. reporting on matters of public concern. This effectively bars media from any reporting on election activities, including not just direct appeals to vote for or against a candidate but also any analytical publication in which journalists set out their personal opinion of candidates or their activities, to avoid consideration of such publications as agitation by the authorities, which would lead to fining for an administrative offence. According to the applicant and third party interveners, Media Legal Defence Initiative (London, UK) and Mass Media Defence Centre (Voronezh, Russia), such practice has a serious chilling effect on the exercise of political journalism and the dissemination of information on matters of public concern, affecting the public’s right to receive information and the voters’ ability to make an informed choice.
The Court’s judgment
The European Court judgment on this case could be considered as the most fundamental with regard to the issue of freedom of expression in the time of elections. The Court provided us with a detailed and thorough collection of international standards and principles and established case law on freedom of expression and freedom of media with regards to election reporting and covering matters of public concern. In particular, in its judgment, the European Court recalled Council of Europe standards and recommendations on election reporting, and among others cited Recommendation No. R (99)15 of the Committee of Ministers to Member States on Measures concerning media coverage of election campaigns: “The principles of fairness, balance and impartiality in the coverage of election campaigns by the media should apply to all types of political elections taking place in member States, that is, presidential, legislative, regional and, where practicable, local elections and political referenda”.
Deciding this case under Article 10, the Court also reiterated that the rights guaranteed by Article 3 of Protocol No. 1 are crucial for establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 58). Free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of any democratic system. Taking the two rights together – freedom of expression, guaranteed by Article 10, and the right to free elections, guaranteed by Article 3 of Protocol No. 1 – the Court states that they are interrelated and operate to reinforce each other: for example, freedom of expression is one of the “conditions” necessary to “ensure the free expression of the opinion of the people in the choice of the legislature” (§ 110).
The Court made an important distinction on how the content of the expression affects the scope of the State’s margin of appreciation in such cases. According to the Court, since the content was a kind of “normal journalistic coverage of a political debate in the print media”, the margin of appreciation could not be as wide as in cases relating to political advertising, in television broadcasting or otherwise (see TV Vest AS and Rogaland Pensjonistparti, §§ 64 and 67), or as in cases concerning publications within the commercial context of product marketing, an area in which States have traditionally enjoyed a wider margin of appreciation.
Moreover, another important issue was raised in this case: the role of media in election time. The Court disagreed with the Government’s argument that the print media should be subjected to rigorous requirements of impartiality, neutrality and equality of treatment during an election period. Instead, it held the opposite, saying that at election time the press assists the “free expression of the opinion of the people in the choice of the legislature” and that the “public watchdog” role of the press is no less pertinent at election time. In the Court’s opinion, “this role is not limited to using the press as a medium of communication, for instance by way of political advertising, but also encompasses an independent exercise of freedom of the press by mass media outlets such as newspapers on the basis of free editorial choice aimed at imparting information and ideas on subjects of public interest” (§ 130). For these reasons, the Court found a violation of Article 10 of Convention.
This judgment is an important step in the Court’s case law on political speech, media coverage of elections and freedom of expression in general. This judgement establishes high quality standards regarding freedom of political debate and puts pressure on Russia and other countries bound by the European Convention of Human Rights to take measures to guarantee the right of the media to report on politics in election times and to ensure the public’s right to be adequately informed.