Egill Einarsson v Iceland: the Court deals with an offensive Instagram post

This guest post was written by Ingrida Milkaite, Ghent University*

On 7 November 2017 the European Court of Human Rights (the ECtHR, the Court) found a violation of Article 8 of the European Convention on Human Rights. The main issue at hand was the Court’s assessment of whether the right balance between the applicant’s right to privacy (Article 8) and Mr X’s right to freedom of expression (Article 10) was struck by national courts.
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Medžlis Islamske Zajednice Brčko v Bosnia and Herzegovina: A Simple Speech Case Made Unbelievably Complex?

By Stijn Smet, Melbourne Law School. Stijn is Postdoctoral Research Fellow at the ARC Laureate Program in Comparative Constitutional Law and co-editor with Eva Brems of the new volume When Human Rights Clash at the European Court of Human Rights: Conflict or Harmony? (OUP, 2017)

Imagine, if you will, two scenarios. The first involves four NGOs writing a private letter to the highest authorities of a Bosnian city. “According to our information”, the NGOs state in the letter, the newly appointed Serbian director of a public radio station has displayed a problematic attitude towards Muslims and Bosniacs. Her past actions, the NGOs claim, “absolutely disqualify” her from being director of a multi-ethnic radio station. The NGOs further press upon the authorities the “hope that you will react appropriately”. It turns out, however, that the factual allegations made in the NGOs’ letter are all incorrect or (grossly) exaggerated.

Now picture the second scenario: the very same letter is published in three daily newspapers.

Both scenarios seem rather different. It would make sense, then, to apply distinct free speech standards to both. They might even call for opposite solutions. Not so, says the Grand Chamber of the ECtHR in Medžlis Islamske Zajednice Brčko and Others v Bosnia and Herzegovina. In a complex judgment marked by contorted reasoning, the Court equates NGOs to the press. The Court also suggests that it ultimately does not matter all that much whether wrong factual allegations are made in private letters or disseminated publicly. Continue reading

Fürst-Pfeifer v Austria: “A one-sided, unbalanced and fundamentally unjust judgment”?

By Stijn Smet

In Fürst-Pfeifer v Austria, the majority of the Fourth Section of the ECtHR ruled that the applicant’s right to private life was outweighed by the freedom of expression of an online publication and offline newspaper. In one of the fiercest and most poignant dissenting opinions I have read to date, judges Wojtyczek and Kūris label the majority judgment as “a one-sided, unbalanced and … fundamentally unjust judgment” that “panders to prejudice” against persons, like the applicant, “with a history of mental-health problems”. In this post, I consider the majority judgment in Fürst-Pfeifer as symptomatic of a broader problem in the Court’s case law: one-sided balancing in the resolution of conflicts between human rights. I tackle this problem, along with others, in my forthcoming book Resolving Conflicts between Human Rights: The Judge’s Dilemma (Routledge, 2016).

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Grand Chamber Seeks to Clarify Balancing of Article 10 and Article 8

Today’s guest post was written by Rónán Ó Fathaigh, one of our colleagues at the Human Rights Centre. More information on Rónán can be found on the website of the Center for Journalism Studies of Ghent University, here.

The Grand Chamber of the European Court delivered two judgments recently concerning the appropriate balancing exercise where there is a conflict between the right to freedom of expression and the right to respect for private life. The judgments in Von Hannover (no. 2) v. Germany and Axel Springer v. Germany both concerned publication by newspapers of various details of well-know figures. Of the two, Axel Springer is arguably of more significance, and resulted in a divided Grand Chamber (12-5 majority) finding a violation of Article 10.   Continue reading

Anti-Gay Hate Speech: Vejdeland and Others v. Sweden

The Court has handed down a fascinating judgment on the freedom of expression. Vejdeland and others v. Sweden is the first time that the Court applies the principles relating to hate speech in the context of sexual orientation. A unanimous Court has ruled that Sweden did not violate the right to freedom of expression: the criminal conviction of the applicants for distributing leaflets that contained offensive statements about homosexuals did not breach the Convention. The judgment – which I will discuss below – is well worth reading, and so is the factsheet on hate speech that the Court has released on the occasion of this ruling. Continue reading

Competing Interests in Paternity Cases: Iyilik v. Turkey

Facts

The recent judgment of Iyilik v. Turkey concerns competing interests of an applicant and his (legal) daughter in a paternity case. The wife of the applicant, Mr. Iyilik, had given birth to a daughter in 1966. Mr. Iyilik denied being the biological father and a year later the couple divorced. Mr. Iyilik then brought proceedings to contest his paternity. Blood tests, the only available tests at the time, were taken. The results showed that Mr. Iyilik could be the father, just as any other man with the same blood type could be. The domestic courts consequently denied his request for contestation of paternity. In 2002, Mr. Iyilik submitted a new complaint, requesting reopening of the file and re-examination of his paternity in light of new scientific developments, i.e. the possibility of undergoing a DNA test. In pursuing his new claim, Mr. Iyilik relied on a specific article of the Turkish Civil Procedural Code which allowed for reopening of any civil proceedings if the impossibility to present certain pieces of evidence during the initial proceedings had constituted force majeure. The courts, however, rejected Mr. Iyilik’s request, relying on established jurisprudence of the Turkish Court of Cassation to the effect that the state of scientific progress could not reveal any force majeure.

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Absence of prior-notification requirement does not violate Article 8: Mosley v UK

Guest post by Rónán Ó Fathaigh, PhD candidate at Ghent University. For more information on Rónán, find him here.


This week the Fourth Section of the European Court delivered its much anticipated judgment in Mosley v. the United Kingdom, which unanimously held that the absence of a prior-notification requirement on newspapers to give advance notice to a person before publishing private details does not violate Article 8.

The applicant in Mosley had successfully brought legal proceedings against a British newspaper for invasion of privacy over a series of articles which detailed the applicant’s sexual encounter with a number of prostitutes. It was also alleged that the applicant had engaged in Nazi role play during the sexual encounter. The articles had been based on a clandestine recording, and the video was made available on the newspaper’s website. The domestic courts found that there had been no Nazi element to the sexual activities, and held there had been a violation of the applicant’s right to privacy, awarding £60,000 in damages.

Having been successful in the domestic proceedings, the applicant took the unusual step of making an application to the European Court. The applicant argued that the award of damages was not an adequate remedy for a violation of privacy, and that the only effective remedy would have been an injunction to prevent publication. It was argued that the failure of the United Kingdom to impose a legal duty upon newspapers to give prior-notification to a person before publishing private details was a violation of its positive obligations under Article 8. It was argued that such a duty would provide a person with the opportunity to seek an injunction to prevent publication.

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Freedom of Expression and the Right to Reputation: Human Rights in Conflict

As part of our research project I have written a paper on the conflict between freedom of expression and the right to reputation in the defamation case law of the European Court of Human Rights. The paper, based on an analysis of over 120 judgments and entitled “Freedom of Expression and the Right to Reputation: Human Rights in Conflict”, has now been published in the American University International Law Review, Vol. 26, No. 1, 183-236.

The article is available on the website of the journal. It’s free of charge, so if you are interested, get it while it’s hot! Direct link: here.

Comments on the article, below this post or via e-mail, are more than welcome!

The abstract:

Ever since the European Court of Human Rights has recognised the existence of a right to protection of reputation under the European Convention on Human Rights, a conflict between Convention rights arises in defamation cases. In such situations of conflict between human rights, their indivisibility requires that both rights carry a priori equal weight. Yet, the research conducted for this article indicates that the Court engages in preferential framing and incomplete reasoning when attempting to resolve the conflict between freedom of expression and the right to reputation in its defamation case law. In order to pre-empt such preferential framing and to improve the reasoning of the Court, the article proposes a theoretical model for the resolution of conflicts between human rights. The defamation jurisprudence of the Court is critically analysed through the lens of this model. The article demonstrates how the model might prove to be a useful tool to improve the legal reasoning of the Court in defamation cases.

Mgn Limited v. the United Kingdom: Naomi Campbell v. the Tabloid Press

Mgn Limited v. the United Kingdom concerned several articles published in 2001 in the tabloid Mirror (now Daily Mirror), revealing that supermodel Naomi Campbell was attending Narcotics Anonymous (NA) meetings in an attempt to treat her drug addiction. The articles were accompanied by several photographs, including one in which Ms. Campbell was seen standing in the street in front of a building as the central figure in a small group, dressed in jeans and wearing a baseball cap. Reportedly having just attended an NA meeting, she was being embraced by two people whose faces had been masked on the photograph. The photograph had been taken by a free-lance photographer contracted by the newspaper for that job. He took the photographs covertly while concealed some distance away in a parked car. Ms. Campbell brought proceeding against the Mirror, claiming a breach of confidentiality.

She won in front of the High Court, but its decision was unanimously reversed by the Court of Appeal. Ms. Campbell consequently brought an appeal in front of the House of Lords. The House of Lords was divided on the issue. It eventually ruled in favour of Ms. Campbell in a 3-2 judgment. All Judges essentially agreed that the publication of Ms. Campbell’s attendance of NA meetings was in the public interest, since she had previously denied taking drugs. The public thus had a right to be informed of the fact that it had been misled by Ms. Campbell. However, the majority of the House of Lords ruled that the publication of the additional information, including the photographs taken of Ms. Campbell leaving NA meetings, was not justified and had breached her privacy rights.

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Haas v. Switzerland and Assisted Suicide

The applicant in Haas v. Switzerland was a 57 years old male who suffered from a bipolar disorder since nearly 20 years. Wishing to commit suicide, Mr. Haas attempted to obtain a lethal substance (sodium pentobarbital) that was only available on medical prescription. To that end, he contacted several psychiatrists, but was not able to obtain a prescription. Mr. Haas filed applications with the domestic authorities to obtain permission to acquire the substance without prescription, but they all rejected his applications, up to the Federal Tribunal, inter alia because his case did not reveal any urgency that would justify departure from the regulatory framework.

Mr. Haas then sent a letter to 170 doctors, requesting their assistance in obtaining a prescription. None replied positively. Some answered that they were not competent to deliver such a prescription, some refused for ethical reasons and others replied that his condition was treatable.

Mr. Haas subsequently filed an application with the European Court of Human Rights, complaining of a violation of his right to respect for his private life. He argued that, due to the domestic courts’ decisions, his right to decide the moment and the manner of his death had not been respected. He maintained that, in exceptional circumstance, such as his, access to the necessary substances should be provided by the State.

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Contradictions in Defamation Cases

Before its holiday break, the European Court of Human Rights released two judgments in defamation cases, Novaya Gazeta V Voronezhe v. Russia and Sofranschi v. Moldova. Both cases concern allegations of abuse and irregularities. While both judgments contain good elements, in my opinion they also reveal faulty reasoning on the part of the Court. Most interestingly, the judgments contradict each other on some crucial points. Thus one judgment provides alternatives to the shortcomings of the other.

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A., B. and C. v. Ireland: Abortion and the Margin of Appreciation

A., B. and C. v. Ireland concerned three Irish applicants who, in their first trimester of pregnancy, had travelled to England to have an abortion because they believed they would not be allowed to have one in Ireland.

The Irish Constitution, unlike the European Convention on Human Rights, explicitly extends the right to life to the unborn foetus. Abortion is moreover prohibited under the criminal law by section 58 of the Offences Against the Person Act 1861 (“the 1861 Act”) providing as penalty “penal servitude for life”. However, this does not mean that abortion constitutes a criminal act in all circumstances in Ireland. The 1861 legislation needs to be read in light of the amended Irish Constitution, which states in Article 40.3.3: “3° The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right; This subsection shall not limit freedom to travel between the State and another state; This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.”

However, no legislation or other regulatory measures have been adopted to clarify what is meant by the “equal right to life of the mother” and in which situations there is a real and substantial risk to that right to life such as to outweigh the right to life of the unborn foetus.

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Church Sexual Abuse in Belgium: Respecting Privacy or Punishing Those Responsible?

In a previous post, Alexandra wrote about sexual abuse by members of the Church and possibly relevant case-law of the European Court of Human Rights. I will follow up on that post in this one.

The past week, the Belgian authorities have upped the ante in the fight against sexual abuse by members of the Catholic Church. An investigative judge ordered house searches in several buildings, including a cathedral, belonging to the Church. During the searches, the police looked for evidence of knowledge of – and thus, attempts to hide – the sexual abuse by the Church. They also seized the 475 personal files of victims that had reported their abuse to the so-called Commission Adriaenssens. The Commission had been set up by the Church itself as an organ of independent experts that would examine the sexual abuse by members of the Church in Belgium. Following the search and the confiscation of the files, the Commission decided to disband since it felt it could no longer fulfil its task. The President of the Commission expressed outrage over what he called a violation of the victims’ privacy. Members of the Church, going as high up as the Vatican itself, expressed similar outrage over the searches. The Vatican described these as worse than the practices during the Communist regimes. But also the victims whose files had been confiscated did not go unheard. One victim filed a complaint with the investigative authorities, claiming to be disadvantaged by their actions, in order to get insight into the files and closer involvement in the procedures. Other victims have joined together to, now that the Commission Adriaenssens has disbanded, demand a Parliamentary investigation into the crimes of sexual abuse by Church members.

The various reactions reveal that the house searches, and especially the seizure of the personal files of the victims that had stepped forward, pose difficult issues. I would divide the complaints into two different categories. The complaints of the Church and the Vatican about the manner in which the searches were conducted constitute the first category. The complaints of the Commission and the victims about the violation of the victims’ privacy constitute the second. I will discuss these in turn.

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Petrina v Romania – serious issues of interpretation and implementation of the Convention

Today, we are pleased to announce a guest post by Dragoş Bogdan* and Mihai Selegean**. Their post on the consequences of the defamation case Petrina v. Romania (14 October 2008, App. no. 78060/01) represents a welcome addition to some of our own posts on the Court’s defamation case-law. More information on the authors, who we thank warmly for their interesting contribution to our blog, can be found at the bottom of the post. Naturally, as is the case with all posts on our blog, the views expressed in the contribution reflect the personal opinion of the authors.


The Petrina Judgment raises several serious questions with respect to the interpretation and the implementation of the Convention, as follows:

–     It transforms the right of the Member States to sanction the excessive exercise of the freedom of expression (in accordance with Article 10) into an obligation to sanction (according to Article 8 ) and

–     It annihilates the margin of appreciation of the Member States as a result of the way in which it defines the conditions that give rise to the positive obligation of the States to sanction the abusive exercise of the freedom of expression (in particular the burden of proof and the factual basis)

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Political speech under threat?

In the case of Fleury v. France of 11 May 2010, the European Court of Human Rights held that the freedom of expression of a politician, member of the opposition on municipal level, had not been violated by his criminal conviction for defamation of a public official, the mayor of the municipality.

The ruling of the Court in this case baffled me. Quite frankly, I do not agree with the judgment, nor do I understand it as it does not seem to fit into the extensive protection the Court offers to political speech. In that context, it is all the more remarkable that the judgment has been ruled unanimously. I have heard people describing the section that passed this judgment, the Fifth Section, as being one of the more conservative sections of the Court. I have also heard people argue that, upon examination of the case-law of the Court, it becomes apparent that this section hardly ever finds a violation against France. Could there lie an element of truth in this strong statement? This case would surely suggest so. And if that is the case, it is unacceptable and quite damaging to a Court that is expected to offer consistency throughout its jurisprudence and is regarded by many – also inside the Court itself – as playing a vital role in the harmonization of human rights protection in Europe.

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Dutch Holocaust cartoon case: a valuable lesson for the Strasbourg Court?

This guestblog is written by our colleague Hannes Cannie*

The criminal tribunal of Utrecht (the Netherlands) has rendered an interesting judgment (22 April 2010) in a case in which an alleged discriminatory cartoon was at stake. The Dutch branch of the Arab European League (hereafter, AEL), a movement in Belgium and the Netherlands that aims to advance the interests of Arab immigrant communities, had published different cartoons on various websites. One of these showed two Jewish men who study a pile of corpses lying under a sign with ‘Auswitch’ on it. One man says: ‘I don’t think they are Jews’, while the other replies: ‘We have to get to the 6.000.000 somehow’. After a complaint was filed, the Public Prosecutor eventually decided to start criminal proceedings against AEL and its president, who designed the cartoon, grounded on Article 137c of the Dutch Criminal Act. This Article penalizes the crime of public insult of a group of human beings, amongst others because of their race or religion.

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Of Rights and Interests

On 30 March 2010 the European Court of Human Rights released its judgment in the case of Petrenco v. Moldova. The case concerned a newspaper article in which negative remarks were made about the applicant’s competence as a historian. The article further alleged that the applicant, a university professor and Chairman of the Association of Historians, had achieved his professional status due to cooperation with the Soviet secret services (KGB). The facts of the case were thus similar to those of an earlier case, Petrina v. Romania (14 October 2008, App. No. 78060/01), concerning a newspaper article alleging the involvement of the applicant with the former Romanian secret service Securitate.

In both cited cases, the person concerned instituted defamation claims at the domestic level. However, since those claims failed when it came to the assessment of the allegations of cooperation with the secret services, the applicants invoked a violation of art. 8 in front of the European Court of Human Rights.

I personally find these types of cases interesting, because they hold the possibility of offering further insight into the Court’s reasoning on the right to reputation under art. 8 and on the conflict that exists between the right to freedom of expression and the right to reputation in defamation cases.

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Some clarity in defamation case-law

On 11 February 2010, the European Court of Human Rights released an interesting judgment in an art. 10 defamation case, Fedchenko v. Russia (no. 2). The case concerned a conviction for defamation of Mr. Fedchenko, the editor of a regional newspaper, after an article had been published in his newspaper in which allegations of mismanagement were made against the Head of a regional Department of Education.

The judgment contains several interesting elements. However, here I will only discuss it in light of the standards of proof required from defendants in defamation cases. In this context, the Court traditionally makes a division between statements of fact and value judgments, the first being susceptible to proof, while the latter are not. The case-law of the Court in general is a bit sketchy in this respect. The Court has in the past sometimes demanded complete proof of factual allegations, while it at other times has found varying degrees of “a sufficient factual basis” to suffice. In Fedchenko v. Russia (no. 2), the Court sheds some light in this respect by clearly advocating the use of lenient standards of proof in certain circumstances.

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