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.