The Strasbourg Court Establishes Standards on Blocking Access to Websites

Atakan Güngördü is a qualified attorney in Turkey, currently pursuing an Adv. LL.M. in European and International Human Rights Law at Leiden University.

On 23 June 2020, European Court of Human Rights (the “Strasbourg Court” or the “Court”) delivered no less than four judgments against Russia (OOO Flavus and Others v. Russia, Bulgakov v. Russia, Engels v. Russia, Vladimir Kharitonov v. Russia) all of which concern the blocking of access to websites. The Court held that Russian authorities had violated the applicants’ right to freedom of expression on the internet, as well as their right to an effective remedy in all four cases.

These four judgments come as an important victory for the protection of online free speech in Russia and set precedents for other Member States to adopt or amend internet laws in line with the Court’s standards.

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Irony in Court: Marina v. Romania

By Dr Alberto Godioli*

Introduction

Due to its inherent link with elusiveness and ambiguity, humour makes it particularly difficult to draw a line between lawful and unlawful expression. The task of assessing the harm in a joke is notoriously complicated by strategies such as exaggeration, distortion or irony, which are typical of humorous expression in its various forms (from satire to parody). The legal challenges posed by humour become apparent in several cases lodged with the ECHR either by those responsible for a controversial joke (under Article 10), or by those who felt offended by a humorous remark (under Article 8 or 9). The list of humour-related cases handled by the Strasbourg Court is by now quite extensive and diverse – including, among others, satirical paintings depicting Austrian politicians (Vereinigung Bildender Künstler v. Austria), mocking remarks about a brand of potato chips (Kuliś and Różycki v. Poland), obscene cartoons about colleagues (Aguilera Jimenez and Others v. Spain), homophobic jokes (Sousa Goucha v. Portugal) and facetious references to the lifestyle of public figures (Ernst August von Hannover v. Germany).

In short, humour is a frequent feature in Strasbourg jurisprudence regarding freedom of expression; and this is bound to become an increasingly topical issue, due to the growing impact and circulation of offensive jokes in the digital age. On the other hand, as shown by recent scholarship, the Court’s approach to humour is still relatively inconsistent and unsystematic; this is mostly due to the lack of a shared terminology and clear distinctions between different types of potentially offensive humour. In order to tackle this gap, a closer interdisciplinary dialogue is needed between humour studies and the law. My blog post aims to illustrate this point by commenting on Marina v. Romania, a recent case concerning a satirical radio show; while the general outcome of the case is convincing, the Court’s handling of humorous speech is problematic in some respects, and points to persistent flaws in the current approach. Continue reading

Defamation proceedings against Romanian MEP over anti-corruption comments violated Article 10

By Ronan Ó Fathaigh and Dirk Voorhoof

On 28 July 2020, the European Court of Human Rights held in Monica Macovei v. Romania that defamation proceedings against a sitting Member of the European Parliament violated the politician’s right to freedom of expression, under Article 10 of the European Convention on Human Rights. The Court reiterated that there is ‘little scope’ for restricting political speech, and faulted the national courts for lacking ‘convincing reasons’ for interfering with an elected official’s expression on a matter of public interest. The judgment is a strong reaffirmation of the Court’s seminal 1992 Castells v. Spain judgment, with the Court applying its strictest test – ‘closest scrutiny’ – to interferences with a politician’s freedom of expression discussing a matter of public interest. It also clarifies that allegations of corruptive practices by members of parliament need to be situated in their context, in particular when they are part of a political debate on how to prevent conflicts of interests and lack of integrity by elected officials. Continue reading

No Room for Homophobic Hate Speech Under the EHCR: Carl Jóhann Lilliendahl v. Iceland

By Giulio Fedele (University of Rome “La Sapienza”, giulio.fedele@uniroma1.it)

Hate-speech against sexual minorities has become a pressing issue for the ECHR. Online media and social platforms boosted the possibilities one has to express both personal opinions and hateful comments, thus making it harder for the Strasbourg Court to draw the line of the protection afforded by the ECHR. As it is well known, freedom of expression (Article 10 ECHR) is one of the few rights of the Convention that comes with “duties and responsibilities”, especially when such expressions conflict with “the rights of others” (Article 10 § 2). Nevertheless, the Court has constantly emphasized that the Convention protects various ideas, regardless of their power to “offend, shock or disturb”, thus requiring a certain threshold of graveness in order to lawfully restrict this right. The case commented in this post, the decision in Carl Jóhann Lilliendahl v. Iceland of May 12th 2020, communicated on June 11th 2020, provides an example of the rigid viewpoint recently adopted by the Court towards expressions that amount to homophobic hate speech, seen as falling outside the scope of Article 10. The Court struck out the application of Mr. Lilliendahl, a 74-year-old convicted for hateful online comments about homosexuality, for being manifestly ill-founded. The judgement is closely related to the case of Beizaras and Levickas v. Lithuania (judgementblog post), previously issued in January 2020, where the Court required the responding State to investigate online homophobic comments promoting violence. In this regard, the decision of the Court in Lilliendahl is of particular interest since it contributes to the development of the Court’s radical disapproval towards homophobic hate speech. It also highlights the coherent application of different principles of the Convention aiming at the protection of vulnerable groups from expression of hatred and intolerance. Continue reading

The Recent ECtHR Judgment Kövesi v. Romania. Reactions of Romanian Authorities and Implications regarding the Rule of Law

By Dragoș Călin

In the recent judgment in the case Kövesi v. Romania (application no. 3594/19) the European Court of Human Rights held, unanimously, that there had been a violation of Article 6 § 1 (right to a fair trial) and Article 10 (right to freedom of expression) of the European Convention on Human Rights regarding the former anti-corruption directorate chief prosecutor Laura Codruța Kövesi, now the first European Public Prosecutor.

In fact, in February 2018, the Minister of Justice, Mr. Tudorel Toader, proposed that Kövesi be removed from office, referring, among other things, to three Constitutional Court decisions adopted in connection with the activity of the National Anti-Corruption Directorate (DNA) and to public statements she had made. The Section for prosecutors of the Superior Council of Magistracy (SCM) refused by a majority to endorse her dismissal, largely rejecting the Minister’s criticisms of the prosecutor and finding no evidence that her management had been inadequate. In April 2018 the President of Romania, Mr. Klaus Iohannis, refused in turn to sign the dismissal decree, which prompted a complaint to the Constitutional Court (CCR) by the Prime Minister. Continue reading

ATV ZRT v. Hungary: a missed opportunity to address Hungary’s oppressive Media Act

Guest Blogger: Nina de Puy Kamp, Paralegal at Leigh Day Solicitors, London UK*

Hungary’s Media Act 2010 (the Act) garnered much criticism for its chilling effects on free speech (UN, OSCE, EU, HRW).  The Act establishes a media regulator (appointed by the ruling party) to inter alia prohibit and impose fines for ‘imbalanced coverage’ and restrict non-disclosure rights of journalistic sources. ATV ZRT v Hungary concerned sections 12(3) and (4) of the Act which prohibits media service providers from adding ‘any opinion or evaluative explanation to the political news’ without ‘distinguishing it from the news [itself]’.  In its judgement, the Court expresses concern about the legal certainty of these provisions.  Nevertheless, it veers away from ruling on the Convention-compatibility of sections 12(3) and (4) of the Act.  Instead, the Court opts for a narrow ruling, finding a violation of Article 10 on the facts without triggering much needed legislative change. Continue reading

Blog Symposium “Strasbourg Observers turns ten” (2): The Court’s subtle approach of online media platforms’ liability for user-generated content since the ‘Delfi Oracle’

Dirk Voorhoof (Human Rights Centre, Ghent University and Legal Human Academy)

On 18 June 2015, Strasbourg Observers published our blog postDelfi AS v. Estonia: Grand Chamber confirms liability of online news portal for offensive comments posted by its readers’. It situated and commented the Grand Chamber judgment of 16 June 2015 in the first case before the European Court of Human Rights on online media liability for user-generated content. In particular the application and impact of Article 10 ECHR was tested with regard to the liability of an online news portal for offensive (anonymous) comments posted by its readers below an online news article (see the Grand Chamber judgment in Delfi AS v. Estonia). The Grand Chamber, by fifteen votes to two, found the imposition of liability of the Estonian news portal justified and proportionate, in particular because the users’ comments had been extreme and had been posted in reaction to an article published by Delfi on its professionally managed news portal run on a commercial basis. The circumstance that Delfi had immediately removed the offensive content after having received notice of it, did not suffice to exempt Delfi from liability. Now this blog post, nearly five years after the final Delfi judgment, focusses on the impact of the Delfi case and gives a short overview of the further developments in the Court’s case law determining the scope of liability of internet platforms or other online intermediaries for user-generated content. Finally we refer to the initiative by the Committee of Ministers of the Council of Europe recommending the member states to respect and  apply a set of guidelines when implementing the legislative frameworks relating to internet intermediaries, including some principles guaranteeing users’ rights to freedom of expression in the online environment. Continue reading

Studio Monitori and Others v. Georgia: access to public documents must be ‘instrumental’ for the right to freedom of expression

By Dirk Voorhoof and Ronan Ó Fathaigh

In the case of Studio Monitori and Others v. Georgia the European Court of Human Rights (ECtHR) in its judgment of 30 January 2020 has confirmed that the right to freedom of expression and information as guaranteed by Article 10 of the European Convention on Human Rights (ECHR) can only be invoked in order to obtain access to public documents when a set of conditions are fulfilled. It is one of the cases following the judgment of the Grand Chamber in Magyar Helsinki Bizottság v. Hungary to test the scope and limits of the right of access to information and the applicability of Article 10 ECHR. The most important consequence of the judgment in Studio Monitori and Others is that NGOs, journalists or other public watchdogs requesting access to public documents have to motivate and clarify in their request that access to the documents they are applying for is instrumental, and even necessary, for their journalistic reporting and that the requested documents contain information of public interest. Continue reading

Magyar Kétfarkú Kutya Párt (MKKP) v. Hungary: Technology meets freedom of expression and the rule of law in an electoral context

By Dr. Petra Gyöngyi (Postdoctoral fellow at the University of Oslo, member of Judges under Stress – The Breaking Point of Judicial Institutions)

On January 20, the Grand Chamber of the European Court of Human Rights (ECtHR) rendered a final decision in the case of Magyar Kétfarkú Kutya Párt (MKKP) v Hungary. The case concerned freedom of expression as guaranteed by Article 10 ECHR in an election context – in particular the use of a mobile application made available by a political party (MKKP) where voters could share an anonymous photo of their invalid paper ballots alongside political messages as a sign of protest against a national referendum. The National Election Committee imposed a fine on MKKP, giving rise to the question of whether there has been a violation of the political party’s freedom of expression. The Grand Chamber held that the legal rules that constituted the basis for imposing a fine on MKKP were insufficiently foreseeable for the purposes of Article 10(2), did not rule out arbitrariness in its application and did not enable MKKP to regulate its conduct. As such, the Court held that there has been a violation of Article 10 of the Convention.

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Journalist and editor’s conviction for incitement to religious hatred violated Article 10

By Ronan Ó Fathaigh and Dirk Voorhoof

In Tagiyev and Huseynov v. Azerbaijan, the European Court of Human Rights unanimously held that the conviction and imprisonment of Azerbaijani journalist Rafig Nazir oglu Tagiye, and editor Samir Sadagat oglu Huseynov, for incitement to religious hatred, violated their right to freedom of expression under Article 10 ECHR. Both had spent over a year in an Azerbaijan prison, and shockingly, following his release, Tagiyev was stabbed to death in an attack in Baku while his case was pending before the European Court. Tagiyev’s wife has continued the proceedings over her husband’s conviction and imprisonment, proceedings that took more than 11 years before the European Court. Mrs. Tagiyev also has a separate case pending over her husband’s killing, claiming that the Azerbaijani government failed to protect his right to life, and that he was targeted over his journalistic activities (here). Continue reading

Spain: Does the Supreme Court judgment against Catalan leaders comply with human rights law?

By Massimo Frigo (Senior Legal Adviser of the International Commission of Jurists)

On 14 October, the Supreme Court (Tribunal Supremo) of Spain convicted 12 people in connection with their part in the organisation on 1 October 2017 of a referendum on Catalonian independence, that was conducted despite having been declared illegal by the Constitutional Court.

Nine of the twelve leaders on trial – including high-ranking Catalan government officials – were convicted, in addition to other offences of abuse of power and disobedience, of the more severe offence of sedition.

The verdict was much expected and was issued in a context charged with political tension and expectations in a country that has been polarized by very contrasting opinions on the claims of self-determination in Catalunya, the carrying out of the referendum on 1 October 2017 despite the Constitutional Court’s ruling about the lack of legitimacy of this consultation under the Constitution, and the fact that the voting process during the referendum was forcibly suppressed in many locations by the police, with credible reports of the use of unnecessary and disproportionate force in breach of Spain’s international law obligations. Continue reading

Pryanishnikov v. Russia: the production and distribution of erotic and pornographic material under Article 10 of the ECHR

Argyro Chatzinikolaou is a doctoral researcher and a member of the Law & Technology research group and the Human Rights Centre at Ghent University. She is currently working on the research project “Minors and online sexual acts: a study of legal qualifications and regulatory approaches from a children’s rights perspective”.

In Pryanishnikov v Russia, a case concerning the authorities’ refusal to grant the applicant a film reproduction license, the European Court of Human Rights (hereinafter ECtHR or Court) found a violation of the right to freedom of expression, as the only reason advanced by the domestic courts for the refusal of the relevant license had been based on mere suspicions rather than findings of fact. Moreover, the Court concluded that the authorities had failed to strike a fair balance between the right to freedom of expression and the need to protect public morals and the rights of others. Beyond the judgment itself and the finding of a violation of Article 10 of the European Convention of Human Rights (hereinafter ECHR), what merits attention is the elaborate concurring opinion delivered by Judge Pinto de Albuquerque on the regulation of pornography and the justification of restrictions of such material at a European and national level. Continue reading

Denying journalist access to asylum-seeker ‘reception centre’ in Hungary violated Article 10 ECHR

By Dirk Voorhoof and Ronan Ó Fathaigh

In Szurovecz v. Hungary, the European Court of Human Rights has held that a refusal to grant a journalist access to an asylum-seeker ‘reception centre’ in Hungary violated his right to freedom of expression under Article 10 ECHR. The ECtHR emphasised that newsgathering, including ‘first-hand’ observation by a journalist reporting on a matter of significant public interest, is an essential part of journalistic research and press freedom. The ECtHR found that the public interest in reporting from certain locations is especially relevant where the authorities’ handling of vulnerable groups is at stake, and the presence of media is a guarantee that the authorities can be held to account for their conduct. Continue reading

ECtHR engages in dangerous “triple pirouette” to find criminal prosecution for media coverage of PKK statements did not violate Article 10

By Ronan Ó Fathaigh and Dirk Voorhoof

The European Court’s Second Section recently found that criminal proceedings against the owner and the editor of a newspaper for having published statements by the leader of a terrorist organisation were justified and did not violate the right to freedom of expression. The Court in Gürbüz and Bayar v. Turkey found that the newspaper’s article with statements by the leader of the PKK, Abdullah Öcalan, contained and implied a threat of resumption of violence. In its approach and finding no violation of freedom of expression under Article 10 ECHR, the Court itself made an assessment of the context and content of the article at issue, as the Turkish courts had restricted themselves to the finding of the illegal character of reproducing the statements of the PKK-leader as such, without further evaluating the necessity of the interference in a democratic society. Continue reading

Brzeziński v. Poland: Fine over ‘false’ information during election campaign violated Article 10

By Ronan Ó Fathaigh

On 25 July 2019, the European Court of Human Rights delivered an important judgment in Brzeziński v. Poland, concerning a provision in Poland’s election law which allows a court, within 24 hours, to consider whether ‘untrue information’ has been published, and to issue an order prohibiting its further distribution. The European Court in Brzeziński unanimously held that a fine issued under the provision violated the right to freedom of expression, under Article 10 of the European Convention on Human Rights. Continue reading

Kablis v. Russia: prior restraint of online campaigning for a peaceful, but unauthorised demonstration violated Article 10 ECHR

This blogpost was written by Ronan Ó Fathaigh and Dirk Voorhoof

On 30 April 2019, in Kablis v. Russia, the European Court’s Third Section unanimously found that the blocking by Russian authorities of an activist’s social networking account and entries on his blog had breached his right to freedom of expression under Article 10 ECHR. The applicant, Grigoriy Kablis, had called for participation in a ‘people’s assembly’ at a square in Syktyvkar, the capital of the Komi Republic. However, the local authorities had already refused Kablis’ request to organise a public event at that venue, and had proposed another specially designated location for holding such public events. Apart from finding the blocking orders a breach of Article 10 ECtHR, the ECtHR also found a violation of Kablis’ right to freedom of peaceful assembly as guaranteed by Article 11 ECHR and of this right to an effective remedy under Article 13 ECHR. This blog concentrates on the blocking measures as a form of prior restraint, banning ‘illegal material’ from the Internet.

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Activist’s conviction for hooliganism over ‘obscene’ protest violated Article 10 ECHR

This blog post was written by Ronan Ó Fathaigh and Dirk Voorhoof

On 15 January 2019, the European Court’s Second Section unanimously found that an anti-corruption activist’s conviction for staging an “obscene” demonstration outside a prosecutor’s office, targeting a number of public officials, violated the activist’s freedom of expression. The Court in Mătăsaru v. the Republic of Moldova took the Moldovan courts to task for holding that Article 10 of the European Convention was not applicable to the activist’s protest, with the European Court reiterating that “expressive conduct” which shocks, offends or disturbs is fully protected under Article 10’s guarantee of freedom of expression. Continue reading

Kaboglu and Oran v. Turkey: protecting the private life of scholars, yet failing to recognize the academic freedom dimension at issue

By Sophia Sideridou (intern at the Human Rights Centre of Ghent University)

On 30 October 2018, the European Court of Human Rights held unanimously that, in the case of Kaboglu and Oran v. Turkey, there has been a violation of Article 8 of the European Convention on Human Rights. The applicants were two university professors specializing in the protection of human rights and members of the Advisory Council on Human Rights. After the release of their report addressed to the government concerning questions of minority and cultural rights in Turkey, they faced harsh criticism through newspaper articles containing threats and hate speech against them. According to the ECtHR, the domestic courts of Turkey had failed to strike a fair balance between the applicants’ right to respect for their private life (Article 8) and the freedom of the press (Article 10). In its judgment , the Court identified the failure of the domestic courts to give due weight to the applicants’ Article 8 rights, but failed to recognize the negative impact that the articles in question as well had on their freedom of expression and academic freedom. Continue reading

Academic freedom dimension overlooked in the case of Tuskia and Others v. Georgia

By Joanne Fish (University of Glasgow)

In Tuskia and Others v. Georgia (11 October 2018) the European Court of Human Rights ruled on a case concerning a protest against university reforms by a group of academics at Tbilisi State University. The applicants are nine professors, six of which were members of the Grand Academic Council, the highest representative body of the University until the Council was abolished in June 2005. The Strasbourg court ruled that their removal by the police from the rector’s office had constituted a justified interference with their right to freedom of assembly. In doing so the Court arguably did not take into account a lot of the context of the case, causing the academic freedom dimensions of the case to be significantly downplayed to the extent that it reads akin to an ordinary workplace dispute. Continue reading

E.S. v. Austria: Freedom of Expression versus Religious Feelings, the Sequel

By Stijn Smet, Assistant Professor of Constitutional Law at Hasselt University

In a recent judgment that has made headlines around the world, the ECtHR rules – not for the first time – that Austria can legitimately curb free speech to protect the religious feelings of believers. That the believers in E.S. v. Austria happened to be Muslims surely added to the international attention given to the judgment, especially the opportunistic outrage in certain outlets on the other side of the Atlantic.[1]

When I first read E.S. v. Austria, I was dumbfounded; struck by how contrived and nonsensical some of the ECtHR’s reasoning is. Then, when I read some scholarly comments on the judgment, I was puzzled; struck by how surprised some commentators were about other aspects of the Court’s reasoning. In my reading of E.S. v. Austria, the Court does not say much (or anything at all) it has not said before. Still, it’s remarkable how fervently the Court clings to a line of reasoning many had hoped to see abandoned by now. At the end of this comment, I will venture a guess as to why the Court found no violation of freedom of expression in E.S. v. Austria. Until then, I will explain why I was dumbfounded by the Court’s reasoning and puzzled by some of the commentary thereon. Continue reading

Prosecution of a publisher for ‘denigration’ of Turkey violated Article 10

This blog post was written by Ronan Ó Fathaigh

On 4 September 2018, the European Court of Human Rights delivered a unanimous judgment on Turkey’s controversial Article 301 insult law, and for the first time applied Article 46 of the European Convention, holding that amending the insult law would “constitute an appropriate form of execution” of the Court’s judgment. The Fatih Taş v. Turkey (No. 5) judgment is notable not only for its application of Article 46, but also given that it is the fifth set of criminal proceedings the Court has considered against an Istanbul-based publisher over the publication of various books and periodicals (see  Fatih Taş v. Turkey, Fatih Taş v. Turkey (No. 2), Fatih Taş v. Turkey (No. 3), and Fatih Taş v. Turkey (No. 4)). In all five judgments, including four in the past year alone, the Court has found violations of Article 10’s guarantee of freedom of expression, or Article 6 over the length of the criminal proceedings.   Continue reading

Comparing the Proposed EU Directive on Protection of Whistleblowers with the Principles of the European Court of Human Rights

By Vigjilenca Abazi (fellow at Yale Law School) and Flutura Kusari (legal advisor at the European Centre for Press and Media Freedom)

In April 2018, the European Commission put forward a much-anticipated ‘package of measures’ to strengthen whistleblower protection in the European Union. This includes a proposal for a Directive on the protection of persons reporting on breaches of Union law, which offers minimum standards of harmonization on whistleblower protection in certain fields of EU competences. After years of pro-whistleblowing campaigns by civil society and efforts by the European Parliament (EP) to induce the Commission to propose legislation, whilst the latter continuously rejected such calls, the mere fact that the Commission proposed a binding legal act is viewed as a significant progress. Whether the proposed Directive will be approved remains to be seen as it currently undergoes a lengthy process of review by the Council and the EP under the ordinary legislative procedure. Continue reading

Savva Terentyev v. Russia: criminal conviction for inciting hatred against the police violated a blogger’s freedom of expression

By Dirk Voorhoof (Human Rights Centre, Ghent University and Legal Human Academy)

In Savva Terentyev v. Russia the ECtHR has applied a very high level of free speech-protection for aggressively insulting and hostile comments about police officers, published on a weblog. The ECtHR observes that some of the wording in the blog post was offensive, insulting and virulent, but it found that the (emotional and sarcastic) comments as a whole could not be seen as inciting to hatred or violence. In contrast with the findings by the Russian authorities, the ECtHR is of the opinion that Terentyev’s blog did not pose “a clear and imminent danger” and could not be seen as stirring up “base emotions or embedded prejudices” attempting to incite hatred or violence against Russian police officers. Continue reading

Pussy Riot, the right to protest and to criticise the President, and the Patriarch: Mariya Alekhina and Others v. Russia

By Dirk Voorhoof, Human Rights Centre, Ghent University and Legal Human Academy

In its judgment of 17 July 2018 the ECtHR has found various violations of the rights of the members of the feminist punk band Pussy Riot. The ECtHR found violations under Article 3 (prohibition of inhuman or degrading treatment), Article 5 § 3 (right to liberty and security) and 6 §§ 1 and 3 (c) ECHR (right to fair trial), in relation to the conditions of their transportation and detention in the courthouse, their pre-trial detention, the treatment during the court hearings (being exposed to public view in a glass dock surrounded by armed police), and restrictions to legal assistance. Most importantly the ECtHR found the criminal prosecution and prison sentence of the Pussy Riot members a breach of their freedom of expression under Article 10 ECHR. It also found that their right to freedom of expression has been violated on account of declaring the Pussy Riot video material available on the Internet as extremist and banning it. This blog focusses on the applicants’ rights under Article 10 ECHR. Continue reading

No overbroad suppression of extremist opinions and ‘hate speech’

By Dirk Voorhoof, Human Rights Centre, Ghent University and Legal Human Academy

In its recent judgment in Stomakhin v. Russia, the European Court of Human Rights (ECtHR) launched the message to all domestic authorities to adopt a “cautious approach” in determining the scope of “hate speech” crimes and to avoid “excessive interference” with the right to freedom of expression, especially when action is taken against ‘hate speech’ or extremist opinions that are mere criticism of the government, state institutions and their policies and practices. The judgment of 9 May 2018, in which the ECtHR unanimously found a violation of Article 10 ECHR, sets an important standard: as judge Keller observed in her concurring opinion, “it is the first time that this Court has had to decide on a case which stems from the application of the Suppression of Extremist Activities Act (..), and will thus be the starting point of a body of case-law which will serve as a reference not only in future cases concerning Russia, but for all other Member States as well.” Continue reading

Resuscitating the Turkish Constitutional Court: The ECtHR’s Alpay and Altan Judgments

Written by Senem Gurol, PhD candidate at Ghent University

Introduction

After the failed coup d’etat in Turkey, critics have raised concerns about the European Court of Human Rights’ (ECtHR or the Court) ability and willingness to provide an effective remedy for the human rights violations occurred. These concerns arose from the Strasbourg Court’s recent inadmissibility decisions in the cases of Zihni, Çatal, and Köksal, which resulted in the Court sending the applicants back to exhaust the disputedly available and effective domestic remedies. Conversely, in the judgments of Şahin Alpay and Mehmet Altan, delivered on 20 March 2018, the ECtHR demonstrated a vigilant scrutiny over the protection of freedom of expression in Turkey which has deteriorated even further in recent years. These cases are also the first in which the Strasbourg Court has examined the validity of the derogation made on 21 July 2017 by Turkey under Article 15 of the Convention in relation to restrictions of other Convention rights, namely Articles 5 and 10. In this blogpost, I will focus on the ECtHR’s exercise of its subsidiarity role in the given cases and its impact on the functioning of the domestic remedies in Turkey. Continue reading

Conviction for performance-art protest at war memorial did not violate Article 10

By Ronan Ó Fathaigh and Dirk Voorhoof

The European Court’s Fourth Section has held, by four votes to three, that a protestor’s conviction, including a suspended three-year prison sentence, for frying eggs over the flame of a war memorial, did not violate the protestor’s freedom of expression. The judgment in Sinkova v. Ukraine prompted a notable dissent, which highlighted “inconsistency” with the Court’s prior case law, and a disregard for the principle that criminal penalties are likely to have a “chilling effect on satirical forms of expression relating to topical issues.” Continue reading

The right of journalistic newsgathering during demonstrations

By Dirk Voorhoof and Daniel Simons

In a case about a Ukrainian journalist being arrested during an anti-globalisation protest in Russia, the European Court of Human Rights (ECtHR) in Butkevich v. Russia (13 February 2018) has clarified that the gathering of information is an essential preparatory step in journalism and an inherent, protected part of press freedom. The ECtHR found that the arrest, prosecution and conviction of the journalist had violated his right to freedom of expression under Article 10 of the European Convention of Human Rights (ECHR). The ECtHR also found violations of Article 5 § 1 (right to liberty) and of Article 6 § 1 (right to a fair trial). This blog focuses on the aspects of journalism and freedom of expression under Article 10 ECHR, and in relation to the right of peaceful demonstration under Article 11 ECHR. The judgment offers important support to journalists covering public events, demonstrations and police actions, especially after the disappointing outcome in the case of Pentikäinen v. Finland. Continue reading

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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The European Court & Defamation of the Dead: searching for clarity

By Jonathan McCully (Media Legal Defence Initiative / Columbia Global Freedom of Expression)

On 28 November 2017, in MAC TV v. Slovakia, the European Court of Human Rights (European Court) found a violation of the right to freedom of expression under Article 10 of the Convention where the Broadcasting Council of Slovakia had fined a television programme for showing a lack of respect to the dignity of the President of Poland following his death in a tragic plane accident. The case is one of the few where the European Court has considered the human rights implications of controversial stories following the death of an individual. However, it leaves much to be desired in terms of clarifying the status of “defamation of the dead” laws under the Convention. Continue reading

Tamiz v. UK: Google’s blog-publishing service is not liable for offensive comments

This guest post was written by Ingrida Milkaite (Ghent University)*

On 12 October 2017 the European Court of Human Rights (the Court, the ECtHR) decided on the liability of Google Inc. as an information society service provider for offensive comments posted below a blog post about Mr Payam Tamiz. His application filed under article 8 of the European Convention on Human Rights (ECHR, the Convention) was declared inadmissible.

Background and facts Continue reading

Robust protection of journalistic sources remains a basic condition for press freedom

By Dirk Voorhoof, Human Rights Center UGent, Legal Human Academy and member of the European Center for Press and Media Freedom (ECPMF)

In the judgment in the case Becker v. Norway the ECtHR showed once more its concern about the importance of the protection of journalistic sources for press freedom and investigative journalism in particular. The ECtHR emphasised that a journalist’s protection under Article 10 ECHR cannot automatically be removed by virtue of a source’s own conduct, and that source protection applies also when a source’s identity is known. The judgment has been welcomed by the European Federation of Journalists (EFJ), as it is perceived “to strengthen the protection of journalistic sources as one of the basic conditions for media freedom”. The EFJ also calls on states “to adopt legislation with the purpose of implementing journalists’ right to protect their sources, following international standards” and strongly calls for a broad and effective protection of whistleblowers. Continue reading

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

Bayev and Others v. Russia: on Judge Dedov’s outrageously homophobic dissent

Earlier this week, we published a blog post by Pieter Cannoot and Claire Poppelwell-Scevak on the judgment of Bayev and Others v. Russia in which the Court held that Russia’s so-called gay propaganda law violated the European Convention. In this blog post, I will not further dwell upon the outcome of the case or the reasoning by the majority. However, it is necessary to highlight and protest against the dissenting opinion by Judge Dedov. In his dissent, the Russian judge has crossed a line by making outrageously homophobic statements that are unworthy of a judge at the European Court of Human Rights. Continue reading

ECtHR finds Russia’s gay propaganda law discriminatory in strong-worded judgment

By Pieter Cannoot, PhD researcher, Human Rights Centre (Ghent University) and Claire Poppelwell-Scevak, FWO Research Fellow, Human Rights Centre (Ghent University)

On 20 June 2017, the European Court of Human Rights issued a particularly strong-worded judgment in the case of Bayev and Others v. Russia. The Court not only found Russia’s legislative prohibition of the ‘promotion of homosexuality’ among minors to be a violation of Article 10 and Articles 10 j. 14 ECHR, but also did so in a well-reasoned, straightforward judgment that easily set aside every argument by the Russian Government. The boldness of the judgment for the protection of LGB rights heavily contrasts with the dissenting opinion of Judge Dedov, whose inexcusable assimilation of homosexual persons with child abusers is a black mark on the Strasbourg Court. Continue reading

No journalism exception for massive exposure of personal taxation data

By Dirk Voorhoof, Ghent University, Human Rights Centre.

 After long proceedings at national level, after a preliminary ruling by the EU Court of Justice on 16 December 2008 (Case C-73/07), and after the European Court of Human Rights Chamber judgment of 21 July 2015, the Grand Chamber of the ECtHR on 27 June 2017 finally found no violation of the right to freedom of expression and information in Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland. In essence the case concerns the mass collection, processing and publication of personal taxation data which were publicly accessible in Finland. The combination of a narrow interpretation of (public interest) journalism with a wide margin of appreciation for the domestic authorities led to the finding of a non-violation of Article 10 ECHR. Continue reading

Independent Newspapers v. Ireland: €1.25 million defamation award against newspaper violated Article 10

The European Court’s Fifth Section has unanimously held that a damages award made against an Irish newspaper for defamation violated the right to freedom of expression, under Article 10 of the European Convention. While the judgment in Independent Newspapers v. Ireland concerned Irish defamation law prior to reforms brought about in 2009, it is still significant for signalling to Irish courts that unpredictably high damages have a “chilling effect,” and require the “most careful scrutiny” and “very strong justification.” Continue reading

Orloskaya iskra v. Russia: Reporting in media during election campaign must be free from content restrictions

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. Continue reading

Pihl v. Sweden: non-profit blog operator is not liable for defamatory users’ comments in case of prompt removal upon notice

by Dirk Voorhoof

In its decision of 9 March 2017 in Rolf Anders Daniel Pihl v. Sweden, the ECtHR has clarified the limited liability of operators of websites or online platforms containing defamatory user-generated content. The Court’s decision is also to be situated in the current discussion on how to  prevent or react on  “fake news”, and the policy to involve online platforms in terms of liability for posting such messages. Although the Court’s ruling expresses concerns about imposing liability on internet intermediaries that would amount to requiring excessive and impractical forethought capable of undermining the right to impart information via internet, the decision in Pihl v. Sweden itself guarantees only minimal protection for the rights of internet intermediaries and users’ rights.

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Selmani and Ors v. FYROM: influential judgment on press galleries and parliamentary reporting

Guest post by Jonathan McCully, Legal officer at the Media Legal Defence Initiative, which supported the case, and Editor of Columbia Global Freedom of Expression

On 9 February 2017, the European Court of Human Rights handed down an important judgment in Selmani and Ors v. The Former Yugoslav Republic of Macedonia (Application No. 67259/14), a case that considers the forcible removal of journalists from a parliamentary press gallery. The Court’s finding that the removal was a violation of the right to freedom of expression is a valuable pronouncement in a global context where a number of states have used similar measures to suppress reporting on parliamentary affairs.

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Karapetyan and Others v. Armenia: Senior Civil Servants as Defenders of Democracy or as Lackeys of the Executive?

By Stijn Smet

A few weeks ago, a Section of the European Court of Human Rights ruled that the Armenian government had not exceeded its margin of appreciation by summarily dismissing senior civil servants who had voiced critical remarks on the democratic nature of the 2008 presidential elections in Armenia. The Court’s view on the need for a ‘politically neutral body of civil servants’ in its Karapetyan and Others v. Armenia judgment is worrying. It risks demoting senior civil servants to mere lackeys of the executive, impeding them from playing a potentially vital role in defending democracy and the rule of law.

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Magyar Helsinki Bizottság v Hungary: a (limited) right of access to information under article 10 ECHR

Guest post by M. Schaap-Rubio Imbers, PhD Candidate international public law, Erasmus School of Law  

On the 8th of November 2016, the ECtHR’s Grand Chamber delivered its judgment in Magyar Helsinki Bizottság v Hungary. The applicant NGO (Magyar Helsinki Bizottság) complained that the refusal of police departments to disclose information on the appointment of public defenders upon their request represented a breach of its rights as set out in article 10 ECHR. The Court held by fifteen votes to two that there has indeed been a violation of article 10. This judgment is the latest ruling on access to public interest information, and as such a very welcome elaboration of the Court’s position on the right of access to public interest information under article 10 ECHR.

Considering that others have already provided a good overview of the background and what is at stake in this judgement (here) and provided a general discussion of the case at hand (here), in this contribution I will focus particularly on the criteria established by the Court for access to public interest information under article 10 ECHR.

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Polish mayor’s private prosecution of local journalist for insult violated Article 10: Ziembiński v. Poland (No. 2)

By Ronan Ó Fathaigh

The European Court’s Fourth Section has held in Ziembiński v. Poland (No. 2) that a newspaper editor’s conviction for describing local government officials as “dim-witted” and a “numbskull” violated the editor’s Article 10 right to freedom of expression. The judgment may prove decisive for future prosecutions of journalists under article 216(2) of Poland’s criminal code, which makes it a specific offence to “insult” a person “through the mass media,” and carries a possible one-year prison sentence. Tragically, however, the editor, Maciej Ziembiński, passed away two years ago aged 70, and did not live to see the Court’s finding that his conviction violated the European Convention.

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Kurski v. Poland: Ordering politician to publish apology for defaming Polish newspaper violated Article 10

By Ronan Ó Fathaigh

The European Court’s Fourth Section has held that a successful civil action by a newspaper against a Polish politician for alleging the newspaper had an “agreement” with an oil corporation to finance the newspaper’s “mass propaganda” against his political party, violated the politician’s freedom of expression. The opinion in Kurski v. Poland dealt with the unusual, but not rare, situation when a newspaper launches defamation proceedings against a politician for damaging its reputation, and the broader issue of ordering publication of apologies.

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Baka v. Hungary: judicial independence at risk in Hungary’s new constitutional reality

By Pieter Cannoot, academic assistant and doctoral researcher of constitutional law (Ghent University)

On 23 June 2016 the Grand Chamber of the European Court of Human Rights held that Hungary violated the right of access to a court (article 6, §1 ECHR) and the freedom of expression (article 10 ECHR) of András Baka, the former President of the Hungarian Supreme Court (now: Kúria). Several constitutional and legislative reforms led to the early termination of Mr. Baka’s mandate, expelling the critical judge from the highest office in the Hungarian judiciary, without providing any possibility for judicial review. The judgement is only the latest episode in a series of worldwide condemnations of Hungary’s new constitutional and human rights reality.

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European Court upholds criminal conviction for purchasing illegal firearm as a form of ‘check it out’ journalism in Salihu ao v. Sweden

By Dirk Voorhoof and Daniel Simons

Investigative journalism sometimes operates at the limits of the law. This is especially true of what could be called ‘check it out’ journalism: reporting in which a journalist tests how effective a law or procedure is by attempting to circumvent it. A recent decision shows that those who commit (minor) offences during this type of newsgathering activity cannot count on (major) support from the European Court of Human Rights (ECtHR). Journalists of the Swedish newspaper Expressen had undertaken to demonstrate the easy availability of illegal firearms by purchasing one. The Swedish courts were of the opinion that the editor and the journalists could not be exempted from criminal liability as they had wilfully breached the Swedish Weapons Act. In a unanimous decision, the ECtHR confirmed the necessity of the journalists’ criminal conviction. It declared the application for alleged breach of the right of journalistic newsgathering under Article 10 of the Convention manifestly ill-founded. Coming after the Grand Chamber’s judgment in Pentikäinen v. Finland (see our blog here) and in Bédat v. Switzerland (see our blog here), the decision in Salihu and others v. Sweden can be perceived as a new step in downsizing the rights of journalists with regard to their newsgathering activities. The Court’s ruling may also have a chilling effect on undercover investigative reporting.

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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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One man banned: Russia’s treatment of solo protests scrutinised in Novikova v Russia

by Daniel Simons and Dirk Voorhoof

One-person protests are the only kind of demonstration Russian citizens are permitted to hold without giving prior notice to the authorities. The unanimous judgment in Novikova and others v. Russia stops short of questioning this low threshold, but finds Russia in violation of Article 10 over its excessive zeal in enforcing the notification requirement through arrests and fines.

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The Grand Chamber strikes again by finding no violation in freedom of expression case Bédat v. Switzerland

By Dirk Voorhoof

It is common knowledge among “Strasbourg observers” that the Grand Chamber of the European Court of Human Rights does not have the best reputation of late in relation to the freedom of expression. In Palomo Sánchez v. Spain, Animal Defenders International v. United Kingdom, Mouvement Raeliën Suisse v. Switzerland, Delfi AS v. Estonia and Pentikäinen v. Finland, the Grand Chamber’s findings of no violation of Article 10 were highly controversial (see the posts on this blog, linked under each case). On 29 March 2016 the Grand Chamber added a new judgment to the list: Bédat v. Switzerland. With 15 votes to 2, the Grand Chamber overruled the Chamber’s earlier finding of a violation of Article 10.

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Insulting a politician right after her death: Does the ECHR protect the reputation of the deceased?

By Valeska David

At the end of 2014, when deciding on the admissibility of a case brought by Stalin’s grandson, who sued a newspaper and the author of an article for defamation of his grandfather, the ECtHR stated that the heir of a deceased person could not claim a violation of the latter’s article 8’s rights since they are non-transferable.[1] Less than two years later, however, the recent judgment in Genner v. Austria (Application no. 55495/08) seems to cast a shadow of doubt on that principle. Furthermore, this judgment brings about interesting questions on what can and cannot be said about a public figure who has just passed away. Before turning to these questions, let’s first examine the facts of the case.

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