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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