Journalist must comply with police order to disperse while covering demonstration

By Dirk Voorhoof *

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Recently, the Council of Europe Task Force for Freedom of Expression and Media published a book under the title “Journalism at risk. Threats, challenges and perspectives”. Since a Grand Chamber judgment of the European Court of Human Rights of 20 October 2015, a new threat for journalistic freedom has obviously emerged, that is the risk for journalists to be detained, prosecuted and convicted for disobeying a police order while covering a public demonstration. At least, that is the consequence of the judgment in the case of Pentikäinen v. Finland.

The Grand Chamber concludes that the interference with a press photographer’s right to freedom of expression and newsgathering because of disobeying a police order to leave the scene of a demonstration that had turned into a riot, can be said to have been “necessary in a democratic society” within the meaning of Article 10 of the Convention. At an earlier stage in this procedure the Chamber of the fourth section, with five votes to two, had come to the same conclusion (see our blogs in March 2014, here and here).

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Criminal conviction for denying the Armenian genocide in breach with freedom of expression, Grand Chamber confirms

By Dirk Voorhoof *
 

fsdgOn 17 December 2013 the European Court of Human Rights had ruled by five votes to two that Switzerland had violated the right to freedom of expression by convicting Doğu Perinçek, chairman of the Turkish Workers’ Party, for publicly denying the existence of the genocide against the Armenian people (see our blogs on Strasbourg Observers and ECHR-Blog, 7 and 8 January 2014). The Grand Chamber has now, on 15 October 2015, in a 128 page judgment, confirmed, by ten votes to seven, the finding of a violation of Article 10 ECHR.

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ECtHR accepts strict application of data protection law and narrow interpretation of journalistic activity in Finland

By Dirk Voorhoof, Ghent University

After proceedings at the national level during eight years, and after a preliminary ruling by the EU Court of Justice in Luxembourg on 16 December 2008 (Case C-73/07), the European Court of Human Rights (Fourth section) in Strasbourg has delivered a controversial judgment in the domain of protection of personal data and data journalism. In Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland, the Court comes to the conclusion that a prohibition issued by the Finnish Data Protection Board that prohibited two media companies (further: Satamedia) from publishing personal data in the manner and to the extent they had published these data before, is to be considered as a legal, legitimate and necessary interference with the applicants’ right to freedom of expression and information.

The European Court agrees with the Finnish authorities that the applicants could not rely on the exception of journalistic activities within the law of protection of personal data. In finding no violation of the right to freedom of expression and information, the Court not only accepts a restrictive interpretation of the notion of journalistic activity, it also reduces drastically the impact of the right to information of public interest.

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Delfi AS v. Estonia: Grand Chamber confirms liability of online news portal for offensive comments posted by its readers

By Dirk Voorhoof, Ghent University

On 16 June 2015 the Grand Chamber of the European Court of Human Rights has delivered the long awaited final judgment in the case of Delfi AS v. Estonia, deciding on the liability of an online news portal for the offensive comments posted by its readers below one of its online news articles. The Grand Chamber has come to the conclusion that the Estonian courts’ finding of liability against Delfi had been a justified and proportionate restriction on the news portal’s freedom of expression, in particular because the comments in question 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. Furthermore the steps taken by Delfi to remove the offensive comments without delay after their publication had been insufficient and the 320 euro award of damages that Delfi was obliged to pay to the plaintiff was by no means excessive for Delfi, one of the largest internet portals in Estonia.

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“A great victory for the whole legal profession”

by Inger Høedt-Rasmussen (Copenhagen University) and Dirk Voorhoof (Ghent University)

The Grand Chamber in its judgment of 23 April 2015 in the case of Morice v. France has overruled an earlier finding of non-violation of the right to freedom of expression of a lawyer (Chamber judgment Fifth Section, 11 July 2013). The Grand Chamber found that the applicant lawyer in the newspaper Le Monde had expressed value judgments with a sufficient factual basis and that his remarks concerning a matter of public interest had not exceeded the limits of the right to freedom of expression. Therefore it considered the lawyer’s conviction for defamation of two investigative judges as a breach of Article 10 of the Convention. The Grand Chamber’s judgment defines in an interesting way the role and responsibilities of lawyers in relation to society and in relation to their clients and to the administration of justice. It emphasises that lawyers, although being in a role that differs from the role of journalists, should be able to draw the public’s attention to potential shortcomings in the justice system. In a first reaction in Le Monde, Morice (the applicant) called the judgment “une grande victoire pour l’ensemble de la profession des avocats”.

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EU Review Wrongly and Superficially Applies ECtHR Precedent on Whistleblowing

By Flutura Kusari

The report drawn up by law professor Jean Paul Jacqué that reviews EULEX’s handling of the whistleblowing case of Maria Bamieh (briefly explained below) reveals that European Union institution employees reporting irregularities do not enjoy protection under the right to freedom of expression. The expert’s narrow and wrong interpretation of whistleblowing protection could discourage other EU employees from voicing their concerns on matters of public interest. Continue reading

Can the right to freedom of expression justify the reporting about Monaco’s reigning monarch’s illegitimate child?

By Dirk Voorhoof

Today, the Grand Chamber of the ECtHR held a hearing in the case of Couderc and Hachette Filipacchi Associés v. France (App. no. 40454/07). The hearing is webcasted and can be viewed on the Court’s website, here. The case concerns the right of privacy and reputation of Monaco’s reigning monarch conflicting with the right to freedom of expression of the French magazine Paris-Match.

Years after French, German and English media revealed that Monaco’s reigning monarch, Prince Albert II, had a child born outside marriage, the European Court needs to decide now whether the measures taken against the French magazine Paris-Match are to be considered interferences violating the right to freedom of expression. The case started when the child’s mother, Ms C, gave interviews to the media saying that she was living in the prince’s Paris apartment and that she received an allowance from him, as being the mother of his illegitimate child. French, German and English media published the interviews along with photographs showing the child as well as Prince Albert. He sued Paris-Match for invasion of privacy, and the French courts considered that the article and the accompanying pictures in Paris-Match came within the most intimate sphere of the Prince’s emotional and family life and were not apt to be the subject of any debate of general interest. According to the French courts the article and pictures in Paris-Match had caused irreversible damage to the Prince, as the fact that he was the child’s father, which had remained secret until publication of the article, had suddenly become public knowledge, against his wishes. Prince Albert II was awarded 50,000 euros (EUR) in damages and Paris-Match was ordered to print details of the judgment on its front cover. In the meantime the Prince had issued a statement in which he publicly acknowledged that the child was his.

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Response to comment on Rubins v. Latvia: adjudication is not erroneous at all

By Dirk Voorhoof, Ghent University

I disagree with the analysis of and the comments on the Rubins v. Latvia judgment by Elena Sychenko, posted on 13 April 2015 on Strasbourg Observers, finding that the judgment is an example of an erroneous adjudication and is granting protection to blackmailing. I consider the judgment a well balanced and transparently motivated example of scrutinizing by the ECtHR of a disproportionate interference with the right to freedom of expression of an employee, in this case of a university professor expressing sharp criticism on the employer’s policy and management.

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Rubins v. Latvia: Does Article 10 ECHR Protect Blackmailers?

This guest blog post was written by Elena Sychenko, Ph.D. student at the University of Catania, Law Faculty, Labour Law Department.

The recent case of Rubins v. Latvia has received much attention from lawyers. Commentators assumed that the Court established a protection of employees not covered by whistle-blowing provisions[1]  and believed that the Court contributed one more time to the protection of democratic values.[2] However, it will be argued that the Rubins judgment is not in line with famous whistle-blowing cases[3] but provides an example of erroneous adjudication and grants protection to blackmailing.

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ECtHR Vindicates Hidden Camera’s Role in Watchdog Journalism

This guest post was written by Flutura Kusari, Ph.D. researcher at the Human Rights Centre of Ghent University, and Nani Jansen, Legal Director of the Media Legal Defence Initiative.

Haldimann and Others v. Switzerland, a decision of the European Court of Human Rights (the “ECtHR”) published on 24 February 2015, backed the investigative methods of four Swiss journalists who had used hidden cameras to expose the malpractice of insurance brokers. The ECtHR found by a majority decision that the journalists’ criminal conviction by the domestic courts and an order to pay a number of small fines violated their right to freedom of expression as guaranteed by Article 10 of the European Convention of Human Rights. It was the first time the ECtHR examined the use of hidden cameras by journalists in a case where the person filmed was targeted as a representative of a particular profession rather than in a personal capacity.

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The Fourth Section’s Curious Take on Article 10 in Petropavlovskis v. Latvia: Two Comments

This guest post was written by Corina Heri, Ph.D. researcher at the University of Zürich, Switzerland, and visiting researcher at the Human Rights Centre, Ghent University[1]

In its recent judgment in Petropavlovskis v. Latvia, the European Court of Human Rights considered whether the domestic authorities’ refusal to naturalize a government-critical activist constituted a punitive measure in violation of that individual’s rights to freedom of expression (Article 10 ECHR) and freedom of assembly and association (Article 11 ECHR). The present post will comment on two aspects of the Court’s reasoning regarding Article 10 ECHR. In evaluating the applicability of that provision, the Chamber focused on whether the applicant has a right to acquire Latvian nationality and whether he was prevented from voicing his opinions. These emphases of the judgment mean that the matter at the heart of the case, namely whether the applicant was penalized for expressing his opinions, was not addressed.

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Announcement: Event on Whistleblowing in Europe

We are proud to announce – on very short notice – an exciting event on whistleblowing in Europe, organized in Ghent by our Human Rights Centre colleagues Dirk Voorhoof and Flutura Kusari. The event links in neatly with Dirk Voorhoof’s recent post on this blog on the ECtHR judgment of Matúz v. Hungary. Below, you can find a short description of the event. For more information, including the programme and instructions regarding registration (free, but mandatory), please visit the Human Rights Centre’s website here.

The Human Rights Centre and the Centre for Journalism Studies of Ghent University are organising an event entitled “Whistleblowing in Europe: The Case of EULEX and Maria Bamieh.” The event will take place on Tuesday 2 December 2014 at 7 pm in Auditorium NB1, Law Faculty, Universiteitstraat 4, 9000 Ghent.

Background: The European Union Rule of Law Mission in Kosovo (EULEX) is the biggest international mission of the EU, with more than 1,600 staff members and an annual budget of more than 100 million Euros. In her function of public prosecutor for EULEX, Maria Bamieh filed several internal official requests to start an investigation against two of her colleagues suspected of taking bribes to shut down criminal cases. However, no actions were taken by EULEX. Instead, in October 2014 Ms. Bamieh was suspended for “leaking” documents to a local newspaper in Kosovo and a formal investigation was launched against her. Ms. Bamieh  is coming to Ghent University to tell her story as a whistleblower.

At the event, Ms. Maria Bamieh will give a keynote lecture: ‘A whistleblower’s story from Kosovo: a new challenge for Europe’. The lecture will be preceded by introductions by Professor Dirk Voorhoof and Ms. Flutura Kusari.

Whistleblower Protection for Journalist Who Alarmed Public Opinion about Censorship on TV

by Dirk Voorhoof (UGent)

A recent judgment of the European Court of Human Rights once more illustrates the need for strict scrutiny by the Strasbourg Court in order to keep up the standards of media freedom and the right of freedom of expression and information in European pluralistic democracies. In the judgment of Matúz v. Hungary the European Court confirms the importance of whistleblower protection, in casu for a journalist who alarmed public opinion about censorship within the public broadcasting organisation in Hungary.

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The Dangerous Implications of the “Naked Rambler” Case: On FEMEN Activists and Throwing Paint on Atatürk Statues

By Stijn Smet

On 28 October 2014, the European Court of Human Rights ruled that the numerous convictions of Mr. Stephen Peter Gough – better known as “the naked rambler” – for insisting on appearing naked in public at all times, did not violate Mr. Gough’s freedom of expression.

Quite a bit of ink has already been dedicated to Mr. Gough’s case and to explaining why the ECtHR judgment warrants criticism. Particularly worth highlighting are the insightful contributions by Hugh Tomlinson over at Inforrm’s Blog and Marko Milanovic on EJIL: Talk!. Here, I will not regurgitate their poignant critiques. Instead, I set out to question a few specifically troubling passages in the Court’s judgment by indicating the dangerous implications they could have for other, analogous situations.

But first, as tradition dictates, I will briefly summarise the facts of the case and highlight the relevant passages of the Court’s judgment.

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Imposing Costs on Newspaper in Successful Source-Protection Case Did Not Violate Article 10

By Ronan Ó Fathaigh

In the summer of 2009, the Irish supreme court issued a landmark opinion, overturning an order issued against a newspaper to answer questions about a leaked document it had received from an anonymous source. However, four months later, the same supreme court ruled that the newspaper was required to pay the legal costs of the government-created body that had sought the order, because the newspaper had destroyed its copy of the leaked document before the legal action had commenced. In a surprising majority opinion, the Fifth Section of the European Court has now ruled in Keena v Ireland, that the imposition of costs on the newspaper, even though its action was successful, was not a violation of Article 10.

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Conviction of journalist for reporting about sex abuses in a Christian rehabilitation centre violated Article 10 ECHR

By Flutura Kusari * and Dirk Voorhoof **

In Erla Hlynsdottir v. Iceland (no. 2), an Icelandic journalist had been convicted for defamation after reporting that the director of a Christian rehabilitation centre and his wife had been involved in sex games with patients of the centre. The European Court of Human Rights found a violation of Article 10 of European Convention on Human Rights, arguing that the national courts did not pertinently balance the right to freedom of expression with the right to reputation. According to the Court “the most careful scrutiny” is called for when the measures taken by national authorities are capable of discouraging the participation of the press in debates over matters of legitimate public concern. The Court also refers to “the essential function the press fulfils in a democratic society” as a central factor for its determination in the present case.

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German Court Injunction Banning Political Leaflet Violated Article 10: Brosa v. Germany

This guest post was written by Ronan Ó Fathaigh* and Dirk Voorhoof**

In a victory for free expression, the European Court has ruled that a court-imposed injunction banning a political activist from distributing leaflets targeting a political candidate violated Article 10 of the European Convention. The Court in Brosa v. Germany criticised the German courts for refusing to hold that the leaflet was a fair comment on a matter of public interest, as the threshold for proving fair comment was “disproportionately high.” Continue reading

If you can’t stand the heat, don’t turn up the oven: Strasbourg Court expands tolerance for criticism of xenophobia to criticism of homophobia

This post was written by Sander Steendam, Ph.D. Researcher at the Human Rights Centre of Ghent University. Sander works on the IAP project ‘The Global Challenge of Human Rights Integration: Towards a Users’ Perspective’. In his research, Sander focuses on LGBT rights.

On the 17th of April 2014, the European Court of Human Rights issued a judgement in the case of Mladina v. Slovenia. In this case, the Court further develops its standing case law on “public statements susceptible to criticism”. When assessing defamation cases, the Court has in the past found that authors of such statements should show greater resilience when offensive statements are in turn addressed to them.

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Human Rights Centre Supports Request for Referral to the Grand Chamber in Delfi AS v. Estonia

The Human Rights Centre of Ghent University has expressed its support for the request for referral to the Grand Chamber in the freedom of expression case of Delfi AS v. Estonia. The Human Rights Centre has submitted its considerations in a joint letter to the European Court of Human Rights, signed by an impressive list of 69 media organisations, internet companies, human rights groups and academic institutions.

As indicated in the joint letter to the Court

The [Delfi] case involves the liability of an online news portal for third-party defamatory comments posted by readers on the portal’s website, below a news item. A unanimous chamber of the First Section found no violation of Article 10, even though the news piece itself was found to be balanced and contained no offensive language. The portal acted quickly to remove the defamatory comments as soon as it received a complaint from the affected person, the manager of a large private company.

A few excerpts from the letter to the Court are reproduced below. The full text of the letter can be found here. The full text of the referral request is available here. Finally, a critical post on the Chamber judgment in Delfi AS v. Estoina – written for Strasbourg Observers by Professor Dirk Voorhoof – can be found here.

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Criminal conviction for denying the existence of the Armenian “genocide” violates freedom of expression

This guest post was written by Dirk Voorhoof*. The post is a shortened version of an original contribution by the same author, which first appeared on the ECHR Blog. It is reproduced here, in shortened version, with permission and thanks.

In Perinçek v. Switzerland, the European Court of Human Rights ruled on 17 December 2013, by five votes to two, that Switzerland had violated Doğu Perinçek’s right to freedom of expression by convicting him for publicly denying the existence of a genocide against the Armenian people. On several occasions, Perinçek – at the time chairman of the Turkish Workers’ Party – had described the Armenian genocide as “an international lie”. He had particularly insisted that whatever massacres had taken place did not meet the definition of genocide under international law.

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The press and NGOs’ right of access to official documents under strict scrutiny of the European Court of Human Rights

By Dirk Voorhoof* and Rónán Ó Fathaigh**, Ghent University

In its judgment of 28 November 2013 in the case of Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirt­schaftlichen Grundbesitzes v. Austria (OVESSG) the European Court of Human Rights has further clarified and expanded the scope of application of Article 10 of the Convention with regard to the right of access to public documents.  The judgment is especially supportive for requests by journalists and NGOs to have access to official documents.

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Ricci v. Italy: Less Restrictive Alternatives in Exercising Freedom of Expression?

On 8 October 2013, the European Court of Human Rights released its judgment in the case of Ricci v. Italy. The case concerned a broadcast by the satirical television programme Striscia la notizia (on Canale 5), which aired an intercepted episode of another television programme, normally broadcast on the public network RAI. The applicant in Ricci is the producer of the programme. In its judgment, the Court ruled that the domestic authorities – which had sentenced the applicant to four months imprisonment – had imposed a disproportionate sanction on her. However, the Court also ruled that the applicant had acted in contravention of the ethics of journalism by disseminating confidential communications and that, therefore, her condemnation as such did not violate art. 10 ECHR. It was only because of the imposition of an excessive – criminal – sanction that her freedom of expression had been violated. The Court’s judgment is particularly interesting, because it continues the recent trend of chastising applicants for the means they have chosen to exercise their freedom of expression, thereby seemingly imposing a less restrictive alternative requirement upon them.

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Qualification of news portal as publisher of users’ comment may have far-reaching consequences for online freedom of expression: Delfi AS v. Estonia

This guest post was written by Dirk Voorhoof*

The European Court’s judgment of 10 October 2013 in Delfi AS v. Estonia has caused a lot of controversy in the world of online media, news portals, internet-groups and freedom of expression websites. Especially the criticism by Article 19, Index on Censorship and The Guardian (amongst others, also here, here, here and here) initiated a robust debate. The judgment has been qualified as a “serious blow to freedom of expression online”, ignoring the relevant international standards on the limited liability of host-providers. The Court’s judgment dealing with a crucial issue of freedom of expression on the internet has promptly been integrated in the updated fact sheet of the European Court’s case law on New Technologies. But at the same time it has been very negatively welcomed as it should “worry all websites allowing users to comment below online articles” and “send a shiver of fear down any website operator’s spine”. Also at the Internet Governance Forum held in Bali (Indonesia, 21-25 October 2013) the judgment’s possible impact on pre-monitoring user generated content and on the erosion of the limited liability of internet intermediaries was vigorously debated. What’s all the fuss about?

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Article 10 of the Convention includes the right of access to data held by an intelligence agency

This post is written by Dirk Voorhoof, Ghent University.*

In its judgment of 25 June 2013 in the case of Youth Initiative for Human Rights v. Serbia the European Court of Human Rights has recognised more explicitly than ever before the right of access to documents held by public authorities, based on Article 10 of the Convention (right to freedom of expression and information). The judgment also recognises the importance of NGOs acting in the public interest. The judgment contains a particularly important statement by the Court unambiguously reaffirming that in Europe security services and intelligence agencies are to respect the European Convention of Human Rights. The Court ordered the information held by the Serbian Intelligence Agency to be made accessible for the applicant NGO.

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ECtHR Really Applies Less Restrictive Alternative: Saint-Paul Luxembourg S.A. v. Luxembourg

The structured proportionality test, as utilised by the German Constitutional Court (among others) and championed by Robert Alexy and his followers, subjects limitations of fundamental rights to a three-pronged test. The test is intended to examine – step by step – a measure’s (i) suitability, (ii) necessity and (iii) proportionality stricto sensu. Correct application of the test demands, according to Alexy and his followers, the examination of each of these three elements in order. As soon as a measure fails one of the steps, it is unconstitutional and there is thus no need to examine the next step(s).

Scholars who advocate this structured version of the proportionality test often lament its poor or wrongful application by courts, including the European Court of Human Rights. The ECtHR has, by and large, indeed not developed nor applied such a strictly ordered version of the proportionality test. It is particularly rare for the Court to apply the necessity test as separate from the proportionality stricto sensu test (also known as balancing). Instead, the Court has generally looked at the existence of less intrusive measures as an element to consider in the balance or it has continued to examine a measure’s proportionality in the strict sense after having indicated that less restrictive measures were available.

Not so in the recent case of Saint-Paul Luxembourg S.A. v. Luxembourg. In its judgment in that case, the ECtHR has – to my knowledge in a very exceptional move – applied the less restrictive alternative test as Alexy intended it to function, much to the satisfaction of the proponents of a structured proportionality test, I imagine.

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Ban on Political Advertising Does Not Violate Article 10: Animal Defenders International v. UK

This guest post was written by Ronan Ó Fathaigh*

On Monday, the Grand Chamber of the European Court held, by nine votes to eight, that the UK’s ban on political advertising on television did not violate Article 10. The majority opinion in Animal Defenders International v. the United Kingdom departed substantially from the Court’s previous case law on political advertising, and introduced a new method for reviewing the proportionality of such blanket-bans.

The facts were straightforward, with the applicant association submitting an advertisement for broadcast on television showing a girl playing a primate in a cage, with a voice-over describing the ill-treatment of primates. It was no surprise that the Broadcast Advertising Clearance Centre concluded the advertisement breached the Communications Act, which prohibits advertisements “directed towards a political end.” The case reached the House of Lords in 2007, and at that time there were two main authorities from the European Court that the law lords considered:

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New Judgment on Trade Union Freedom of Expression

This post is written by Dirk Voorhoof*

The European Court of Human Rights delivered a new and remarkable judgment on trade union freedom of expression. In Szima v. Hungary the European Court concluded that a criminal conviction of a leader of a police trade union for having posted critical and offensive comments on the Union’s website was to be considered necessary in a democratic society for the prevention of disorder or crime,  and more precisely of preserving order in the armed forces.

The applicant in this case, Ms Judit Szima, is a retired senior police officer – a lieutenant colonel – who was at the material time the chairperson of Tettrekész Police Trade Union. Between May 2007 and July 2009 she published a number of writings on the Trade Union’s website, which was effectively under her editorial control, concerning outstanding remunerations due to police staff, alleged nepotism and undue political influence in the force, as well as dubious qualifications of senior police staff. Szima wrote inter alia that it was proven “that the Hungarian Police’s primary objective is first and foremost not to maintain public order for the taxpaying citizens but to uphold the reign of current political leaders who have led Hungary into economic and moral distress”. She also wrote that “the uninhibited infringements of the law committed by senior police officers placing themselves above the law go unpunished” and that “a chaotic and highly unprofessional leadership is ruining the rest of the Police’s reputation from day to day”.

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Case Law, Strasbourg: Mouvement Raelien Suisse v Switzerland, Of Aliens and Flying Saucers

This guest post was written by Gabrielle Guillemin* and is a re-blog from Inforrm’s Blog (original post here).

 

Earlier this month, the Grand Chamber of the European Court of Human Rights handed down judgment in Mouvement Raelien Suisse v Switzerland (Application no.16354/06). The case concerned the Swiss authorities’ refusal to allow a billboard campaign by the applicant movement on grounds that its activities (including the promotion of human cloning and sensual meditation) were immoral and contrary to public order. By a majority of 9 to 8, the Grand Chamber upheld the earlier Chamber judgment that the Swiss decision was within the margin of appreciation, among other things because the poster campaign was closer in its nature to commercial speech rather than political speech.

The case has a number of unusual features, not the least of which is the Raelian Movement itself, a non-profit organisation that seeks to make contact with extra-terrestrials. The Grand Chamber judgment also has implications for advertising and, in particular, the use of hyperlinks.

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The Right To Protest Contained By Strasbourg: An Analysis of Austin v. UK & The Constitutional Pluralist Issues it Throws Up

This post is written by David Mead who is a Senior Lecturer at the UEA Law School and author of The New Law of Peaceful Protest: Rights and Regulation in the Human Rights Act Era published by Hart in 2010. More information about David can be found here http://www.uea.ac.uk/law/Staff/All+People/Academic/dmead

The last few days have proved to be eventful for anyone interested in free speech and protest. First, Cambridge PhD student Owen Holland was rusticated for seven terms for reading out a poem that disrupted a speech being given by universities minister, David Willetts. Had this fallen to the magistrates, under say s.5 of the Public Order Act 1986, rather than to the university’s disciplinary “court”, it is hard to see how the sentence meted out would not have been significantly less. Continue reading

Criminal conviction of professor for refusal to give access to research files did not affect his Convention rights: Gillberg v. Sweden

This post on freedom of expression, academic research, privacy protection and access to official documents is written by Dirk Voorhoof* and Rónán Ó Fathaigh**

The Grand Chamber of the European Court has, more firmly than its Chamber judgment of 2010, confirmed that a Swedish professor could not rely on his right of privacy under Article 8, nor on his (negative) right to freedom of expression and information under Article 10 of the Convention to justify his refusal to give access to research material at Gothenburg University (see comment on Chamber judgment here). The Court unanimously concluded that the criminal conviction of the professor for not giving access to the requested documents did not affect his rights under Article 8 and 10 of the Convention. Most importantly, the Grand Chamber also referred under Article 10 of the Convention to the right “to receive information in the form of access to the public documents” (§ 93 and 94).

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Stereotypes of Roma: Aksu v. Turkey in the Grand Chamber

 The Grand Chamber has handed down its much-awaited judgment in Aksu v. Turkey. This case concerns the use of derogatory stereotypical images of Roma in government-sponsored publications. The Grand Chamber holds with 16 votes to 1 that article 8 (right to private life) has not been violated. I have mixed feelings about the Court’s reasoning. When it comes to stereotypes, the judgment contains progressive and insightful reasoning. On the other hand, I regret that the Court did not take the substance of the applicant’s complaint – namely that he was discriminated as a Roma – seriously. In what follows I will chart the Court’s judgment and highlight both some strengths and some weaknesses. Continue reading

Yes Prime Minister!

This post is written by Dirk Voorhoof* and Rónán Ó Fathaigh**

In the case of Tuşalp v. Turkey, the European Court was asked to consider whether two defamation actions taken by the Prime Minister of Turkey against a journalist for protection of his personality rights were compatible with Article 10 of the European Convention.

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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

Karttunen v. Finland: Child Pornography and Freedom of Expression

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.

In a recent admissibility decision which has received scant attention, the European Court considered for the first time the vexed question of the criminalisation of child pornography and its compatibility with freedom of expression. The issue before the Court was whether the conviction of an artist for including child pornography in an art exhibition violated the right to freedom of expression under Article 10 of the European Convention. Continue reading

A Poll on Palomo Sánchez

We are pleased to be organising our first poll to ask our readers about their opinion!

The poll concerns the recent judgment of Palomo Sánchez v. Spain in which the Grand Chamber of the Court ruled that the Spanish courts had not failed their positive obligation to protect the freedom of expression of four employees who were dismissed by their employer for having insulted two of their co-workers and a member of management. The employees, who were also executive members of a trade union they had set up, were dismissed after they had published two articles and a cartoon in the union newsletter, severely criticising management and specifically denouncing two of their co-workers for having testified in favour of the company in proceedings the applicants had brought against it in the context of a social dispute. In its judgment the Grand Chamber held in particular that, due to their offensive and insulting character, the cartoon and articles overstepped the bounds of acceptable criticism of private individuals under article 10 ECHR. The Court held that the sanction of dismissal was not disproportionate and that article 10, read in the light of article 11, had not been violated.

Considering the crucial importance of Palomo Sánchez for trade union freedom of expression we are curious about the opinion of our readers on one particularly controversial aspect of the case and the judgment: the cartoon and its assessment by the Court.

Participate in our poll and find out what the other voters thought of it! Should you wish to clarify your response, do not hesitate to use the comment section below the post.

Translation from left to right (by Spanish native speaker): “Slurp, slurp, is everything going well, Mr. Garcia?”; “I already told you that you were FREED as long as you kept me well-served … SERVED!”; “Listen, this one has jumped the queue!”; “Shut up … or the “sucking” up will otherwise be over for us”.

Grand Chamber Judgment on Trade Union Freedom of Expression

This post is written by Rónán Ó Fathaigh* and Dirk Voorhoof**

The Grand Chamber of the European Court issued a landmark judgment this week on trade union freedom of expression, concluding that the dismissal of trade union members for engaging in offensive and insulting expression in a union newsletter was not a violation of the right to freedom of expression, read in light of freedom of association.

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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.

Aydin v. Germany or the Strasbourg Court’s faint reasoning in a case of political dissent

Today’s guest post was written by Hannes Cannie, PhD candidate at the Human Rights Centre of Ghent University. Further information on Hannes, including a list of his publications, can be found here.


In Aydin v. Germany (27 January 2011) the Fifth Section of the Strasbourg Court held with six votes to one that the applicant’s criminal conviction for lending support to an illegal organisation constituted no violation of Article 10 ECHR. Although the conviction itself for various acts that are interpreted as contravening a ban on the PKK’s activities may seem reasonable, I find that the Court, as it does not pay much attention to the freedom of expression perspective, misses a chance to shed light on the controversial speech issue in this case.

But first things first, what is this case about? In1993 the German Interior Ministry issued a decision by which it imposed a ban on the activities of the PKK within the German territory, contravention of which is punishable under the German Law on Associations (section 20 §1 no. 4). In the context of a large-scale campaign launched by the PKK’s presidential counsel in 2001, the applicant, as did many others, signed a declaration firmly condemning this ban and asking attention for the Kurdish question, which is “a European problem waiting for a solution”.

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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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Banning Speech in the Public Space

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


The recent Article 10 judgment in Mouvement Raëlien Suisse v. Switzerland merits some close attention given the important questions of principle which are     arguably involved. The First Section of the European Court found no violation of freedom of expression where Swiss authorities had banned a poster campaign by a quasi-religious association.

The applicant association was the Swiss branch of the Raëlien Movement, an international association whose members believe life on earth was created by extraterrestrials. The applicant association sought to conduct a poster campaign, with the poster featuring extraterrestrials, flying saucers, and the words “The message from the extraterrestrials. At last, science is replacing religion”. The poster also included the website address of the Raëlien Movement.

The police authorities refused permission for the poster campaign on the grounds of public order and morals, and the domestic courts upheld this decision. The Swiss courts held that although the poster itself was not objectionable, because the Raëlien website address was included, the Courts had to have regard to documents published on the Raëlien website. The courts held the poster campaign should be banned on the basis that: (a) there was a link on the website to a company which provided cloning services; (b) the association advocated “geniocracy” i.e. government by those with a higher intelligence; and (c) there had been allegations of sexual offences against some members of the association.

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Abuse of ‘forum shopping’ in defamation case and freedom of academic criticism

By Dirk Voorhoof, Ghent University / Legal-Human-Academy*

On March 3, 2011, the Tribunal de Grand Instance de Paris issued its decision in a case that has alarmed journal editors and reviewers, being afraid it could  have a chilling effect on scholars’ and editors’ willingness to publish book reviews. The case concerns the  criminal libel case against professor Joseph Weiler based on a complaint by Dr. Karine Calvo-Goller. The case was brought against Weiler in his capacity as editor-in-chief of the European Journal of International Law (EJIL) and its associated Book Review website http://www.GlobalLawBooks.org. It was brought as a result of the refusal by Weiler to remove a review by professor Thomas Weigend (University of Cologne, Law Faculty), critical of a book written by Dr. Karin Calvo-Goller, The Trial Proceedings of the International Criminal Court. ICTY and ICTR Precedents (Martinus Nijhoff Publishers). Continue reading

Comparing Abortion to the Holocaust

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.

 

Amid all the discussion regarding the A., B. and C. v. Ireland judgment, it is interesting to note that last week, in one of its first freedom of expression judgments of 2011, the European Court of Human Rights was called upon to consider an interesting issue surrounding abortion, namely the conviction for defamation of an anti-abortion activist for comparing abortion to the Holocaust.

The applicants in Hoffer v. Germany were anti-abortion activists who had handed out pamphlets outside a medical clinic in Nuremburg. The pamphlets urged support for ending abortion in Germany; however, the pamphlets also named a doctor at the clinic, Dr. F., describing him as a “Killing specialist for unborn children”. Moreover, the back page of the pamphlet included the following statements:

Stop the murder of children in their mother’s womb on the premises of the Northern medical centre.

Then: Holocaust; Today: Babycaust

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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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Gillberg v. Sweden: conviction of professor for refusal to grant access to sensitive research data not in breach of ECHR

This guest post on freedom of expression, academic research, privacy protection and access to official documents has been written by Professor Dirk Voorhoof. Professor Voorhoof is affiliated to both Ghent University (Belgium) and Copenhagen University (Denmark). He is also a Member of the Flemish Regulator for the Media. Further information on Professor Voorhoof can be found on his personal webpage here.

For further information on the topic of the post, see the website of the International Conference “Privacy and Scientific Research: from Obstruction to Construction”, taking place tomorrow, 23 November 2010 in Brussels, Belgium.

The European Court of Human Rights has delivered a judgment in an interesting case with a peculiar mix of issues related to freedom of expression, academic research, medical data, privacy protection and access to official documents. The defendant state is Sweden, a country very familiar with the principle and practice of access to official documents. The right of access to official documents has a history of more than two hundred years in Sweden and is considered one of the cornerstones of Swedish democracy. The case shows how access to official documents, included research documents containing sensitive personal data, can be granted to other researchers, albeit under strict conditions. The case furthermore demonstrates that Sweden applies effective procedures to implement orders granting access to official documents : those who refuse to open access to official documents after a court decision has ordered to do so can be convicted on the basis of criminal law. The case clearly reflects the idea that progress in scientific knowledge would be hindered unduly if the research methodology or scientific data analysis and the conclusions build on the data were not open to scrutiny, discussion and debate, albeit under strict conditions of privacy protection regarding medical data.

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Press freedom + Russia = violation?

This post has been written by Laurens Lavrysen, one of our colleagues at the Human Rights Centre.

On 21 October the European Court of Human Rights delivered the judgment Saliyev v. Russia. The case concerned an article in a municipal newspaper about the acquisition of shares in a local energy producing company – at that time part of a State holding. In that article the applicant, the president of a Russian NGO, alleged that the purchase was a crooked deal and that a high-level official was behind the transaction. About half of the copies of the newspaper were sent to subscribers and to libraries, the other half were given to a distributing company. However, the same day the distributing company withdrew these copies from the newsstands and later they were destroyed. Apparently this was done at request of the editor-in-chief of the newspaper out of fear of possible sanctions related to the content of the applicant’s article. Saliyev complained that the withdrawal violated his freedom of expression. The Strasbourg Court agreed that there was a violation of art. 10 ECHR, the reasoning behind that conclusion was however of a very poor nature. Let’s have a closer look.

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Freedom of Expression in Turkey: When Changes in the Wording Are Not Enough

The case of Dink v. Turkey recently confronted the European Court with the most brutal affront on freedom of expression: the assassination of a journalist. The Court found a violation of Article 2 (in its both substantive and procedural aspects) and of Article 10. At the basis of the freedom of expression violation was a Criminal Code provision (Article 301, former Article 159) which makes it an offense to “publicly denigrate Turkishness” (Türklük). Under this article, Turkish-Armenian newspaper editor, Fırat Dink, was put on trial. A few months after having been found guilty of denigrating Turkish identity, he was shot dead.

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Just words? (Aksu v. Turkey Part II)

My post on Aksu v. Turkey received some criticism for not taking the freedom of expression into account. A brief memory-aid: Aksu is the case of a man of Roma origin who complained about degrading stereotypical remarks made about Roma in government-sponsored publications. In a “dictionary for pupils” and a book entitled “The Gypsies of Turkey” Roma were put down as “stingy”, “greedy”, “thieves” etc. (See my previous post).

News about the Court will pick up again – the Court will be releasing 21 judgments today – but because I find this such an interesting case I would like to take this opportunity to reflect further on Aksu, this time from a freedom of expression perspective.

The first thing that is remarkable from this perspective is that the Court decides to declare this application admissible. Continue reading

AEL on appeal convicted in (in)famous Dutch Holocaust cartoon case

This guestblog is written by our colleague Hannes Cannie*

The Arnhem criminal court (the Netherlands) has overruled the judgment of the criminal tribunal of Utrecht (22 April 2010) in the (in)famous Dutch Holocaust cartoon case, in which the Dutch branch of the Arab European League (hereafter, AEL) faces prosecution for having published on various websites a cartoon trivializing the Holocaust. The cartoon showed two Jewish men studying a pile of corpses under a sign with the wrongly spelled ‘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’. Although in first instance AEL was acquitted for public insult of the Jewish community (see on this blog, Dutch Holocaust cartoon case: a valuable lesson for the Strasbourg Court?, 5 May 2010), the criminal court in its judgment of 19 August 2010 judges a criminal conviction to be necessary in a democratic society, eventually condemning AEL to a fine of EUR 1.000. The court follows a ‘three step model’ when assessing whether or not public insult in the sense of Article 137c of the Dutch Criminal Act took place. I have some remarks concerning the way the court applies this model: one addresses the court’s ‘validation’ of relevant contextual elements, the two others its appreciation of the cartoon’s needlessly injurious nature.   Continue reading