Today, we are pleased to announce a guest post by Dragoş Bogdan* and Mihai Selegean**. Their post on the consequences of the defamation case Petrina v. Romania (14 October 2008, App. no. 78060/01) represents a welcome addition to some of our own posts on the Court’s defamation case-law. More information on the authors, who we thank warmly for their interesting contribution to our blog, can be found at the bottom of the post. Naturally, as is the case with all posts on our blog, the views expressed in the contribution reflect the personal opinion of the authors.
The Petrina Judgment raises several serious questions with respect to the interpretation and the implementation of the Convention, as follows:
– It transforms the right of the Member States to sanction the excessive exercise of the freedom of expression (in accordance with Article 10) into an obligation to sanction (according to Article 8 ) and
– It annihilates the margin of appreciation of the Member States as a result of the way in which it defines the conditions that give rise to the positive obligation of the States to sanction the abusive exercise of the freedom of expression (in particular the burden of proof and the factual basis)