Freedom of Expression,

Media and Journalism

under

the European Human Rights System

Perspective ECtHR - CJEU

European Constitutional Dimension

Prof. dr. Dirk Voorhoof

Florence EUI

Session 1

13 May 2013

www.psw.ugent.be/dv

Introduction

Examples

Impact

“Europe’s First Amendment”

Characterics

New dimensions

Threats and challenges

A European Constitutional Dimension

of

Freedom of Expression,

esp. for Journalists and Media?

Five examples

Jersild v. Denmark (1994)

Programme ‘Jersild’ - DR

Upcoming racism

Greenjackets

Interviews = hate speech

Journalist also convicted

ECtHR

Violation Art. 10 ECHR

Intention

Context

Interview

Format

Özgür Gündem v. Turkey (2000)

Journalists of Turkish newspaper

Harrased, assaulted, killed

Prosecutions, confiscations

and convictions

ECtHR

Violation Article 10

State has positive obligations (art. 2 and 3 ECHR)

- to protect journalists against violence

- to investigate crimes against journalists

+ also Gongadze v. Ukraine (2005) and Dink v. Turkey (2010)

Fattulayev v. Azerbaijan (2010)

Convicted for defamation, threat of terrorism 8 years and 6 months imprisonment

Violation of Article 10 ECHR

ECtHR ordered immediate release of journalist sentenced to imprisonment for criticising the government and opposing in his articles certain military operations

http://humanrightshouse.org/Articles/16495.html

Mosley v. the UK (2011)

ECtHR : No duty of prior notification (Art. 8)

Such a duty would amount

to a violation of Article 10

A pre-notification requirement

would also affect political reporting

and serious journalism

Risk of chilling effect !

See also Wizerkaniuk v. Poland (2011)

: (no) right of prior verification

Axel Springer v.

Germany 2012

Publication in tabloid BILD of articles about the arrest and conviction of a well known television actor (X.) for the possession of drugs (Der Kommissar)

The German courts held that the actor’s right to protection and his personality rights prevailed over the public’s interest in being informed, even if the truth of the facts had not been disputed.

An injunction was granted against BILD

ECtHR (GC) : violation of Article 10 !

Art. 10 = Freedom of expression

without interferences by public authorities

Under scrutiny of European Court of Human Rights (ECtHR)

+ Committee of Ministers (execution)

47 member states

included all 27 EU (CJEU - FRA)

48?

1970 – 1979 : 3 (First violation : Sunday Times v. UK)

1980 – 1989 : 12 (Barthold and Lingens)

1990 – 1999 : 75 (38 violations)

2000 : 14 (10 violations)

2001 : 13 (8 violations)

2002 : 26 (13 violations/9 friendly settlements)

2003 : 30 (16 violations/5 friendly settlements)

2004 : 45 (30 violations/1 friendly settlement)

2005 : 65 (45 violations/3 friendly setllements)

2006 : 85 (60 violations)

2007: 100 (85 violations)

2008: 82 (47 violations)

2009: 80 (46 violations)

2010: 85 (48 violations)

2011: 54 (30 violations)

2012: …

European Court of Human Rights

1959-2011 : 479 violations of Article 10

Member states under duty to change their

practices interfering with press freedom and

freedom expression

http://www.echr.coe.int/NR/rdonlyres/2B783BFF-39C9-455C-B7C7-F821056BF32A/0/TABLEAU_VIOLATIONS_EN_2011.pdf

Member States ECHR:

one common standard, but different practices

Top 10 = Finland, the Netherlands, Norway, Luxembourg, Andorra,

Denmark, Liechtenstein, Iceland, Sweden + New Zealand

11. Estonia, 12. Austria, 14. Switzerland,

15. Ireland, 16. Czech Republic, 17. Germany,

21. Belgium, 22. Poland, 23. Slovakia, 24. Cyprus, 28. Portugal, 29. UK

33. Lithuania, 35. Slovenia, 36. Spain, 37. France, 39. Latvia,

42. Romania and 45. Malta,

… all in top 50 of Press freedom rankings Freedom House - RSF (RSF 2013)

Most 47 ECHR-member states are in top 50

Not

Italy 57

Greece 84

and Turkey 154

Some ‘new’ members

Moldova 55, Hungary 56

Serbia 63, Croatia 64, Bosnia and Herzegovina 68

Armenia 74, Bulgaria 87, Albania 102, Georgia 100

Montenegro 113, Rep. Macedonia 116

Ukraine 126

Russia 148

Azerbaijan 156

Gyorgi Gongadze Anna Politkovskaya Hrant Dink Elmar Huseynov

RSF ranking press freedom 2013

Some other countries

20. Canada

26. Australia

32. United States

157. Belarus, Egypt…

Saudi Arabia, Laos, Yemen, Sudan, Cuba, Vietnam …

173. China, Iran, Somalia, Syria, Turkmenistan, North Korea, Eritrea (179)

Freedom of information, media freedom

and freedom of expression (for journalists)

as constitutional rights in Europe

with seven mile boots…

Peter Forskåll

Sweden, 1759

Peter Forsskål published a pamphlet calling

for civil liberties.

”Thoughts on Civil Liberty”.

It was immediately banned.

Nevertheless, the text did circulate and

contributed to the freedom of the printing

press which was established in 1766 in

Sweden

http://www.peterforsskal.com/

Protection of freedom of expression has a long tradition in Europe : national fundamental/constitutional law

Sweden 1766, Royal Decree on the Freedom of the Press, Tryckfrihetsförordning

France 1789, Art. 11, Declaration of the rights of men and citizens, Déclaration des Droits de l'Homme et du Citoyen

Belgium 1831, Art. 19/25 Constitution

The Netherlands Art. 7 Constitution

Germany Art. 5 Grund Gesetz

UK Human Rights Act – Art. 12, 1998 + Slovenia, Poland, Moldova, Latvia, Romania, Bulgaria, Turkey, Cyprus, Russia ….

From national fundamental/constitutional law

to international conventions / supranational scrutiny

Extra layer : Article 10 ECHR / European Court of Human Rights

Also : Article 19 ICCPR / UN Human Rights Committee

(+ General Comment nr. 34) Article 11 EU Charter FR / CJEU Court of Justice General Court Satamedia 2008 - data protection Edata / Martinez 2011 - jurisdiction

Article 10 ECHR “Europe’s First Amendment”

10.1. Everyone has the right to freedom of expression

Freedom to hold opinions

To express, impart and receive information and ideas + without interference by public authority + regardless of frontiers.

Licensing system for broadcasting, television/cinema

10.2 Duties and responsibilities > formalities, conditions, restrictions or penalties 1. Prescribed by law

2. Legitimate aim (..)

3. Necessary in a democratic society

Characteristics of Article 10 ECHR

Freedom of expression and information

related with/ in function of public interest & democracy

The public’s right to be properly informed

The public watchdog-function of the media

Matters of public interest and political speech

Importance for democracy

Risk of ‘chilling effect’

Seven peculiarities of Article 10 ECHR

- Very high level of protection of contribution to public debate

- The interest which the public may have in particular information can sometimes be so strong as to override even a legally imposed duty of confidence or other provisions of criminal law (libel/defamation)

- The protection of freedom of expression includes the protection of news and information gathering activities

- FoE includes the right to “offend, shock and disturb”

- FoE even includes the right for journalists to be provocative and exaggerate in order to inform or alarm public opinion

- The internet plays an important role in enhancing the public’s access to news and facilitating the sharing and dissemination of information generally

- Decriminalisation of defamation (see also PACE 2007/1577) and proportionality of interference

Article 10 ECHR and media/journalism

In principle no interferences by public authorities,

including the judiciary!

Pertinent and proportional character of interferences must be demonstrated – pressing social need / necessary in a democracy

- Total lack of factual basis of allegations / defamation - Intrusion of privacy, without public interest

- Incitement to violence / ‘hate speech’ / terrorism

Acceptable restrictions : privacy

Person without an official function

Von Hannover nr. 1 v. Germany

PRIVACY

Picture of dead body of assassinated governor

Hachette Filipacchi Ass. v. France

HUMAN DIGNITY

MGN v. UK

ECtHR does not want to protect idle gossip

about the privacy of persons or celebrities

merely serving to satisfy the curiosity

of a certain readership

and not contributing to any public debate

in which the press has to fulfil

its role of “public watchdog”

But high level of protection

of freedom of political speech,

investigative journalism

and journalistic reporting

about matters of public interest

Examples of “public watchdog”-function

Thorgeir Thorgeirson v. Iceland

Article in newspaper

‘members of police units Reykjavik = wild beasts in uniform’

Intention was investigation into alleged violent behaviour of some

metropolitan police units

Clear matter of public interest

Conviction because of defamation was not necessary in a

democratic society

Violation of Article 10

Fressoz & Roire v. France

Publication of tax files

In principle journalists are not above the

law, but

… the interest of the public can be more

important than enforcement of

criminal law

Case showed that conviction of

journalists for breach of professional

secrecy and using illegaly obtained

document was a violation of their

freedom of expression

Violation of Article 10

Bladet Tromsø and Stensaas v. Norway

Article in newspaper revealing that crew members of vessel were involved in illegal seal hunting

Intention was to instigate further investigation into illegal activities of seal hunting. Allegations relied on leaked, unfinished secret report and concerned a clear matter of public interest In such circumstances priority is to be given to freedom of expression and the right of the public to be informed about these matters

Conviction because of defamation was not necessary in a democratic society Violation of Article 10

Radio Twist v. Slovakia

Broadcasting of illegally recorded tapes of conversation between State Secretary at the Ministry of Justice and the Deputy Prime Minister

Integrated in radio programme as evidence of political dispute and struggle about the privatisation of a major national insurrance provider No indication that the journalists acted in bad faith or that they pursued any objective other than reporting on matters which they felt obliged to make available to the public Again conviction was not necessary in a democracy Violation of Article 10

New dimensions Broadening the scope of Article 10

1. Protection of journalistic sources

2. Whistle blowing

3. Access to information

Goodwin v. the UK

Protection of journalists’ sources

Refusal to reveal sources after Court order

Contempt of court

ECtHR :

Protection of journalistic sources essential for press freedom

unless there is an ‘overriding requirement of public interest’

+ subsidiarity and proportionality

+ regardless of illegal or illicit origin

+ EX ANTE review by judge/impartial body (not PP or police)

Roemen and Schmit v. Luxembourg and Saint-Paul Lux. SA v. Luxembourg

Ernst e.a. v. Belgium and Tillack v. Belgium

Voskuil v. Nl. and Sanoma v. Nl. (Grand Chamber)

Financial Times v. the UK (Interbrew / AB Inbev)

Martin v. France and Ressiot v. France

De Telegraaf Media v. the Netherlands (Security/Intelligence Services)

See also Nordisk Film A/S v. Denmark (Child abuse, pedophaelia)

Guja v. Moldova (2008)

Whistleblower case

Mr. Guja = head of communication of Public Prosecutor’s office

He leaked a letter to the media

Letter gave evidence of influence by a Minister on Public

Prosecutor and administration of justice in a corruption case

Mr. Guja was dismissed because of breach of duty of

professional secrecy

QUESTION

Can ‘whistleblower’ invoke freedom of expression

If NO: why not?

If YES: under which conditions/criteria?

Guja v. Moldova

Whistleblower case

Signalling by a civil servant or an employee in the public sector of illegal conduct or wrongdoing in the workplace is protected under freedom of expression.

Conditions/criteria?

1. No alternative channels for the disclosure (+ effective + protection of whistleblower) 2. Public interest in the disclosed information 3. The authenticity of the disclosed information (+ accurate/reliable) 4. Justifiable damage to employer/administration 5. Whether the applicant acted in good faith (motif = public interest) 6. The severity of the sanction (+ consequences)

New approach by European Court

Access to official documents protected under Article 10

+ effective remedies must exist to enforce this right

TASZ v. Hungary (2009) access to official documents refused

TASZ = Hungarian Civil Liberties Union

Kenedi v. Hungary (2009)

access refused to archives regarding functioning in the past

of secret police and secret services

In both cases violation of Article 10 ECHR

TASZ v. Hungary

The State's obligations in matters of freedom of the press include

the elimination of barriers to the exercise of press functions

where, in issues of public interest, such barriers exist solely

because of an information monopoly held by the authorities.

The function of the press includes the creation of forums for public debate.

The realisation of this function is not limited to the media or professional journalists (also other forums, NGO’s, …)

Threats and challenges Some dark clouds …. above Strasbourg

Lindon, Otchakovsky-Laurens & July v. France (GC!)

Defamation

Stoll v. Switzerland (GC!)

Disclosure of secret information

See in contrast the 19 December 2006 Joint Declaration by the UN, OSCE, OAS and ACHPR according to which “journalists should not be held liable for publishing classified or confidential information where they have not themselves committed a wrong in obtaining it”.

Dissenting opinions in Lindon a.o. v. France Grand Chamber, 22 October 2007

… a significant departure from the case-law of the ECtHR in

matters of criticism of politicians

… to run counter to the Court's case-law concerning the duties

and responsibilities of the press.

Dissenting opinions

Stoll v. Switzerland Grand Chamber 10 December 2007

… a dangerous and unjustified departure from the Court’s well

established case-law concerning the nature and vital importance

of freedom of expression in democratic societies

… the Court should be tending in the opposite direction,

particularly at a time when a series of episodes in the democratic

world has shown that, even in the sphere of foreign policy,

democratic scrutiny is possible only after confidential documents

have been leaked and made public

More dissenting opinions

Stoll v. Switzerland Grand Chamber 10 December 2007

… (the judgment) introduces an element of censure regarding the

form chosen by the journalist and leads the Court to endorse the

wholly different position of a private body concerned with

journalistic ethics

… In any event, the majority's criticism concerning the form of the

applicant's articles is not relevant from the Court's perspective.

Robust dissenting opinions

Flux nr. 6, 29 July 2008 (4/3)

The dissenting judges express the fear

“that this judgment of the Court has thrown the

protection of freedom of expression as far back as it possibly could”

and

“when subservience to professional good practice becomes more overriding than the search for truth itself

it is a sad day for freedom of expression”

Art. 10 ECHR

Since the Convention

is first and foremost a system for the protection of human rights,

the Court must interpret and apply it in a manner which

renders its rights practical and effective,

not theoretical and illusory !

Article 10 = added value European standard (variable) Still/again under pressure !

Relevant criteria and how applied ‘Responsible journalism’ / ethics Art. 10 vs. Art. 8 : conflicting rights Margin of appreciation / scrutiny by ECtHR Function of press, NGO’s, journalism…

Barata Monteiro da Costa Nogueira and Patrício Pereira v. Portugal,

11 January 2011 Defamation / press conference

Dissenting opinion:

…. le présent arrêt contribue à affaiblir la philosophie même de la liberté

d'expression.

Au moment où les vents sont contraires, nous pensons que notre Cour doit plus que

jamais renforcer la liberté d'expression qui (..) est un des éléments clés de la

démocratie.

… this judgment contributes to the weakening of the philosophy

itself of freedom of expression.

At the time when the winds are changing, we

think that our Court more than ever is there to

reinforce freedom of expression as a key

element in democracy.

Questions?

D. VOORHOOF “Freedom of Expression under the European Human Rights System. From Sunday

Times (n° 1) v. U.K. (1979) to Hachette Filipacchi Associés (“Ici Paris”) v. France

(2009)”, Inter-American and European Human Rights Journal / Revista

Interamericana y Europa de Derechos Humanos, 2009/1-2, 3-49.

R. Ó FATHAIGH and D. VOORHOOF “The European Court of Human Rights, Media Freedom and Democracy”

M. PRICE, S. VERHULST and L. MORGAN (eds.), Routledge Handbook of Media

Law, New York, Routledge, 2013, 107-124.

D. VOORHOOF “The protection of journalists’ sources under fire? How Developments in European

Human Rights Law have Reinforced the Right of Journalists to have their Sources

Protected”, EFJ-website, September 2012,

http://europe.ifj.org/assets/docs/147/154/9355293-0d86c9a.pdf

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