Balancing the Freedom of Expression and the Right to Private Life in the Europe Päivi Korpisaari...

www.helsinki.fi/yliopisto

Balancing the Freedom of Expression and the Right to

Private Life in the Europe Päivi Korpisaari

Professor in Communication Law University of Helsinki

Faculty of Law

Universidad de Belgrano 5.5.2016 (c) Päivi Korpisaari


Content

•  European Convention of Human Rights and European Court of Human Rights interpreting the convention

•  Freedom of expression •  Right to private life •  Difficulties when applying the margin of appreciation •  Balancing criteria

‒  Contribution to a debate of general interest ‒  How well known he person concerned is and what is the subject of

the report ‒  Prior conduct of the person concerned ‒  The Content, form and consequences of the publication ‒  How the information is obtained ‒  Proportionality of the sanctions imposed

•  Conclusions: the practise is less than consistent Universidad de Belgrano 5.5.2016 (c) Päivi Korpisaari


European Convention on Human Rights, ECHR •  The Convention was opened for signature in Rome

on 4 November 1950 and entered into force on 3 September 1953

•  The Convention has been amended a number of times and supplemented with many rights in addition to those set forth in the original text

•  Finland ratified the European Convention on Human Rights in 1990



Freedom of expression, art 10

•  Includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers

•  Doesn´t prevent states from requiring the licensing of broadcasting, television or cinema enterprises

•  Subject to exceptions, Art. 10(2) if : •  Prescribed by law •  Necessary in a democratic society •  In the interests of national security, territorial integrity or

public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.



Freedom of expression, Art 10

•  “freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual's self-fulfilment”

•  Also applies to those expressions that offend, shock or disturb

•  Press’s task to impart information and ideas and act like a “public watchdog”



Right to Private life, art 8

•  Physical, psychological and moral integrity of a person •  Comprises to a certain degree the right to establish and develop

relationships with other human beings and activities of a professional or business nature

•  The right to personal information, which individuals can legitimately expect should not be published without their prior consent

•  Also those persons that are known to the general public through media representations of whatever kind, are able to count on a legitimate expectation of protection and respect for their private life

•  Protection of reputation and honour, if the attack on personal honour and reputation attains a certain level of gravity

•  Right to family life, home and secrecy of correspondence. Those parts of private life or protection of reputation or honour will not be discussed further



Right to private life

•  Until the early 2000’s that aspect of private life that covers the right to personal information which shouldn’t be published or otherwise widely disseminated without consent of the person in question, was considered an acceptable limitation of the freedom of expression

•  In the current court practice the right to private life is considered as an equivalent right to freedom of speech

•  This has complicated the task of weighing up and balancing the competing claims of the protection of private life and freedom of expression

•  A recent more restrictive trend towards freedom of expression has raised concerns



European court of human rights, ECtHR •  An international court set up in 1959 •  Rules on individual or State applications alleging

violations of ECHR •  The Court’s case-law makes the Convention a

powerful living instrument for implement the rights guaranteed in the ECHR

•  The number of judges on the Court is the same as that of the States Parties to the Convention (47 at present)

•  The number of pending applications 31.3.2016 is 67 200


www.helsinki.fi/yliopisto Universidad de Belgrano 5.5.2016 (c) Päivi Korpisaari

Source: http://www.echr.coe.int/Documents/Stats_pending_2016_BIL.pdf


•  In 2015 nearly 1/3 of the judgments delivered by the Court concerned three of the 47 member States: the Russian Federation (116), Turkey (87) and Romania (84)

•  In 2015, the Court has found at least one violation of the Convention by the respondent State in 84% of the cases

•  In 2015 30% of the findings of a violation concerned a serious breach of the Convention, namely the right to life or the prohibition of torture and inhuman or degrading treatment (Articles 2 and 3)

•  Source: http://www.echr.coe.int/Documents/Facts_Figures_2015_ENG.pdf


ECtHR


•  “Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly.” •  Delfi AS, §131


The Court´s interpretation on freedom of expression


Principle of subsidiarity

•  ”The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...” •  Delfi AS § 131



Margin of appreciation

•  ”The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10.” ‒  Delfi AS, § 131



Difficulties when applying the margin of appreciation

•  “[t]he Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation.”

•  However, in some cases the ECtHR has been acting like a fourth instance, conducting a very precise examination and considering what would be the best possible solution

•  Recent Grand Chamber judgments: “[w]here the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts” Universidad de Belgrano 5.5.2016 (c) Päivi

Korpisaari


Balancing criterion I

•  Contribution to a debate of general interest •  For example publication concerned political issues, crimes,

sporting issues or performing artists, seal hunting, how the police investigated a crime, how the state managed the assets, patient safety

•  Publishing photos revealing a person’s private life without their consent, has to contribute to a debate which is of general interest

•  Celebrities?



Balancing criterion II

•  How well known he person concerned is and what is the subject of the report

•  “a distinction has to be made between private individuals and persons acting in a public context, as political figures or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures […]”

•  Private individuals / celebrities / civil servants of different kind /politicians



Balancing criterion III

•  Prior conduct of the person concerned •  Revelations, once made public by the person

concerned, weaken the degree of protection •  Article 8 doesn’t give protection against loss of

reputation, which is the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence.



Balancing criterion IV

•  The Content, form and consequences of the publication

•  “a person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development”. In the Court’s opinion this “mainly” presupposes that the individual has a right to control the use of that image, including the right to refuse publication thereof”

•  The way in which the photograph or report are published •  The manner in which the person concerned is represented •  The extent to which the information has been disseminated



Balancing criterion V

•  Circumstances in which the photos were taken, and how the information is obtained

•  Consent •  Whether the photographing was done without

knowledge of the person in the photograph or by subterfuge or other illicit means; and

•  The nature or seriousness of the intrusion and the consequences of publication of the photo for the person concerned



Balancing criterion VI

•  Proportionality of the sanctions imposed •  Compensation liability, punishment, confiscation or

compensating legal costs •  The outcomes of the Court have also been very difficult to

predict in this respect •  Reasoning followed in the national judgment •  The nature of the information that is revealed •  Good journalistic ethics •  Level of compensation in general in the country in question

matters •  Abusing of freedom of expression => high level of

compensation has been OK



Conclusions

•  Following a strengthening of the protection of private life, the case law concerning freedom of expression and the right to private life has become more and more difficult to predict

•  Information in photographic form has enjoyed a surprisingly large degree of protection

•  The old general principles still prevail, but applying them to individual cases has in some cases appeared inconsistent

•  High level of protection of freedom of speech and the important role of the press as a public watchdog, are still valid, but their importance has, in some cases, diminished

•  The degree of discretion when applying the doctrine of margin of appreciation has been less than consistent


Date post:	30-Nov-2023
Category:	Documents
Upload:	helsinki
View:	0 times
Download:	0 times