Perspective ECtHR - CJEU European Constitutional Dimension Prof. dr. Dirk Voorhoof CMPF Summer School 2013 for Journalists and Media Practitioners http://cmpf.eui.eu/training/summer-school-2013.aspx

1. 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

2. Introduction
Examples
Impact
“Europe’s First Amendment”
Characterics
New dimensions
Threats and challenges

3. A European Constitutional Dimension
of
Freedom of Expression,
esp. for Journalists and Media?
Five examples

4. 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

5. 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)

6. 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

7. 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

8. 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 !

9. 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?

10. 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: …

11. 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

12. 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)

13. 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

14. Gyorgi Gongadze Anna Politkovskaya Hrant Dink Elmar Huseynov

15. 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)

16. Freedom of information, media freedom
and freedom of expression (for journalists)
as constitutional rights in Europe
with seven mile boots…

17. Peter Forskåll

18. 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/

19. 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 ….

20. 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

21. 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

22. 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’

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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

29. 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

30. 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

31. New dimensions
Broadening the scope of Article 10
1. Protection of journalistic sources
2. Whistle blowing
3. Access to information

32. 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)

33. 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?

34. 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)

35. 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

36. 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, …)

37. 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”.

38. 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.

39. 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

40. 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.

41. 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”

42. 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 !

43. 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…

44. 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.

45. Questions?

46. 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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