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Freedom of Expression, Media and Journalism under the European Human Rights System

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Perspective ECtHR - CJEU European Constitutional Dimension …

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

Published in: News & Politics

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  • 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 Iris Newsletter - http://merlin.obs.coe.int/newsletter.php