LIMITS TO EXPRESSION UNDER STRASBOURG JURISPRUDENCE (Last of Two Parts)

by: CHERYL L. DAYTEC-YANGOT

There is no democracy without public discourse and no public discourse without freedom of speech, freedom of the media, and freedom of information.[1]

Freedom of  expression comes with duties and responsibilities owed  to truth, to independence, to impartiality, to objectivity, to democracy, and to individual privacy, among others.

Fidelity to truth comes with what Strasbourg calls “the duty  to impart information and ideas on matters of public concern.”[2]  Media should be impartial. In order for them to  generate a democratic culture,  they   should  be neutral observers, “unengaged with events but faithfully recording them.”[3]

The duty to be objective calls on media to express value-judgments- even polemical ones-  standing on facts.[4]  They are   responsible in ensuring  veracity of stories, although “exaggeration or even a degree of provocation is protected.[5] In Bladet Tromso v. Norway,[6]  Strasbourg ruled that it is sufficient  that journalists  “rely on the contents of official reports without having to undertake independent research.”  The minority  however propounded  that to enjoy protection under Article 10 of the European Convention on Human Rights, they  must investigate. In  one case, Strasbourg said that media must ensure  accuracy of historical facts since unlike temporal news, there is no urgency in publishing them, [7] in effect elevating  the standard  for responsibility  to scrutinize veracity compared to the standard when they report news, a “perishable commodity.[8]  In another,[9]  it  implied that media have the duty for balanced reportage and to  respect the other side’s  right-of-reply.

Fidelity to democracy demands public watchdogs[10]  to propagate information on matters of public interest or concern[11]  and stimulate  public discussion or spur public debate.[12]  The configuration of people’s political consciousness depends on data received. Democracy is not  just a government where people elect their leaders. It is one where people have adequate information upon which to anchor their political decisions including who to vote for. Knowledge is power. Thus, the  Camden  Principles  declare that  “when people are denied public participation and voice, their issues, experiences and concerns are rendered invisible, and they become more vulnerable to bigotry, prejudice and marginalization.[13]

 Media play a crucial role not only as purveyors of raw facts  but also of informed opinions as suggested in Lingens.[14] By  crystallizing  issues in sound value-judgments, they  aid  the  public to  adopt positions on social issues, enabling them to be part of public discourse, inspiring  dissent to unbridled use of State power, effectively enhancing democracy. Thus, media should create   forums for  public debate.[15]                                                                                                                                                                                          

The minority in Bladet Tromso asserted a negative media responsibility: they should not sacrifice facts “for the commercial gratification of an immediate scoop.” It said that newspapers have the “ordinary obligation to verify factual statements that were defamatory of private individuals,” implying the duty to protect individual privacy.  But the majority judgment, while prizing respect for the rights and reputation of others and  protection of confidential information, stressed that media’s duty “is nevertheless to impart- in a manner consistent with its obligations and responsibilities- information and ideas on all matters of public interest” because “the public also has a  right to receive them.”[16] This suggests that privacy yields to public interest and it is media’s duty to promote it.

Strasbourg stressed that press freedom “affords the public one of the best means of discovering and forming an opinion of ideas and political leaders.”[17]  But “the safeguard…to journalists in relation to reporting on issues of general interest is  subject to the proviso that they were acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism.”[18]

Media must ensure no  confidential  information  leak[19] or  confidential source  disclosures. Source protection  is a  free press premise. Absent such, sources may withhold information germane to public interest for fear of persecution, essentially impeding the public’s right to information.  Thus,  to compel journalists to reveal sources infringed their  right.[20] Essentially, this was reiterated in Sanoma Uitgevers BV v The Netherlands[21] but  Strasbourg modified the duty  when it  held that  forcing journalists who exposed illegal car races and edited photographs for source  anonymity to produce the CD-ROM  storing the original photographs was above-board because it was intended to identify a vehicle used in a grave felony irrelevant to the illegal race. It said that States may balance conflicting interests served by crime prosecution against protection of sources.

As a consciousness purveyor, media have pervasive public influence. Thus it is incumbent upon them not to use freedom of expression without self-restraint to advocate racism,[22]  violence,[23] totalitarianism[24]  or  corruption of the young’s morals.[25]

Indubitably, freedom of expression is not a license. It is a right that comes with a twin: responsibility.

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[1] Dieter Grimm, “Freedom of Speech in a Globalized World”  in EXTREME SPEECH AND DEMOCRACY, (Ivan Hare and James Weinstein, eds.,  2009).

[2]Observer   v. the United Kingdom, 26 November 1991, § 59, Series A no. 216, and  Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no. 239); Castels v Spain, 4 EHRR 445 (1992);  Lingens v. Austria,  8  EHRR 407 (1988).

[3] Szabadsagjogokert v. Hungary, Application no. 37374/05 (14 April 2009).

[4] Oberschlick v. Austria, 19 EHHR 839 (No. 2), 1997; De Haes v. Belgium,  25 EHRR 11 (1997).

[5] Prager v. Austria (26 April  1995).

[6] Application No. 21980/93 (20 May 1999).

[7] Times Newspapers  (Nos. 1 and 2) v UK , Application No. 3002/03 and 23676/03, (10 March 2009).

[8] Id.

[9]  Tidende v. Norway, 2000 EHRR  305 (2 May 2000).  

[10] Traditionally, mass media were regarded as the public watchdogs. But contemporary Strasbourg jurisprudence says that even organizations outside of the mainstream media, like civil society organizations and non-government organizations are also public watchdogs. See  Szabadsagjogokert v. Hungary, Application no. 37374/05 (14 April 2009).

[11] Goodwin v. United Kingdom, Application No.  16/1994/463/544 (27 March 1996).

[12] Steel and Morris v UK , Application No. 68416/01 (15 February 2005).

[13] Introductory Statement, The Camden Principles on Freedom of Expression and Equality.

[14] Lingens v. Austria,  8  EHRR 407 (1988).

[15] Szabadsagjogokert v. Hungary, Application no. 37374/05 (14 April 2009).

[16] Id.

[17] Lingens v. Austria,   8  EHRR 407 (1988).

[18] Bergens Tidende et alis v  Norway,  2000 EHRR  305 (2 May 2000) ;  Stoll v. Switzerland (2007) ECHR 69698/01;  Fressoz and Roire v. France (GC), Application No. 29183/95 (21 January 1999).

[18] Jersild v. Denmark, Application No. 15890/88, ECHR, Ser. A, No. 298  (1995).

[19] See Article 10, European Convention on Human Rights. 

[20] Goodwin v. UK, Application No.  16/1994/463/544 (27 March 1996); reiterated in Szabadsagjogokert v. Hungary,  Application no. 37374/05 (14 April 2009).

[21] Application No. 38224/03  (31 March 2009)

[22] Jersild v. Denmark, Application No. 15890/88, ECHR, Ser. A, No. 298  (1995). In this case, however, the court found a violation in the imposition of penalties for the broadcast of racist views because the broadcast was only for  exposition, and not given as views of the journalist or broadcaster.

[23] Leroy v. France, Application No. 36109/03 (2 October 2008)

[24] B.H., M.W., H.P. and G.K. v Austria, Application No. 12774/87 (12 October 1989)

[25] Handyside v.   UK, Application No. 5493/72  (7 December 1976).

LIMITS TO EXPRESSION UNDER STRASBOURG JURISPRUDENCE (First of Two Parts)

by; CHERYL L. DAYTEC-YANGOT

In the  jurisprudence of the European Court of Human Rights (ECHR), freedom of expression[i]  is highly apprized. Thus it entrenched a principle of liberal interpretation in favor of rights holders when there is a clash between the right and government interests in every case. This liberal interpretation is complemented by the principle of narrow interpretation of exceptions to its free exercise.[ii] Where there is interference, the necessity therefor must be convincingly established.[iii]

However, Strasbourg jurisprudence is also very zealous against the use of expression for ends incompatible with democratic principles. Where expression is employed as license to justify acts challenging the democratic paradigm contemplated under the ECHR[iv], Strasbourg frowns. Procurement to public disorder and violence against an individual or a class of the population is considered repugnant to democratic principles and hardly inspires Strasbourg’s sympathy.

One principle prominent in Strasbourg jurisprudence   on matters involving free expression stands out.  Contracting States “enjoy a certain margin of appreciation in assessing whether and to what extent an interference is necessary"[v]  and this margin is wider in cases of incitement to violence, public disorder and hatred.[vi]

But  “the limits of permissible criticism are wider with regard to the government than in relation to a private citizen or even a politician.”[vii] Holding that contracting States, “in their capacity as guarantors of public order,”  are free to adopt  measures to restrict freedom of expression,[viii] their actions are, in  a democratic system, subject to close scrutiny of authorities and the public, and, as the dominant force, must “display restraint in resorting to criminal proceedings.”[ix]  Underlying this is the  principle of narrow interpretation against States even in public disorder cases.

Public order is envisaged to refer not only to public order or ordre public but also embraces order “that must prevail within the confines of a specific social group.”[x] Thus Strasbourg held that restriction of  expression that tended to create disorder in the armed forces, a specific group, was proper considering that disorder in that group can have repercussions on societal order. [xi]

The test on incitement takes the speech in its entirety and concerns itself with determining whether it  encourages violence,  public disorder, armed resistance and insurrection.[xii]  There must be    sufficient nexus between expression and the real possibility of resulting violence for  interference to be justified. Although Strasbourg adheres to a principle of  tolerance and broadmindedness, consistent to which it protects information and ideas that shock, offend and disturb,[xiii] imminence of violence  is way above the threshold of real possibility.

In drawing the demarcation line between permissible and impermissible expression, Strasbourg evaluates intent,  content and context. Thus, although communism is regarded reprehensible to democracy, sheer membership in a communist organization not legally banned is insufficient basis to penalize an individual especially where the latter has not advocated violence and this intent to promote disorder cannot be presumed.[xiv]  Mere use of aggressive language does not legitimize  interference. The use of an equivocal symbol associated both  with communism and  proletariat struggle for better labor conditions was held not to promote  totalitarian propaganda.[xv] Where a cartoon condoning  11 September 2001 terrorist attack was published soon after in an area with separatist elements, Strasbourg held that the expression glorified violence.[xvi] When journals questioning military discipline were distributed among soldiers under a charged atmosphere of military discontent, it was held that there was incitement to public disorder.[xvii]

 Strasbourg jurisprudence considers  medium of expression and  audience size. In one case,  explosive poems  which literally might be  procurement to violence was upheld  as legitimate expression. Ruling against the State, Strasbourg said that it must  “be borne in mind that the medium used by the applicant was poetry, a form of artistic expression that appeals to only a minority of readers.”[xviii] This implies that if the  medium had mass appeal, the judgment would have been different. The audience size was a consideration  when leaflets assailing a military decision was distributed during a military parade witnessed by 50,000 people.[xix]

Strasbourg  employs the  fair balance test in determining if a positive obligation exists even in cases related to public disorder or violence. It said that  regard must be had to the fair balance to be struck between the community’s general interest  and the individual rights.[xx]

Historical matters figure in the equation of appraising  whether expression promotes public disorder or violence or tenets antithetical to democracy. Thus, Strasbourg is emphatic that  National Socialism principles  are  beyond  the ambit of protection ‘out of respect for the historical past forming the background to the Convention” declaring that  “National Socialism is a totalitarian doctrine incompatible with democracy and human rights.”[xxi]

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[i] This is protected under Article 10 of the European Convention on Human Rights.

[ii] Vajnai v. Hungary, Application No. 33629/06.

[iii] Autronic AG v. Switzerland, judgment of 22 May 1990; Worm v. Austria, judgment of 29 August 1997; Vajnai, id.

[iv] European Convention on Human Rights

[v] Chorherr v. Austria, Application No.  13308/87; 25 August 1993.

[vi] Karatas v Turkey [GC], 23168/94, ECHR 1999-IV.

[vii] Id.

[viii] Incal v. Turkey, 9 June 1998

[ix] Karatas v Turkey [GC], 23168/94, ECHR 1999-IV

[x] B.H., M.W., H.P. and G.K. v Austria, Application No. 12774/87, 12 October 1989.

[xi] Id.

[xii] Han v Turkey, Judgment of 13 September 2005.

[xiii] Müslüm Gündüz v. Turkey, Application no. 35071/97 of 4 December 2003; Karatas v Turkey (GC), 23168/94, ECHR 1999-IV; Vogt v. Germany, Application No.  7/1994/454/535, 2 September 1995.

[xiv] Vogt v. Germany, id.

[xv] Vajnai v. Hungary, Application No. 33629/06

[xvi] Leroy v. France, Application No. 36109/03

[xvii] Engel, et alis v. The Netherlands, Application No. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72

[xviii] Karatas v Turkey [GC], 23168/94, ECHR 1999-IV.

[xix] Chorherr v. Austria, Application No.  13308/87; 25 August 1993.

[xx] Ozgur Gundem v. Turkey, Application No. 00023144/93; 16/03/2000

[xxi] B.H., M.W., H.P. and G.K. v Austria, Application No. 12774/87, 12 October 1989.