The courts have emphasised the importance of the freedom of the press and its relevance as a watchdog in a democratic society. The press has a duty to communicate information and ideas. States have a narrow scope in interference with the freedom of the press.
This context must be cogently justified when journalists are expressing information and ideas of public concern. Journalists should be allowed to be provocative and exaggerate without sanction in so doing.
Public advisory groups, such as environmental groups, may fulfil a similar role to the press in promoting public debate and discussion. Restrictions imposed on them must not be disproportionate or have a chilling effect.
The extent of restriction is of importance. Prior restraints, such as a ban on publication, are examined and are subject to greater scrutiny. It will be of relevance whether the applicant had other means of expression.
Audiovisual media are more immediate and powerful than print media and accordingly, more restrictive measures may be permissible due to the greater risk. Murphy v. Ireland 2003.
Restrictions and blocking an internet site in the context of court proceedings against another were held to be a breach in Yildirim v. Turkey. The measure was not prescribed by law.
In Women on the Waves v. Portugal, a restriction of a ship to Portuguese territory, which was an open public space, was found to breach the Convention. Appleby was distinguished. In the Mouvement Raelien Suisse v. Switzerland, it was confirmed that access to a public square where there was advertising could be restricted.
In Sendikasi v. Turkey, it was confirmed that the freedom includes the freedom to express and impart information and ideas in any language that affords the opportunity to take part in the public exchange of cultural, political and social information and ideas of all kinds. Accordingly, orders against a trade union which promoted education in Kurdish were held to be a breach, although it was claimed that Kurdish threatened the integrity of the respondent State.
In Appleby v. United Kingdom, the court indicated there was no right of unrestricted access to public places for the purpose of the protest. There was no obligation on the state to ensure access to a private shopping mall for the purpose of protest. Other means of communication and dissemination of the material were available.
Broadcasting is contemplated as being subject to more rigorous regulation than print media under Article 10.
In Informationsverein Lentia v. Austria, applicants were refused broadcasting licences, and the state broadcaster held the monopoly. It was held there was a violation of Article 10 and a public broadcasting monopoly could not be justified in the context of the State’s obligation to guarantee pluralism.
In Autronic v. Switzerland, the government had refused permission for a company to receive programs from a soviet satellite and this was in breach of the guarantee.
In Mustafa and another v, Sweden, in the particular circumstances, it was held that there was a right for an Iraqi national living in Switzerland to have a satellite dish to receive Arabic and Farsi stations where there were no other means of receiving such media notwithstanding that they breached their tenancy and were thereby evicted.
In Manole v. Moldova, the state-owned broadcaster did not have a monopoly, but its programs were the most widely watched, particularly in rural areas with no access to other media, cable or satellite. The applicants, who were employees of the state entity, alleged undue political interference on news reporting. They went on strike and were disciplined.
“Where the state does decide to create a public broadcasting system, it follows that the principles outlined [above] that domestic law and practice must guarantee that the system provides a pluralistic service. Particularly, where private stations are still too weak to offer a genuine alternative and public or state organisation is, therefore, the sole or dominant broadcaster within the country, it is indispensable for the proper functioning of democracy that it transmits impartial, independent and balanced news information and comment and in addition provides a forum for public discussion to which as broad a spectrum is possible, of views and opinions are expressed.
The court held that the freedom of expression of the applicants was violated. The state had not guaranteed pluralism and did not have a framework that would prevent the editorial policy from being controlled by a governmental agency. A change in the law by which another entity was appointed to regulate and oversee the broadcaster was insufficient, as the risk of political bias still existed where one party controlled all the government organs.
Journalists obliged to disclose Sources
Financial Times Ltd and Others v. the United Kingdom concerned the complaint by four United Kingdom newspapers and a news agency that they had been ordered to disclose documents to Interbrew, a Belgian brewing company, which could lead to the identification of journalistic sources at the origin of a leak to the press about a takeover bid.The Court held that there had been a violation of Article 10 of the Convention.
Emphasising in particular the chilling effect arising whenever journalists were seen to assist in the identification of anonymous sources, it found that the interests in eliminating damage through the future dissemination of confidential information and in obtaining damages for past breaches of confidence were, even if considered cumulatively, insufficient to outweigh the public interest in the protection of journalists’ sources.
Becker v. Norway concerned a journalist who was ordered to give evidence in a criminal case brought against one of her sources, Mr X, for market manipulation. The Court held that there had been a violation of Article 10 of the Convention. It found that its assessment turned, above all, on whether the applicant’s evidence had been needed during the criminal investigation and subsequent court proceedings against her source. It pointed out that her refusal to disclose her source (or sources) had not at any point in time hindered either the investigation or proceedings against Mr X. Furthermore, her right as a journalist to keep her sources confidential could not automatically be removed because of a source’s conduct or because the source’s identity had become known.
Jecker v. Switzerland
The applicant in this case, a journalist, submitted that she had been compelled to give evidence during a criminal investigation into drug trafficking and that the authorities had required her to disclose her sources following the publication of a newspaper article about a soft-drug dealer who had provided her with information. The European Court held that there had been a violation of Article 10 of the Convention in respect of the applicant. In the present case, it was not sufficient for the interference to have been imposed because the offence in question fell within a particular category or was caught by a legal rule formulated in general terms; instead, it should have been ascertained that it was necessary in the specific circumstances. However, the Federal Supreme Court had decided the case with reference to the balancing exercise performed in general and abstract terms by the legislature.
Sedletska v. Ukraine concerned judicial authorisation of the accessing of the phone data of the applicant, a journalist with Radio Free Europe/Radio Liberty, by the investigating authorities, which had threatened the protection of her journalistic sources.
The Court held that there had been a violation of Article 10 of the Convention in respect of the applicant. In view of its findings in the case, it was not convinced that the data access authorisation given by the domestic courts had been justified by an “overriding requirement in the public interest” and, therefore, necessary in a democratic society.
Big Brother Watch and Others v. the United Kingdom . These applications were lodged after revelations by Edward Snowden (former contractor with the US National Security Agency) about programmes of surveillance and intelligence sharing between the USA and the United Kingdom. The case concerned complaints by journalists and human-rights organisations in regard to three different surveillance regimes: (1) the bulk interception of communications; (2) the receipt of intercept material from foreign governments and intelligence agencies; (3) the obtaining of communications data from communication service providers.
The Grand Chamber held: unanimously, that there had been a violation of Article 8 (right to respect for private life and correspondence) of the Convention in respect of the bulk intercept regime; unanimously, that there had been a violation of Article 8 in respect of the regime for obtaining communications data from communication service providers; by twelve votes to five, that there had been no violation of Article 8 in respect of the United Kingdom’s regime for requesting intercepted material from foreign Governments and intelligence agencies; unanimously, that there had been a violation of Article 10 (freedom of expression) of the Convention, concerning both the bulk interception regime and the regime for obtaining communications data from communication service providers; and, by twelve votes to fives, that there had been no violation of Article 10 in respect of the regime for requesting intercepted material from foreign Governments and intelligence agencies.
The Court considered in particular that, owing to the multitude of threats States face in modern society, operating a bulk interception regime did not in and of itself violate the Convention. However, such a regime had to be subject to “end-to-end safeguards”, meaning that, at the domestic level, an assessment should be made at each stage of the process of the necessity and proportionality of the measures being taken; that bulk interception should be subject to independent authorisation at the outset, when the object and scope of the operation were being defined; and that the operation should be subject to supervision and independent ex post facto review.
Searches of journalists’ home or workplace
Nagla v. Latviacase concerned the search by the police of a well-known broadcast journalist’s home, and their seizure of data storage devices. Her home was searched following a broadcast she had aired in February 2010 informing the public of an information leak from the State Revenue Service database.The Court held that there had been a violation of Article 10 of the Convention. It emphasised in particular that the right of journalist’s not to disclose their sources could not be considered a privilege, dependent on the lawfulness or unlawfulness of their sources, but rather as an intrinsic part of the right to information that should be treated with the utmost caution..
Sergey Sorokin v. Russia The applicant, a journalist and public activist, had published on the website of his weekly newspaper an interview with a high-ranking police officer regarding a scandal about abuse of power. A criminal case was subsequently opened against the police officer for disclosing State secrets. The applicant complained about the search of his flat and the seizure of his computer, hard drives and an audio cassette in this context. The Court held that there had been a violation of Article 10 of the Convention, finding that the impugned search had been carried out in the absence of procedural safeguards against interference with the confidentiality of the applicant’s journalistic sources and had therefore not been “necessary in a democratic society” to achieve the legitimate aim pursued, namely preventing crime.
Görmüş and Others v. Turkey 2016 In April 2007 the Nokta weekly magazine published an article based on documents classified “confidential” by the Chief of Staff of the armed forces. The Court held that there had been a violation of Article 10 of the Convention. It found in particular that the article published by the weekly newspaper Nokta, on the basis of “confidential” military documents about a system for classifying the media on the basis of whether they were “favourable” or “unfavourable” to the armed forces, was capable of contributing to public debate.
Emphasising the importance of freedom of expression with regard to matters of public interest and the need to protect journalistic sources, including when those sources were State officials highlighting unsatisfactory practices in their workplace, the Court held that the interference with the journalists’ right to freedom of expression, especially their right to impart information, had not been proportionate to the legitimate aim sought, had not met a pressing social need, and had not therefore been necessary in a democratic society; the interference had consisted in the seizure, retrieval and storage by the authorities of all of the magazine’s computer data, even data that was unrelated to the article, with a view to identifying the public- sector whistle-blowers.
Incitement to Violence
In Jersild v. Denmark, a Danish TV program in which self-confessed racists made offensive remarks about black people, lead to the prosecution and conviction of its presenter and commissioner. The court was satisfied that they did not intend to promote racist views but to deal with a matter of public interest. Where this involves the creation of conflict and tension, the media may be expected to exercise greater restraint.
In Gündüz v. Turkey, the court indicated: “. tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. This being so as a matter of principle, it may be considered necessary in certain democratic societies to sanction or to even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance, including religious intolerance, provided that any formalities, conditions, restrictions, or penalties imposed are proportionate to the legitimate aim pursued”. Whether a statement may be an incitement of violence or hatred depends on its context.