In Castells v. Spain, the court indicated “the limits of permissible criticism are wider with regard to the government than in a relation to a private citizen or even a politician. In a democratic society, the actions or omissions of the government must be subject to close scrutiny not only of the legislative and judicial authorities but also of the press and public opinion. Furthermore, the dominant position that the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to unjustified attacks and criticisms of its adversaries or the media.
Politicians open themselves to the scrutiny of the press and public and are to a higher level of potential criticism. Equally so are civil servants and persons acting in a public role and capacity, persons who have voluntarily entered the public arena, public affairs or the affairs of large companies or participate in public debate.
However, persons in public debate are entitled to privacy, albeit somewhat reduced to reflect the freedom of criticism. There is little public benefit and interest in exposing the private lives of public persons and states may be justified in taking measures to prevent it.
A distinction is drawn between attacking public servants in a private capacity and in a professional capacity. A public official may be required to endure criticisms but not insult them.
In Barfod v. Denmark, the applicant was convicted of criminal defamation after publishing an article questioning the impartiality of judges. The attack had been in personal and very strong terms. There was no violation of the Convention.
Opinions & Facts
A distinction is made between judgements and criticism and statements of fact. Statements of opinion are subject to a less strict standard, although they must have some sufficient basis in fact. Generally, it is reasonable in the public interest that defamation proceedings require the defendant to prove factual statements that they have made.
The court has held that in some circumstances, it may be in the interests of society that the defendant does not have the burden of proving facts because of the nature of the matter concerned. It may be sufficient that the defendant has conducted reasonable research before making the statement and the allegations are presented in a balanced manner, and the person concerned is given the opportunity to respond or defend themselves. There can be differences of opinion in drawing the line between facts and value judgements.
The internet has been acknowledged as an important conduit for freedom of expression. However, it can raise difficult issues in the context of defamation, particularly by a third-party comments which may be left anonymously. Proportionate restrictions on persons hosting such sites may be permissible.
In Delfi v. Estonia case, the applicant was ordered to pay minimal damages to a company following threatening remarks. It had procedures and measures in place to screen obscene words and allowed the victim of defamation to notify the applicant so that the comment would be removed.
However, in the circumstances, the court held that, in particular, the insulting and threatening nature of the comments, that the comments were posted in reaction to an article published by the applicant company, which was a professionally managed news portal run in a commercial basis, the insufficiency of measures taken by the applicant to avoid damage being caused to others’ reputations and to ensure a realistic possibility that the authors of the comments would be held liable, the moderate sanction imposed where the company had been found liable for defamatory comments was justified as a proportionate restriction of the applicant company’s freedom of expression.
Privacy & Public Figures
The right to privacy and private life must often be balanced with the right to free expression. In Von Hannover v. Germany, the applicant was Princess Caroline of Monaco, who complained about the publication in a magazine of pictures of her children eating in restaurants. She was refused an injunction in the German courts.
The court indicated that although freedom of expression also extends to the publication of photos, this is an area where the protection of the rights and reputations of others takes on a particular importance. The present case does not concern the dissemination of ideas but of images containing personal and intimate information about an individual.
Furthermore, photos appearing in a tabloid press are often taken in a climate of continual harassment, which induces in the persons concerned a very strong sense of intrusion into their private lives. The court distinguished between the reporting of facts capable of contributing to debate in a democratic society relating to politicians, where the press played an important role, and reporting details of a person’s private life.
In MGM v. United Kingdom, the court held there was no violation of the protection where the domestic courts had found a breach of confidentiality regarding printed stories concerning a model, the use of drugs, d drug treatment and drug addiction. Although the drug addiction and treatment were in the public domain, additional information was an unwarranted interference with her privacy.
In Axel Springer AG v. Germany, newspapers printed details about a TV actor who played a police officer being arrested for possession of drugs. The court indicated that the following factors were important when balancing the right of privacy against the right of freedom of expression.
- prior conduct of the person concerned
- contribution to a debate of public interest
- how well-known the person is and the subject of the report
- content form and consequences of the publication,
- the severity of the sanction,
It was held that the injunctions against publication breached the protection. They did not make any unsubstantiated allegations and the applicant had previously released details of his life into the public sphere.
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 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.
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 Nikula v. France, the court indicated that the special status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the court. Such a position explains the usual restrictions as to the conduct of members of the bar.
The courts, the guarantors of justice whose role is fundamental in a state based on the rule of law, must enjoy public confidence. Regard being had to the key role of lawyers in this field, it is legitimate to expect them to contribute to the proper administration of justice and thus to maintain public confidence therein.
“. . . while lawyers are certainly entitled to comment in public on the administration of justice, their criticism must not overstep certain bounds. In that connection, account must be taken of the need to strike the right balance between the various interests involved, which include the public’s right to receive information about questions arising from judicial decisions, the requirements of the proper administration of justice and the dignity of the legal profession.”
In Armoniene v. Lithuania, it was found that the statutory restriction on the judge’s power to award damages breached the Convention where very low damages pursuant to the statutory cap were awarded against where the person was not in the public sphere and serious and damaging claims had been made regarding a person’s health, reputation and relationships.
Equally, large and disproportionate damages may breach the protection. Even if damages are awarded by a jury, the judiciary is expected to keep the award within reasonable bounds.
Imprisonment will rarely be justifiable for speech-based crimes other than in highly exceptional cases. In Cumpana v. Romania, the imprisonment of a journalist for defamation in relation to a debate which was a matter of legitimate public concern required exceptional circumstances, particularly the serious violation of other fundamental rights such as incitement to violence and hate speech.
In Eon v. France, the applicant was fined €30 for insulting the head of state by repeating an obscene comment made by the French president on a placard. Although the fine was small, the president’s statement had been subject to public debate and the law would have a chilling effect, and the Convention was breached.
In McVicar v. United Kingdom, a journalist who had made accusations of doping against a well-known professional athlete was sued in defamation. He could not represent himself because legal aid was not available for defamation.
He was ordered to pay the costs and was injuncted from publishing the allegation again. The court rejected the claim that the non-provision of legal aid was a violation of his Convention right. It stated that the applicant was well-educated and experienced and had the assistance of a specialist lawyer for some of this case.
In Steel & Morris v. The United Kingdom, the applicants associated with Greenpeace published a pamphlet making defamatory claims about the Mcdonald’s food chain. While the defamation proceedings ran for 313 court days, the applicants were not entitled for legal aid, although they received considerable pro bono assistance. The court held that the non-provision of legal aid did violate the applicant’s freedom of expression and the right to a fair trial in view of the extraordinary length and complexity of the case.
Property in Information
Ashby Donald v. France confirmed that the State’s enforcement of copyright law restraining the publication of infringing material did not breach the Convention.
In Gillberg v. Sweden, the applicant who had been ordered to release information argued he had a right not to impart information. In the circumstances, the court found the papers concerned belong to the university for whom he worked and there was no violation of the Convention.
In Hadjianastassiou v. Greece, the court held that the state had a wide margin of appreciation in relation to national security issues. The applicant had been convicted of having disclosed military secrets. Although they were of minor importance, by its nature, any disclosure of state secrets may undermine national security and the Convention was not breached.
The Observer v United Kingdom, and Sunday Times v. United Kingdom, concerned injunctions sought by the United Kingdom restraining the publication of a book by a former spy. It was ruled by the majority that the risk of material prejudicial to national security existed and applied the exemption. After the importation of foreign newspapers, the ground could no longer be relied on since the information was freely circulating in other countries.
Several cases have involved so-called whistle-blowers/state employees who criticised government policies or actions. Restrictive actions in the protection of state interests is permissible but must be proportionate.
The person’s motives and ability to substantiate the claims are important considerations. Where the disclosure is made to a narrow category of persons such as immediate superiors, a greater degree of tolerance must be permitted. The court has tended to hold against preserving the confidentiality of official wrongdoing.
In Guja v. Moldova, the applicant was the head of the Moldovan prosecutor general’s office. He leaked papers from a government minister seeking the termination of prosecutions against police officers. He was dismissed.
“The court notes that a civil servant, in the course of his work, may become aware of in-house information, including secret information whose divulgence or publication corresponds to a strong public interest. The court considers that the signalling by a civil servant or an employee in the public sector of illegal conduct or wrongdoing in a public place should, in certain circumstances, enjoy protection. This may be called for where the employee or civil servant concerned is the only person or part of a small category aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large”.
“In light of the discretion owed by him, the disclosure must be made in the first place to the person’s superior or other competent authority or body. It is only when this is clearly impracticable that the information could, as a last resort, be disclosed to the public… In assessing whether the restriction on freedom of expression is proportionate, the court must take into account whether that was available to the applicant any the other effective means of remedying the wrongdoing which he intended to uncover.”
Public Interest v Disclosure
The degree of public interest must be such that it overrides confidentiality. There is a heavy burden on the whistle-blower to show that the information is accurate and reliable. Whistleblowers must act in good faith and not out of personal grievance, expectation or personal advantage. Where there are alternative channels for making the disclosure, they should be taken before disclosure to the general public.
In Stoll v. Switzerland, a journalist gained confidential information written by the Swiss ambassador to the United States in relation to a governmental strategy that might be adopted by the Swiss authorities in settling compensation claims arising for Holocaust victims in relation to unclaimed monies in Swiss bank accounts. The information was obtained in breach of official secret legislation.
A journalist wrote an article criticising the ambassador for disclosing the contents of the documents. He was fined 800 Swiss francs. The Press Council found the publication legitimate but criticised its content. The journalist complained to the court, which found there was no violation. The interest in protecting the confidentiality of diplomatic service information outweighed the public interest in the matters disclosed.
In Dammann v. Switzerland, a journalist was convicted for inciting a third party to disclose an official secret. He did not publish the material which related to prior convictions of a person under investigation. The person who provided the information had not been pressurised, tricked or threatened and the information had not been published. The light penalty was nonetheless such as to have a chilling effect and there was a risk that it would inhibit the role of the press in disclosing matters of public interest.
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