{"id":10212,"date":"2022-07-06T15:40:41","date_gmt":"2022-07-06T15:40:41","guid":{"rendered":"http:\/\/legalblog.ie\/freedom-of-expression-ii\/"},"modified":"2023-08-27T16:19:45","modified_gmt":"2023-08-27T16:19:45","slug":"freedom-of-expression-ii","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/freedom-of-expression-ii\/","title":{"rendered":"Freedom Speech [ECHR]"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/freedom-of-expression-ii\/#Opinions_Facts\" title=\"Opinions &amp; Facts\">Opinions &amp; Facts<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/freedom-of-expression-ii\/#Political_Speech\" title=\"Political Speech\">Political Speech<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/freedom-of-expression-ii\/#Limits\" title=\"Limits\">Limits<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/freedom-of-expression-ii\/#Sanctions\" title=\"Sanctions\">Sanctions<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/freedom-of-expression-ii\/#Effective_Remedies\" title=\"Effective Remedies\">Effective Remedies<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/freedom-of-expression-ii\/#Property_in_Information\" title=\"Property in Information\">Property in Information<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/freedom-of-expression-ii\/#Public_Interest_v_Disclosure\" title=\"Public Interest v Disclosure\">Public Interest v Disclosure<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/freedom-of-expression-ii\/#Legal_Representatives\" title=\"Legal Representatives\">Legal Representatives<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/freedom-of-expression-ii\/#Politically_Controversial\" title=\"Politically Controversial\">Politically Controversial<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/freedom-of-expression-ii\/#Beyond_Limits\" title=\"Beyond Limits\">Beyond Limits<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Opinions_Facts\"><\/span>Opinions &amp; Facts<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.<\/p>\n<p>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 \u00a0balanced manner, and the person concerned is given the opportunity to respond or defend themselves. \u00a0There can be differences of opinion in drawing the line between facts and value judgements.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Political_Speech\"><\/span>Political Speech<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.<\/p>\n<p>In Castells v. Spain, the court indicated \u201cthe 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.<\/p>\n<p>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.<\/p>\n<p>However, \u00a0persons 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.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Limits\"><\/span>Limits<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.<\/p>\n<p>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.<\/p>\n<p>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\u2019 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&#8217;s freedom of expression.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Sanctions\"><\/span>Sanctions<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In Armoniene v. Lithuania, it was found that the statutory restriction on the judge&#8217;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\u2019s health, reputation and relationships.<\/p>\n<p>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.<\/p>\n<p>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, \u00a0particularly the serious violation of other fundamental rights such as incitement to violence and hate speech.<\/p>\n<p>In Eon v. France, the applicant was fined \u20ac30 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&#8217;s statement had been subject to public debate and the law would have a chilling effect, and the Convention was breached.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Effective_Remedies\"><\/span>Effective Remedies<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.<\/p>\n<p>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.<\/p>\n<p>In Steel &amp; Morris v. The United Kingdom, the applicants associated with Greenpeace published a pamphlet making defamatory claims about the Mcdonald&#8217;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&#8217;s freedom of expression and the right to a fair trial in view of the extraordinary length and complexity of the case.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Property_in_Information\"><\/span>Property in Information<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Ashby Donald v. France confirmed that the State&#8217;s enforcement of copyright law restraining the publication of infringing material did not breach the Convention.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Public_Interest_v_Disclosure\"><\/span>Public Interest v Disclosure<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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. \u00a0Whistleblowers must act in good faith and not out of personal grievance, \u00a0expectation or personal advantage. Where there are alternative channels for making the disclosure, they should be taken before disclosure to the general public.<\/p>\n<p>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.<\/p>\n<p>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.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Legal_Representatives\"><\/span>Legal Representatives<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.<\/p>\n<p>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.<\/p>\n<p>\u201c. . . 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\u2019s 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.\u201d<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Politically_Controversial\"><\/span>Politically Controversial<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In Temel v. Turkey, the chairman of a political party criticised US involvement in Iraq, the solitary confinement of a terrorist leader and the disappearance of persons in police custody. He was convicted of spreading propaganda. The court found there was no incitement of violence and that the Convention right was breached.<\/p>\n<p>In S\u00fcrek v. Turkey, the owner of a newspaper was convicted of publishing letters about the Kurdish conflict which condemned the authorities and accused them of brutal suppression of the Kurdish people. One letter alleged the state had connived in the imprisonment, torture and killing of dissidents in the name of democracy. The others referred to massacres which it was claimed were committed intentionally by the authorities.<\/p>\n<p>The courts indicated there was limited scope for restricting free speech in debates of public interest. They should exercise restraint in criminalising comments, in particular where there are other means of response to unjustified criticism available. In this case, the letters published amounted to an incitement to revenge and violence and hardening embedded prejudice which had already manifested themselves in deadly violence. In view of the tense security position, the authorities were justified. However, six of the seventeen judges dissented.<\/p>\n<p>In Levy v. France, a cartoon in a newspaper seemed to glorify the September 11 attackers, two days after the event, was the subject of a fine. It was found that the Convention protection was not breached due to the proximity of the event and its increased propensity to stir up violence and public disorder. The fine was modest and found to be proportionate.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Beyond_Limits\"><\/span>Beyond Limits<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Garaudy v. France involved a historian who published a book denying certain aspects of the Holocaust. It was found that the aim of the book was to rehabilitate the national socialist regime and accuse the victims of falsifying history. The protection provided by the freedom of expression was not available. Denying crimes against humanity was stated to be a serious form of racial defamation of Jews and incitement of hatred of them.<\/p>\n<p>However, the court has not extended the reasoning beyond denials of clearly established aspects of the Holocaust. A book that excluded Marshal P\u00e9tain from wrongdoing in World War II was protected.<\/p>\n<p>In Vejdeland v. Switzerland, penalties were placed on the applicant who placed leaflets on the lockers of schoolchildren making derogate remarks about homosexuality. It was found the state was justified in applying penalties against agitation against a national group. Attacks by way of insulting, ridiculing, and slandering groups can be sufficient for authorities to justify appropriate counteraction by way of anti-discrimination legislation. The leaflets were unduly, unnecessarily offensive and were aimed at children.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-10212\" data-postid=\"10212\" class=\"themify_builder_content themify_builder_content-10212 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Opinions &amp; 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 [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[349],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/10212"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=10212"}],"version-history":[{"count":12,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/10212\/revisions"}],"predecessor-version":[{"id":23583,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/10212\/revisions\/23583"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=10212"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=10212"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=10212"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}