case study 2- ECHR

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Case study 63 - Article 10 of the ECHR

(Freedom of expression and political elections)

Council of Europe Last updated: 06.09.2007


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Case study 63 - Article 10 of the ECHR:(Freedom of expression and political elections)

Immediately after the elections which took place in Albania in July 2005,a daily newspaper published an article in which several accusations ofwrongdoing were raised against the majority political party.

Notably, the journalist author of the article alleged that he had received,from an undisclosed source, reliable information that the electoralcampaign of the political party had been financed unlawfully by two of thebiggest commercial companies of the countries.

Furthermore, part of the money was handed out to electors in exchangefor their vote and some used to bribe those responsible for counting thevotes, in order to ensure a favourable outcome.

The article also alleged that the newly appointed Prime Minister, whowas the leader of the political party, betrayed the trust of the Albanianpeople, that he was culturally retarded and criticised his face for havinga criminal look.

The day after the newspapers publication, the competent judicialauthorities began an investigation to determine whether there had beenany unlawful interference with the electoral process. That same day, the

Prime Minister and other leading members of the political partiesmentioned in the article, filed a lawsuit for defamation against thenewspaper and the journalist.

The investigation was conducted very quickly and no evidencewhatsoever was found to support the newspapers allegations. In light ofthis, the result of the elections was validated and no charge was raisedagainst the majority political party. However, the newspaper publishedanother article where it was suggested that the investigation was not

properly conducted thanks to the long-term shrewd financial strategy ofthe political party which saved part of the money for dealing with theaftermath.

This statement was held to be an outrage against the judiciary andcriminal proceedings were instituted accordingly against the newspaperand the journalist.

In the course of the proceedings for defamation, the Court asked thejournalist to disclose the identity of the information source but he refusedthe request. Since the identity of the source was considered essential forthe proceedings, the Court ordered the disclosure. The journalist refused

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to comply with the order and was fined of 10.000 (or in default ofpayment, he was to be sentenced to 3 months imprisonment). Moreover,the Court held that the allegations of wrongdoings were false and thatthe comments concerning the figure of the Prime Minister were

unjustifiably offensive and with no factual basis. As a consequence, the journalist and the newspaper were convicted of defamation, andconsidering the seriousness of the offence the former was sentenced to2 years imprisonment and the latter to pay compensatory damages in theamount of 500.000 and to suspend publication for 1 month.

A second set of criminal proceedings also ended with the conviction ofthe journalist and the newspaper, as their ill-founded remarks cast doubton the impartiality and independence of the judiciary, jeopardizing itsauthority and credibility. The newspaper was sentenced to a fine of100.000 and the journalist prohibited from exercising his profession fora period of 5 years.

Questions:

1.

In relation to the proceedings for defamation brought by the PrimeMinister and other members of the political party, which elementsshould have been taken into account by the Albanian Court in thelight of Art. 10 of the ECHR?

2. Do you think that there was an interference with the journalist andnewspapers right to freedom of expression? And was theinterference proportionate to the aim pursued in respect of all thestatements contained in the articles?

3. Do you think that the Courts order addressed to the journalist todisclose his source and the sanction imposed upon him for noncompliance raised an issue under Art. 10 ECHR?

4. In relation to the proceedings for outrage against the judiciary, wasthere a violation of Art. 10 ECHR?

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Article 10 of the European Convention on HumanRights provides the right to freedom of expression, subjectto certain restrictions that are "in accordance with law"and "necessary in a democratic society". This right

includes the freedom to hold opinions, and to receive andimpart information and ideas.

Article 10 Freedom of expression1. Everyone has the right to freedom of expression. Thisright shall include freedom to hold opinions and toreceive and impart information and ideas withoutinterference by public authority and regardless of

frontiers. This article shall not prevent States fromrequiring the licensing of broadcasting, television orcinema enterprises.2. The exercise of these freedoms, since it carries with itduties and responsibilities, may be subject to suchformalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democraticsociety, in the interests of national security, territorial

integrity or public safety, for the prevention of disorderor crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received inconfidence, or for maintaining the authority andimpartiality of the judiciary.

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http://en.wikipedia.org/wiki/Freedom_of_expressionhttp://en.wikipedia.org/wiki/Freedom_of_expression


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Answer to the case study:

Question 1:

In relation to the proceedings for defamation brought by the Prime Minister andother members of the political party, which elements should have been takeninto account by the Albanian Court in the light of Art. 10 ECHR?

As to the newspaper and the journalist:- The right and obligation to impart information, especially of a public concern

and contributing to the discussion on behaviour and morals of politicians(watchdog role of the media) as well as the right to express a valuejudgement;

- The particular character of news which is a perishable commodity and to delayits publication, even for a short period, may well deprive it of all its value andinterest.;

-

The right to the good faith defence (given the conditions are met);- The protection of the journalists source of information;- The possibility / right to use a language and wording with some degree of

exaggeration or provocation or being seen as offensive, especially in responseto the provocative speech/speeches/behaviour of a politician;

As to the Prime Minister and members of the political parties mentioned in the article:

the limits of permissible criticism are wider with regard to the government than inrelation to a private citizen or even a politician ;

The limits of acceptable criticism are accordingly wider as regards a politician assuch than as regards a private individual.

Question 2:

Do you think that there was an interference with the journalist and newspapersright to freedom of expression? And was the interference proportionate to theaim pursued in respect of all the statements contained in the articles?

the Court stated:

Whilst the press must not overstep the bounds set, inter alia, for the "protection of thereputation of others", it is nevertheless incumbent on it to impart information andideas on political issues just as on those in other areas of public interest. Not only

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does the press have the task of imparting such information and ideas: the public alsohas a right to receive them.Thus, there was an interference with the journalist and newspapers right to freedomof expression.It can be assumed for the purpose of the case study that the above interference was

prescribed by the law.

The interference pursued a legitimate aim (the protection of the reputation or rightsof others), as in the newspaper article there were allegations concerning theunlawful financing of the electoral campaign and bribes connected to those elections(facts) as well as allegations concerning the newly appointed Prime Minister (factsand value judgments).

In order to decide if the interference was necessary in a democratic society, theproportionality of the interference to the aim pursued should be evaluated:As to the value judgements in general, the Court stated on many occasions that the

truth of the value-judgements is not susceptible of proof and the requirement ofproving the truth of the value judgments infringes the heart of the freedom of opinion.Moreover as far as the unjustifiably offensive character of the allegations isconcerned The Court was of the opinion that politicians must display widertolerance to media criticism The limits of acceptable criticism are accordingly wider as regards a politician assuch than as regards a private individualand that language used while describing behaviour and political morals of thepoliticians can have a degree of exaggeration or even provocation and that not everyword can be weighted to exclude any possibility of misunderstanding.

As to the allegations concerning the facts, the Court stated that the good faithdefence must be accepted in cases of defamation, which essentially concern facts.The journalist should not be sanctioned if at the time of publication he/she hadsufficient reasons to believe that a particular piece of information used in the articlewas true (reliability of the source of information and a reasonable check made by ajournalist) and it was not only the intent to defame the alleged victim what made thejournalist write an article.

Moreover, by evaluating the penalisation corresponding to the gravity of theallegations and in order not to endanger the censorship and public watchdog role of

the press (or media in general), the courts should refrain from applying criminalsentences, in particular imprisonment.Thus the interference was not proportionate to the aim pursued and there was aviolation of Article 10 of the Convention.

Question 3:Do you think that the court order to the journalist to disclose his source andthe sanction imposed upon him for non compliance, raise an issue under Art.10 ECHR?

In the Goodwin judgement the Court stated that (s. paragraph 39 of the judgement):

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The Court recalls that freedom of expression constitutes one of the essentialfoundations of a democratic society and that the safeguards to be afforded tothe press are of particular importance.Protection of journalistic sources is one of the basic conditions for pressfreedom, as is reflected in the laws and the professional codes of conduct in a

number of Contracting States and is affirmed in several internationalinstruments on journalistic freedoms. Without such protection, sources may bedeterred from assisting the press in informing the public on matters of publicinterest. As a result the vital public-watchdog role of the press may beundermined and the ability of the press to provide accurate and reliableinformation may be adversely affected. Having regard to the importance of theprotection of journalistic sources for press freedom in a democratic society andthe potentially chilling effect an order of source disclosure has on the exerciseof that freedom, such a measure cannot be compatible with Article 10 (art. 10)of the Convention unless it is justified by an overriding requirement in thepublic interest.

In the same judgment, the Court found the disclosure order requiring Mr Goodwin toreveal the identity of his source and the fine imposed upon him for refusing,constituted a violation of Article 10 of the ECHR (Freedom of expression).

After examining the case, the Court concluded the measures impugned on theapplicant were prescribed by law and the interference pursued a legitimate aim.Considering the necessity of the interference in a democratic society the Court foundthere was not:

-a reasonable relationship of proportionality between the legitimate aimpursued by the disclosure order and the means deployed to achieve that aim.The restriction which the disclosure order entailed on the applicant journalist'sexercise of his freedom of expression cannot therefore be regarded as havingbeen necessary in a democratic society, within the meaning of paragraph 2 ofArticle 10 (art. 10-2), for the protection of Tetra's rights under English law,notwithstanding the margin of appreciation available to the national authorities.

Accordingly, the Court concludes that both the order requiring theapplicant to reveal his source and the fine imposed upon him for havingrefused to do so gave rise to a violation of his right to freedom ofexpression under Article 10.

(emphasis added)

Moreover, following the Goodwin judgment, the Committee of Ministers of theCouncil of Europe adopted Recommendation No. R(2000) 7 on the right of journalistsnot to disclose their sources of information. (emphasis added)

Question 4:In relation to the proceedings for outrage against the judiciary, was there aviolation of Art. 10 ECHR?

The conviction of the journalist and the newspaper amounted to an interferencewith the exercise of their freedom of expression.

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It is very likely that in this case study 63, this interference was prescribed by lawand had pursued at least one of the legitimate aims referred to in Article 10 2 theprotection of the reputation or rights of others. In this case study, the rights of thejudges examining an alleged unlawful interference with the electoral process wereprotected.

The question to be answered is whether the interference was necessary in ademocratic society for achieving the above-mentioned aim.

The article suggesting that investigations were not properly conducted due to thelong-term shrewd financial strategy of the political party which saved part of themoney for dealing with the aftermath could be seen as a part of a debate on themalfunction of the judicial system or as an example for doubting the independence ofjudges. In this case it would be an important issue for the public which could not beleft outside the public debate.

- It is assumed that the convicted journalist had undertaken sufficient researchin order to be able to base the article on objective evidence and followed hisprofessional obligations by publishing what he learnt about the case. Theinterference should be seen as not necessary in a democratic society and theviolation of Article 10 should be decided.-

- If the defamatory article was solely aimed at :- damaging the reputation of the judges in question- undermining public confidence

and the journalist:- was unable to establish that his allegations were true- his value-judgments (if there were any) were fair comment- would not give to any of the judges concerned an opportunity to

comment on the accusations levelled against him or his colleagues

the impugned interference could not appear to be disproportionate (thus no violationof Article 10).

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