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under the ECHR

under the ECHR. Raluca Bercea Professor, LAW FACULTY WEST UNIVERSITY TIMISOARA. THE FREEDOM OF EXPRESSION UNDER THE ECHR. PLAN : 1. Introduction: the national level(s) and the conventional background 2. Art. 10 ECHR: general considerations 3. Art. 10 ECHR: the principle of protection

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under the ECHR

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  1. under the ECHR Raluca Bercea Professor, LAW FACULTY WEST UNIVERSITY TIMISOARA

  2. THE FREEDOM OF EXPRESSION UNDER THE ECHR PLAN: • 1. Introduction: the national level(s) and the conventional background • 2. Art. 10 ECHR: general considerations • 3. Art. 10 ECHR: the principle of protection • 4. Art. 10 ECHR: the structure • 5. Right to freedom of expression: components; types of protected and unprotected speech • 6. Art. 10 ECHR: the duties • 7. Art. 10 ECHR: the system of restrictions • 8. An example: freedom of expression, press and reputation

  3. 1. INTRODUCTION: THE NATIONALLEVEL(S) • - freedom of expression is legally protected in almost all European countries; • - most national constitutions include this freedom amongst the general principles associated with citizens’ rights; • - its essential content includes the possibility to have and express opinions, either directly or indirectly related to the role of the media in disseminating information and providing the citizen with a range of different views and opinions; • - only in a few countries the relevant constitutional provisions make a clear distinction between freedom of expression and freedom of the press and devote specific provisions to the latter, introducing constitutional articles on this point; • - the distinction between freedom of the press - traditionally associated with the printed press - and freedom of the media in general is not so neat in constitutional clauses; • - general need to balance freedom of expression with other rights: • countries that have only a general limitation clause (constitutions implicitly allocate the burden of striking the balance between competing interests on domestic courts, whether civil or criminal – a case by case evaluation) • countries that have an ‘ad hoc’ limitation clauses (limitations linked with the rights of other people, limitations that protect public values, temporary limitations)

  4. 1. INTRODUCTION: THE CONVENTIONAL BACKGROUND • The Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) • * self-executing international treaty; • * integrated by the states parties into their positive law systems; • * binding on the domestic courts and public authorities; • * individuals under the jurisdiction of the states parties derive rights and duties from the ECHR; • * individuals under the jurisdiction of the states parties may directly invoke the ECHR in the national procedures; • * the domestic courts and public authorities must give priority to the ECHR over any national law conflicting with it; • * the ECHR must not be read outside the Court’s case law – binding precedents whose legal status is that of mandatory legal norms; • * the ECHR is a living instrument, to be interpreted in the light of the present day conditions; • *subsidiarity: the primary responsibility for the protection of the rights lies with the states; • * the margin of appreciation: considerable where there is little common ground between the states / reduced in areas such the protection of freedom of expression.

  5. 1. INTRODUCTION: THE CONVENTIONAL BACKGROUND.A COMPARISON EUROPEAN CONVENTION OF HUMAN RIGHTS ART. 10: FREEDOM OF EXPRESSION Charter of Fundamental Rights of the European Union art. 11: Freedom of expression and information 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 2. The freedom and pluralism of the media shall be respected. • 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. • 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or 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 in confidence, or for maintaining the authority and impartiality of the judiciary.

  6. 1. INTRODUCTION: THE CONVENTIONAL BACKGROUND • Article 51 CFREU - Field of application • 1.   The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. • !national legislation implementing EU law; national legislation interfering with EU law; national authorities enforcing EU law • Article 52 CFREU Scope and interpretation of rights and principles • 3.   In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. • Consistent interpretation, minimum standard • ! Freedom of expression in the EU is nowadays protected also at a secondary law level through recent directives, Council decisions and resolutions on specific matters as broadcasting, licensing or internet (Audiovisual media service Directive 2010/13/EC, General Data Protection Regulation n. 2016/679, Council Decision 2006/515/EC promoting cultural diversity and expression)

  7. 2. ART. 10 ECHR: GENERAL CONSIDERATIONS • right in itself / right indispensable for the exercise of other rights (freedom of assembly and association) / rightpotentially prejudicial to the exercise of other rights (right to a fair trial, respect for private and family life); • individual right / convivial right; • democratic right by excellence; tight connection between freedom of expression and democracy; social and political stakes: • Freedom of expression constitutes one of the essential foundations of [a democratic society] society, one of the basic conditions for its progress and for the development of every man – ECHR, Handyside • liberal conception: • Maintenance of press diversity may constitute an overriding requirement justifying a restriction on free movement of goods. Such diversity helps to safeguard freedom of expression, as protected by Article 10 of the European Convention on Human Rights and Fundamental Freedoms, which is one of the fundamental rights guaranteed by the Community legal order – CJCE, Vereinigte Familiapress

  8. ART. 10 ECHR: THE PRINCIPLEOF PROTECTION • 1. Article 10(1) ECHR confers a broad protection to freedom of expression; • 2. The protection extends to any expression by any individual, group or type of media; • 3. The only content-based restriction applied by the ECtHR: dissemination of ideas promoting racism, the Nazi ideology, negationism, incitement to hatred and racial discrimination; 4. It extends to the protection of commercial expression, artistic expression and political expression. • 5. The protection will tend to be more favourable to political speech or statement when conflicting with other freedoms or rights.

  9. ART. 10 ECHR: THE PRINCIPLEOF PROTECTION 6. Limits imposed by art. 17 ECHR: freedom of expression may not be used to lead to the destruction of the rights and freedoms granted by the Convention; • 7. States must justify any interference in any kind of expression • On the one hand, States have negative obligation to abstain from interference towards the exercise of freedom of expression; • On the other, there may be positive obligations to protect such right, even against the interference by private persons.

  10. ART. 10 ECHR: THE PRINCIPLEOF PROTECTION • Article 10 ECHR: the horizontal effect. The positive obligations of the States • The right to freedom of expression/information applies horizontally, to the relations between individuals (e.g. employee / private employer, landlord / tenant, professor / religious authority); • The States have a positive obligation to protect the individuals against all interference in their freedom of expression, even from other private individuals; • The States must therefore put into practice a system of adequate procedural guarantees: • Ozgür Gundem v Turkey: national authorities to take appropriate measures to inquire and protect in case of repeated acts of violence against a journalist; • VGT Verein Gegen Tierfabriken: the state’s responsibility may be at stake if national law allows for the violation of the freedom of expression (even by a private company).

  11. 4. ART. 10 ECHR: THE STRUCTURE • 2 paragraphs: • § 1: defines the freedoms protected; • § 2: stipulates the circumstances in which a state may legitimately interfere with the exercise of the freedom of expression.

  12. 5. RIGHT TO FREEDOM OF EXPRESSION: COMPONENTS; TYPES OF PROTECTED SPEECH; TYPES OF UNPROTECTED SPEECH • COMPONENTS: • FREEDOM TO HOLD OPINIONS: almost absolute protection; restrictions set forth in § 2: inapplicable. Includes the negative freedom of not being compelled to communicate one’s opinions • FREEDOM TO IMPART INFORMATION AND IDEAS: crucial components of democratic societies (free elections; freedom to criticize the government; artistic performance and creation) • FREEDOM TO RECEIVE INFORMATION AND IDEAS: includes the right to gather information and to seek information through lawful sources • ! ACCESS TO INFORMATION: recent broader interpretation of the notion of “freedom to receive information” covering a right of access to information (Roşianuv. Romania). Extends not only to information on political and social news, but also to the information to be received from private individuals and legal entities.

  13. TYPES OF PROTECTED SPEECH • - words, written or spoken, pictures, images, actions, cultural heritage, display and use of different symbols; • - is protected not only the substance of the information and ideas, but also the form in which they are expressed; • - not only the positive, favourable or indifferent information, but also the one that shocks, hurts or worries; • - primary information and deliberately processed information; • - the political discourse: reinforced protection; • - satirical expression: granted a special protection; • - other discourses covered: the lawyer’s exercise of defense rights, the academic discourse; the research of the historical truth cf. the right to vote is not protected under Art. 10. • - is also protected the negative freedom of expression: the right not to speak • (K. v. Austria – the applicant is protected against self-incrimination in connection with criminal proceedings);

  14. A FORMAL, NOT A MATERIAL CRITERIUM OF APPLICABILITY • Freedom of expression is not defined by the content of information, its quality or importance, but rather by the way in which it is formulated. • Freedom of expression is at stake whenever the information – be it economic, professional or artistic – receives a support that would make it accessible to the public. • ―» the freedom of information protects not only the substance of the ideas, but also the means through which they are conveyed and protects the general public’s right to receive pluralist information. • NB: the right to information is the only fundamental right to be exercised regardless of borders. Frédéric Sudre, Laure Milano, Hélène Surrel, Droit européen et international des droits de l’homme, 14e éd., PUF, Paris, 2019, p. 812

  15. TYPES OF UNPROTECTED SPEECH • INCITEMENT TO VIOLENCE – falls outside the protection of Art. 10 if there is an intentional and direct use of wording to incite violence and real possibility that violence occur • (Leroy v. France: “We have all dreamt of it … Hamas did it”) HOLOCAUST DENIAL AND REFERENCES TO NAZI IDEOLOGY • (D.I. v. Germany: the gas chambers in Auschwitz were fakes built in the first post-war days paid by the German tax payers) • CF. THE DENIAL OF THE ARMENIAN GENOCIDE • (Perinçek v. Swizerland:a detailed balancing of the rights) • Being aware of the great importance attributed by the Armenian community to the question whether those mass deportations and massacres were to be regarded as genocide, ECtHR found that the dignity of the victims and the dignity and identity of modern-day Armenians were protected by Article 8. The Court therefore had to strike a balance between two Convention rights, the right to freedom of expression and the right to respect for private life, taking into account the specific circumstances of the case and the proportionality between the means used and the aim sought to be achieved. In this case, the Court concluded that it had not been necessary, in a democratic society, to subject the applicant to a criminal penalty in order to protect the rights of the Armenian community at stake in the case)

  16. TYPES OF UNPROTECTED SPEECH HATE SPEECH AND RACISM directed towards different minorities • (Norwood v. United Kingdom: “Islam out of Britain – Protect the British people”) • broader approach: analyses the facts of the case under Art. 17 ECHR; • M’Bala M’Bala v. France: the conviction of Dieudonné M’BalaM’Bala for his show in Paris for public insults directed at a person or group of persons on account of their origin or of belonging to a given ethnic community, nation, race or religion (in this case, persons of Jewish origin or faith). The ECtHR affirmed that the factual circumstances could not allow to qualify the show as satirical or provocative, but rather “a demonstration of hatred and anti-Semitism and support for Holocaust denial”. The ECtHR concluded that the applicant had sought to deflect Article 10 from its real purpose by using his right to freedom of expression for ends which were incompatible with the letter and spirit of the Convention. The claim is inadmissible according to art 17 ECHR prohibiting the abuse of rights • narrower approach: analyses the facts of the case through the lenses of Art 10 (2) ECHR, evaluating the restrictions imposed -a detailed balancing exercise between freedom of expression and the legitimate objectives that are leading to its limitations; • ECtHR:a set of identification criteria that qualify hate speech: the context and the intention of the speech, the status of the perpetrator, the form and impact of the speech; • !the difficulty of drawing the boundary between an expression that may “offend, shock or disturb”, which is protected under art 10 ECHR, and hate speech.

  17. TYPES OF UNPROTECTED SPEECH • HATE SPEECH AND RACISM • Féret v Belgium: a Belgian member of Parliament and chairman of the political party Front National, who distributed during the election campaign leaflets that, according to Belgian courts, could amount to incitement to racial discrimination. The ECtHR did not found any violation of art 10 ECHR as the limitation imposed by Belgian law were justified by the interests of preventing disorder given that the resonance of political slogans during electoral context are higher. • Jersild v Denmark: the ECtHR evaluated the limitation to freedom of expression in case of journalistic activity which allowed the reporting of racist remarks. A journalist was convicted for a documentary including a footage dedicated to a racist group active in Denmark. Such conviction, according to the ECtHR, was in violation of art 10 ECHR as the behavior of the journalist could not be qualified as aimed at propagating racist views and ideas, but at informing the public about a social issue. As such the national laws would “seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so”.

  18. 6. ART. 10 ECHR: THE DUTIES • evolution(conservative approach, giving states strong powers vs. a more liberal one, where states enjoy less discretion) • Engel and Others v. the Netherlands: a ban on soldiers’ publication and distribution of a paper criticising some senior officers was found by the Court to be a justified interference with the freedom of expression. However, the Court also held that “there was no question of depriving them of their freedom of expression but only of punishing the abusive exercise of that freedom on their part.” • Rommelfanger v. the Federal Republic of Germany: states have the positive duty to ensure that the exercise of the freedom of expression by a civil servant is not subject to restrictions which would affectthe substance of this right. • Present orientation: any national laws or other regulations imposing absolute and unlimited loyalty or confidentiality restrictions on particular categories of civil servants (e.g. those employed by the intelligence services, army, members of the judiciary, would violate Article 10. Such restrictions may be adopted by the member states only where they do not have a general character, but are limited to particular categories of information whose secrecy must be examined periodically, to specific categories of civil servants or only to some individuals belonging to such categories, and where they are temporary. “The exercise of these freedoms, since it carries with it duties and responsibilities …” Idea unique in the ECHR HOWEVER Not a separate circumstance automatically limiting the freedom of expression of individuals belonging to certain categories that carry with them duties and responsibilities

  19. 7. ART. 10 ECHR: THE SYSTEM OF RESTRICTIONS • 1. “The exercise of these freedoms … may be subject to” Any form of interference with the freedom of expression may only be applied to a particular exercise of this freedom. • The content of the right to freedom of expression may never be touched – Art. 15: “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention”. • A limitation on the content of a right is similar to denial of that right. • Public authorities have only the possibility and not the obligation to order and/or enforce a restrictive or punitive measure in respect of the exercise of the right to freedom of expression. • e.g.: a public expression putting the authority of the judiciary at risk must not be punished whenever such a criticism occurs. • The legal standard: in any borderline case, the freedom of the individual must be favourably balanced against state’s claim of overriding interest (The Sunday Times v. The United Kingdom: „strict interpretation means that no other criteria than those mentioned in the exception clause itself may be at the basis of any restrictions, and these criteria, in turn, must be understood in such a way that the language is not extended beyond its ordinary meaning ...”). 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or 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 in confidence, or for maintaining the authority and impartiality of the judiciary.

  20. 7. ART. 10 ECHR: THE SYSTEM OF RESTRICTIONS • 2. The interference: “formalities, conditions, restrictions or penalties” • State’s interference: any form of interference coming from any authority exercising public power and duties or being in the public service, such as courts, prosecutors’ offices, police, any law enforcement body, intelligence services, central or local councils, governmental departments, army’s decision-making bodies, or public professional structures … • e.g. criminal conviction (a fine or imprisonment), an order to pay civil damages, prohibition of publication or of publication of one’s picture in the newspaper, confiscation of publications or of any other means through which an opinion is being expressed or information transmitted, refusal to grant a broadcasting license, prohibition to exercise the journalistic profession, a disciplinary penalty, a court’s or other authority’s order to reveal journalistic sources and/or sanctioning for not doing so Test: The Court examines and decides in each particular case whether interference exists, looking at the restrictive impact on the exercise of the right to freedom of expression of the specific measure adopted by the national authorities 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or 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 in confidence, or for maintaining the authority and impartiality of the judiciary.

  21. 7. ART. 10 ECHR: THE SYSTEM OF RESTRICTIONS • 3. The three-part test • The interference is prescribed by law • The interference pursues a legitimate aim (aims at protecting one or more of the following interests and values: national security, territorial integrity or public safety, prevention of disorder or 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 in confidence, or for maintaining the authority and impartiality of the judiciary) • The interference is necessary in a democratic society THE THREE-PART TEST * Also used in cases concerning Art. 8, 9, 11

  22. 7. ART. 10 ECHR: THE SYSTEM OF RESTRICTIONS • Any interference must rely on national legal provisions: • a written and public law adopted by the national parliament; • common law rules or principles of international law (in only few cases); • the law has to be public, accessible, predictable and forseeable: cf. Petra v. Romania: “the domestic provisions applicable to the monitoring of prisoners’ correspondence … leave the national authorities too much latitude [and] did not satisfy the requirement of accessibility. […] The Romanian law did not indicate with reasonable clarity the scope and manner of exercise of the discretion conferred on the public authorities”; cf. Gaweda v. Poland: a law which gives the courts the power to deny registration of publications if those were in conflict with reality is not formulated with sufficient precision to enable the applicant to regulate his conduct [The Social and Political Monthly – A European Moral Tribune: “the proposed title would suggest that a European institution had been established, which is clearly not true”]. THE THREE-PART TEST 1. THE INTERFERENCE IS PRESCRIBED BY LAW

  23. 7. ART. 10 ECHR: THE SYSTEM OF RESTRICTIONS • Exhaustive list of the possible grounds for restricting freedom of expression • Test – so as to lawfully enforce a legal provision which would in any way interfere with the freedom of expression: • 1. identify the value or interest protected by the provision; • 2. check if that value or interest (that must be real and not a mere and uncertain possibility) is among those enumerated by Art. 10 § 2. • Match: THE THREE-PART TEST 2. THE INTERFERENCE PURSUES A LEGITIMATE AIM

  24. 7. ART. 10 ECHR: THE SYSTEM OF RESTRICTIONS • “Aim” = refers to the values mentioned in Art. 10 § 2 • “Means” = refers to the interference • “Necessary in a democratic society” = equates with “satisfying a pressing social need” • The proportionality test must consider the appropriateness of the measure to achieve its stated aim and if less intrusive measures exist. THE THREE-PART TEST 3. THE INTERFERENCE IS NECESSARY IN A DEMOCRATIC SOCIETY THE TEST OF PROPORTIONALITY: Was the aim proportional to the means used to reach that aim?

  25. 7. ART. 10 ECHR: THE SYSTEM OF RESTRICTIONS • the first to assess the existence of a pressing social need are the national courts; • the ECtHR is empowered to give the final ruling on whether a restriction is reconcilable with the freedom of expression as protected by Art. 10; • a “margin of appreciation” is recognised to the States vis-à-vis the assessment of a restriction to the freedom. Through the margin of appreciation, the ECtHR manages the difference between the signatories States. This margin is wider in areas involving moral choices,and narrower in others such as political speech or criticism of the judiciary. • ! European standards offer freedom of expression a higher level of protection than national law and case law (the legal framework provided at national level as regards such conflicts differs depending on the interpretation of the freedom of expression in terms of constitutional guarantee and its balance with the other fundamental rights). THE THREE-PART TEST 3. THE INTERFERENCE IS NECESSARY IN A DEMOCRATIC SOCIETY SUBSIDIARITY AND MARGIN OF APPRECIATION

  26. 8. FREEDOM OF EXPRESSION AND PRESS • “high level of protection afforded to the freedom of expression, in particular towards the press”, despite the fact that Art. 10 does not explicitly mention the freedom of the press.

  27. The press as public watch dog: Lingens v. Austria(freedom of the press balanced against the right to reputation) • In October 1975, following general elections in Austria, Mr Lingens published two articles criticizingthe Austrian Federal Chancellor, Mr Bruno Kreiski, who had won the elections. The criticism focused on a political move of the chancellor, who had announced a coalition with a party led by a person with a Nazi background, and on the chancellor’s systematic efforts to sustain former Nazis politically.The chancellor’s behaviour was characterised as “immoral”, “undignified”, and proving “the basest opportunism”. Following a private prosecution brought by the chancellor, the Austrian courts found these statements to be insulting and sentenced the journalist to a fine. The national courts also found that the journalist could not prove the truth of his allegation of “basest opportunism”. • Before the Strasbourg Court, the Austrian Government claimed that the applicant’s conviction was aimed at protecting the chancellor’s reputation.

  28. The press as public watch dog: Lingens v. Austria(freedom of the press balanced against the right to reputation)Was the interference necessary in a democratic society? • Politicians must show greater tolerance of criticism by the media: • “freedom of the press furthermore affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention.The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequentlydisplay a greater degree of tolerance”. • The Court did not exclude the protection of politicians’ reputation, but • “in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues”.

  29. The press as public watch dog: Lingens v. Austria(freedom of the press balanced against the right to reputation)Was the interference necessary in a democratic society? • The impact of the applicant’s conviction upon the freedom of the press is relevant: • [a]s the Government pointed out, the disputed articles had at the time already been widely disseminated, so that although the penalty imposed on the author did not strictly speaking prevent him from expressing himself, it nonetheless amounted to a kind of censure, which would be likely to discourage himfrom making criticisms of that kind again in future ... In the context of political debate such a sentence would be likely to deter journalists from contributing to public discussion of issues affecting the life of the community. By the same token, a sanction such as this is liable to hamper the press in performing its task as purveyor of information and public watchdog. • * strong protection where matters of public interest are debated: e.g. problems in local community, functioning of a school, environment • ** value judgments must not be subject to any proof requirement; an element of the freedom of press is the publication of rumours and allegations that journalists are not able to prove

  30. FREEDOM OF EXPRESSION AND PRESS. MISCELLANEOUS • 1. Positive obligation of the states to protect journalists (also under Article 2 and Article 3): murders of journalists, threats, intense hostility, campaigns of violence. Incidence of Article 13; • 2.The refusal of the national authorities to grant licensing to a TV company may amount to a breach of Art. 10. (Meltex, arbitrariness of the licencingcriteria); • 3.Commercial advertising by the audio-visual medial: protected. Wide margin of appreciation enjoyed by the state; • 4.Special rules for public broadcasters – independence from political influence (Manole v. Moldova – TRM submitted to political control by the government and the ruling political party);

  31. DUTIES AND RESPONSIBILITIES OF JOURNALISTS. SOURCES AND WHISTLEBLOWERS • Editors and journalists: a special category. Duty of the press to impart information on matters of public interest – right of the public to receive it. When acting in good faith, the press gains an increase freedom, reducing the possibility of the authorities to interfere with it. Special significance in situations of conflict and tension. • HOWEVER, journalists cannot claim immunity from criminal liability on the sole grounds that the offence was committed during the performance of their journalistic functions. • + principles of journalistic ethics. Obligation to collect information in accordance with professional standards + good faith and due diligence • Sources: Goodwin – “protection of journalistic sources is one of the basic conditions for press freedom, […]Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected”.

  32. DUTIES AND RESPONSIBILITIES OF JOURNALISTS. SOURCES AND WHISTLEBLOWERS 2000: Recommendation No. R (2000) 7 on the right of journalists not to disclose their sources of information SanomaUitgevers B.V. v. theNetherlands: Orders requiring journalists to disclose their sources must be subject to the guarantee of judicial review or review by another independent and impartial review body. Whistleblowers: Guja v. Moldova, Heinisch v. Germany “a civil servant, in the course of his work, may become aware of in-house information, including secret information, whose divulgation or publication corresponds to a strong public interest. The Court thus considers that the signalling by a civil servant or an employee in the public sector of illegal conduct or wrongdoing in the workplace 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 of persons, 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”

  33. FREEDOM OF EXPRESSION AND REPUTATION • FREEDOM OF EXPRESSION AND REPUTATION • “legitimate aim” of protecting the “reputation and rights of others” • the “legitimate aim” most frequently used by national authorities to restrict freedom of expression; • often invoked to protect politicians and civil servants against criticism; • language: severe and harsh criticism, as well as colourful expressions, are accepted, as they draw attention to the issues under debate; • distinction between facts and opinions, but the value judgments must have a sufficient factual basis;

  34. FREEDOM OF EXPRESSION AND REPUTATION • FREEDOM OF EXPRESSION AND REPUTATION • freedom of expression balanced against private life: Axel Springer AG v. Germany (criteria: the contribution to a debate of general interest; how well-known the person being reported on is and the subject of the report; the person’sprior conduct; the method used to obtain the information; the veracity,content, form and repercussions of the report; the penalty imposed); • proportionality and sanctions

  35. Freedom of expression. Level of protection

  36. FREEDOM OF EXPRESSION AND REPUTATION • High-ranking officials (the president of a country,ministers,members of parliament) andcivil servants (police officers, all public employees): „Civil servants acting in an official capacity are, like politicians, subject to wider limits of acceptable criticism than private individuals. However, it cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent politicians do and should therefore be treated on equal footing with the latter when it comes to criticism of their conduct”; • Members of the judiciary: granted a specialprotectionbytheCourt. HOWEVER – questionsabouttheadministration of justicemaybe part of public debate; • members of the judiciary must enjoy public trust and therefore they must be protected against destructive attacks lacking any factual basis. • Morice v. France: statements made by a lawyer in the French daily newspaper Le Monde; the statements contained the text of a letter sent by the applicant to the minister of justice seeking an administrative investigation of two judges. • Peruzzi v. Italy: lawyers will not be granted protection for criticism directed against specific judges

  37. FREEDOM OF EXPRESSION AND REPUTATION • Minors: A press article articles had dealt with a matter of public concern giving rise to a public debate, namely the appropriate enforcement of custody decisions and whether and to what extent force might or should be used in this context. However, given that neither the child nor his parents were public figures or had previously entered the public sphere, the Court did not find that it had been essential for understanding the case to disclose his identity, reveal most intimate details of his life, or to publish a picture from which he could be recognised • (KurierZeitungsverlagundDruckereiGmbH v. Austria)

  38. MAIN REFERENCES • https://rm.coe.int/handbook-freedom-of-expression-eng/1680732814; • http://www.unbr.ro/in-cadrul-proiectului-e-nact-publicam-handbook-on-the-techniques-of-judicial-interactions-in-the-application-of-the-eu-charter-manual-privind-tehnicile-de-interactiune-judiciara-in/

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