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COMPARATIVE MEDIA LAW Ghent University

COMPARATIVE MEDIA LAW Ghent University. Art. 10 and the European Convention of Human Rights Dirk VOORHOOF Ghent University www.psw.ugent.be/dv. Article 10 European Convention HR. What do we know about the European Convention on Human Rights? How to bring a case before the Court?

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COMPARATIVE MEDIA LAW Ghent University

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  1. COMPARATIVE MEDIA LAWGhent University Art. 10 and the European Convention of Human Rights Dirk VOORHOOFGhent Universitywww.psw.ugent.be/dv

  2. Article 10 European Convention HR • What do we know about the European Convention on Human Rights? • How to bring a case before the Court? • Why do we need freedom of expression? • How Article 10 of the Convention protects the freedom of expression?

  3. What do we know about the European Convention on Human Rights? • Historical background: post world war II • Collective enforcement of human rights and fundamental freedoms within COE + ECHR + direct applicability • Supervision by European Court • Right of individual petition • Actually: 47member-states COE(most recent: Montenegro 2007, Monaco 2005, Serbia/Montenegro 2003, Bosnia & Herzegovina 2002, Armenia and Azerbaijan 2001, Russian Federation 1996, Fyrom, Ukraine, Albania, Latvia, Moldova 1995)

  4. Rights and freedoms protected • Right to life, prohibition of torture (2-3) • Prohibition of slavery and forced labour (4) • Right to liberty and security (5)

  5. Rights and freedoms protected • Right to a fair trial (6) • Fair and public hearing (public + exceptions) (..) • Independant and impartial tribunal • Within a reasonable time • Judgment pronounced publicly (+ exceptions) • Presumption of innocence • No punishment without law (7)

  6. Rights and freedoms protected • Right to respect for private and family life, right to marry and to found a family (8 and 12) • Freedom of thought, conscience, religion (9) • Freedom of expression (10) • Freedom of assembly and association (11)

  7. Rights and freedoms protected • Right to an effective remedy (in case of violation of one of these rights and freedoms) (13) • Prohibition of discrimination (rights and freedoms must be secured without discrimination on any ground) (14) • Prohibition of abuse of rights (if aim is destruction of any of these rights and freedoms) (17)

  8. Rights and freedoms protected • ECHR is minimum guarantee (53) • + Protocols ! • n° 1: property, right to education, free elections • n° 4: prohibition of collective expulsion of aliens • n° 6: abolition of death penalty • n° 12: general prohibition of discrimination • n° 14: reorganisation of procedure (Russia!!)

  9. Freedom of Expression & Democracy • Freedom of Expression: an essential value/instrument in a democratic society •  Article 10 Convention • WHY protecting freedom of expression?

  10. Why protecting freedom of expression? • Right of individual to express opinion • Right of the public “to be properly informed” • Right of society - “free flow of information“ • Truth”-finding < conflicting opinions, diversity • Critical function, enlightenment • Media as “public watchdog”

  11. Why protecting Media Freedom? What are the functions of the media ?

  12. Functions of the Media • Expression, • News & Information • Persuasion (propaganda - mobilisation) • Education, Culture • Leisure/Entertainment • Commercial, Economic • National or cultural identity • Democratic

  13. Freedom as expression and Media Law • Freedom of Expression is not absolute : • Social responsibility! • Regulation • Content • Media organisations • Channels • Financial ressources/advertising • Media workers, professionals (journalists)

  14. Freedom of expression paradox • NECESSARY in a democratic society+ restrictions/sanctions/interferences IF necessary in democratic society • GUARANTEE for other (human) rights + LIMITED because of other (human) rights

  15. Fox and other Human Rights FREEDOM OF EXPRESSION MAY CONFLICT WITH° right of privacy (art. 8)° right to a fair trial (art. 6) + presumption of innocence ° prohibition of discrimination (art. 14) ° property rights (Art. 1 Protocol 1)

  16. Fox and other Human Rights BUT FREEDOM OF EXPRESSION IS AT THE SAME TIME GUARANTEE FOR PROTECTION OF OTHER HUMAN RIGHTS ° right to a fair trial (art. 6)° prohibition of discrimination (art. 14)° right of free elections (art. 3 Prot. 1)

  17. Fox and Media Law Difficult balanceRisk of restricting freedom of expressionby national authorities = Risk of abundant, disproportionate media-regulation Supervision by ECtHR (Strasbourg)

  18. Fox and Media Law The perspective of Article 10 EConventionBasic notions on- E Convention HR - E Court + procedure- Article 10 of the Convention

  19. How to bring a case before the ECtHR 1. National remedies exhausted ? 2. Within 6 months period ? • After final decision was taken 3. Infringement by public authorities ? • + “(indirect) horizontal effect” 4. Victim ? • no “actio popularis” • no evaluation of law “in abstracto” • private person or organisation 5. Not “prima facie” inadmissible?

  20. Organisation of the ECtHR • 5 Sections (9/10) • Committees (3) • Chambers (7) • Grand Chamber (17) / Panel of 5 judges

  21. ECtHR: procedure • 1. Registration of the complaint • 2. Inadmissible if unanimity “prima facie”Committee “Manifestly ill-founded” • 3. Decision on admissibility by Chamber(- or +)(..)

  22. ECtHR: procedure • 4. Judgment by Chamber • Evt. direct by Grand Chamber if serious question of interpretation or risk of inconsistency with previous judgment, unless one of parties objects • Final after 3 month period / if no referral • 5. Judgment by Grand Chamber after referral • Decision panel of 5 -> Grand Chamber • Final judgment by Grand Chamber

  23. ECtHR: procedure • Ex officio judge elected in respect of State Party concerned (or ad hoc judge) • Possibility of inter-State applications • Possibility of third party intervention

  24. ECtHR: procedure • Powers of the Grand Chamber • “first instance”: case raises serious questions (..) or risk of inconsistency with previously delivered judgment by the Court • “appeal”: after referral (and panel decision) if case raises serious questions affecting the interpretation or application of the Convention, or serious issue of general importance • Advisory opinion on request of ComMinisters

  25. ECtHR: possible outcome • No registration • Inadmissible (Committee, Chamber) • No violation • Partly violation (Sunday Times 2, Perna, Plon) • Violation Court can also decide to strike application out of the list of cases • !!! Eventually after friendly settlement

  26. Impact of the ECtHR case law • Binding on respondent State • Pecuniary and non-pecuniary damages • Reimbursement of costs and expenses • Committee of Ministers: verification if state took adequate remedial measures to comply with obligations < judgment • Modification of law • Development in domestic jurisprudence • Change in prosecution policy local authorities • Reinstall applicants in former situation • Re-opening case at domestic level

  27. The ECHR and ECtHR For more information on • The European Convention on Human Rights • The organisation of the Court • The procedure before the Court • The Court’s case law See also Protocol 14 = reorganisation of the procedure  www.echr.coe.int

  28. Article 10 ECHR § 1 Freedom of expression/information without interference by public authorities § 2 Exercise of this freedom < duties and responsibilities -> formalities, restrictions, penalties

  29. Article 10 ECHR § 2 -> formalities, restrictions, penaltiesTHREE CONDITIONS MUST BE FULFILLED 1/ Prescribed by law2/ Legitimate aim3/ “Necessary in democratic society”Otherwise: violation of Article 10

  30. Article 10 ECHR Case law 1950 – 1969 : 1 (De Becker, struck out of the list) 1970 – 1979 : 3 (Sunday Times) 1980 – 1989 : 12 (Barthold and Lingens) 1990 – 1999 : 75 (38 violations) 2000 : 14 (10 violations) 2001 : 13 (8 violations) 2002 : 26 (13 violations/9 friendly settlements) 2003 : 30 (16 violations/5 friendly settlements) 2004 : 45 (30 violations/1 friendly settlement) 2005 : 65 (45 violations/3 friendly setllements) 2006 : 85 (60 violations)

  31. Article 10 ECHR Case law 1961 – 1991 : 24 in 30 years (less than 1/year) 1992 – 2001 : 100 in 10 years (10/year)  Since 2000, more than 10/year  2002 : 26 judgments on Article 10 / FOX  2003 : 30 judgments on Article 10 / FOX  2004 : 45 judgments on Article 10 / FOX  2005 : 65 judgments on Article 10 / FOX  2006 : 85 judgments on Article 10 / FOX  2007 ?

  32. Article 10 ECHR Case law Manifest added value of Strasbourg case law based on Article 10 Convention In many cases Court found a violation of freedom of expression and ‘overruled’ national/domestic courts convicting media/journalists

  33. Article 10 ECHR Case law“in the light of the case as a whole” • Public debate / public persons / private persons • Facts - information / value judgments • Reliability/accuracy • Intention • Possible effect of expression • Proportionality of restriction/sanction • Legitimate aim • Margin of appreciation • Journalistic ethics • Political/specific context/press • Positive obligations of member states!

  34. Article 10 ECHR Freedom of expression is necessary in a democracy (pluralism, tolerance, open debate) Restrictions on the freedom of expression can be legitimised when “necessary in a democratic society”… also restrictions are necessary in a democratic society

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