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Freedom of Expression in Practice of the European Court of Human Rights
Thursday, 14 February 2013 21:19

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According to the Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms ( European Convention , the Convention) "Freedom of Expression ":

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.

A significant number of judgments of the European Court of Human Rights (ECHR) in cases of violation of Article 10 of the European Convention (which, protects the right to freedom of expression , as well as the right of access to information) , formed rules, that are a source of law in Ukraine, and therefore should be implemented in our national legal system. The main principles of the ECHR in the basis of freedom of expression and the right of access to information are the following .

- Freedom of expression constitutes one of the essential foundations of a democratic society , one of the basic conditions for its progress and for each individual’s self-fulfilment . Second paragraph of Article 10 applies not only to the information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb ; such are the demands of that pluralism, tolerance and broad-mindedness without which there is no democratic society [1].

- The press plays an essential role in a democratic society. Although it must not overstep certain bounds, regarding in particular protection of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest, including those relating to justice . Not only does it have the task of imparting such information and ideas: the public also has a right to receive them . Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed . Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation [2] .

- Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of " public watchdog " [3] .

- The Court reiterates in this connection that protection of the right of journalists to impart information on issues of general interest requires that they should act in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism. Under the terms of paragraph 2 of Article 10 of the Convention, freedom of expression carries with it “ duties and responsibilities ”, which also apply to the media even with respect to matters of serious public concern. Moreover, these “duties and responsibilities” are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the “rights of others” [4].

- In news reporting based on interviews , a distinction also needs to be made according to whether the statements emanate from the journalist or are a quotation of others, since punishment of a journalist for assisting in the dissemination of statements made by another person in an interview 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 [5].

- 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 consequently display a greater degree of tolerance. No doubt Article 10 para. 2 (art. 10-2) enables the reputation of others - that is to say, of all individuals - to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues [6] .

- Civil servants acting in an official capacity are, like politicians, subject to the wider limits of acceptable criticism. Admittedly those limits may in some circumstances be wider with regard to civil servants exercising their powers than in relation to 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 to which politicians do and should therefore be treated on an equal footing with the latter when it comes to the criticism of their actions. What is more, civil servants must enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks and it may therefore prove necessary to protect them from offensive and abusive verbal attacks when on duty [7] .

- Interference into freedom of expressions entails a "violation" of Article 10 if it does not fall within one of the exceptions provided for in paragraph 2 (art. 10-2). The Court therefore has to examine in turn whether the interference in the present case was " prescribed by law ", whether it had an aim or aims that is or are legitimate under Article 10 (2) (art. 10-2) and whether it was " necessary in a democratic society " [8].

- The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “ pressing social need ”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 [9].

- Nature and severity of the penalty imposed are also factors to be taken into account when assessing the proportionality of the interference [10] . Furthermore, the dominant position which 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 the unjustified attacks and criticisms of its adversaries or the media. Nevertheless it remains open to the competent State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal law nature, intended to react appropriately and without excess to defamatory accusations devoid of foundation or formulated in bad faith [11].

- A careful distinction needs to be made between facts and value-judgments. The existence of facts can be demonstrated, whereas the truth of value-judgments is not susceptible of proof. As regards value-judgments this requirement is impossible of fulfillment and it infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 [12].

Prepared by M. Bulgakova.



[1] Jersild v. Denmark, № 15890/89, from 23.09.1994; Janowski v. Poland, № 25716/94, from 21.01.1999; Nilsen and Johnsen v. Norway, № 23118/93, from 25.11.1999; Fuentes Bobo v. Spain, № 39293/98, from 29.02.2000;

[2] Perna v . Italy , № 48898/99, from 6.05.2003;

[3] Thorgeir Thorgeirson v. Iceland, № 13778/88, from 25.06.1992;

[4] Lindon, Otchakovsky­ Laurens and July v . France , №№ 21279/02 і 36448/02, from 22.10.2007, Pedersen and Baadsgaard v . Denmark , № 49017/99, from 27.06.2002­;

[5] Pedersen and Baadsgaard v . Denmark , № 49017/99, from 17.12.2004; Thorgeir Thorgeirson v. Iceland, № 13778/88, from 25.06.1992; Jersild v. Denmark, № 15890/89, from 23.09.1994;

[6] Lingens v . Austria , № 9815/82, from 08.07.1986, Incal v . Turkey , № 22678/93 , from 09.06.1998;

[7] Janowski v . Poland, № 25716/94, from 21.01.1999 , Nikula v. Finland, №. 31611/96, from 21.03.2002;

[8] Sunday Times v . the United Kingdom № 6538/74 from 26.04.1979;

[9] Janowski v . Poland, № 25716/94, from 21.01.1999 ;

[10] Ceylan v. Turkey № 23556/94, від 08.07.1999, та Tammer v. Estonia, № 41205/98, from 06.02.2001;

[11] Castells v. Spain, № 11798/85, from 23.04.1992;

[12] Lingens v . Austria , № 9815/82, from 08.07.1986.

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