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DRAFT (this is not a finalised article – not to be officially cited or quoted)

Lecture 5 – Freedom of expression - 21 October 2004

Legal adviser Ørnulf Røhnebæk, Ministry of Justice, Oslo

1. Introduction.........................................................................................................................................................12. Article 10 – sentence by sentence.........................................................................................................................3

2.1 First paragraph, first sentence:........................................................................................................................32.2 Second sentence:.............................................................................................................................................42.3 Ideas and information......................................................................................................................................62.4 Interference by public authority......................................................................................................................72.5 Regardless of frontiers....................................................................................................................................72.6 First paragraph, third sentence:.......................................................................................................................82.7 Second paragraph:...........................................................................................................................................8

3. The normal approach of the Court......................................................................................................................104. Defamation and criticism of public figures.........................................................................................................13

4.1 Which legitimate aims?.................................................................................................................................134.2 Starting point with two modifications...........................................................................................................144.3 Questions under modification No. 1.............................................................................................................144.4 Questions under modification No. 2.............................................................................................................154.4.1 Factual statement v. value judgement........................................................................................................154.4.2 The factual basis for a value judgement.....................................................................................................184.4.3 Burden of proof for facts............................................................................................................................194.4.4 Factual statement and good faith................................................................................................................204.4.5 The basis for good faith..............................................................................................................................214.4.6 Originator v. mediator................................................................................................................................224.4.7 Private person v. public figure...................................................................................................................234.4.8 Pure insult...................................................................................................................................................234.5 Violation of privacy......................................................................................................................................244.5.1 Public sphere v. private sphere...................................................................................................................244.5.2 Transformation from private to public sphere...........................................................................................26

5. Final remarks.......................................................................................................................................................26

1. Introduction

Why did the NCHR ask me to hold a lecture on freedom of expression?

From 1997 to 1999 I was the senior legal secretary of the Norwegian Governmental Commission on Freedom of Expression. Mr. Francis Sejersted, who at the time also was the chairman of the Norwegian Nobel Committee, chaired the Commission.

As part of my work for the Commission, I had to study Freedom of expression on an international level. And our main subject was Article 10 of the European Convention on Human Rights – the regional Human Rights convention for Europe. This article will be my focus this afternoon.

One could ask – why didn’t the Commission take the United Nations International Covenant on Civil and Political rights (ICCPR) Article 19 as the starting point? This is after all the global convention?

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The answer is simple:The supervisory mechanisms relating to the European convention is better and more efficient compared to the similar UN-mechanisms. Under the European HR-convention - which entered into force in 1953, there is established a permanent court:The European court of human rights in Strasbourg, with 44 judges, one from each of the State parties to the convention.

All State parties have committed themselves to be bound by the Convention. The text of the Convention may not be read outside its case law. The national authorities of all signatory states must consider the Court’s judgments as binding law. This fact underlines why it is important and necessary for all, and especially lawyers, public prosecutors and judges – to be familiar with the case law.

The Court – which was set up in 1953 – was not overrun by cases in the first three to four decades. The reason for this is possibly that the citizens of Europe – and their legal advisors – had no knowledge of the Court, and the Court had not yet passed down judgments proving that national courts could be wrong. Here in Norway, this possibility of a pan-European scrutiny of Norwegian law and court practice was first realised in the mid 1990-ties.

The first case regarding Article 10 came in 1962, in the De Becker-case form Belgium. Some important cases – important in that sense that they outline the way the Court argues and reasons – dates back from the 1970-ties, such as the Handyside-case (1976) and the Sunday Times (No.1)-case of 1979. In the 1980-ties and the beginning of the 1990-ties the flow of judgments grow steadily, with three or four Article 10-judgments as a yearly average. Of the most prominent, one could mention the Lingens-case in 1986 and the Thorgeir Thorgeirson in 1992.

In the last 10 years the Court has experienced an explosion in the caseload, mostly due to two reasons: The number of member states has been doubled and the citizens of Europe have become more aware of the Court. There is certainly an administrative crisis in Strasbourg. The Court may suffocate under its own success. While the Court in the five years period from 1994 to 1998 passed down 28 judgments regarding Article 10, the same number from 1999 to 2003 was 83.

Taken together there are at present more than 160 Article 10-judgments, and before this year has past we could have 10 more cases to consider. Add to this, that to be fully acquainted with the case law, one should also know the admissibility decisions – which complaints are regarded as “manifestly ill-founded” (Article 35 §§ 3 and 4 of the Convention) and rejected?

I repeat – we have more than 160 judgments on freedom of expression. The Court in Strasbourg has – in this field – developed into a Supreme Court of Europe. If I – as a European freedom of expression-lawyer – want to be fully updated, I need to keep both eyes on the developing case law /tt/file_convert/5e84c1688ce309312c7a21ea/document.doc

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from Strasbourg. On the other hand, as a lawyer – I can more or less forget about possible developments under the International Covenant on Civil and Political rights (ICCPR). Half an eye, every second year - should be sufficient.

It is obvious that I during my two hours speech must concentrate on the leading judgments and the principles that can be deducted from the present case law. I will try to do that by dividing my presentation into three parts. First, I will present and comment on the whole Article 10, on a sentence-by-sentence basis. Secondly, I will present the normal approach of the European Court of Human Rights in Strasbourg when faced with a case regarding Article 10, and thirdly, I will give an overview of the basic rules regarding defamation, as can be seen from the case law.

2. Article 10 – sentence by sentence

Article 10 is constructed the same way as 3 other articles in the Convention. That is Article 8 - on the right to respect for private and family life, Article 9 - on freedom of thought, conscience and religion and Article 11 - on freedom of assembly and association.

The freedoms and the right are firmly established in the first paragraph, while the conditions that can justify restrictions on these rights are described in the second paragraph.

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.

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,

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


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.

- necessary in a democratic society, - in the interests of a) national security, territorial integrity

or public safety, b) for the prevention of disorder or

crime, c) for the protection of health or morals,d) for the protection of the reputation or

rights of others, e) for preventing the disclosure of

information received in confidence, or f) for maintaining the authority and

impartiality of the judiciary.

2.1 First paragraph, first sentence:

Everyone has the right to freedom of expression.

This is the grand declaration. This is the overture to the article, and the core content. In includes “everyone”; not only men, or adults, or politicians, or journalists, or people with citizenship in the state. From the case law of the European Court of Human Rights, which interprets the Convention with authority, we learn that the right also includes military personnel (Vereinigung Demokratischer Soldaten 1994, Grigoriades 1997,) policemen (Rekvényi 1999) and prisoners (Herczegfalvy 1992). Further, it is confirmed court practice that it includes legal persons, such as a publishing company or an association (Open Door 1992, Bladet Tromsø 1999).

The declaration in the first sentence comes without any reasons or arguments. From the philosophy of the era of enlightenment in the 18th century, via the American declaration of independence, to the United Nations Universal Declaration of Human Rights in 1948, we can trace the roots of freedom of expression and the reasons behind. The Court in Strasbourg frequently points to the arguments behind this right, and consider it to be one of the key pillars on which an effectively functioning democracy rests.

2.2 Second sentence:

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.

In this sentence we get a legal definition of “freedom of expression”. It covers at least three different freedoms are covered.

a) Firstly, freedom of expression includes the freedom to hold opinions. It means that everyone is entitled to think whatever he or she wants. It


seems self-evident – and if you keep our opinions to yourself, nobody gets to know your standpoint. One could therefore assume that this right is of lesser importance. But in concrete cases this right could be invoked, for instance could this right be used against different kinds of brain washing-campaigns, conducted by the state, religious sects or even advertising methods with a sub-conscious appeal. The right is also a basis for the distinction between statement of facts and value judgements, which I will revert to later on.

b) Secondly, a more practical right is the right to impart information and ideas. In technical terms impart means to transform the opinion held inside the head into a message that can be seen, heard, read or felt or in other ways received by another person. To impart is to transmit information or ideas from one person to another, regardless of form or media. To impart is to communicate.

All kinds of communications are covered. It is not a requirement that the message takes the form of oral or written language. Non-verbal expressions, such as symbolic gestures, painted pictures, or burning of a flag, are covered, provided they are able to communicate an idea or information. To send money to your favourite politician in support of his or her election campaign is covered (Bowman 1998), and to jump in front of a foxhunter to communicate your opposition to the killings, is covered (Steel and Others 1998). Even your way of dressing could be protected if your clothes communicate an idea or information (Stevens v UK 1986)

The right to communicate freely is the right that most often creates disputes. Of the more than 160 cases form the court in Strasbourg that relates to Article 10, the clear majority deals with situations where the originator of the communication has been the target of the interference.

c) The third freedom in sentence two is the freedom to receive. This shows that Article 10 not only protects the interest of the communicator, but also the interest of people who want to receive ideas and information, by reading, listening or by other means.

This right has been subject to several cases. In the Open Door-case there was a state ban on informing women on the possibility of having an abortion outside Ireland. Inside the state it was illegal. According to the Court, the ban violated both the Open Door associations right to impair information and the Irish women’s right to receive such information.

The right to receive could be especially valuable when the origin of the information is outside the state’s jurisdiction. Then the state often have no realistic hope of stopping the communicator, and the next best option will be to try to stop its citizens from receiving.

The right to receive is, as a starting point, limited to receiving information and ideas from someone who wants to give it out. It has been discussed if one also can deduct from this phrase a right to demand information from /tt/file_convert/5e84c1688ce309312c7a21ea/document.doc

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someone who does not voluntarily hand out information. This right is known as the right to access to information.

The Court has so far been reluctant to include a right to access to information. In the Guerra-case, which dealt with the right of a whole village to get information relating to the possible health risk form a nearby chemical plant, the Court stated that Article 10 “cannot be construed as imposing on a State, in circumstances such as those of the present case, positive obligations to collect and disseminate information of its own motion”. Article 10 was therefore not applicable.

However, there are other cases that indicate that there – to a certain extent – may be some access rights in Article 10. At present it would be correct to state that the scopes of such rights are uncertain.

The right of the citizens to receive information and ideas from a voluntary source, without state intervention, constitutes a negative obligation on the States. The States should refrain from interfering. If the States in addition were obliged to secure the citizens some access to information, such an obligation on the States would be positive in nature. The States would then have to take some actions, not only stay away from the communication scene.

It has been pointed out by many, that freedom of expression is of little use if nobody listens, if you are not able to reach the relevant audience. If the majority of the newspapers, radio stations and televisions channels are controlled by the same political party or the same company, everybody else could feel effectively excluded. Does Article 10 oblige the States to secure the citizen a possibility of achieving a larger audience? The answer is no, but with some modifications:

If the State for instance has granted broadcasting licences to a limited number of radio- and TV stations, and thus effectively excluded others from broadcasting, the State could be obliged to ensure that different political, social, ethnic or religious groups are proportionately represented in the licensed programs.

There are several reasons why Article 10 fails to oblige the States to support its citizens with a right to achieve an audience. For instance: How should such a right be construed and made operational on an individual basis?

But this does not mean that the States should abstain from taking an interest in the conditions necessary for an open and enlightened public debate. Most democratic states has for decades - even centuries - taken an interest in the development and maintenance of the public sphere, and seen this as a political obligation. The overall obligation should be to secure a plurality of voices in the public sphere, which inter alia includes an obligation to help underprivileged groups to be heard through providing them with the necessary means of addressing a wider audience. This /tt/file_convert/5e84c1688ce309312c7a21ea/document.doc

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political obligation also creates a basis for legislation restricting ownership concentration in the media.

From this we can draw this chart:

Negative liberties Positive liberties

freedom to hold opinions (right to education?)

freedom of impart information and ideas

- right to be heard? (e.g. financial support to establish newspapers etc.)

- right to an audience?- right to a plurality of voices?- limited to minorities who cannot

themselves support channels?

freedom to receive information and ideas

(from a voluntary source –national/international)

right to access to information(from a non-voluntary source)- access laws- access to parliament sessions,

courts, local municipalities board meetings

- the Freedom of Information Act

Negative obligations on the State- abstain from interference with the

free flow of information- stay a way from the scene of

communication)

Positive obligations on the State- enact laws regulating private

citizens rights and obligations- spend public money

2.3 Ideas and information

The right in Article 10 to impart and receive concerns “ideas and information”. It is not likely that this narrows down the scope of the article. It is not a requirement that the ideas or the information are related to political issues or issues of public interest, even though these are the core areas of the article. It covers every expression that communicates and idea or information.

More important is the frequently repeated phrase that freedom of expression “is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. (Lingens 1986 § 41)


It is important to consider this. The expressions that need protection are of cause those to upset other people. Expressions, which do not represent a challenge, are hardly the subject of any interference.

2.4 Interference by public authority

By a narrow interpretation of Article 10, freedom of expression is only protected against “interference by public authority”. But this cannot be taken at face value. The main obligations of the States are to leave the citizens alone, to abstain from interference when the citizens use their right to free expression. But the States also have an obligation to protect the citizens from private interference. Case law shows that States can thus be found in breach of Article 10 if they let powerful private groups violate others, less powerful citizens right to free expression. (Casado Coca v Spain 1994, Fuentes Bobo v Spain 2000)

2.5 Regardless of frontiers

The statement that the right to receive and impart ideas and information exist regardless of frontiers, is in many ways dramatic, if compared to the situation in Europe before the second Word War. In many states there was an outspoken sceptic regarding foreign influence in internal matters. Free flow of information between two states preparing for war against each other, could mean that the populations in the two states received alternative information about the situation in the presumed hostile state, information which contradicted the description made by the national authority and even made the public less willing to go to war.

For the framers of the Convention it was essential to open up the flow of information between the people of Europe. It was seen as one of many ways to prevent new devastating wars.

In the case law of the Strasbourg court, there are few decisions regarding trans-boarder communication. I have already talked about the Open Door-case, and in addition there are some cases regarding the right to take down and re-distribute radio and satellite signals from abroad. In Groppera Radio (1990) the Swiss ban on re-transmission of programmes from an Italian radio was seen as legitimate, manly because the ban had nothing to do with the content of the broadcast but the fact that the station failed to comply with basic telecommunications principles. (The signals were so strong that it interfered with other telecommunication).

In Norway we have banned all commercials promoting the sale of tobacco and alcohol. Some years ago we had a discussion regarding national distribution of international news-magazines, such as Time, Newsweek, and Der Spiegel and international television, such as CNN, because those media brought alcohol and tobacco advertising. Luckily someone in the government remembered Article 10 and the phrase “regardless of frontiers”, and the Parliament was advised not to pass a law banning re-distribution in Norway of these magazines and TV-stations. /tt/file_convert/5e84c1688ce309312c7a21ea/document.doc

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2.6 First paragraph, third sentence:

This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

I will comment only briefly on this sentence. The main content is understood as follows:

National licensing systems are accepted as necessary for the orderly regulation of broadcast enterprises and to give effect to international telecommunication rules. Licensing is for the purpose of organising the technical aspects primarily. And even if the licensing fulfils that function, it must satisfy the requirements of paragraph 2.

2.7 Second paragraph:

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.

It is noteworthy that the reference to “duties and responsibilities” only appears in Article 10, not in Article 8, 9 or 11. This might be taken as a reminder to everyone, that freedom of expression – the right to contradict – is the engine in a democracy, and thus should be held in high regard by all.

The second paragraph tells us when interference, defined as “formalities, conditions, restrictions or penalties”, may be legal. There are three requirements:

1) the interference must be prescribed by law2) the interference must pursue a legitimate aim, and 3) the interference must be necessary in a democratic society.

In most cases the two first requirements are fulfilled by the responding state without problems. The list of legal aims is comprehensive, and one could consider a state as without creativity and imagination if it is not able to come up with a legal aim for their interference. The list includes inter aliaa) the interest of national security, territorial integrity, and public safety,b) the prevention of disorder or crime, c) the protection of health or morals, d) the protection of the reputation or rights of others, e) the prevention of disclosure of information received in confidence, and /tt/file_convert/5e84c1688ce309312c7a21ea/document.doc

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f) measures necessary to maintaining the authority and impartiality of the judiciary.

The legitimate aim described as “the protection of the ... rights of others” is especially flexible, because it seems to imply that the state can enact new rights, that is, give new rights to groups of the population, and thereby enlarge the list of legal aims.

The first requirement, that the interference must be prescribed by law, has from time to time created real problems, and some violations of Article 10 has been based on the absent of a proper norm. According to the case law, the relevant national law must be “formulated with sufficient precision to enable the persons concerned - if need be with appropriate legal advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail”.

It is further stated that a law that confers a discretion is not in itself inconsistent with this requirement, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference (Tolstoy Miloslavsky-case, 1995).

In the Goodwin-case, a journalist argued that British exception to the protection of journalists’ sources were phrased so vaguely that the journalists could not foresee the circumstances under which they were unable to promise their sources anonymity. He claimed that the law, as it stood, was no more than a mandate to the judiciary to order journalists to disclose sources if they were "moved" by the complaint of an aggrieved party.

The judges in Strasbourg were not moved, maybe because they knew that the journalist would win his case anyway, on the third requirement. They stated that in the “area under consideration it may be difficult to frame laws with absolute precision and that a certain degree of flexibility may even be desirable to enable the national courts to develop the law in the light of their assessment of what measures are necessary in the interests of justice.”

We leave the two first requirements with that, and go on to the really interesting third question: Was the interference “necessary in a democratic society”?

When assessing whether interference is necessary, it is important to remember that the Contracting Parties (the states) have the main responsibility for upholding the Convention. This includes the National Parliaments, the Governments – central, regional and local – and the national Courts. The States are given a “margin of appreciation” in assessing whether or not the interference is necessary. But – as


repeatedly stated by the Court, this national implementation goes hand in hand with “a European supervision”.

The European supervision are stronger and stricter when it comes to political speech and topics of profound public interest, compared to expressions which are liable to offend intimate personal convictions within the sphere of morals or, especially, religion. The same goes for obscenity (pornography).

From court cases we know that interference allowed under the second paragraph must be narrowly interpreted and the necessity of the restrictions must be convincingly established. It has been stated again and again that the interference must be the relevant answer to a “pressing social need”.

The European supervision (the Courts scrutiny) involves examining whether in the light of the case at hand, the restricting measure was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities were relevant and sufficient. When balancing the interest in freedom of expression against other claimed interest, the Court have pointed out as significant the nature and severity of the restriction, its duration, the public interest for and against the competing interests, whether the reasons for the restriction continues to be valid in light of changing circumstances, and the nature of the publication/expression at hand, in particular its tone and balance, whether it is a factual statement or a value judgment, and the relevance to public debate of the comment or opinion.

3. The normal approach of the Court

When confronted with an Article 10 case, the Court normally asks these four questions:

1. Has there been an interference with the right to freedom of expression, as guaranteed in ECHR Article 10?

If so, the interference would contravene the Convention if it does not satisfy the requirements of paragraph 2 of Article 10. Thus the three next questions:

2. Was the interference “prescribed by law”?3. Had the interference aims that are legitimate under paragraph 2 of

Article 10?4. Was the interference “necessary in a democratic society” for the

aforesaid aims?

In all Article 10-judgements one will see that the Court have separate discussions on each of the four questions.


When it comes to the fourth question the Court normally repeats that the adjective “necessary” in Article 10, second paragraph, implies the existence of a “pressing social need” (Barthold 1985). Often the Court also recalls that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. And there is frequent reminding of the statements in the Handyside-case of 1976 and Lingens-case of 1986:

Lingens § 41: “Subject to paragraph 2, [freedom of expression] is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”.

In most of the Article 10-judgements, the Court first presents the general principles and then applies these principles on the concrete facts of the case at hand.

As an example I will use the Perna-case from May 2003. This is so far the only Grand Chamber-case dealing with Article 10.

Before I go on, some words on the procedure regarding Chamber-judgments and Grand Chamber-judgments. Normally the cases are heard and judge by a panel of 7 judges, of which one has to be the judge from the state in question. A panel of 7 judges is named a Chamber. According to Article 43 of the Convention, a judgment of the Chamber may be referred to the Grand Chamber in “exceptional cases” on the request of any of the parties to the case. A Grand Chamber is composed of 17 judges, and will always include the President of the Court and the four Chamber presidents. This system thus constitutes an internal appeal system, and a mechanism to secure that different Chambers do not develop case law in disharmony.

The Court has so far passed only one Grand Chamber judgment relating to Article 10, the Perna-case from Italy. Two other Article 10-cases are pending before the Grand Chamber (Cumpana and Mazare v Romania 2003, Pedersen and Baadsgaard v Denmark 2003)

The Perna-case deals with the verbal attacks on a state prosecutor in Italy in a daily newspaper. The journalist inter alia accused the prosecutor of having sworn an “oath of obedience” to the Italian Communist Party in his younger days and that his indictment of the former Prime Minister Andreotti for alleged Mafia-connections, was politically motivated.

In § 39 the Court reiterates the general principles: (and I quote)

“(a) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions


for its progress and for each individual's self-fulfilment. Subject to paragraph 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.”

As previous judgments, serving as authorities, the Court lists Jersild v. Denmark (1994), Janowski v. Poland (1999), Nilsen and Johnsen v. Norway (1999) and Fuentes Bobo v. Spain (2000). Because this case concerns the media, the Court also gives the guiding principles in this respect:

“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. Were it otherwise, the press would be unable to play its vital role of “public watchdog””.

For this statement, the Court lists De Haes and Gijsels v. Belgium (1997), Thorgeir Thorgeirson v. Iceland (1992) and Bladet Tromsø and Stensaas v. Norway (1999). The Court continues:

“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”.

Previous judgments, serving as authorities, are Oberschlick v. Austria (no. 1) (1991), Prager and Oberschlick v. Austria (1995), and Thoma v. Luxembourg (2001).

The Court goes on to comment on the word “necessary”:

“(b) 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.”


(c) In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicant and the context in which he made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” [see Barfod v. Denmark (1989) and Janowski v. Poland (1999)] In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts [see Jersild v. Denmark (1994), Fuentes Bobo v. Spain (2000) and De Diego Nafría v. Spain (2002)].

(d) The nature and severity of the penalty imposed are also factors to be taken into account when assessing the proportionality of the interference [see, for example, Ceylan v. Turkey (1999) and Tammer v. Estonia (2001)].”

In §§ 40 to 48 the Court uses these principles in the case at hand, under the title “Application of the above principles in the instant case”.

The technique of pointing out judgments that the Court itself sees as leading authorities on different principles, makes it easier for judges and lawyer relatively new to the case law to know what to study and what to read, to get the basic knowledge.

In this case the majority – 16 to 1 – found that there had been no violation of Article 10, as opposed to the Chamber, which in its judgment in June 2001 unanimously found a violation.

4. Defamation and criticism of public figures For the rest of this presentation I will present some basic rules regarding defamation, drawn from the case law of the Strasbourg Court.

4.1 Which legitimate aims?

The first question would be: Are laws against defamation covered by any of the legitimate aims?

ECHR Article 10, second paragraph, does not explicitly mention the protection of honour and dignity as permissible limitations on freedom of expression, but either ”reputation” or ”the rights of others” will cover these interests.

It is thus, in principle, acceptable to have laws that seek to protect individuals from defamatory statements./tt/file_convert/5e84c1688ce309312c7a21ea/document.doc

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We will not find complete and exhaustive definitions of legal terms in the case law of the Court. The different States have different traditions when it comes to formulating defamation laws, and the Court looks into the reality, not the wording or the domestic legal classification.

4.2 Starting point with two modifications

From my reading of the case law of the Court I will draw the following principles:

Starting point: Defamation is legal and protected by Article 10.

Modification No 1: False and untrue defamatory factual statements are not protected.

Modification No 2: Statements – true or false – that violate the right to privacy are not protected.

I deliberately start with the declaration that defamation is legal. The main rule – as stated in Article 10 first paragraph – must not be forgotten. It is the exemptions – as accepted under narrow conditions in the second paragraph – that need justification.

Most domestic defamation laws have the opposite starting point. They declare that defamation is illegal, but that some defamatory statements might be legal if they fulfil certain criteria described later on. In some States the circumstances that can make the defamatory statement legal are called “defences”. Typical defences would be that the speaker enjoyed parliamentary immunity, that he spoke out of duty (for instance a judge in his judgement) or that he was sufficiently able to prove the truth of his statement. (the last defence is an old one, known to the Romans as “exeptio veritatis”).

4.3 Questions under modification No. 1

Modification No. 1 raises several questions; inter alia

1. What is a factual statement, as opposed to a value judgement?2. What is the requirement regarding the factual basis for value

judgements?3. What is the burden of proof for facts? 4. What should the assessment be if the speaker in good faith thought or

had reasons to believe that a false statement was true at the time it was uttered?

5. What could be the basis of such a good faith?6. Does it matter whether the speaker was the originator of the statement

or only the mediator?7. Are the limits the same regardless of whether the injured part is a

private person or a public figure?/tt/file_convert/5e84c1688ce309312c7a21ea/document.doc

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4.4 Questions under modification No. 2

Modification No. 2 also raises several questions; inter alia

1. Which topics belong to the public sphere and which are private, under normal circumstances?

2. What could justify the transformation of information normally classified as private from the private sphere to the public?

4.4.1 Factual statement v. value judgement

To modification No. 1: False and untrue defamatory factual statements are not protected, and the first sub-question: What is a factual statement, as opposed to value judgement?

From the Court’s attempts to clarify the meaning of the phrase “necessary in a democratic society” one can conclude that there are at least two different kinds of statements: Statements of fact and value judgements. A value judgement is a person’s subjective assessment of certain facts.

The difference in its most simplistic form could be explained like this:a) Fact: It is rainingb) Value judgement: The weather is bad

The distinction goes back to the judgement in the Lingens v Austria case of 8 July 1986.

Mr. Lingens was the editor of a weekly magazine and in several articles he described the conduct of the retiring Chancellor Bruno Kreisky with the words

“basest opportunism” [übelsten Opportunismus/kvalmende opportunisme], ”immoral” [unmoralisch/umoralsk] and “undignified” [würdelos/uten verdighet].

This was a reaction to Kreisky’s previous criticism of Mr. Simon Wiesenthal, President of the Jewish Documentation Centre, and his disclosure of former SS solders in high positions in Austrian politics. Kreisky had referred to Mr. Wiesenthal’s organisation and activities as a “political mafia” and “mafia methods”.

According to Austrian law at the time, the speaker would be convicted for defamatory statements unless he or she could prove the truth of the statement. The courts in Austria came to the conclusion that there were different ways of assessing Mr. Kreisky’s behaviour and that it could not logically be proved that one interpretation was correct to the exclusion of all others. They consequently found the applicant guilty of defamation.


The Strasbourg court stated:§ 46: “..a careful distinction needs to be made between facts and value-judgements. The existence of facts can be demonstrated, whereas the truth of value-judgements is not susceptible of proof..”

As regards value judgements the requirement of proof

“is impossible of fulfilment and it infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 of the Convention.”

In later judgements the Court has recalled these statements. I will here give some examples of statements that have been assessed as either statements of facts or value judgements.

The Jerusalem -case, 27 February 2001: Ms. Susanne Jerusalem was a member of the Vienna Municipal Council. In a debate related to granting subsidies to an association, she said that two organisations were sects that had a “totalitarian character” and showed “fascist tendencies”. Austrian courts saw this as factual statements, and thus provable. No sufficient proof was offered.

ECHR saw the statements as value judgements.

The Dichand -case, 26 February 2002: Mr. Hans Dichand was the editor-in-chief of a major newspaper in Austria. He had written a critical article regarding a lawyer, Mr. Graff, who also chaired the Justice Committee in the Parliament. He wrote inter alia that Mr. Graff:

a) does not intend to comply with moral concepts existing in democracies all over the world, namely that one has to give up one’s law firm if one becomes a member of the government,

b) he has taken part in the adoption of laws which have brought about advantages for his clients,

c) that he has been allowed to present his disreputable opinion on television.”

To understand the allegation one should also be aware of the fact that Mr. Graff as a lawyer had represented competing publishing firms in court cases against the media company that owned Mr. Dichand’s newspaper.

Austrian courts saw the statements as incorrect (not proven) factual statements.

ECHR: the first statement did not explicitly state that Mr Graff was a member of the Austrian government. Moreover, this could not justifiably be read into the context. The impugned statement had been extracted from one paragraph closely followed by a second paragraph, which


explained both Mr Graff’s precise function and, in detail and accurately, the factual background for the concluding remark about him.

To the second statement, the Court noted that the test applied by the Austrian Court – that the applicants had to prove that the amendment to the Enforcement Act exclusively served the interests of Mr Graff’s clients – imposed an excessive burden on the applicants. The impugned statements did not imply that the amendment served the interests of Mr Graff’s clients exclusively, only that it brought about considerable advantages for them. The Court therefore found that the second statement in the article was a value judgement which had an adequate factual basis and represented a fair comment on an issue of general public interest. The same applied to the third statement.

The Nilsen & Johnsen -case, 25 November 1999: In the mid 1980-ies there was a heated debate regarding police brutality in the Norwegian city of Bergen. Among those who criticised the police was the law professor Mr. Bratholm. He had made his own inquiries and publicised both books and articles on the subject.

Mr. Nilsen and Mr. Johnsen represented the Police Association and defended their fellow police colleges. In interviews in different newspapers they made the following statements

1. [He describes] Professor Bratholm’s recent report on police brutality at Bergen police department as pure misinformation intended to harm the police.

2. Until the opposite has been proved I would characterise this as a deliberate lie.

3. There must be other ulterior motives. It appears as if the purpose has been to undermine confidence in the police.

4. In my view, one is faced with a form of skulduggery and private investigation where there is good reason to question the honesty of the motives.

5. The Norwegian Police Association will not accept … private investigations on a grand scale made by dilettantes and intended to fabricate allegations of police brutality which are then made public.

The distinction of the ECHR relating to the different legal treatment of facts and value judgements was presented to the judges of Supreme Court of Norway. The judges concluded that the defendant’s argument that the statements include subjective value judgements which cannot be subject to proof, was untenable.

The Supreme Court of Norway was overruled. Only one statement [Until the opposite has been proved I would characterise this as a deliberate lie] was classified as factual.

§ 50: “From the wording of the statements and the context, it was apparent that they were intended to convey the applicants’ own opinions and were thus rather akin to value-judgments.”


If one should try to summarise the legal situation, one could say that it is easy to accept the distinction between facts and value judgements, but that it is not always easy to understand the way the Court draws this distinction. One could therefore hope for new judgements from the court that clarifies the distinction in more detail. It seems that also the Court from time to time finds the distinction difficult; in the Pedersen and Baadsgaard v Denmark-case form June 2003, four of the judges saw the statements as factual and three saw them as value judgments. This could be one of the reasons why this chamber judgement now is pending before a Grand Chamber.

An interesting question came up in the Vides Aizsardzibas Klubs- case (May 2004 – Latvia). The name of the club is translated to the Environmental Protection Club (VAK) in the judgement.

In 1997 the organisation adopted a resolution expressing its concerns about the conservation of coastal dunes on a stretch of coast in the Gulf of Riga. The resolution contained allegations that a Mayor had “signed illegal documents, decisions and certificates”. The resolution was later published in a regional newspaper.

The mayor sued for defamation, and won. The Latvian courts found that the organisation had not proved the truth of its statements

I want to draw your attention to the word “illegal”. The Latvian court saw this as a factual statement – and demanded proof for an illegal act. But the Strasbourg court saw this differently:

In the Court’s view, the organisation had expressed a personal legal opinion amounting to a value judgment. It could not therefore be required to prove the accuracy of that assessment.

4.4.2 The factual basis for a value judgement

Next sub-question: What is the requirement regarding the factual basis for value judgements?

Value judgements need a factual basis. Without such basis, the value judgements will easily be nothing else than insults, with no value to the political, cultural or social debate. If I call a politician a fascist this give little meaning without a connection to his conduct or political program.

In the De Haes and Gijsels v Belgium (1997, § 47) the Court stated:“an opinion may, however, be excessive, in particular in the absence of any factual basis.”

We should pay attention to the wording. The Court did not demand “sufficiently factual basis”; they only demanded some factual basis.


The Nilsen & Johnsen case can illustrate this. The Court came to the conclusion that

“at the time when the Norwegian courts adjudicated the applicants’ case .. there was some factual basis for their statements to the effect that false and fabricated allegations of police brutality had been made.”(§ 51)

The Lopes Gomes Da Silva-case (Portugal, 28 September 2000) gives a good illustration of the relationship between some factual basis and the consequent value judgement.

Mr. Lopes Gomes Da Silva was the publisher of one of the best selling newspapers in Portugal. In June 1993 the newspaper released the story that the People’s Party had invited a famous lawyer and journalist to stand as a candidate in the Lisbon municipal elections. On the same page Mr. Da Silva published an editorial criticising that invitation and asserting in particular that

“a more grotesque and clownish candidate from the ideological point of view could not be found anywhere, or such an incredible mixture of reactionary coarseness, fascist bigotry and vulgar anti-Semitism…”

In the same edition of the newspaper numerous extracts from the lawyers recent articles were published. Among other things, the extracts showed that he had praised the former president Salazar, the National Front (in France) and its leader Mr. Le Pen, described the then Prime Minster of France as a “bald Jew” and attacked the Portuguese revolution of 25 April 1974.

The Court stated that by reproducing a number of extracts from recent articles alongside his editorial, Mr. Da Silva had complied with the rules of journalism. He had also made it possible for the readers to see the factual basis for his strong value judgements. In a democracy it is the public who decide as the last resort whether or not an opinion will survive or not.

4.4.3 Burden of proof for facts

Next question: What is the burden of proof for facts?

Regarding statements of facts, the Court has made the following points:1. It would be a violation of Article 10 if the defendant is denied the

possibility to try to prove the facts (Castell, § 48), and2. It is not – in itself – a violation of Article 10 to convict a defendant who

is not able to prove the facts of his or her factual statement.

From national legislation we are familiar with different levels of probability required in relation to the burden of proof. The most common principle in ordinary civil cases is that the courts should base their judgement upon the most probable alternative, in other words: The facts that are more /tt/file_convert/5e84c1688ce309312c7a21ea/document.doc

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than 50 percent likely to be true. In criminal cases we demand a much higher percentage: The indicted person should only be convicted when it has been proved beyond reasonable doubt that he has committed the criminal offence.

In the McVicar v UK case (2002 § 87) the Court stated that it is in conformity with Article 10 to demand “that the applicant prove that the allegations made in the article were substantially true on the balance of probabilities”. I see this as an acceptance of the normal requirement in civil cases: For something to be proved, one needs at least 50 % probability.

4.4.4 Factual statement and good faith

Next question: What should the assessment be if the speaker in good faith thought or had reasons to believe that a false statement was true at the time it was uttered?

If the controversial statement must be classified as a factual statement, and the speaker is not able to provide the necessary proof, are there any defences left?

Yes, we have the “acting in good faith”-defence.

The Court has in several cases stated that journalists – when reporting on issues of general interest – may be exempted from the ordinary obligation to verify the factual statements. Important cases in this respect are the Thorgeir Thorgeirsson v Iceland case (1992) and the Bladet Tromsø v Norway (1999).

The case is once again from Norway. A small newspaper in the northern part of Norway cited extracts from a report by a seal-hunting inspector. In his report he alleged that a series of violations of the seal-hunting regulations had been made and he made allegations against five named crewmembers on board the vessel M/S Harmoni. Among the statements were the allegations that seal had been skinned alive and that female seals who had tried to protect their offspring (pups) had been kicked and beaten to death.

The statements were factual and the newspaper was not able to prove them. The Court stated (§ 66):

“It must therefore be examined whether there were any special grounds in the present case for dispensing the newspaper from its ordinary obligation to verify factual statements that were defamatory of private individuals.”

After considering the nature and degree of the defamation at hand and the extent to which the newspaper could reasonably regard the seal-hunting inspector’s (Lindberg) report as reliable, the Court concluded that there was “no reason to doubt that the newspaper acted in good faith”. /tt/file_convert/5e84c1688ce309312c7a21ea/document.doc

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The Court went on and concluded that the interest in protecting the reputation of the crew members was not sufficient to outweigh the vital public interest in ensuring an informed public debate over a matter of local, national and international interest (§ 73).

4.4.5 The basis for good faith

Next question: What could be the basis of such a good faith?

The case law does not provide us with an exhaustive list regarding what can be the basis for the necessary good faith.

From the Tromsø-case we know that “the press should normally be entitled .. to rely on the contents of official reports without having to undertake independent research”.

This means that journalists should be aloud to quote form official sources without having to prove any of the allegations put forward by the official. An indictment is of course a defamation – it is an allegation that the indicted person has done something criminal – it is a factual statement. If the indicted person is acquitted, it is decided that the allegation (the defamation) was untrue. Without the right to quote official sources no news agency would write about an indictment before the court proceedings had ended with a conviction.

But the quotation must be accurate, and more accurate when the allegation is serious, Radio France v France-case (March 2004).

In other judgements the Court has made references to bona fide journalism. (Bergens Tidende 2000, Goodwin v UK (1996), Fressoz and Roire v France (1999):

”By reason of the “duties and responsibilities” inherent in the exercise of freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism.”

A case from September 2004 shows that the assessment of good faith also can be difficult. In the Sabou and Pircalab-case (Romania) to reporters in a local newspaper in the Baia Mare-district were ordered to pay a fine 12 times the average monthly salary in Romania for defaming a district court judge and her mother.

In April 1997 they published a series of articles on the allegedly unlawful acquisition of land by the mother of the President of the Baie Mare District Court. The first article condemned this acquisition, claiming that it had taken place at the expense of farmers in the area. The following articles


included allegations that the judge had allegedly resorted to threats and sought to use forged documents to dispossess a neighbour.

The regional court found that the articles did not set out the truth and that it was clear that the reporters had not acted in good faith or with a view to protecting certain moral values in society, but had sought to attack the judge’s reputation.

The Court in Strasbourg – on the other hand – found that the serious allegations had a basis of fact – therefore one could not se this as a campaign against the judge. Secondly – the reporters had tried to contact the judge several times, to enable them to publicise also hers views on the matter. They also had more independent sources, and the Strasbourg court concluded that there was no reason to doubt their good faith.

4.4.6 Originator v. mediator

Does it matter whether the speaker was the originator of the statement or only the mediator?

Some lawyers claim that “good faith” defence only apply to the media or other mediators bringing statements of others into the public domain.

From the Thoma-case (Luxembourg, 29 March 2001) we know that the mediator of others persons statements has more leeway than the originator.

Mr. Thoma was a radio journalist. In one radio program he quoted allegations of corruption from a newspaper directed against 63 public servants in the Forestry Commission. The Luxembourg courts ordered him to pay one franc in nominal damages to each claimant and the costs of the proceedings.

The Strasbourg Court stated that a general requirement for journalists to distance themselves systematically and formally from the content of a quotation that might insult or provoke a third party or damage his or her reputation was not reconcilable with the press’s role of providing information on current events, opinions and ideas. In the case before the Court, the résumé of the program showed that the applicant had consistently taken the precaution of mentioning that he was beginning a quotation, and that he had described the entire article by his fellow journalist as "strongly worded". He had also asked a third party, a woodlands owner, whether he thought the content in the article was true.

But in May this year (2004) we got a judgement that finally made it clear that the “good faith”-defence applies to all citizens. (For me this has always been obvious). I am thinking of Vides Klubs v Latvia, which was mentioned also under 4.4.1 Factual statements v value judgements.The Court said that in a democratic society, the public authorities were, as a rule, exposed to permanent scrutiny by citizens and, subject to acting in /tt/file_convert/5e84c1688ce309312c7a21ea/document.doc

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good faith, everyone had to be able to draw the public’s attention to situations that they considered unlawful.

4.4.7 Private person v. public figure

Next question: Are the limits the same regardless of whether the injured part is a private person or a public figure?

The European Court of Human Rights requires particular latitude to be shown by courts for the expression of critical opinions of politicians and other public figures. This is not to say that politicians and officials cannot be protected against mere insults, but strongly worded criticism cannot be seen as illegal on this basis.

If we go back to the Lingens-case (1986), we will find the following statement (§ 42):

“Freedom of the press … 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 consequently display a greater degree of tolerance.”

This attitude has been repeated in later cases, inter alia in the Dichand-case (2002) where the Court did not find that the restriction imposed was necessary in a democratic society. Mr Graff was a politician of importance, and the fact that a politician was in a situation where his business and political activities overlapped might give rise to public discussion, even where, strictly speaking, no problem of incompatibility of office under domestic law arose. It was true that the applicants, on a slim factual basis, published harsh criticism in strong, polemical language. However, it must be remembered that Article 10 also protected information or ideas that offended, shocked or disturbed.

The Hrico-case (2004 – Slovakia) confirms this. A judge had expressed his intentions to become involved in politics, and the limits of acceptable criticism were therefore wider, compared to an ordinary judge.

4.4.8 Pure insult

Is there a third group of statements, which are neither statements of facts nor value-judgements, but merely insults?

Often one makes a distinction between “defamation” and “insult”. To my knowledge the Court has up till now never explicitly discussed whether or /tt/file_convert/5e84c1688ce309312c7a21ea/document.doc

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not there is such a distinction or such a distinction’s potential legal implication. But that doesn’t mean that the Court may not arrive at the position later on that such a distinction could be useful and legally important.

However, I am familiar with the distinction from domestic law in Norway and know that it also is used in other states.

As a point of departure defamation could be understood as an allegation with an actual content, while an insult would be abusive words without any true meaning.

The Janowski-case (Poland 21 January 1999) might be an example of the distinction. On day in the autumn of 1992 Mr. Janowski in the town Zdunska Wola noticed two municipal guards ordering street vendors to leave a square in the town. Mr. Janowski intervened, without success. In the heat of the moment he called the guards “oafs” (stupid) and “dumb” [cwoki and glupki]. For this remarks he was ordered to pay a fine of 1,5 million old zlotys.

By 12 to 5 votes the Court concluded that there had been no violation of art 10. They based this upon inter alia that his remarks did not form part of an open discussion of matter of public concern. The Court accepted that Mr. Janowski had resorted to abusive language out of genuine concern for the well being of fellow citizens. But the actions of the guards did not warrant resort to offensive and abusive verbal attacks, in front of a group of bystanders, while they were carrying out their duties.

4.5 Violation of privacy

The second modification: Statements – true or false – that violates the right to privacy are not protected.

One can observe, over a period of more than 100 years, that the authorities, whether it was the political, religious or economical authorities, used to afford themselves with special protection against criticism. Nowadays this has changed. At present we afford our elite, the persons acting on the public scene, less protection than the common man. And we argue that the reasons why certain persons get such a prominent place in society, is that we – the people – accept it. But we will only accept their prominence and influence as long as they behave according to legal and ethical standards.

From this follows – one could argue – the need of a constant scrutiny of their behaviour. In principle, this seems accepted by our public figures. We rarely hear the argument that criticism could jeopardise authority. Instead we today meet the argument that close scrutiny by the media on the public figures could be a violation of their privacy. One could see this as a shift from protection of the authorities to protection of the private sphere.


4.5.1 Public sphere v. private sphere

The first question rising from this modification (No. 2) is: Which subjects belong to the public sphere and which subjects are private, under normal circumstances?

The case law of the Court does not provide us with a lot of guidance on this question. But some cases exist. I will present the Tammer-case (Estonia, 2001).

Mr. Tammer was the editor of a newspaper in Estonia. He interviewed a man who was in the process of writing a book about a woman who had been the mistress of the Prime Minister, and later became his wife. While the minister was still married to his first wife, this woman had the Prime Minister’s child. The child was sent away to the women’s parents. In the interview Mr. Tammer asked the author:

“Don’t you feel that you have made a hero out of the wrong person? A person breaking up another’s marriage, an unfit and careless mother deserting her child. It does not seem to be the best example for young girls.”

The Estonian courts convicted Tammer for the offence of insult. ECHR saw no violation of Article 10. It did not find it established that the use of the impugned terms in relation to women’s private life was justified in terms of public concern or that they bore on a matter of general importance. (See also Krone Verlag v Austria I (2002).

Some information regarding the question may also be found in the Krone Verlag-case (Austria, 26 February 2002).

Krone Verlag GmbH & Co. KG was the publisher of the newspaper Kronenzeitung. In 1995 the regional edition in Kärnten published articles on the financial situation of a Mr Posch who, at that time, was employed as a teacher while also a member of the Austrian National Assembly (Nationalrat) and the European Parliament.

The articles, which were accompanied by photographs of Mr Posch, alleged that he received three salaries unlawfully as, according to Austrian law, he was not entitled to a teacher’s salary during his membership of the European Parliament.

Mr Posch applied for an injunction under the Copyright Act against Krone Verlag, and the Regional Court granted a permanent injunction prohibiting Krone Verlag from publishing the plaintiff’s picture in connection with the article in question or similar articles. The court found that, as Mr Posch’s face was not generally known, his legitimate interests had been infringed by creating the possibility of identifying him. Whether or not the contents of the articles were true or not was not taken into consideration.


ECHR observed that the accusation that a politician was earning money illegally, without doubt, was a matter of public concern. It was of little importance whether a certain person (or his or her picture) was actually known to the public. What counted was whether that person has entered the public arena.

In the light of Mr Posch’s position as a politician, there was no doubt that he had entered the public arena and had to bear the consequences. There was, therefore, no valid reason why Krone Verlag should have been prevented from publishing his picture. The Court attached particular importance to the fact that the published photographs did not disclose any details of his private life. In addition, the curriculum vitae and picture of Mr Posch, still a member of the Austrian Parliament (national council), were included on the Austrian Parliament’s internet site.

4.5.2 Transformation from private to public sphere

The second question: What could justify the transformation of information about him or her from the private sphere to the public?

The need to respect private life is an important restriction on freedom of expression. It is therefore appropriate to prohibit intrusion into private life. However, the restraints on the disclosure of information about the private life of individuals must not prevent the media from drawing attention to inconsistencies between pronouncements by politicians or public figures and their actual conduct.

According to American media ideology “a politician who cheats on his wife, is likely to cheat on his electors also”. This justifies publication of all extra-matrimonial activities of politicians. I do not subscribe to this ideology in its entirety, but it gives an indication.

5. Final remarks

The focus has been the general principles and defamation. But there are a lot of other subjects that could have been discussed, e.g.

- access to information- protection of sources, namely journalist sources- state secrecy.- incitement to hatred/hate speech (racism) - media regulation- right of the reply or correction- pornography, blasphemy and violence in moving pictures- protection of children and youth (people under 18)

It is important to realise that “the right to freedom of expression” is based upon experience. It is not a religious belief or a credo of the modern western societies. Experience tells us that nobody is perfect, no one will ever have the full knowledge of a subject or insight in a case. New or /tt/file_convert/5e84c1688ce309312c7a21ea/document.doc

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alternative information or new and controversial ideas are always needed, in a process to improve the present knowledge and understanding.

In the process of hearing alternative views and new claims, there will always be views and statements of no value or even negative value to the case. Some will present pure lies or opinions only reasonable to lunatics. But that is, as a starting point, not an argument for suppressing those statements by law. In the marketplace of ideas, statements of little or no value, will in the long term, loose and vanish. If we don’t believe that wrong ideas –after an open and public debate with pros and cons – will be rejected by the majority of the people, one could say that we deep in our heart question the very basis of a democracy.

To use courts to combat unwanted speech could be seen as mistrust in descent people’s own ability to understand and judge for themselves in the marketplace of ideas.

.....

All the judgements are available here:

Homepage of the Strasbourg-courthttp://www.echr.coe.int/

Search:http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en

Case Law Referred to:

De Becker v Belgium 1962Handyside v UK 1976Sunday Times (No. 1) v UK 1979Barthold v Germany 1985Lingens v Austria 1986Stevens v UK 1986 Barfod v Denmark 1989Groppera v Switzerland 1990Oberschlick (No. 1) v Austria 1991Herczegfalvy v Austria 1992Open Door v Ireland 1992 Thorgeir Thorgeirsson v Iceland 1992Vereinigung Demokratischer Soldaten v Austria 1994Casado Coca v Spain 1994Jersild v Denmark 1994Tolstoy Miloslavsky v UK 1995Prager and Oberschlick v Austria 1995Goodwin v UK 1996De Haes and Gijsels v Belgium 1997Grigoriades v Greece 1997Guerra v Italy 1998Bowman v UK 1998Steel and Others v UK 1998 Fressoz and Roire v France 1999

Ceylan v Turkey 1999Rekvényi v Hungary 1999Bladet Tromsø v Norway 1999Nilsen & Johnsen v Norway 1999Janowski v Poland 1999Lopes Gomes Da Silva v Portugal 2000Fuentes Bobo v Spain 2000Bergens Tidende v Norway 2000Özgür Gündem v Turkey 2000Maronek v Slovakia 2001Tammer v Estonia 2001Jerusalem v Austria 2001Thoma v Luxembourg 2001 Dichand v Austria 2002McVicar v UK 2002 Krone Verlag v Austria 2002De Diego Nafria v Spain 2002Pedersen and Baadsgaard v Denmark 2003Perna v Italy 2003Cumpana and Mazare v Romania 2003Hrico v Slovakia 2004Radio France v France 2004Vides Aizsardzibas Klubs v Latvia 2004Sabou and Pircalab v Romania 2004


http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en

http://www.echr.coe.int/

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