Recent trends in Strasbourg caselaw - freedom of expression in decline?

I took part in a conference at the European Court of Human Rights last week to discuss what the organisers described as 'recent restrictive trends in Article 10 case law'. It was a concern close to my heart - I've been worried about it ever since the Pedersen case went the 'wrong' way - and one that it turned out is shared by a great many media law practitioners. Cases such as Lindon, Stoll, Flux (no. 6) v. Moldova, Schmidt v. Austria, Rumyana Ivanova v. Bulgaria, Tara and Poiata v. Moldova and Hachette Filipacchi v. France are just a few of the judgments issued in the last year which I believe wrongly favour personality rights and interests over the right to freedom of expression.

My concern with recent restrictive case law of the European Court of Human Rights on Article 10 is not only that it sets a poor precedent within the Council of Europe area, but that it may also influence negatively legal developments in other parts of the world. For example, there has been recent litigation in South Africa and in Indonesia challenging criminal libel laws in these countries. There are good reasons to support de-criminalisation in both countries and we advised lawyers acting for the plaintiffs on ‘classic’ ECHR Article 10 case law to support their challenge. Unfortunately, lawyers acting for the government were able to rely on some of the Court’s newer cases and defeated the challenges. This is just one example of the unfortunate ‘external’ influence of restrictive ECHR case law.

The keynote speaker at the conference, Judge Rozakis, did not think that a restrictive ‘trend’ could be identified in the Court’s recent Article 10 decisions. He argued that decisions such as Stoll v. Switzerland and Lindon and others v. France are to be seen as accidents, temporary dips, in an otherwise consistently liberal line of cases. Although I would very much like to agree with him, I’m afraid that I cannot. While the Von Hanover decision ought perhaps to be distinguished on its facts, and Stoll possibly was an ‘accident’, a review of the Court’s case law of the last 12 months or so reveals a string of decisions that reveal a (sometimes very) restrictive interpretation of the right to freedom of expression - see the string I cite above, and that's just a few of them. Recently, even in cases where the Court does find a violation of the right to freedom of expression, for example in Vajnai v. Hungary in which the applicant had been convicted for doing no more than wearing a red star, it is almost apologetic in holding so.

There seems to have been a fundamental shift in the Strasbourg Court's attitude to the relationship between free expression and personality rights. In previous cases - Lingens being the ultimate example - the Court would take a principled stance and defend the free circululation of information over a degree of harm to the personality rights of public figures. With Lindon, this seems to have gone - Gavin Millar, one of the speakers, spoke of the 'spirit of Lingens' being missing from the Court's recent case law.

One of the main reasons for this shift, I think, is very simply the poor reputation that journalism has among members of the Court. Consider the concurring opinion issued by Judge Loucaides – who has long been in favour of stronger protection for personality rights – in Lindon:

“[T]he case-law on the subject of freedom of speech has on occasion shown excessive sensitivity and granted over-protection in respect of interference with freedom of expression, as compared with interference with the right to reputation. Freedom of speech has been upheld as a value of primary importance which in many cases could deprive deserving plaintiffs of an appropriate remedy for the protection of their dignity … This approach cannot be in line with the correct interpretation of the Convention.
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[T]he mass media are nowadays commercial enterprises with uncontrolled and virtually unlimited strength, interested more in profitable, flashy news than in disseminating proper information to the public, in controlling government abuse or in fulfilling other idealistic objectives. And although they may be achieving such objectives incidentally, accidentally or occasionally, even deliberately, they should be subject to certain restraint out of respect for the truth and for the dignity of individuals. Such restraint should include the duty to investigate defamatory allegations before rushing into print and the obligation to give an opportunity to the persons affected by their defamatory stories to react and give their own version. Furthermore they should remain legally accountable to the persons concerned for any false defamatory allegations. Like any power, the mass media cannot be accountable only to themselves. A contrary position would lead to arbitrariness and impunity, which undermine democracy itself.”

While the majority judgment isn’t as direct as this, I think it has been strongly influenced by this sentiment. What is particularly interesting is that Judge Loucaides issued a similarly worded statement in his dissent in the Commission's report in Bladet Tromsø A/S and Pål Stensaas v. Norway, in 1998. He was in the minority then; now, ten years later, it seems the Court has come around to his point of view. Judge Loucaides has since retired but I am concerned that his spirit is present in many of the judgments we are discussing today – while the spirit of Lingens identified in Gavin Millar’s paper and evident in previous case law seems to be missing in action.

Judge Loucaides is right to observe that the Court has in the past strongly protected the right to freedom of expression. But there always have been and continue to be very good reasons for that. Privacy and libel laws have historically been relied on by the rich and powerful to hide corrupt practices and suppress legitimate criticism of them. Unfortunately, that practice remains a reality in many Council of Europe countries. Only the day before the conference, on 9 October 2008, the Slovenian Prime Minister requested that the state prosecutor’s office initiate criminal defamation proceedings against a Finnish journalist in ‘response’ to allegations of corruption made by him. In any democracy, such allegations are properly discussed and debated through the media, particularly when the target of the allegations is the prime minister and has ample access to radio, television and print media. To allow instead the state prosecutorial machinery to be brought to bear against journalists in a criminal libel action has an extremely detrimental effect on freedom of expression and basic democratic values. This is only one example of such a case; a brief trawl through the news archives reveals many similar instances of abuse of criminal as well as civil libel and privacy laws.

A related development is the Court's recent insistence on 'moderation of language' in public debate. ‘Classic’ ECHR case law such as Handyside v. the UK emphasises that the right to 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 the State or any sector of the population.” Moreover, it is well-established – until recently, that is – that “[j]ournalistic freedom … covers possible recourse to a degree of exaggeration, or even provocation.” Classic ECHR case law interprets this to mean, for example, that the media are free to use hyperbole, satire or colourful imagery to convey a particular message. The choice as to the form of expression is up to the media. For example, the Court’s classic case law will not criticise a newspaper for choosing to voice its criticism in the form of a satirical cartoon and – it has urged – neither should national courts.

Recent case law appears to be departing from this. In Lindon, a case in which a novelist had used harsh words in a novel concerning Jean-Marie Le Pen, an right wing politician convicted of inciting race hatred, rather than pointing to the extreme opinions routinely voiced by Le Pen and his string of convictions for inciting racial hatred the Court demands instead that the applicant should have “abide[d] by a minimum degree of moderation and propriety, especially as the reputation of a politician, even a controversial one, must benefit from the protection afforded by the Convention.” Contrast this with the Court’s ‘classic’ approach, in cases such as Oberschlick v. Austria (No. 2). In that case, it was considered legitimate for the applicant to have used strong and provocative language in response to a politician who himself was similarly outspoken. As a Grand Chamber judgment, I fear that Lindon will be seen as setting the new benchmark and that Oberschlick (No. 2) is relegated to the dustbin.

The Court’s recent judgment in Leroy v. France goes even further and finds that a provocative cartoon of the attack on the Twin Towers accompanied by the text “we all dreamed of it … Hamas did it” could be punished under anti-terrorist laws even when there was neither intent to incite violence nor any clear risk thereof. It is extremely difficult to see how this can be squared with the Court’s string of Turkish cases in which it routinely found that even in a situation of near-civil war, States still needed to exercise caution in resorting to the criminal law to suppress speech and would not allow the suppression of poetry that glorified violence so long as it did not incite it.

So where does all of this leave us, and where will the Court go from here? In his dissent in Flux v. Moldova (No. 6), Judge Bonello issued a stark warning:

I fear this judgment has thrown the protection of freedom of expression as far back as it possibly could. Journalists have been told what to expect if they publish anything disturbing to the authorities, however pressing the social need and sufficient the factual basis are, if their professional behaviour leaves anything to be desired. Even if alarming facts are sufficiently borne out by evidence, in the balancing exercise to establish proportionality, disregard for professional norms is deemed by Strasbourg to be more serious than the suppression of democratic debate on public corruption. To put it differently, in the Court's view the social need to fight poor journalism is more pressing than that of fighting rich corruption. The 'chilling effect' of sanctions against press freedom dreaded by the Court's old case-law has materialised through the Court's new one.

I for one am concerned that Judge Bonello may very well be right. We heard at the conference that media lawyers are no longer sure how to advise their clients; this cannot but be bad for democracy and society as a whole. Those paragraphs in the Court’s ‘old’ case-law about the importance of freedom of expression in a democracy and the media’s role as watchdog of democratic society contained wise words that deserve better than to be quoted in the first few paragraphs of a judgment only to be ignored later on. The Court’s recent case law has a very serious impact on media freedom and, as a result, on the ability of the media to publish on matters that are of concern to us all. The media must be allowed to continue in its function as watchdog of democratic society, and for this to happen, the Court must reclaim its status of a beacon for the protection of human rights and democratic society. This will be to the ultimate benefit not only of Europeans, but all those who have traditionally looked to the Court for guidance and inspiration on matters of human rights.