Law & Security

(note, these are some of my personal notes (draft), and they are mainly for my personal use. It's just a small overview of recent 10 ECHR. I will adding new cases from time to time, and also will add notes and links)

Tthe current list below are my personal notes on the summeries publiced by Dirk Verhoof. You can find the full article on www.obs.coe.int ((Freedom of Expression and Article 10 ECHR))

Journalism:
-De Haes and Gijsels v. Belgium: journalists, critical opinion regarding judges, 6 EHCR, public interest, public discussion

- Nordisk film: undercover & hidden camera, PROTECTION OF SOURCES, Paedophile Association, blocked out broadcasting, demand for research material (not sources directly), no violation 10 ECHR

- White v. Sweden: 2 main evening newspapers in Sweden, accusations criminal offenses ascrived to mr. White (UK cit. , living in Mozambique), serious acc. (murder! Swedish MP).
National court: editors acquit. -> considerable pub interst, reasonable basis allegations, performed checks, constraints FAST NEWS SERVICE.
Strasbourg: 8 ECHR vs 10 ECHR, 6 ECHR, defamation, as balanced as possible - acted in GOOD FAITH, serious PUBLIC INTERST and concern - thorough exam of case and balanced opposing interest.
No violation 8 ECHR

- Klein v Slovakia: journalst & film critic, RELIGION, critised Archbishop Jan Sokol (in relation to The People v Larry Flint), vulgar, allusions to Archbishop's alleged coop with secret communist police, invitation to members Catholic Church to leave the church.
Criminal proceedings again Klein. Fine (375 euro), local court: vulgar, ridiculing and offending HENCE no protection 10 ECHR.
ECHR: Not attack Catholic faith/believers, focussed on Archbishop, criminal conviction based on defamation of other person's believe was in itself inappropriate in circumstances of the case.
No interf. right freedom of religion others (just. sanction).
No PSN, nor prop. to LA. Not NDS -> violation 10 ECHR.

- Mamere v. France: pub debate on TELEVISION, topic public concearn. Mamere, member ecology party (Les Verts) en member of parlement, national criminal court convicted him for defamation of director of SCPRI (radiation board) - relating Chernobyl, public health, national court: not in good faith.
ECHR: interference not NDS, 10 ECHR high level of protection of the right to FOE, topics of GENERAL CONCERN (prot of environ. and of pub. health), speaking capacity of elected representative (political or militant expr). Those prosecuted on account of their comments on a matter of general concern should have the opp. to absolve themselves of liability by establishing they have acted in GOOD FATH and, in the case of factual allegations, by PROVING that they were TRUE.
Case: part factual, part value judg. Sarcastic, within limits of acceptable EXAGGERATION or PROVOCATION.
Not prop. -> not NDS -> violation 10 ECHR.

Radio Twist v. Slovakia: leaked telephone conversation (politicians Mr.D secretary Ministry of Justice and Deputy PM), news radio. Issues major national insurance provider.
National court: broadcast apology to Mr. D, pay compensation of a non-pec. nature. Protection of privacy also extends to the telephone conversations of public officials.
ECHR: Disagrees. FOE on political matters, essential function of press in DS, limits of acceptable criticism of politicians, CONTEXT and CONTENT clearly POLITICAL, contained NO aspects of PRIVATE-LIFE dimensions.
News reported did not contain UNTRUE or DISTORTED INFO. Also, reputation Mr. D not tarnished, as he was later elected as judge of Const. Court.
Illegal activities NOT by radio twist, no illegal acts Radio Twist, no indication bad faith, no other objective than reporting on matters which they felt obliged to make available to the public.
Sanction not justified, no interference reputation Mr D.
Interference right to IMPART INFORMATION, not correspon to PSN. Interference not NDS -> violation 10 ECHR.

- Depuis and others v. France, two journalists and publisher, confidential info, The Ears of the President, telephone tapping of numerous figures of civil society (lawyers, journalists, etc.), national court: journalists guilty of using information obtained through breach of the confidentialit of the investigation OR of the professional confidentiality. Also publication detriment for the presumption of innocence of Mr. G.M. (deputy director of President Mitterand's private office, under suspicion of illegal wire tapping).
ECHR: Subject of book: debate of considerable public interest, affair of state, interest public opinion. Mr. G.M. political life, public legitimate interest to be informed about trial and facts covered in book. Court finds it legitimate that special protection should be granted to confidentiality of the judicial investigation, presumption of innocence. HOWEVER, wide media coverage, already well known Mr. G.M. placed under investigation. Protection of the info on account of confidentiality did not constitute an overriding requirement.
Re. journalists: greatest care in assessing punishment, watchdog DS, pub debate.
Acted on JOURNALISTIC STANDARDS, publication was RELEVANT not only to the SUBJECT MATTER but also to the CREDIBILITY of the information supplied.
Interference FOE -> chilling effect (even with relatively moderate nature of fine).
Disprop. interference -> not NDS -> violation 10 ECHR

- Hachette Filipacchi Associes (Paris-Match) v. France: weekly magazine, murder, photograph of Prefect's body (victim), relatives start case, not useful to public, purely commercial, infrigment private life. Injunction: publish at own cost statement family found photographs deeply distressing. Paris Court upheld injuction. Human dignity. Court of Cassation dismissed appeal.
EHCR: A&F, PBL, LA (also 8 ECHR), NDS, R&S. No violation 10 ECHR (5 to 2)

- Glas Nadezhda EOOD and Elenkov v Bulgaria, radio license, refusal, no complete motivation, no access to minutes, secrecy.
ECHR: claims applicant - 9 ECHR, 10 ECHR, 13 ECHR. Court: interference FOE not meet requirements of lawfulnes (10-2 ECHR). No pub hearing, deliberations kept secret. No reasoning given. etc. etc. Broadcasting regulation domain call for OPEN AND TRANSPARENT appliation of the regulations governing the liensing procedure and specifically recommend that äll the decisions taken... by reg auth ... duly reasoned and open to review by competent jurisdiction"(Recommendation 2000/23 on the indep and functions of reg auth for broadcasting sector).
Interference NOT lawful -> violation 10 ECHR.
(no examination 9 ECHR, violating 13 ECHR)

Artistic:

-Wingrove: Visions of Ecstasy, RELIGION, British Board of Film Classification, short length film with small reach, restriction 18+ less restrictive measure

- Vereinigung Bildender Kunstler v. Austria, Otto Muhl, Apocalyps (painting) - politicians, Mother Teresa, pornographic, politicians Meischberger national action, prohibition for displaying painting at exhibitions and 1450 euro fine.
ECHR: did not agree Vienna Court of Appeal and Sumpreme Court. CONTEXT. Caricatures, satirical. Satire: form of artistic exp. and social comment which, by EXAGGERATION and DISTORTING reality is intentially PROVOCATIVE. Not private life of Meischb. but political. Sort of counter-attack on Austrian Freedom Party (whose members strongly criticised his work).
Because a visitor attacked the painting with red paint, Meisch. not visible. Courts injunction not limited by time or space -> DISPROP. to LA -> not NDS -> violation 10 ECHR

Note: dissenting opinions -> Senseless, disgusting, FOE cannot be unlimited (especially when excessively interference right of others). Dignity of others.
Majority (WITHOUT recognising and "exception artis") considered painting to be unrealistic, exaggerated which amounted to a caricature of the persons concerned using satirical elements.

4 to 3, violation 10 ECHR

Religion:
- Wingrove (see artistic)

- Tatlav v. Turkey (Aydin Tatlav): religion, no abusive attack on religion or SYMBOLS, journalist published 5 volume book criticizing Islam, complaint when -5th- edition was released, 1 year improsement -> converted to fine.
String critism of religion in a social-economic context, but passages had no insulting tone and neither contained an abusive attack against Muslims or symbols of Muslim religion. Even though Muslims could feel offended by text, not sufficient ground for criminal conviction. Custodial senstence could have the effect of discouring authors and editors from publishing opinions about religion that were not confirmist -> protection pluralism
Violation 10 ECHR

Politics, hate speech, racism:
- Lindon, Otchakovsky-Laurens and July v. France: Lindon - writer, Olchakovsky-Laurens: chairmain of the board of directions of publishing company POL, Mr July: pub drirections of 'Liberation', Le Proces de Jean-Marie Le Pen, Front National, based true stories, murder of 2 colored youth, racist crime, Le Pen & Front National brought defamation case against Lindon and Otcha., Paris Criminal Court convected Otcha. of defamation and Lindon for complicity. Fine 2286.74 euro and damages: 3811.23 euro -> Le Pen and Front National, 4 passages in book defamatory.

Liberation published petition signed by 97 contemporary writers in its column 'Rebonds' to protest the conviction of L & O.
Disputed passages defamatory. Le Pen & Front National defamation case against July (Liberation). 2286.47 fine and damages: 3811.23 euro for having reproduced the relevant passages from the novel.
Appeal by Lindon and Otch. Paris Court of Appeal upheld 3 of the 4 passages. (distance from views expr)
July appeal Paris Court of Appeal: dismissed.
Grand Chamber ECHR: did not lead to finding of violation 10 ECHR by French authorities. Clear, legal basis. LA protecting rep. en rights of others.
Literary work, contribution exchange of ideas, essential DS. However.... .... duties & resp.
Fact/value judgement Value judgement: sufficient factual base. Mixed (reality based).
... true allowed to have recourse to a degree of exaggeration or even provocation, or to make somewhat immoderate statements. True limits of acceptable critism were wider as regards a politician...
... oversteps the permissible limits in such matters.
... such to stir up violene and hatred, going beyond what was tolerable in political debate.... (even... extremist position... )
penalty ... R&S... Fine moderate. NOT disprop, LA, interference FOE was NDS.

July (newspaper Liberation):
...repeating allegations and remarks with approval, denied that extracts were defamatory.....

Court reiterates that PROTECTION OF THE RIGHT OF JOURNALISTS TO IMPART INOFRMATION ON ISSUES OF GENERAL INTEREST -require- act GOOD FAITH, ACCURATE FACTUAL BASIS and provide RELIABLE AND PRECISE information in according with the ETHICS OF JOURNALISM. FOE -> D&R.
... moderate nature of fine... no violation 10 ECHR
See dissenting opinions.