Freedom of expression
EUROPEAN COURT OF HUMAN RIGHTS
- UJ v. Hungary (no. 23954/10), 19 July 2011 - Freedom of expression
A journalist, Mr Uj complained about his conviction for libel in June 2009 for harshly
criticising in a national daily newspaper the quality of a well-known variety of
Hungarian wine, produced by a State-owned company. He relied on Article 10
(freedom of expression). The Court concluded that there has been a violation of
Article 10.
Interesting points of the Court reasoning:

According to the judges there is a difference between damaging a person’s
reputation, with the repercussions that that could have on their dignity, and a
company’s commercial reputation, which has no moral dimension (22).

Moreover, the article published by the applicant expressed a value judgment or
opinion whose primary aim was to raise awareness about the disadvantages
of State ownership rather than to denigrate the quality of the wine company’s
products. Indeed, Mr Uj’s opinion, as a journalist, had a duty to impart
information and ideas, even if somewhat exaggerated or provocative (23-24).
- Vellutini c. France (no. 32820/09), 6 October 2011 - Freedom of expression
The case concerns the dispute between two trade union officials and the mayor of a
city. The mayor had taken disciplinary measure against one police officer
for offensive attitude towards colleagues and subsequently criticised her directly in
two issues of the municipal newsletter. Following this, two union officials published a
leaflet concerning the dispute containing remarks which in the mayor's view were
clearly defamatory. The mayor then lodged a complaint with the national courts
which led to the condemnation of the two officials. The ECtHR concluded that in this
case there had been a breach of Article 10, because the comments made by the union
officials fell within a debate of public interest and did not overstep the boundaries of
admissible criticism.
The most interesting points of the Court reasoning are the following:

The Court took into account the fact that the applicants had made their
statements in their capacity as union officials and in connection with the
professional situation of one of the union’s members. They had not criticised
municipal policy in general, but had called into question the role of an elected
official in his capacity as employer (36).

The dispute had had a considerable impact on the mayor and on local public
opinion. The mayor himself had drawn particular attention to the case by
mentioning it twice in the municipal newsletter and the matter had been
reported in the press (36).

The mayor had not been mentioned by name. He had simply been criticised in
connection with his duties, and no allegations of a private nature had been
made against him (38).

The limits of acceptable criticism were wider for a politician than for a private
individual. In the present context, a degree of exaggeration, or even
provocation, with the use of somewhat immoderate language, was permitted
(39).

It was not proven that the comments made were devoid of any factual basis
(41).
- Sosinowska v. Poland (No 10247/09), 18 October 2011 - Freedom of expression
As lung disease specialist, the applicant became involved in a conflict with her
superior at the hospital ward where she worked. In September 2004 she wrote a letter
to the regional consultant expressing concerns about decisions made by her superior
and the quality of medical care given to his patients. Relying on Article 10 (freedom
of expression), she complained about the ensuing disciplinary proceedings brought
against her in which the medical courts had found that she had discredited another
doctor, in breach of the Code of Medical Ethics, and had given her a reprimand. The
Court found that national authorities breached Article 10 of the Convention.
The most interesting points of the ECtHR reasoning are the following:

The general principles of ECtHR case law (67-70).

The application of such principles to the present cases (71-87). The Court
bases itself in particular on the following considerations:
o Matters relating to the practice of a profession are not removed from
the protection of Article 10 of the Convention (76).
o The applicant referred to concrete cases and provided detailed
evidence (78).
o The fact that the matters fell within the framework of a long-standing
conflict does not automatically divest the applicant's statements against
her superior from objectivity and legitimacy. Furthermore, neither such
statements concerned the character of the director, nor were they
gratuitous (79).
o The medical Court did not make any serious assessment of the merits
of the statements (81).
- Mor v. France (28198/09), 15 December 2011 - Article 10, lawyers' contacts with
the press
The case concerns the criminal conviction of a qualified lawyer for an alleged breach
of professional confidence. The applicant had been found guilty of a breach of
professional confidence for having disclosed to the press the content of an expert
report submitted to the judge in the course of a judicial investigation concerning
manslaughter.
The Court observed that the interference in question had been prescribed by the law.
With a view to preserving confidentiality of judicial investigations, lawyers are
required to refrain from communicating any information from the file, except to their
clients for the purposes of the latter’s defence, and from publishing letters or other
documents concerning a current investigation.
The Court observed that:

the press had already been in possession of all or part of the report when the
journalists had interviewed the applicant. The newspaper Le Parisien had
published an article preceding the interview, in which the findings of the
expert report had been spelled out with regard to the side-effects of the
vaccine, the number of victims and the conduct of the authorities, the
manufacturers of the vaccine and the Medicines Agency. Furthermore, other
sections of the media had covered the story and published extracts from the
report (51-52);

Ms Mor’s statements to the press had formed part of a debate of general
interest and the facts had been of direct relevance to a public health issue and
therefore of interest to the public at large (53);

there is little scope under the Convention for restrictions on political speech or
on debate on matters of public interest. In a media context, the disclosure of
information was apt to safeguard the public’s right to be informed of the
activities of the judicial authorities (53);

the fact that the public had knowledge of information covered by the rules of
professional confidence, and that its confidentiality was undermined
accordingly, does not discharge lawyers from their obligation to exercise
caution with regard to the secrecy of ongoing investigations (55).
- Standard Verlags v. Austria (No 3) (34702/07), 10 January 2012 - Article 10,
disclosure by the press of names of persons involved in criminal proceedings
The applicant company is a limited liability company based in Vienna owning the
daily newspaper Der Standard. The case concerned an article it published in April
2006 reporting on enormous speculation losses incurred by the bank, Hypo AlpeAdria, and the ensuing criminal investigation for embezzlement brought against the
bank’s senior management. The head of the bank’s treasury brought proceedings
against the applicant company for disclosing his identity in that article and, as a result,
was awarded EUR 5,000 compensation. The applicant company relied on Article 10
(freedom of expression) of the Convention.
The Court found that the interference with the applicant company’s right to freedom
of expression was not "necessary in a democratic society".
Interesting points of the ruling:

The Court recognises that the accused person was not a public figure.
However, it specifies that this is only one of the criteria to be taken into
account for the assessment under Article 10(2) (37-38);

Another factor to be considered is the contribution made by articles or photos
in the press to a debate of general interest. It is not in dispute in the present
case that the article reported on an issue of public interest. It concerned a
banking scandal which led to enormous losses by a bank, 45% of which was
owned by the Land of Carinthia. Against this background, the article dealt
with the fact that politics and banking were intertwined, on the one hand, and
reported on the opening of an investigation by the public prosecutor, on the
other hand. The Court reiterates that there is little scope under Article 10(2)
ECHR for restrictions on political speech or on debate on questions of public
interest. Moreover, it is not in dispute that the facts reported in the article were
correct (39-41);

The Court recognises that disclosure of the identity of an accused person at an
early stage of investigation is a sensitive matter, but that in this case such
disclosure was necessary in view of the journalistic purpose which the article
intended to fulfil (42-44).
- Růžový panter, o.s. c. République tchèque (20240/08), 2 February 2012 - Article 10,
defamation through internet
The applicant is an association domiciled in Prague, the aim of which is to fight
corruption in public administration. It had published a press release on its website
relating to light heating oil, a case concerning massive tax evasion which had received
widespread media attention. The press release was in the form of a summons
addressed to an MP and Vice-President of the Chamber of Deputies, who
subsequently became Interior Minister and who was invited to clarify his relationship
with certain people. Relying in particular on Article 10 (freedom of expression), the
association complained that the damages it had been ordered to pay for having
published a press release containing allegedly defamatory remarks constituted a
violation of its right to freedom of expression.
In this case, the Court concluded that there had been no violation, essentially because
the judgment of the national Court had carried out a reasonable and objective
assessment of the article and concluded in light thereof that the latter contained
misleading and unsubstantiated allegations.
The most interesting point of the judgment is the Court's reasoning regarding the
margin of appreciation of the national Court in carrying out a balancing exercise,
which - it found - in the present case could not be questioned. The following parts are
worth noting in particular:

in carrying out its tasks, the role of the Court is not that of substituting itself to
national courts (29);

the article contained incorrect and miselading statements (31);

national courts carefully examined the article and balanced the opposite
interests at stake (33);

the Court emphasises the fact that the article was not published in the common
press, but on the internet site of an association aiming to fight corruption as an
element imposing a special responsibility on the author of the publication (33).
- Axel Springer v. Germany (39954/08), 7 February 2012 - Article 10, relationship
with privacy
The applicant, who is a famous actor, brought an action for damages against the press
company for publishing articles on a newspaper concerning his arrest for unlawful
possession of drugs and containing photos of the arrest. The German court decided
that the right to protection of personality prevailed over the public interest in being
informed, even if the truth of the facts could not be disputed.
The Court found a breach of Article 10 ECHR. It considered that the articles in
question concerned public judicial facts, of which the public had an interest in being
informed, considering the fact that the individual concerned was a well known actor,
was arrested in public, had already revealed in previous interviews details of his
private life, the information was factually accurate and objectively stated.
The judgment was given by the Grand Chamber. The most interesting points are the
following:

analysis of the applicable principles concerning the balance between freedom
of expression and information and right to privacy (78-95);

application of the same principles to the case (96-109);

the penalty imposed on the company, although it was lenient, was considered
capable of having a chilling effect on the applicant company (109).
- Von Hannover v. Germany (no. 2) (40660/08 and 60641/08) - 7 February 2012,
Article 10, relationship with privacy
The case relates to the action brought by Princess Caroline of Monaco against a
German newspaper showing pictures of her and her family members in connection
with a report concerning her father's illness. The German Court had concluded that
the action could not be upheld since the article contributed to a debate of general
interest going beyond the mere desire to satisfy public curiosity.
The Court confirmed, in line with the national Court, that the photo did at least to
some degree contribute to a debate of general interest, and that the characterisation of
the Prince illness as an event of contemporary society could not be considered
unreasonable.
The judgment was given by the Grand Chamber. The following points are worth
reading:

principles relating to the right to private and family life and the right to
freedom of expression, including the margin of appreciation, and balancing
exercise (95-113);

application of the principles to the present case (114-123).
- Tusalp v. Turkey (32131/08 and 41617/08), 21 February 2012 - Article 10, freedom
of the press and defamation
The case concerns a complaint of a journalist concerning an order to pay damages for
defamation for having published two articles criticising the Turkish Prime Minister
Recep Tayyip Erdogan.
As regards the question of whether the interference had been necessary in a
democratic society, the Court noted that the articles had concerned Mr Tusalp's
comments on current events and issues such as the allegedly illegal conduct of highranking politicians and the Prime Minister's alleged aggressive response to a number
of events. There was no doubt that those were important matters in a democratic
society of which the public had a legitimate interest in being informed and which fell
within the scope of political debate.
The plaintiff in the two sets of compensation proceedings was the Prime Minister,
thus a very high-ranking politician. The Court underlined that the limits of acceptable
criticism were wider for a politician than for a private individual. He would therefore
have been obliged to display a greater degree of tolerance. Even assuming, as the
Turkish courts had done, that the language used in the articles was provocative and
certain expressions could be classified as offensive, they were mostly value judgments
based on particular facts or events, which had already been known to the general
public, as some of the quotes compiled by Mr Tusalp in the domestic proceedings
demonstrated. They therefore had sufficient factual basis. The Turkish courts did not
appear to have attempted to distinguish the statements of facts made in the articles
from value judgments, nor did they appear to have examined whether the articles had
been published in good faith.
The substantive assessment is contained in paras 41-51 of the judgment.