Germany,3 in which the ECtHR found a violation of Article 8 of the ECHR, previously denied by the GFCC (Müller and Gusy, 2011: 7), testify to this. German legal scholars as well as some GFCC judges criticised the ECtHR for its judgment, essentially claiming the Court had overstepped its competence, and that its legal interpretation unjustifiably curtailed the work of press photographers (see Prütting and Stern, 2005; and Wildhaber, 2005 for further information). However, after the first discussions cooled down and the ECtHR decided domestic German courts had violated the ECHR in the case of Görgülü v. Germany,4 the relationship between the GFCC and the ECtHR became established in the sense that the important role played by the ECtHR within the German legal order was accepted. Turkish high courts on the other hand have persistently disregarded ECtHR case law, especially in defamation cases and cases deemed to go against the interests of the Turkish state, such as those involving (non-violent) expressions on Kurdish and Armenian issues within Turkey.
The statement by the then Council of Europe’s Commissioner for Human Rights, Thomas Hammarberg, is evidence of the underlying tension between the ECtHR and the Turkish judicial authorities, as he points out that domestic courts have not assessed journalistic reporting in line with ECtHR case law (Hammarberg, 2011: para.
37).
Interestingly, tensions have only rarely occurred between the CJEU and national courts in cases concerning freedom of expression. In one of the cases studied, a national court in one of the 14 countries at issue requested a preliminary ruling by the CJEU on a structural question regarding television frequencies and broadcasting licences in Italy (Casarosa and Brogi, 2011: 15).5 This case is important as rather than revealing a tension between the CJEU and the national courts, it shows the different approach the CJEU and the ECtHR might follow for the same case. The ECtHR may decide on human rights issues which the CJEU did not address and which the domestic courts also did not fully consider.6 This may change with the entering into force of the Charter of Fundamental Rights of the European Union.
4. Do the European courts significantly shape media policies in the 14 countries
Austria on private broadcasting7 and Manole v. Moldova on the positive obligation of the state to ensure free and independent broadcasting.8 Influential cases have also originated in cases involving Mediadem countries. Before examining the cases that significantly shaped media policy in the Mediadem countries alongside thematic lines, it is important to examine the role of the European courts in some leading cases.
In Sunday Times (no. 1) v. UK,9 the ECtHR for the first time found a violation of Article 10 of the ECHR. This related to prior restraints on reporting on a court case.
The ECtHR afforded a high level of protection to reporting on matters of public interest, which went together with the recognition of the ‘right of the public to be properly informed’ about matters of public interest. This decision was the starting point for the ECtHR’s case law on freedom of expression in the sense that it effectively reduced the margin of appreciation for contracting states to interfere in the freedom of expression of their citizens, particularly in relation to the freedom of the press to report on matters of public interest. Furthermore, it also made clear that Article 10 of the ECHR does not only apply to governments and parliaments, but also to the courts.
Perhaps the most important decision concerning the protection of journalists’
sources was Goodwin v. UK.10 In this decision, and in various decisions afterwards,11 the ECtHR held that any limitations on the confidentiality of journalists’ sources must be met with the most careful scrutiny. These decisions seem to have led to substantive changes in the national legal systems of the countries involved (Craufurd Smith and Stolte, 2011: 33; Van Besien, 2011: 20). Another important case is von Hannover v.
Germany,12 where the ECtHR considered that the decisive factor in balancing the protection of private life against freedom of expression lies in the contribution the publication of photographs and articles make to debates of general interest. This judgment led to considerable improvements in the protection of the privacy of public figures in the German media (Müller and Gusy, 2011: 13). The case Jersild v.
Denmark13 was a turning point for Danish law, as it prompted Danish courts to incorporate aspects of the ECtHR case law in their own judgments concerning freedom of expression.14 Other cases were influential in the sense they triggered public discussion and changes to domestic law, even if these legislative changes were ultimately not successfully implemented. Reference can be made, for example, to Dink v. Turkey, which led to an unsatisfying reform of the Turkish Penal Code article on ‘insulting Turkishness’ that did not prevent further condemnations by the ECtHR (Kurban and Sözeri, 2011: 26).
In other instances, the ECtHR developed case law that considerably influenced the legal framework and judicial practices in the countries under study. A good example is the ECtHR case law on defamation, in which the ECtHR has stressed that the freedom to criticise government forms part of the freedom to impart information,
7 ECtHR, Informationsverein Lentia and others v. Austria (no. 13914/88 et al.), 24 November 1993.
8 ECtHR, Manole and others v. Moldova (no. 13936/02), 17 September 2009.
9 ECtHR, Sunday Times (no. 1) v. UK (no. 6538/74), 26 April 1979.
10 ECtHR, Goodwin v. UK (no. 17488/90), 27 March 1996.
11 For instance, ECtHR, Ernst and Others v. Belgium (no. 33400/96), 15 July 2003; ECtHR, Tillack v.
Belgium (no. 20477/05), 27 November 2007; and ECtHR, Financial Times Ltd and Others v. UK (no.
821/03), 15 December 2009.
12 ECtHR, von Hannover v. Germany (no. 1) (no. 59320/00), 24 June 2004.
13 ECtHR, Jersild v. Denmark (no. 15890/89), 23 September 1994.
14 I.e., in general, even though the Jersild case considered in concreto the conviction of a journalist by the Danish courts for assisting in the dissemination of racist remarks by another person in an interview.
thus emphasising the role of the press as a public watchdog. The ECtHR commonly makes a basic distinction between facts and value judgments or opinions, stressing that the latter cannot be proven and should not be subject to a proof requirement.15 As is shown in the case study reports, the ECtHR in various libel and defamation cases originating in Belgium, Denmark and Greece has affirmed this distinction, but also added that value judgments must have a sufficient factual basis.16
Matters relating to broadcasting have also been dealt with by the CJEU. With CJEU cases one should keep in mind the limited competences of the EU institutions in the field of media policy. As a result, the CJEU case law has centered not so much on freedom of expression, but rather on the liberalisation of the media market. The influence of the CJEU has been especially palpable in the field of audiovisual broadcasting, which was brought under the competence of the CJEU because it was considered to be an economic service,17 with a special focus on issues of freedom of movement, competition law and media pluralism. Although there has been an ongoing debate concerning the lack of EU competences in the field of media pluralism, media pluralism has been accepted by the CJEU as a requirement in the public interest that may justify restrictions on the free movement of services. The case study reports are mostly silent on the case law of the CJEU, especially as regards possible implementation problems. The cases mentioned concern the liberalisation of broadcasting (in particular, with regard to television monopolies in light of the EU free movement and competition rules as well as protection of fundamental rights, especially freedom of expression),18 and the compatibility with EU law of national rules on the allocation of broadcasting licences and the ownership of audiovisual media (which stresses the need for criteria that are objective, transparent, non-discriminatory and proportional).19 Otherwise, various case study reports indicate a lack of significant impact of the EU Charter of Fundamental Rights on domestic media policy or the case law of the national courts – at least so far (e.g.
Psychogiopoulou, Anagnostou and Kandyla, 2011: 14; Školkay, Hong and Kutaš, 2011: 19; and Craufurd Smith and Stolte, 2011: 9). Of special importance are some recent preliminary rulings by the CJEU, two stemming from Belgium, where it was decided that Internet service providers and social networks cannot be ordered to install general filtering systems to identify or block content that infringes intellectual property rights,20 although individual measures against intermediaries to prevent actual or further infringement may be allowed.21 Interestingly, the CJEU engaged in a fundamental rights reasoning in these rulings.
15 See in particular ECtHR, Lingens v. Austria (no. 9815/82), 8 July 1986.
16 E.g. ECtHR, De Haes and Gijsels v Belgium (no. 19983/92), 24 February 1997 and ECtHR, Pedersen and Baadsgaard v. Denmark (no. 49017/99), 17 December 2004.
17 See CJEU, C-155/73, Giuseppe Sacchi [30 April 1974]; and CJEU, C-52/79, Procureur du Roi v Marc J.V.C. Debauve and others [18 March 1980].
18 Psychogiopoulou, Anagnostou and Kandyla, 2011: 15: reference to CJEU, C-260/89, Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and others, [18 June 1991].
19 Casarosa and Brogi, 2011: 15: CJEU, C-380/05, Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorità per le garanzie nelle comunicazioni, Direzione generale per le concessioni e le autorizzazioni del Ministero delle Comunicazioni, [31 January 2008].
20 CJEU, C-360/10, Sabam v. Netlog, [16 February 2012]; and CJEU, C-70/10, Scarlet Extended v.
Sabam, [24November 2011].
21 CJEU, C-324/09, L'Oréal and others v. eBay International and others, [12 July 2011].