and the ECtHR decisions in this regard are expected to produce positive effects on judicial practices (Smilova, Smilov and Ganev, 2011: 13). The ECtHR has also decided in several instances against prison sentences and other criminal sanctions on journalists in libel cases concerning Romania. Following the ECtHR’s judgments, such sanctions ceased to be applied and a legal reform process was initiated, though the situation remains somewhat unclear after the Romanian Constitutional Court declared the new act unconstitutional (Ghinea and Avădani, 2011: 12). In contrast, there does not seem to have been a meaningful influence of the ECtHR on the jurisprudence of the lower courts in Slovakia. Many of these lower courts appear to attach insufficient value to public interest concerns and good faith on the part of the media, and to overprotect the dignity and honour of public persons, though compliance with ECtHR judgments seems better in the higher courts (Školkay, Hong and Kutaš, 2011: 12).
The protection of the reputation of others is often invoked by national authorities to restrict freedom of expression by the media, especially with regard to public figures such as politicians and civil servants. The ECtHR has developed a vast jurisprudence in this respect, affording a high level of protection to freedom of expression rights enjoyed by the media in cases that concern matters of public interest. The ECtHR accepts there are wider limits of acceptable criticism with regard to public figures such as politicians.24 According to the ECtHR’s well-established case law, the limits of criticism are also wider with regard to governments and public servants such as judges, public prosecutors, police officers and members of the military.25 Journalistic protection is subject to the condition that the information divulged concerns matters of public interest and that journalists ‘are acting in good faith and on an accurate factual basis and [that they] provide reliable and precise information in accordance with the ethics of journalism’.26 For example, in a case involving a journalist who had insulted a politician’s wife and former assistant by mentioning facts related to her private life, the ECtHR decided the subsequent conviction of the journalist for insult did not violate Article 10 of the ECHR, since the journalist’s statements did not concern the public interest or matters of general concern. The ECtHR also stressed that the journalist could have used less offensive language to express his opinion (Harro-Loit and Loit, 2011: 11).27 In another case in which a publisher had not properly verified defamatory statements regarding a government minister, the ECtHR judged that the publisher was liable for the lack of truthfulness of the statements, which had been published as facts, rather than as value
judgments (Švo - .28
5.3 National security and counter-terrorism measures
National security is listed among the possible legitimate aims for restricting freedom of expression in Article 10(2) of the ECHR. In practice, this public policy concern is often closely connected to the fight against terrorism. The ECtHR considers that the contracting states have a relatively wide margin of appreciation to limit freedom of expression where national security is concerned. However, the ECtHR is also of the
24 E.g. ECtHR, Lingens v. Austria (no. 9815/82), 8 July 1986, and ECtHR, Turhan v. Turkey (no.
48176/99), 19 May 2005.
25 E.g. ECtHR, De Haes and Gijsels v Belgium (no. 19983/92), 24 February 1997.
26 ECtHR, Fressoz and Roire v France (no. 29183/95), 21 January 1999, para. 54.
27 ECtHR, Tammer v. Estonia (no. 41205/98), 6 February 2001.
28 ECtHR, Europapress Holding d.o.o. v. Croatia (no. 25333/06), 22 October 2009.
opinion that, once the information on national security is already in the public arena, the information may no longer be restricted and the authors of further dissemination may no longer be punished.29 Also, the ECtHR considers that the public may have an interest in knowing certain information; this entails that the state cannot unconditionally define as classified and restrict access to all information on national security.30
The ECtHR does not consider hate speech, including incitement to violence or terrorism, as covered by the protection of Article 10(1) of the ECHR. A significant number of the cases handled by the ECtHR where counter-terrorism was the stated aim behind restrictions on freedom of expression concerned Turkey (Kurban and Sözeri, 2011: 38). These restrictions took the form of various measures, including prison sentences for journalists and restraints on publication. In many of these cases, the ECtHR held the restricted expressions had not incited hatred, violence or terrorism, and concluded they were disproportionate and in conflict with Article 10 ECHR.31 In other cases, the ECtHR decided the publications had in fact incited violence, so no violation of Article 10 ECHR was pronounced.32
The cases mentioned in the case study reports also show that Spain was found to have breached Article 10 of the ECHR in a case before the ECtHR relating counter-terrorism. The circumstances of this case were somewhat different in the sense that the aim invoked by the Spanish state under Article 10(2) of the ECHR was insult to the government, rather than the fight against terrorism. The case concerned a politician who in an article had criticised the counter-terrorist policy of the Spanish government in the Basque Country (De la Sierra and Mantini, 2011: 30).33
5.4 Protection of journalists’ sources
The case study reports show that ECtHR decisions on the protection of journalists’
sources have been especially relevant for the United Kingdom and Belgium. There is evidence that the ECtHR decisions have exerted substantive influence on the internal legal order of these countries. Both countries have enacted new legislation on the protection of journalists’ sources in line with ECtHR standards (Craufurd Smith and Stolte, 2011: 33; Van Besien, 2011: 20).
In Goodwin v. UK and various subsequent decisions, the ECtHR stressed the importance of protecting journalists’ sources as a basic condition for press freedom:
‘Having regard to the importance of the protection of journalists’ sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in
29 ECtHR, The Observer and Guardian Newspapers Ltd v. the United Kingdom (no. 13585/88), 26 November 1991.
30 ECtHR, Sürek and Özdemir v. Turkey (nos. 23927/94 and 24277/94), 8 July 1999 and ECtHR, Demirel and Ates (no. 3) v. Turkey (no. 11976/03), 9 December 2008.
31 E.g. ECtHR, Varli and others v. Turkey (no. 57299/00), 27 April 2006; ECtHR, Günes v. Turkey (no.
53916/00), 27 September 2005; ECtHR, Karakoç v. Turkey (no. 53919/00), 1 January 2006; ECtHR, Yildiz and others v. Turkey (no. 60608/00), 11 April 2006 and ECtHR, Erbakan v. Turkey (no.
59405/00), 6 July 2006.
32 E.g. ECtHR, Sürek v. Turkey (No. 1) (no. 26682/95), 8 July 1999 and ECtHR, Sürek v.Turkey (No. 3) (no.24735/94), 8 July 1999.
33 E.g. ECtHR, Castells v. Spain (no. 11798/85), 23 April 1992.
the public interest.’34 The ECtHR thus concluded that ‘limitations on the confidentiality of journalists’ sources call for the most careful scrutiny by the Court’.35
Two distinct types of cases on the protection of journalists’ sources can be identified. The first type concerns cases where journalists were forced to disclose their sources. For instance, in Goodwin v. UK, the ECtHR found an order served on a journalist to disclose the identity of his source was excessive and a violation of Article 10 of the ECHR.36 The second type concerns cases in which journalists had their homes or workplaces searched, material seized, or both. For instance, in Ernst and Others v. Belgium and in Tillack v. Belgium (as well as on several other occasions), the ECtHR decided such searches should be considered even more serious than orders to disclose journalists’ sources, due to the measures’ surprise nature and wide scope, often giving access to all documentation of a journalist.37