The Internet is the most important development in communication technology since the invention of the press, affecting the practice of freedom of speech and press and enabling more democratic opportunities for communication. Beside the multitude of advantages, this new technology brought along a swathe of new issues. One important question is: how can courts react to these changed circumstances in the course of human rights adjudication? Is it possible to apply the existing human rights measures or do the features of the new media require the development of new measures? Read more… (Éva Balogh)
The Internet is the most important development in communication technology since the press. Thus it affects the practice of freedom of speech and press. It enables much more equal opportunities for communication, as individuals can publish their views via the Internet and the content they create is available almost all over the world. Social media has an important role in the individual’s self-expression today. This new media has several different features compared to other mediums. Beside the multitude of advantages, these new technologies brought along new problems and dangers too. There are new challenges both for the legislative authority and the courts all over the world. The question is raised: how the courts can react to these changed circumstances in the course of human rights adjudication? Is it possible to apply the existing human rights measures or do the features of the new media require the development of new measures?
In this paper I will analyse the precedent-based adjudication of the European Court of Human Rights and the new challenges brought by social media regarding expressions about public persons. The aim of this paper is to provide a short overview of the Court’s case-law from this aspect and highlight the recent developments in connection.
First, I will introduce the measures and the well-distinguished system of criteria created by the Court with the dynamic and evolutive approach to its case-law regarding expressions about public persons. Secondly, I will examine how the Court can apply the previously developed measures and system of criteria in case the expression was published on the internet, especially on social media, which has several different features compared to other mediums. I will furthermore analyse the Court’s approach to the new challenges of the internet and social media through a concrete judgment.
The General Measures in the Case-Law of the European Court of Human Rights
The case law of the European Court of Human Rights has an important role in the Member States of the Council of Europe because it affects their national human rights approaches. For this reason, it is inevitable to constantly analyse the Strasbourg Human Rights mechanism.
It is widely recognized that the case law of the European Court of Human Rights has some characteristics of precedent-based adjudication. It regularly follows those judgments that have precedential significance in its own case law. Nevertheless “cogent reasons”, earlier erroneous decisions or societal changes can shift the Court’s interpretation, thus it uses the technique of overruling in such cases. When a new case is clearly or reasonably different than the precedent, the technique of distinguishing is applied by the Court. On the one hand, the precedent-based adjudication makes the Court’s case law consistent and accountable. On the other hand, the Court can respond to the changing circumstances and with this dynamic and evolutive approach to its case law, and thus the Court develops the protection of human rights in Europe. With this approach the Strasbourg Court creates a well–distinguished system of criteria regarding interpretation of human rights which may make a progressive impact on national judicial interpretations.
In the public discourse, expressions about public persons are significant and essential to a democratic society. Members of society may freely express their opinion on those who have an influence on public discussions and those who make decisions regarding public interest. Accordingly a constitutional tradition became a common constitutional principle: public persons must tolerate more criticism compared to other individuals. The Court consequently stated that the limits of acceptable criticism are wider as regards public persons.
However, it doesn’t mean that every libelous attack on a public figure should be protected. In these cases there is a conflict between human rights. On the one hand there are freedom of expression and freedom of the press. On the other hand, there is human dignity, or more specifically the right to reputation and honour which derives from it. In democratic states, the aim is to try to find an appropriate balance between these rights. In the course of human rights adjudication it is the judges task to reach this balance. These cases are very complex and a number of factors are taken into account when deciding whether the free speech right trumps the human dignity and reputation rights.
As numerous other courts, the ECtHR has also made a distinction between statements of facts and value judgments. It says that while the existence of facts can be demonstrated, the truth of value judgments is not susceptible to proof.
In the Court’s case law, true statements of facts relating to public persons are protected by freedom of expression. According to the Court, the utterance of libelous facts goes beyond the right to freedom of expression provided in Article 10 of the Convention even if it was a criticism about a public person. Consequently, in the Court’s point of view the protection of freedom of expression doesn’t cover the knowingly false statement of fact because it exceeds the limits of permissible criticism.
Beyond that, the Strasbourg Court applies one kind of diligence measure. Applying this measure, the Court examines the negligence of the speaker regarding the truthfulness of his or her statement of fact. When the speaker acted in good faith and based on the available information he or she reasonably thought of as true, his or her allegation of fact is protected by freedom of expression, even if finally turns out that it was false. And there is another measure of diligence in the Court’s practice regarding professional journalists. Their false statements are protected if they were acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism.
As regards value judgments, the Court says that it would be an impossible requirement to prove their truth and it would infringe the freedom of opinion. The Court held that freedom of expression also covers a degree of exaggeration, or even provocation and the satirical or humorous opinions in the public discourse. Accordingly, opinions are protected at the highest level.
The Court also held that it doesn’t mean that there are no limits to these expressions. The Court added that „offence may fall outside the protection of freedom of expression, for example where the sole intent of the offensive statement is to insult.”
However, it could be difficult to distinguish between statements of facts and value judgments. The ECtHR experienced that most of the time the national courts rank the expressions about public persons in the category of statement of fact producing a strong restriction on freedom of expression. For this reason, the ECtHR established that the value judgments also need some factual basis because value judgments also can be excessive if they don’t have any. The Court argues that in those circumstances, the state’s interferences can be proportional. The new subcategory – value judgment based on facts – is protected by freedom of expression. The necessity of the link between the value judgment and its supporting facts can be different from case to case. The Court decides on this connection in the light of the specific circumstances of the cases.
Besides the abovementioned questions, there are other circumstances of these cases that are examined by the Court. In the Strasbourg Court’s practice the subject of the expression is significant. According to the Court’s case-law, those expressions which deal with public interest or contribute to the public debate are protected by Article 10 at the highest level. The reason of this is that a democratic society can work only if free and open debate regarding matters of public interest is guaranteed.
The Court also observes some other relevant criteria in the balancing exercise regarding expressions about public persons, such as: how well known is the person concerned and what is the subject of the report; the prior conduct of the person concerned; the method of obtaining the information and its veracity; the content, the form and the consequences of the publication; and the severity of the sanction imposed.
The Court consequently reiterates that in these cases criminal sanction only in exceptional circumstances can be proportional and would be compatible with the Article 10 of the Convention.
The New Challenges of Internet and Social Media
In general, the Strasbourg Court stated that Article 10 of the Convention applies to the Internet as means of communication. The Court also noted that in light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and in facilitating the dissemination of information generally. At the same time, the Court also assessed that there are higher risks of harm regarding human rights posed by contents on the Internet than in traditional press media. According to the Court’s point of view, this characteristic of the Internet justifies some restrictions on freedom of expression. Regarding defamation cases, the Court established that freedom of expression on the Internet also covers satire and criticism. However, Article 10 doesn’t guarantee unlimited freedom of expression, especially when the published expression may cause serious harm to the reputation and rights of other individuals. For this reason, the national courts have to make a fair balance between these two rights.
In the recent past, in a case against Iceland the Court had to review such a balancing exercise of the national authorities. In the case of Egill Einarsson v. Iceland the Court had to make a decision on whether an insulting Instagram post about a well-known person is protected by freedom of expression or infringes the right to respect for private life.
The applicant was a public figure in Iceland, who for years, published articles, books, blogs, appeared in films, on television and other media. In 2011, an 18-year-old girl reported to the police that he and his girlfriend raped her. In 2012 another accusation was made by a woman against Mr. Einarsson: the accuser stated that he committed sexual offence against her a few years earlier. In 2012, the Public Prosecutor dismissed the procedure because the evidence was not sufficient to lead to a conviction.
Afterwards, a leading newspaper in Iceland published an interview with Mr. Einarsson, in which the rape accusation against him and its falsity was discussed. His picture was published on the front page of the magazine. On the same day, Mr. X published an altered version of the front-page picture of the magazine with the subtitle “Fuck you racist bastard” on his account on Instagram, the well-known online picture sharing application. Mr. X had drawn an upside down cross on Mr. Einarsson’s forehead and written “loser” across his face. Mr. X. believed that his Instagram account was private and the post would be available only to his followers. However, it turned out that the account was public. The following day, a newspaper published an online article about the post and the original interview.
Afterwards, Mr. Einarsson lodged criminal defamation proceedings against Mr. X. The national courts found that Mr. X’s post as a whole contained his opinion about Mr. Einarsson and it had been a part of general public debate because Mr. Einarsson was a well-known person in Iceland and he had to accept being a subject of public discussion. The national courts considered the post as a value judgment and decided that it is protected by freedom of expression.
Mr. Einarsson turned to the Strasbourg Court and complained that the decisions of the national courts violated his right to respect private life guaranteed by Article 8 of the Convention. He stated that Mr. X.’s post was a statement of fact because he accused Mr. Einarsson of rape, even though he had known that the case against him was dismissed by the prosecutor. He argued that the Instagram post was a factual statement because it is possible to prove its falsity.
The Government argued that this case was different from cases that concerned the media publishing information about individuals and therefore the principles created previously by the Court could not be applied in the same way in the current case. The Government pointed out that the questioned post was published by an individual who wanted to express his value judgment about a public figure. Accordingly, the domestic courts applied the standards in conformity with the Convention.
The Court first reiterated the above-mentioned relevant general principles regarding balancing between freedom of expression and reputation and the Internet.
After these considerations, the Court evaluated the following circumstances of the case. The Court stated that the limits of acceptable criticism are wider in this case because the applicant was a well-known person in Iceland. The Court also agreed with the domestic courts’ findings that the applicant’s views attracted attention, and that there was a public discussion regarding the complaints against him regarding sexual violence and he participated in it. However, the Court stated that the term “rapist” has an objective and factual nature. The statement was a serious nature and capable of damaging the applicant’s reputation. The Court argued that even disputed public persons do not have to tolerate being publicly accused of violent criminal acts without such statements being supported by facts.
The Court established that domestic courts failed to strike a fair balance between the applicant’s reputation and Mr. X’s right to freedom of expression. The Court held that there has been a violation of Article 8 of the Convention. Two judges wrote dissenting opinions and stated that the national courts struck a fair balance between the conflicting rights. It shows that there is a discussion between the judges regarding the measure of freedom of expression on the Internet.
This paper summarized the well–distinguished system of criteria of the Strasbourg Court for making decisions regarding expressions about public persons and pointed out the new challenges in connection with such expressions on the Internet, especially social media. As we have seen, the Strasbourg Court perceived that the Internet as a new media has several different features compared to traditional media. Consequently, the Court started to examine these characteristics and to interpret the Convention’s articles with respect to them. However, based on the analysis of the above-mentioned case, it seems that the Court’s practice is not well-balanced yet in this regard. In my opinion, the Court didn’t evaluate sufficiently the characteristics of the social media and the significance of the posts on it in this case.
My conclusion is that the Court should consider carefully its own earlier measures and it should try to find an appropriate way to apply them in these new circumstances or try to find new measures in connection with social media. In my opinion, the Court can reach this aim using the abovementioned techniques of precedent-based adjudication.
Author: Éva Balogh, Assistant Professor, University of Debrecen, Faculty of Law
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 Barendt, Eric (2007): Freedom of Speech. Oxford: Oxford University Press, pp. 451-458
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 Lingens v. Austria, Judgment of 8 July 1986. § 42.
 Lingens v. Austria, Ibid. § 46.
 Keller v. Hungary, Decision as to the Admissibility of Application no. 33352/02 by László Keller against Hungary, 4 April 2006.
 Nilsen and Johnsen v. Norway, Judgment of 25 November 1999. § 49.
 Lepojić v. Serbia, Judgment of 6 November 2007. §§ 77–78.
 Niskasaari and Otavamedia Oy v. Finland, Judgment of 23 June 2015.§ 58.
 Lingens v. Austria, Ibid. § 46.; Oberschlick v. Austria (No. 1.), Judgment of 23 May 1991. § 63.
 Oberschlick v. Austria (No. 2.), Judgment of 1 July 1997. §§ 31–34.; Lopes Gomes da Silva v. Portugal, Judgment of 28 September 2000. §§ 34–37.
 Klein v. Slovakia, Judgment of 31 October 2006. § 48.
 Uj v. Hungary, Judgment of 19 July 2011. § 20.; Genner v. Austria, Judgment of 12 January 2016. § 36.
 De Haas and Gijsels v. Belgium, Judgment of February 24 1997. § 47; Oberschlick v. Austria (No. 2.), Judgment of July 1 1997. § 33; Jerusalem v. Austria, Judgment of February 27 2001. § 43.
 Feldek v. Slovakia, Judgment of July 12 2001. § 86.
 White, Robin C.A.–Ovey, Clare (2010): The European Convention on Human Rights, Fifth Edition. Oxford-New York: Oxford University Press, 428.; Uj v. Hungary, Ibid. §§ 23-24.
 Axel Springer AG v. Germany, Judgment of 7 February 2012. § 89–95.; Ungváry and Irodalom Kft. v. Hungary, Judgment of 3 December 2013, § 45.
 Raichinov v. Bulgaria, Judgment of 20 April 2006. § 50.
 Times Newspapers Ltd (nos. 1 and 2) v. the United Kingdom, Judgment of 10 March 2009. § 27.
 Editorial Board of Pravoye Delo and Shtekel v. Ukraine, Judgment of May 5 2011. §§ 63-64.
 Fatullayev v. Azerbaijan, Judgment of April 22 2010. § 102.
 Egill Einarsson v. Iceland, Judgment of 7 November 2017., See also Milkaite, Ingrida (2018): Egill Einarsson v Iceland: the Court deals with an offensive Instagram post. In: Strasbourg observers, January 19.