Case study 63 - Article 10 of the ECHR

(Freedom of expression and political elections)

© Council of Europe Last updated: 06.09.2007

Case study 63 - Article 10 of the ECHR: 2
(Freedom of expression and political elections)

Immediately after the elections which took place in Albania in July 2005,
a daily newspaper published an article in which several accusations of
wrongdoing were raised against the majority political party.

Notably, the journalist author of the article alleged that he had received,
from an undisclosed source, reliable information that the electoral
campaign of the political party had been financed unlawfully by two of the
biggest commercial companies of the countries.

Furthermore, part of the money was handed out to electors in exchange

for their vote and some used to bribe those responsible for counting the
votes, in order to ensure a favourable outcome.

The article also alleged that the newly appointed Prime Minister, who
was the leader of the political party, betrayed the trust of the Albanian
people, that he was “culturally retarded” and criticised his face for having
a “criminal look”.

The day after the newspaper’s publication, the competent judicial

authorities began an investigation to determine whether there had been
any unlawful interference with the electoral process. That same day, the
Prime Minister and other leading members of the political parties
mentioned in the article, filed a lawsuit for defamation against the
newspaper and the journalist.

The investigation was conducted very quickly and no evidence

whatsoever was found to support the newspaper’s allegations. In light of
this, the result of the elections was validated and no charge was raised
against the majority political party. However, the newspaper published
another article where it was suggested that the investigation was not
properly conducted thanks to “the long-term shrewd financial strategy of
the political party which saved part of the money for dealing with the
aftermath.”

This statement was held to be an outrage against the judiciary and

criminal proceedings were instituted accordingly against the newspaper
and the journalist.

In the course of the proceedings for defamation, the Court asked the
journalist to disclose the identity of the information source but he refused
the request. Since the identity of the source was considered essential for
the proceedings, the Court ordered the disclosure. The journalist refused
Case study 63 - Article 10 of the ECHR: 3
(Freedom of expression and political elections)

to comply with the order and was fined of 10.000 € (or in default of
payment, he was to be sentenced to 3 months imprisonment). Moreover,
the Court held that the allegations of wrongdoings were false and that
the comments concerning the figure of the Prime Minister were
unjustifiably offensive and with no factual basis. As a consequence, the
journalist and the newspaper were convicted of defamation, and
considering the seriousness of the offence the former was sentenced to
2 years imprisonment and the latter to pay compensatory damages in the
amount of 500.000 € and to suspend publication for 1 month.

A second set of criminal proceedings also ended with the conviction of

the journalist and the newspaper, as their ill-founded remarks cast doubt
on the impartiality and independence of the judiciary, jeopardizing its
authority and credibility. The newspaper was sentenced to a fine of
100.000 € and the journalist prohibited from exercising his profession for
a period of 5 years.

Questions:

1. In relation to the proceedings for defamation brought by the Prime

Minister and other members of the political party, which elements
should have been taken into account by the Albanian Court in the
light of Art. 10 of the ECHR?

2. Do you think that there was an interference with the journalist and
newspaper’s right to freedom of expression? And was the
interference proportionate to the aim pursued in respect of all the
statements contained in the articles?

3. Do you think that the Court’s order addressed to the journalist to

disclose his source and the sanction imposed upon him for non
compliance raised an issue under Art. 10 ECHR?

4. In relation to the proceedings for outrage against the judiciary, was

there a violation of Art. 10 ECHR?
Case study 63 - Article 10 of the ECHR: 4
(Freedom of expression and political elections)

Article 10 of the European Convention on Human

Rights provides the right to freedom of expression, subject
to certain restrictions that are "in accordance with law"
and "necessary in a democratic society". This right
includes the freedom to hold opinions, and to receive and
impart information and ideas.
“ Article 10 – Freedom of expression
1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to
receive and impart information and ideas without
interference by public authority and regardless of
frontiers. This article shall not prevent States from
requiring the licensing of broadcasting, television or
cinema enterprises.
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder
or crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for
preventing the disclosure of information received in
confidence, or for maintaining the authority and
impartiality of the judiciary.
Case study 63 - Article 10 of the ECHR: 5
(Freedom of expression and political elections)

Answer to the case study:

Question 1:

In relation to the proceedings for defamation brought by the Prime Minister and
other members of the political party, which elements should have been taken
into account by the Albanian Court in the light of Art. 10 ECHR?

As to the newspaper and the journalist:

- The right and obligation to impart information, especially of a public concern
and contributing to the discussion on behaviour and morals of politicians
(watchdog role of the media) as well as the right to express a value
judgement;
- The particular character of news which is a perishable commodity and to delay
its publication, even for a short period, may well deprive it of all its value and
interest.;
- The right to the good faith defence (given the conditions are met);
- The protection of the journalist’s source of information;
- The possibility / right to use a language and wording with some degree of
exaggeration or provocation or being seen as offensive, especially in response
to the provocative speech/speeches/behaviour of a politician;

As to the Prime Minister and members of the political parties mentioned in the article:

the limits of permissible criticism are wider with regard to the government than in
relation to a private citizen or even a politician ;

The limits of acceptable criticism are accordingly wider as regards a politician as

such than as regards a private individual.

Question 2:

Do you think that there was an interference with the journalist and newspaper’s
right to freedom of expression? And was the interference proportionate to the
aim pursued in respect of all the statements contained in the articles?

the Court stated:

Whilst the press must not overstep the bounds set, inter alia, for the "protection of the
reputation of others", it is nevertheless incumbent on it to impart information and
ideas on political issues just as on those in other areas of public interest. Not only
Case study 63 - Article 10 of the ECHR: 6
(Freedom of expression and political elections)

does the press have the task of imparting such information and ideas: the public also
has a right to receive them.
Thus, there was an interference with the journalist and newspaper’s right to freedom
of expression.
It can be assumed for the purpose of the case study that the above interference was
prescribed by the law.

The interference pursued a legitimate aim (“the protection of the reputation or rights
of others”), as in the newspaper article there were allegations concerning the
unlawful financing of the electoral campaign and bribes connected to those elections
(facts) as well as allegations concerning the newly appointed Prime Minister (facts
and value judgments).

In order to decide if the interference was “necessary in a democratic society”, the

proportionality of the interference to the aim pursued should be evaluated:
As to the value judgements in general, the Court stated on many occasions that the
truth of the value-judgements is not susceptible of proof and the requirement of
proving the truth of the value judgments infringes the heart of the freedom of opinion.
Moreover – as far as the unjustifiably offensive character of the allegations is
concerned – The Court was of the opinion that politicians must display wider
tolerance to media criticism –
The limits of acceptable criticism are accordingly wider as regards a politician as
such than as regards a private individual
and that language used while describing behaviour and political morals of the
politicians can have a degree of exaggeration or even provocation and that not every
word can be weighted to exclude any possibility of misunderstanding.

As to the allegations concerning the facts, the Court stated that the good faith
defence must be accepted in cases of defamation, which essentially concern facts.
The journalist should not be sanctioned if at the time of publication he/she had
sufficient reasons to believe that a particular piece of information used in the article
was true (reliability of the source of information and a reasonable check made by a
journalist) and it was not only the intent to defame the alleged victim what made the
journalist write an article.

Moreover, by evaluating the penalisation corresponding to the gravity of the

allegations and in order not to endanger the censorship and public watchdog role of
the press (or media in general), the courts should refrain from applying criminal
sentences, in particular imprisonment.
Thus the interference was not proportionate to the aim pursued and there was a
violation of Article 10 of the Convention.

Question 3:
Do you think that the court order to the journalist to disclose his source and
the sanction imposed upon him for non compliance, raise an issue under Art.
10 ECHR?

In the Goodwin judgement the Court stated that (s. paragraph 39 of the judgement):
Case study 63 - Article 10 of the ECHR: 7
(Freedom of expression and political elections)

The Court recalls that freedom of expression constitutes one of the essential
foundations of a democratic society and that the safeguards to be afforded to
the press are of particular importance.
Protection of journalistic sources is one of the basic conditions for press
freedom, as is reflected in the laws and the professional codes of conduct in a
number of Contracting States and is affirmed in several international
instruments on journalistic freedoms. Without such protection, sources may be
deterred from assisting the press in informing the public on matters of public
interest. As a result the vital public-watchdog role of the press may be
undermined and the ability of the press to provide accurate and reliable
information may be adversely affected. Having regard to the importance of the
protection of journalistic 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 (art. 10)
of the Convention unless it is justified by an overriding requirement in the
public interest.

In the same judgment, the Court found the disclosure order requiring Mr Goodwin to
reveal the identity of his source and the fine imposed upon him for refusing,
constituted a violation of Article 10 of the ECHR (“Freedom of expression”).

After examining the case, the Court concluded the measures impugned on the
applicant were “prescribed by law” and the interference pursued a legitimate aim.
Considering the necessity of the interference in a democratic society the Court found
there was not:
-a reasonable relationship of proportionality between the legitimate aim
pursued by the disclosure order and the means deployed to achieve that aim.
The restriction which the disclosure order entailed on the applicant journalist's
exercise of his freedom of expression cannot therefore be regarded as having
been necessary in a democratic society, within the meaning of paragraph 2 of
Article 10 (art. 10-2), for the protection of Tetra's rights under English law,
notwithstanding the margin of appreciation available to the national authorities.

Accordingly, the Court concludes that both the order requiring the
applicant to reveal his source and the fine imposed upon him for having
refused to do so gave rise to a violation of his right to freedom of
expression under Article 10.
(emphasis added)

Moreover, following the Goodwin judgment, the Committee of Ministers of the

Council of Europe adopted Recommendation No. R(2000) 7 on the right of journalists
not to disclose their sources of information. (emphasis added)

Question 4:
In relation to the proceedings for outrage against the judiciary, was there a
violation of Art. 10 ECHR?

The conviction of the journalist and the newspaper amounted to an “interference”

with the exercise of their freedom of expression.
Case study 63 - Article 10 of the ECHR: 8
(Freedom of expression and political elections)

It is very likely that in this case study 63, this interference was “prescribed by law”
and had pursued at least one of the legitimate aims referred to in Article 10 § 2 – the
protection of the reputation or rights of others. In this case study, the rights of the
judges examining an alleged unlawful interference with the electoral process were
protected.

The question to be answered is whether the interference was “necessary in a

democratic society” for achieving the above-mentioned aim.

The article suggesting that investigations were not properly conducted due to “the
long-term shrewd financial strategy of the political party which saved part of the
money for dealing with the aftermath” could be seen as a part of a debate on the
malfunction of the judicial system or as an example for doubting the independence of
judges. In this case it would be an important issue for the public which could not be
left outside the public debate.

- It is assumed that the convicted journalist had undertaken sufficient research

in order to be able to base the article on objective evidence and followed his
professional obligations by publishing what he learnt about the case. The
interference should be seen as not necessary in a democratic society and the
violation of Article 10 should be decided.
-
-If the defamatory article was solely aimed at :
- damaging the reputation of the judges in question
- undermining public confidence
and the journalist:
- was unable to establish that his allegations were true
- his value-judgments (if there were any) were fair comment
- would not give to any of the judges concerned an opportunity to
comment on the accusations levelled against him or his colleagues

the impugned interference could not appear to be disproportionate (thus no violation

of Article 10).