Course 15

Question 1

How is the clash solved between art. 8 en article 10?

Answer 1

• Hannover case: we’re going to expect judges take into consideration all the interests at stake and therefore that they are going to have a look at once again the criteria: what kind of personality, how was that personality, that person behaving in the past, what is the kind of this course general this calls that is at stake.
• Furthermore, how was the information presented, how was the information obtained, was there is sanction, was it a an important one.
  
  • Balancing exercise: that it the typical approach of the court in the last decades: more of a shift towards procedural justice = not so much relying on replacing on the substance.
  • Concentrating on all the interest at stake and if they have been duly considered: focus on the procedure.

Question 2

Case of politician with her newborn?

Answer 2

• Politican: newborn and photographed and this is a really clear example of the balancing exercise between the freedom of expression and the right of privacy.
• The contribution was rather limited = violation of the privacy rights.
• Court says: “we think that the national judges did not duly consider all the aspects of the case and they did not do the balancing exercise properly” so violation.

Question 3

What is political speech?

Answer 3

• At the heart of freedom of expression and this kind of discussion is of paramount important: politicians are granted a wide margin and a wide freedom of expression.
  
  • Within parliament: everything should be able to be discussed but once they are outside, they should still enjoy a wide freedom of expression but there are still some limits that are not justified = eg. personal attacks.

Question 4

What was the case against Austria with regard to political speech?

Answer 4

• Politician who was really upset by what reporters were writing about him en he felt the need to defend himself in the press conference where he said “this is pure Nazi Germany”.
• He gets convicted of slander, libel or defamation and he loses the cose fort he structure process: “in the Austrian context, referring to the Nazi period is a no go zone.”
• So politicians are not always entitled to unlimited freedom of expression.
• But court is very ware of silencing the political opposition = almost never allowed because this is at the heart of the political debate.
  
  • Political freedom is very strongly.
  • Lot of recent cases against Hungary, Russia, Turkey,…

Question 5

What is academic freedom?

Answer 5

• Specific form of discourse: not that many cases on academic debate but it is fundamental for:
  
  1. Search for truth
  2. Democracy
• Problems: a lot of conceptual work and all academics have fairly limited knowledge, only within a certain expertise. If we want to give a serious meaning to academic freedom of expression, we should be fair and say: “that freedom is the freedom I can refer to when I am acting in my capacity as an academic. If I’m outside of that, I need to be entitled to protection as an ordinary citizen”.
• Important responsibility to only limit that to areas where you are an expert.

Question 6

What is the case Lombardi Vallauri?

Answer 6

• Very famous professor in the field of legal theory and liberal philosophy in Milan but it is a catholic university. He did not have a fixed position at the time and he applied for a vacancy. Because it is catholic, the Vatican has to come up with an advice and it reports that the professor is teaching things in complete contradiction with the Vatican’s teaching and Catholic doctrine:
  
  • The congregation asks that he no longer teaches at the university so his request for fixed position was admissible but denied.
• He appeals and ends up at Strasbourg court: nobody states that his freedom of expression is interfered:
  
  1. Legal basis: yes
  2. Legitimate aim: yes: the rights of the university to have professors that teach in line with the values and the ideology
  3. Proportional: sensitive subject but court states that the academic freedom is very important and stressing that there should also be procedural guarantees.
• Court says: it is not up to us to go into the findings of the congregation but it is up to us to examine whether the faculties board acted correctly:
  
  • Here, they decide that there were no no sufficient procedural guarantees and so what you see is that, what you see is that the court reaching to article 10th here important procedural guarantees.
    
    • This is a way to avoid going into discussions on the substance (quite complicated).

Question 7

What are the cases regarding freedom of expression on the private labor market?

Answer 7

• Complicated because as a completely private person, you are entitled to your freedom of expression, but your employer has of course some rights as well. That’s where you can see that we all have certain limits to our freedom of expression on the workflow, because there are duties of loyalty, because there are duties of confidentiality, because you know there was even secret things or because of the specific nature of your job.
  
  • Restrictions here = good sense restrictions: duty of loyalty towards your employer.
• Tricky cases where people would criticize their employer on social media in their free time.
• Case Rekvenyi vs. Hungary

Question 8

What was the case Rekvenyi vs. Hungary?

Answer 8

• Explicitly amendment to the constitution that some members of the police were prohibited from joining any political party or engaging in political activity = very broad and maybe too much.
• Court accepted this because Hungary is a kind of state in transition from a totalitarian regime to a democracy and so we want to avoid that if we have no restrictions, then all the people from the old regime = would occupy all those important functions:
• So if you want a real depolitization of the services then, it can be accepted. There are circumstances where one could argue that it is necessary to restrict freedom of expression even in political participation, but you can see to what extent of course this is problematic and this should be and remain rather exceptional.
• So no violation of art. 10

Question 9

What about the case law regarding blasphemy?

Answer 9

• Complicated case law. Idea was that in recent times, there was a kind of lineralization because there were cases in the past heavily criticized.
  
  • Case Ottopreninger vs. Austria: catholic majority in Tirol and you have to protect them against blasphemy.
• Societies are growingly becoming pluralist, secularized, diverse and this would bring about the idea when it comes to morality, it is always more and more complicated to find a common morality and therefore to base your restrictions on morality and public morals. There was tendency to say well we should not be too strict on that, there is evolution and morality is by definition a concept where you need to be a little bit, where you can’t be too restrictive, you need to be a bit liberal in the interpretation.
• Court leaves some room for national blasphemy laws before but now the case law is much more robust.

Question 10

Is everything acceptable just because it is art?

Answer 10

• No! Case against Finland where an artist used pictures of child abuse in a collage in order to protest against child abuse. Nevertheless, there the court said well if your freedom of expression is limited, if your sanction, because you overstepped limits, we think this is accepted. There are other cases where artists were entitled to a certain degree of exaggeration, even using sexual metaphors and sexual images to make their point.

Question 11

What is the case IS vs. Austria?

Answer 11

• Someone was giving a lecture for a small public and he said some rather negative things about Islamic religion.
• Strasbourg court: you would think that the court would say: we should not be dealing so much with the content but more with the right of what she is saying = Handyside case: freedom of expression is the right to say even shocking things: Things that hurt, shock or disturb or offend.
• So maybe this is covered and then the court comes up in a very contested case and says no: she could be sentenced in Austria, it is not a violation of article 10.
• Professor does not agree with it but the court is not saying that states should have anti-blasphemy laws: the court is only concerning that some of the aspects of criticizing of religion can be problematic if there is a national legal basis for it. And it can be accepted. Saying that the court now outlaws blasphemy, that I think is a bridge too far, that is not what you can read in IS against Austria.
  
  • Academic perspective: difference between criticizing ideas, ideologies, religions, belief systems,… Something different when we are talking about criticizing, lampooning, ridiculising of followers. Because these are persons, they have rights. Ideas, ideologies, concepts, worldviews, doctrines, they don’t have rights. People do.
    
    • Hard to draw a line between ideas and persons:

Question 12

How do we handle racist or intolerant speech?

Answer 12

• Handyside case 1976: court stresses the importance of freedom of expression for the individual and for the collective development of society. And it adds to that, or it says more explicitly, it says freedom of expression is not only there to cover and protect conventional or commonly shared views, trivial things and so on and so forth. No, it says freedom of expression is also there to protect ideas that hurt, shock or offend. Ideas that hurt, shock or offend.
• But: there is speech that is used to express violent ideas: in the political debate incitement to violence is not accepted by the court: not protected by freedom of expression.
• Problem: there are also forms of speech that contribute to creating a climate of negative feelings (dislike, dismay, rejection) of certain groups = hate speech directed at people on account of their gender, minority group, racism, sexism, homophobia,…
  
  • Can we restrict that? Tension between the court protecting speecht that can also hurt and shock and the fight against hate speech for vulnerable people.

Question 13

What is the paradox of tolerance and how does the court deal with it?

Answer 13

• Article 17: paradox of intolerance: “should we be tolerant towards the intolerant”?
  
  • If you say yes, the intolerant might overtake but if you are intolerant then you have failed to be tolerant because you are still limiting.
• Article 17 states: “no freedom for the enemies of freedom”: no rights protected by the convention will be used or can be used by groups or persons who they themselves want to take away the protection of the convention toward others.
  
  • If you apply it: it immediately leads to finding cases inadmissible.
  • The idea is that the convention protects democracy and the rule of law so if you advocating directly against those value of tolerance, democracy, open mindedness = inadmissible.
    
    • Can be used against denialism = antisemitism.
• Article 17 = guillotine provision: not the most fine tuned reply and it has been criticized.

Question 14

What is the alternative to art. 17 when you are confronted with hate speech?

Answer 14

• Article 10 test: whenever you are confronted with hate speech: we should not go into the inadmissibility discussion but look to see whether national authorities were entitled to restrict it and if it’s really hate speech and if it’s really this kind of discourse it will not be a problem to find the restriction appropriate or find the sanctions proportionate and there are cases of what we could call hate speech that are picked up under article 10.
  
  • More subtle way than art. 17 = more of an interpretative tool.

Question 15

What are the 4 ways of dealing with hate speech?

Answer 15

1. Article 10
2. Article 10 but bare in mind: art. 17
3. Inadmissibility based on art. 17: symbolically the strongest.
4. Article 10 + criterion of admissibility and find it inadmissible because it is ill founded = falls completely outside of scope of art. 10: your complaint is manifestly ill-founded.

• But very difficult to find a line.

Question 16

What are the cases when hate speech and discrimination?

Answer 16

• Antisemitism cases: easily go into discussion of ethnic minorities.
• Case Vestland vs. Sweden:
  
  • Article 17 used in cases of sexual orientation where it was said that this discrimination is as problematic as discrimination on account of race or origins.
  • So the Swedish authorities could sanction someone who came up with a leaflet where he “strongly disapproved” of homosexuality. But you can see already always the same discussion to what extent can these kinds of cases leave space for opinions that are perhaps not the most nice opinions that people may have on account of religious beliefs for example. So this is complicated.

Question 17

What was the case Féret vs. Belgium?

Answer 17

• Féret was leader of a far-right political party, he made tracts and leaflets in which he “strongly criticized” migration. He was sentenced for discrimination under the Belgian law. He picked up this case and went to the Strasbourg court, and there it’s a 4 to 3 judgement, with the minority saying what he says is perhaps not what we agree with, what we want to hear, but it is part of the political debate, and maybe we should have a more clear view on what is the hate in hate speech, sad to say.
• Political debate should be large, should be robust, should leave room for many positions, then of course you see how an extensive interpretation of what hate speech is, may have an impact on that.
• And that’s where you also see, which in Norwood case on religious hate speech where someone said that he “disapproved of” religion, Islam, which in this context was directed against people so in this context it was a kind of racial hate speech in disguise, and I think that in the Norwood case that is a fair account of what happened, but you can see the risk of course of a too extensive view of hate speech, that is that people are going to be sentenced not so much on what they said, but on what people are thinking they said. So it’s a very complicated and sensitive area.

Question 18

What is the Belgian constitutional law on hate speech and anti-discrimination?

Answer 18

• Protection of freedom of expression is fairly strong because hate speech presupposes in the Belgian context dolus specialis. You need to have that special intent, that’s a protection of freedom of expression.

Question 19

What is the Jersild case?

Answer 19

• a journalist was sentenced because of incitement to hatred, but what he did was giving the floor in a television documentary to some people belonging to these extreme right groups, he interviewed them, but of course you can’t blame the journalist for what the interviewee says, especially not when the journalist is making a documentary in which the journalist wants to warn for the risks of these extreme-right groups.
  
  • As a journalist, if you want to bring to the floor a discrepancy or things you don’t like, or if you want to warn against societal dangers, it’s only fair to say what they are saying or give them the floor. There once again you see that the press was protected.

Question 20

What about denialism of genocide?

Answer 20

• In Belgium we recently have adopted a legislation that protects those genocides beyond the holocaust, and you see that there are different positions possible. One of the cases that sparked a lot of attention was the Perinçek case where someone was sentenced in Switzerland on account of the denial of the Armenian genocide and then went to the court, it went to the grand chamber. It got a lot of attention because the Armenian government was assisted by Amal Clooney so there was a lot of attention and it was an intriguing case.
• Grand Chambr could see that it went too far what he said at that press conference what Perinçek said at that press conference was not a sufficient reason to sanction, but it’s a heavily debated case, one of the reasons being of course that it was too far to sanction the person but just to give you the votes: it holds by ten votes to seven that there has been a violation of article 10, seven is quite a large group, seven judges said there was no problem with the sanction.

Question 21

What is the Swedish sattelite case?

Answer 21

• Khurshid Mustafa and Tarzibachi against Sweden: where the applicants complained that they were not given the right to get satellite dishes. Satellite dishes in a context before the breakthrough and omnipresence of the internet and digital television and the like, so satellite dishes were very important to get access to television programs in their language, in Arab or in Farsi. And this was denied.
• Court found that there was a disproportionate intervention to their rights to receive information. The right of information was interfered with, an important case I would say, and maybe nowadays there are new cases coming up on the access to the internet that may raise similar questions.
  
  • So freedom of expression I would say very important: the idea that government, public authorities should not interfere in a disproportionate way, in an unlawful way with the right not only to express information, but also to receive it.

Question 22

What are the positive obligations when it comes to art. 10?

Answer 22

1. Access to governmental information
2. Protection of the media
3. Pluralism in the media
4. Regulation of “fora” for exercise of freedom of expression
5. Protection of employees against actions by employers

Question 23

What is access to governmental information?

Answer 23

• Case Magyar Helsinki Bizottság vs. Hungary: there is no such thing as a right to governmental access, , yet there are contexts in which citizens may claim a right to access to governmental documents under certain circumstances. Because for example there is a judicial sentence or because it is instrumental to their right to receive information, those are contexts where one could say that under article 10 you can derive a right.
• It depends on the information you are asking, what are the intentions of the applicant, it is conditional, that is clear, but there are some interesting points that can be made for those wanting to have the access, and you see that in many countries access to public administration is (notwithstanding what the Strasbourg court says) something that is part of their public law tradition, for the Scandinavian countries it is kind of self-evident, for Belgium we have a constitutional right to access to governmental information and of course there are many restrictions to that, that is clear.

Question 24

What is pluralism in the media?

Answer 24

• You have to think about that within the framework of public broadcasters, the licensing system, the system of permits: criterion to be taken into account where you have to treat all competitors equally, you have to treat them without favoring one candidate to another on account of content and so on and so forth.

Question 25

What was the case Centro Europa 7 vs. Italy?

Answer 25

• A competitor for the Berlusconi television network and strangely enough that competitor found himself in a very difficult, complicated position where he could hardly do his activities, not understanding the legal system of the permits and so on and so forth. So there you can see there was a problem of media pluralism but also of the interests of Berlusconi.
• Of course there may be questions of giving access to the floor, giving a forum in order to favor once again freedom of expression, that is. Having a right to freedom of expression does not necessarily mean that you have a subjective right to express yourself in all kinds of contexts or that you be given the means and the tools to do so.

Question 26

What is the Appleby case?

Answer 26

• Here the court struggles with the idea and how it is to really say to people well you have the right to distribute leaflets in a shopping mall for example if the owner doesn’t want you to be there.
• Difficult to decide if it should be allowed because freedom of expression but also private property and I do not want you to distribute those leaflets because I disagree with you.

Question 27

What was the case Fuentes Bobo vs. Spain?

Answer 27

• Public television company: questions on to what extent are our employees protected against actions of employers, that can be important within the context of trade unions’ functioning, can be important outside the mere labor context.
• Matter of striking a fair balance: It’s not that you have a job that you are not entitled to voice your concerns or to speak out on the job. That seems obvious. At the same time, it’s not contested that you may have to accept restrictions because of loyalty, because of commercial interests, and the whole question is to strike that balance given of course the special context of the employer.
• Clash of the various positions so it will be important about finding that correct equilibrium between the two. And that may be perhaps the most important positive obligation, that is that you’re looking for that equilibrium rather than taking blunt positions either way.