Last Updated on November 4, 2019 by LawEuro
Overview of the Case-law of the ECHR 2018
Freedom of expression (Article 10)
Freedom of expression
Sekmadienis Ltd. v. Lithuania[136] concerned commercial speech using religious symbolism.
The applicant company published advertisements on public hoardings intended to promote a range of clothing using models depicting religious figures from the Christian faith. The religious symbolism was reinforced by captions intended for comic effect. Around one hundred complaints were lodged, which led to legal proceedings against the applicant company. The domestic courts ultimately found that the advertisements were contrary to public morals and in breach of the relevant provisions of the Law on advertising in force at the material time. The applicant company was fined. In the view of the domestic courts, and among other considerations, the advertisements had been inappropriate, made use of religious symbols for superficial purposes and “promoted a lifestyle which was incompatible with the principles of a religious person”.
The applicant company complained in the Convention proceedings that the fine amounted to an unjustified interference with its right to freedom of expression under Article 10 of the Convention. The Court agreed with it.
The judgment is of interest given that the Court ruled that, in the circumstances of the case, the respondent State had exceeded its margin of appreciation in the area of commercial speech or advertising, which, according to the established case-law, is broad (see markt intern Verlag GmbH and Klaus Beermann v. Germany[137], and Mouvement raëlien suisse v. Switzerland[138]). Of equal relevance in this case is the fact that States are also afforded a broad margin when regulating speech which is liable to offend against religious beliefs or convictions (see, for example, Murphy v. Ireland[139]). According to the Court’s case-law those exercising Article 10 rights have a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane (see, for example, Murphy, cited above, § 65, and Giniewski v. France[140]).
The Court’s inquiry in the instant case was therefore directed at establishing whether the domestic courts had overstepped that margin and in particular whether they had provided relevant and sufficient reasons to justify the existence of a pressing social need for the interference with the applicant’s Article 10 rights. The Court placed emphasis on the following considerations.
In the first place, the advertisements did not appear to be gratuitously offensive or profane, nor did they incite hatred on the grounds of religious belief or attack a religion in an unwarranted or abusive manner.
Secondly, the domestic courts failed to provide relevant and sufficient reasons for their finding that the advertisements were contrary to public morals. For the Court, their explanations were “declarative and vague” and offered no insight into why, for example, a lifestyle which was “incompatible with the principles of a religious person” would necessarily be incompatible with public morals. Interestingly, it noted in this connection that, even though all the domestic decisions referred to “religious people”, the only religious group that had been consulted in the domestic proceedings had been the Roman Catholic Church, thereby equating morals with the values of one particular religious tradition.
Thirdly, and importantly, in response to the Government’s argument that the advertisements must also have been considered offensive by the majority of the Lithuanian population who shared the Christian faith, the Court observed (paragraph 82) that:
“… even assuming that the majority of the Lithuanian population were indeed to find the advertisements offensive, the Court reiterates that it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority. Were this so, a minority group’s rights to, inter alia, freedom of expression would become merely theoretical rather than practical and effective as required by the Convention …”
In concluding, the Court found that the authorities gave absolute primacy to protecting the feelings of religious people, without adequately taking into account the applicant company’s right to freedom of expression.
Freedom of the press
Magyar Jeti Zrt v. Hungary[141] concerned the “duties and responsibilities” of a media organisation when posting a hyperlink to material later found to be defamatory.
The applicant company operated an online news portal. It published an article on an allegedly anti-Roma inspired incident outside a school. It also posted, without further comment, a hyperlink to an interview available on YouTube given by a Roma representative to a media outlet regarding the same incident. The interview was later found to be defamatory of a political party named in the interview. The domestic courts ruled that the applicant company, by posting the hyperlink, had disseminated the interview and was therefore objectively liable under Article 78 of the Civil Code for having shared the defamatory content of the interview with others, irrespective of whether it had acted in good faith and in compliance with the ethics of journalism. In the Convention proceedings, the applicant company complained of an infringement of its right to freedom of expression. The Court ruled in its favour.
The judgment is noteworthy given that this is the first occasion on which the Court has had to address under Article 10 the publication of a hyperlink which directs the reader to material which is later adjudged by the domestic courts to damage the reputation of a third party. The Court summarised the essential differences between hyperlinks and traditional forms of publication in the following terms.
“73. … bearing in mind the role of the Internet in enhancing the public’s access to news and information, the Court points out that the very purpose of hyperlinks is, by directing to other pages and web resources, to allow Internet users to navigate to and from material in a network characterised by the availability of an immense amount of information. Hyperlinks contribute to the smooth operation of the Internet by making information accessible through linking it to each other.
74. Hyperlinks, as a technique of reporting, are essentially different from traditional acts of publication in that, as a general rule, they merely direct users to content available elsewhere on the Internet. They do not present the linked statements to the audience or communicate its content, but only serve to call readers’ attention to the existence of material on another website.
75. A further distinguishing feature of hyperlinks, compared to acts of dissemination of information, is that the person referring to information through a hyperlink does not exercise control over the content of the website to which a hyperlink enables access, and which might be changed after the creation of the link … Additionally, the content behind the hyperlink has already been made available by the initial publisher on the website to which it leads, providing unrestricted access to the public.”
Importantly the Court considered that whether the posting of a hyperlink constitutes dissemination of defamatory information requires the domestic courts to conduct an individual assessment in each case and to give relevant and sufficient reasons for imposing liability on the provider of the hyperlink. It noted a series of pertinent questions in this connection, which were not addressed by the domestic courts when imposing liability on the applicant company: (i) did the applicant company endorse the impugned content; (ii) did it repeat the impugned content (without endorsing it); (iii) did it merely insert a hyperlink to the impugned content (without endorsing or repeating it); (iv) did it know or could it have reasonably known that the impugned content was defamatory or otherwise unlawful; and (v) did it act in good faith and respect the ethics of journalism as well as the requirement of due diligence (paragraph 77).
On the facts of the applicant company’s case, the Court noted among other things that the article in question did not refer to the hyperlinked material in a way that repeated the defamatory statements. The article made no mention of the political party which brought the defamation proceedings. Furthermore, the author did not suggest that the statements which could be accessed via the hyperlink were true or that he endorsed them. The Court also attached importance to the fact that, prior to the initiation of the defamation proceedings, the applicant company did not know that the linked content was possibly defamatory, which would have required it to disable access to the content.
For the Court, the domestic courts had based themselves on Article 78 of the Civil Code and had concluded that an act of hyperlinking amounted to dissemination of information. For that reason alone, the objective liability of the applicant company was engaged in accordance with domestic law, thereby leaving no scope for the courts to balance the political party’s right to reputation and the applicant company’s right to freedom of expression. There had thus been a breach of Article 10.
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136. Sekmadienis Ltd. v. Lithuania, no. 69317/14, 30 January 2018.
137. markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 33, Series A no. 165.
138. Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 61, ECHR 2012 (extracts).
139. Murphy v. Ireland, no. 44179/98, § 67, ECHR 2003-IX (extracts).
140. Giniewski v. France, no. 64016/00, § 43, ECHR 2006-I.
141. Magyar Jeti Zrt v. Hungary, no. 11257/16, 4 December 2018.
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