Archive for the “ECHR” Category
 Two recent cases in the European Court of Human Rights demonstrate that there are still large gaps in the protection of freedom of expression in Turkey.
Terrorist speech
In Gözel and Özer v Turkey (43453/04 and 31098/05; 6 July 2010 | judgment (in French); press release (in English)), a Turkish magazine published an article that contained a statement by the central committee of the banned Marxist-Leninist/Turkish Communist Party. Another published an article about the founder of the Marxist movement in Turkey which included a statement by eight people who were in custody for belonging to illegal organisations. The editors of both magazines were convicted of pubishing statements of illegal armed organisations.
The ECHR noted that the editors had been convicted for publishing texts that the domestic courts had characterised as “terrorist organisation statements” without taking into account their context or content, and held that to condemn a text simply on the basis of the identity of the author would entail the automatic exclusion of groups of individuals from the protection afforded by Article 10. It therefore concluded that since the opinions expressed did not constitute hate speech or stir up violence, the Respondent was not entitled to rely on national security to restrict the public’s right to receive information, and that Article 10 had therefore been breached.
In Ireland, the leading Supreme Court decision in this area is the deeply flawed The State (Lynch) v Cooney [1982] IR 337 upholding the infamous section 31(1) of the Broadcasting (Authority) Act, 1960 [(also here), as amended by section 16 of the Broadcasting Authority (Amendment) Act, 1976 (also here), ultimately repealed in 2001] (discussed on this blog here | here | here). On foot of the powers in that section, the Minister had proscribed the access of paramilitaries to the airwaves, and this extended to preventing an election broadcast by a candidate in a party associated with a paramilitary organisation. That association, effectively the mere identity of the candidate, was sufficient to allow the ban to be upheld. O’Higgins CJ held that the use of the media for the purpose of securing or advocating support for organisations which seek by violence to overthrow the State or its institutions is a use which is prohibited by the Constitution. This must now be questionable in the light of Gözel and Özer.
Academic Freedom
In Sapan v Turkey (44102/04; 6 July 2010 | judgment (in French); press release (in English) | h/t Strasbourg Observers), the applicant published a book on the emergence of stardom as a phenomenon in Turkey. It was based upon his doctoral thesis, and it focussed in part on a well-know pop singer. The Turkish courts held that, since the book addressed subjects related to the singer’s personal life rather than his public persona, it had infringed his personality rights. An interim order that the book be seized was eventually lifted after two years and eight months, but the singer’s damages claim was allowed to proceed.
The ECHR emphasised the importance of academic freedom, and it considered that the book was a serious academic analysis of the social phenomenon of stardom which could not be compared with the tabloid press or gossip columns. It therefore held that there were no relevant or sufficient and reasons to justify the seizure of the book, and that Article 10 had therefore been breached.
In an earlier post, I placed the terms of section 14(1) of the Universities Act, 1997 (also here) in the context of US and ECHR decisions on academic freedom, in particular the decision of the ECHR in Sorguc v Turkey 17089/03, [2009] ECHR 979 (23 June 2009). This is a very significant judgment in the development of this important right. In particular, it re-inforces the argument that, since academic freedom is protected under the ECHR as an aspect of Article 10, it should by analogy be protected under the Irish Constitution as an aspect of the right to freedom of expression in Article 40.6.1(i), or of the right to communicate protected by Article 40.3, or even as an unenumerated right located in Article 40.3.
2 Comments »
 When I was growing up, I read a children’s book called The Arabian Nights, an innocent version of the Islamic classic One Thousand and One Nights. Perhaps surprisingly, a group of Egyptian lawyers has recently called for a ban of a newly-released version of the Nights, on the grounds that it is “obscene” and could lead people to “vice and sin”. At the same time, another Egyptian group has called for a ban on the controversial novel Azazeel (Beelzebub) by Youssef Ziedan, which won the 2009 International Prize for Arabic Fiction. And, irony of ironies, just in time for Bloomsday, a manga comic book version of James Joyce’s novel Ulysses had almost been banned from the Apple App Store for obscene images, but Apple then relented, and reversed its earlier decision to remove panels containing nude images, though it still continues to reject less famous apps.
These examples of censorship of literature on the grounds of obscenity are simply the latest instances of a long and dishonourable tradition. In an earlier post, I considered whether Lady Chatterley’s Lover is obscene. In Akdas v Turkey 41056/04 (15 February 2010) (judgment in French; press release in English), the European Court of Human Rights was faced with a similar question earlier this year, when it had to consider whether a Turkish ban on Guillaume Apollinaire’s Les Onze Mille Verges (or, The Eleven Thousand Rods) was consistent with Article 10 of the European Convention on Human Rights. It held that the ban infringed Article 10 (see see ECHR Blog | Guardian | Inforrm | Strasbourg Observers). However, the reasoning by which it reached this eminently sensible conclusion could have profound consequences for states attempting to rely on “the protection of morals” in Article 10(2) to justify restrictions on speech otherwise protected by Article 10(1).
In Handyside v UK 5493/72, [1976] ECHR 5, (1976) 1 EHRR 737 (7 December 1976), the first case on Article 10, the Court took a broad view of what was protected by Article 10(1), but when it came to whether a restiction could be said, in terms of Article 10(2) to be “necessary … for the protection of morals”, the Court held that there is no “uniform European conception of morals” (para 48), with the result that States were afforded quite a generous margain of appreciation to determine in the first instance whether a restriction was indeed necessary for the protection of morals. Subsequent cases have taken a similar approach, but Akdas v Turkey marks a signficant departure from this model.
Paying due obeisance to the Handyside approach, the Court nevertheless tempered it by observing that more than a century had passed since the first publication of the work in France, that it had thereafter been published in numerous countries in various languages, and it that had been inducted into the prestigious Bibliothèque de la Pléiade, now an imprint of Gallimard, a dozen years before being seized in Turkey. As a consequence, the Court held that reliance upon the margin of appreciation would not avail Turkey in this case (in Inforrm’s Blog translation):
[30] … the recognition given to the cultural, historical and religious singularities of member states of the Council of Europe cannot go so far as to prevent public access in a particular language, in this case Turkish, to a work which forms part of the European cultural heritage.
This concept of the European cultural heritage has the potential to act as a signficant check upon over-reliance on the morals exceptoin in Article 10(2). It is certainly a long way from the Handyside assertion that there is no uniform European conception of morals. As Maris Burbergs on Strasbourg Observers points out:
the Court states that the acknowledgment of the cultural, historical and religious particularities of the Council of Europe’s member States could not go so far as to prevent public access in a particular language, in this instance Turkish, to a work belonging to the European literary heritage. Accordingly, the application of the legislation in force at the time of the events had not been intended to satisfy a pressing social need.
Antoine Buyse on ECHR Blog goes further:
Thus, apparently, what has become part of the “canon of art” can no longer be prohibited within Europe. One may wonder what happens in cases where such works truly are offensive to large groups of people and also one may question who decides when a work becomes elevated to this European literary Olympus. Here the Court becomes an interesting player in the ongoing discussion on what is Europe’s common heritage!
Similarly, Inforrm’s Blog says that this conclusion has wide ranging implications:
Many readers of Eleven Thousand Rods will find the contents of the book highly offensive – as indeed did the French public at the time of its publication and for many decades later. When the book was published in England in the 1970s whole chapters were deleted and replaced by short descriptions of the violent acts which were described. The idea that, four decades later, any restriction on the publication anywhere within the Council of Europe States, whatever local sensibilities, is at first sight very surprising. The notion of the “European literary heritage” is one which lacks clear boundaries – certainly in countries which do not have the benefit of the “Pléiade” collection. The judgment does, however, show that contrary to the views of some English critics, the Court of Human Rights continues to take a robust view in “traditional freedom of expression” areas such as obscenity.
One way to test this rather fluid conception of the European literary heritage is to apply it to not just to European books like The Eleven Thousand Rods, Ulysses or Lady Chatterly’s Lover, but to non-European classics such as The One Thousand and One Nights or to important recent publications like Azazeel. If there is no substantive or qualitative difference between them, then the pressure will be on the Court to expand its notion of the European literary heritage, and to narrow the margin of appreciation afforded to member states when the seek to rely on the morals exception. This would be no bad thing.
2 Comments »
 Strasbourg is a beautiful city: it possesses a magnificent gothic cathedral; the Grande île is a UNESCO World Heritage site; and it is home to many European institutions, including the the European Court of Human Rights (ECHR, pictured left). It is a city with which Geraldine Kennedy, the Editor of the Irish Times, and Colm Keena, that paper’s Public Affairs Correspondent, will become very familiar, as they bring an exceedingly important case to the ECHR.
In Mahon Tribunal v Keena (No 1) [2009] 2 ILRM 373, [2009] IESC 64 (31 July 2009), the Supreme Court held that the Irish Times would not be compelled to disclose the source of a leaked Tribunal document which it had destroyed rather than produce to the Tribunal. Reversing the High Court ([2007] IEHC 348 (23 October 2007)), Fennelly J for a unanimous Supreme Court held:
68. Looking at the High Court judgment as a whole, I have come to the conclusion that the great weight which it attached to the reprehensible conduct of the appellants in destroying documents led it to adopt an erroneous approach to the balancing exercise.
69. According to the reasoning of the European Court in Goodwin [v United Kingdom 17488/90, (1996) 22 EHRR 123, [1996] ECHR 16 (27 March 1996)], an order compelling the appellants to answer questions for the purpose of identifying their source could only be “justified by an overriding requirement in the public interest.” Once the High Court had devalued the journalistic privilege so severely, the balance was clearly not properly struck. On the other side, I find it very difficult to discern any sufficiently clear benefit to the Tribunal from any answers to the questions they wish to pose to justify the making of the order.
70. I would, therefore, allow the appeal and substitute an order dismissing the Tribunal’s application.
However, the destruction of the document returned to haunt the Irish Times. In Mahon Tribunal v Keena (No 2) [2009] IESC 78 (26 November 2009) (also here), Murray CJ for the Supreme Court held that this deliberate act of destruction of evidence deprived the Tribunal of the possibility of conducting any meaningful inquiry into the source of the leaked letter, and such as to deprive the Irish Times of their normal expectation that the Court would, in the exercise of its discretion, award costs in their favour. As a consequence, the Court ordered that the Tribunal were entitled to recover from the Irish Times the costs of the action in both the High Court and the Supreme Court.
This struck me at the time as a bizarre conclusion that undermined the original decision that the journalists did not have to answer the Tribunal’s questions. If the journalists had a privilege to with-hold the document and decline to answer the questions, then they had the privilege, and it doesn’t matter what they did with the document. Moreover, I argued that the costs order infringed Article 10 of the European Convention on Human Rights. I am therefore delighted to learn that the Irish Times is to challenge it in the ECHR:
THE IRISH Times has applied to the European Court of Human Rights concerning the award of costs against it by the Supreme Court, despite it winning its case against the Mahon tribunal … on the grounds that a number of the rights of Kennedy and Keena have been violated, in particular their rights under article 6 of the European Convention on Human Rights, guaranteeing a fair trial, and Article 10, guaranteeing freedom of expression. …
They point to the “chilling effect” of such an award of costs on the exercise of press freedom, pointing out that the ECHR has already ruled that an order to disclose sources cannot be compatible with article 10 unless it is justified by “an overriding requirement of public interest”.
The Court will first determine whether the application is admissible. If it is declared inadmissible, that decision is final, but I would be shocked if the case failed at this stage; since the case is not manifestly ill founded. If it is declared admissible, the Court will encourage the parties to reach a friendly settlement. This is, to say the least, unlikely, so the Court will then proceed to a public hearing to consider the application “on the merits”, that is to say, to determine whether there has been a violation of the Convention. This whole process will take several years. And Kennedy and Keena will no doubt have to visit Strasbourg several times. But they should be satisfied with their visits, not only as tourists, but ultimately as litigants as well.
4 Comments »
 Section 41(3) (also here) of the Broadcasting Act, 2009 provides:
A broadcaster shall not broadcast an advertisement which is directed towards a political end or which has any relation to an industrial dispute.
Earlier this week, at the annual conference of the Independent Broadcasters of Ireland, the Chairman of the IBI and CEO of Today FM, Willie O’Reilly called for the repeal of this provision, saying that it was open to challenge in the European Courts. According to the IBI press release:
The ban on paid political advertising applies not just to political parties and election candidates but also to organizations, such as trade unions, promoting issues which are considered to be of a political nature.
There is arguably a strong legal case at European level against Ireland’s current ban in the context of freedom of expression as laid down in the European Convention of Human Rights. The current law is outmoded and inappropriate and it is questionable as to whether it is robust enough to withstand a legal challenge in the European Court.
The simple fact is that the internet has made the ban irrelevant. The Obama campaign was won online and all the party’s in the British election are committed to campaigning intensively online. It is ludicrous that a political party can advertise on a radio station’s website but cannot advertise on the radio itself. Moreover, we are seeing political parties in Ireland use the internet and sites such as you tube to upload professional video content that is to all intents and purposes political advertising. The arbitrary exclusion of some electronic media including radio, but not others, from paid political campaigning is nonsense and it is time for our laws to be brought up to date. …
I do not understand, and I do not accept, that it is fair, or reasonable, or right that either audiences or broadcasters should be excluded from paid political broadcasts. What is acceptable in newspapers, and what is available online, should be allowed to air on radio and on television in a free and functioning media. If the government refuses to look at this issue seriously we may be left with no option but to take a challenge to the courts ourselves.
At the end of last year, Dr Kevin Rafter, Head of the Department of Film and Media, in the School of Creative Arts, at the Dun Laoghaire Institute of Art, Design and Technology wrote a fascinating report on Political Advertising: The regulatory Position and the Public View (pdf) for the Broadcasting Authority of Ireland (BAI) which I discussed here, here and here. According to the IBI press release, Rafter told the conference that the time had come to look again at the laws governing political broadcasting:
It is timely to examine whether political advertising should be allowed on television and radio, especially with the rise of these type of adverts on the web and also doubts about the legality of the current outright ban in Ireland.
I have long argued that this ban is questionable in the light of the decisions of the European Court of Human Rights. The point is most strongly emphasised by the decision of the Grand Chamber in Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) 32772/02, [2009] ECHR 1025 (30 June 2009). In the first part of the case, (VgT (No 1) 24699/94, (2002) 34 EHRR 159, [2001] ECHR 412 (28 June 2001)) the Court had found that the prohibition of a political advertisement violated Article 10 of the Convention. Switzerland ultimately failed to remedy the situation, in particular because the Federal Court subsequently dismissed VgT’s application to reopen the proceedings, so the matter returned to the Court. A Chamber (32772/02, 4 October 2007) held that this amounted to a further infringement of Article 10, and the case was referred to the Grand Chamber. In turn, the Grand Chamber (32772/02, [2009] ECHR 1025 (30 June 2009)) held that the continuing failure to respect the earlier decision constituted a fresh violation of the Convention’s freedom of expression guarantee:
[92] The Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or, as in this case, on debate of questions of public interest. … This applies all the more in the instant case, having regard to the Court’s judgment of 28 June 2001 [in VgT (No 1)]. Moreover, the television commercial concerned battery pig-farming. Accordingly, as it related to consumer health and to animal and environmental protection, it was undeniably in the public interest.
[93] The Court further notes that the television commercial was never broadcast, even after the Court’s judgment had found that the refusal to broadcast it infringed freedom of expression. However, prior restraints on publication entail such dangers that they call for the most careful scrutiny …
[94] Furthermore, the Court has already found, in its judgment of 28 June 2001 [in VgT (No 1)], that the interference in issue was not necessary in a democratic society, among other reasons because the authorities had not demonstrated in a relevant and sufficient manner why the grounds generally advanced in support of the prohibition of “political” advertising could serve to justify the interference in the particular circumstances of the case (see VgT (No 1) [75]). …
[95] … the public interest in dissemination of a publication does not necessarily decrease with the passing of time … Moreover, the Federal Court did not offer its own explanation of how the public debate on battery farming had changed or become less topical since 1994, when the commercial was initially meant to have been broadcast. Nor did it show that after the Court’s judgment of 28 June 2001 [in VgT (No 1)] the circumstances had changed to such an extent as to cast doubt on the validity of the grounds on which the Court had found a violation of Article 10. Lastly, the Court must also reject the argument that the applicant association had alternative options for broadcasting the commercial in issue, for example via private and regional channels, since that would require third parties, or the association itself, to assume a responsibility that falls to the national authorities alone: that of taking appropriate action on a judgment of the Court.
[96] Furthermore, the argument that the broadcasting of the commercial might be seen as unpleasant, in particular by consumers or meat traders and producers, cannot justify its continued prohibition. The Court reiterates in this connection that freedom of expression is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”.
[97] The Court notes, lastly, that the Contracting States are under a duty to organise their judicial systems in such a way that their courts can meet the requirements of the Convention … This principle also applies to the execution of the Court’s judgments. Accordingly, it is equally immaterial in this context to argue, as the Government did, that the Federal Court could not in any event have ordered that the commercial be broadcast following the Court’s judgment. The same is true of the argument that the applicant association should have instituted civil proceedings.
[98] Having regard to the foregoing, the Court considers that the Swiss authorities failed to comply with their positive obligation under Article 10 of the Convention in the instant case. There has therefore been a violation of that Article.
5 Comments »
 In Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf) (to which I will refer as Mahon Tribunal v Keena (No 1)) the Irish Times successfully resisted an attempt by the Mahon Tribunal to compel the Editor and Public Affairs Correspondent of the Irish Times to disclose the source of a leaked Tribunal document. However, in Mahon Tribunal v Keena [2009] IESC 78 (26 November 2009) (to which I will refer as Mahon Tribunal v Keena (No 2)), the Court held that the journalists should pay the Tribunal’s costs of more than €600,000.
In yesterday’s post, I argued that this was illogical: if the journalists had a privilege to with-hold the document and decline to answer the questions, then they had the privilege, and it doesn’t matter what they did with the document, and taking objection to its destruction by the journalists is neither here nor there. However, even if this might provide some justification for some punishment of the journalists, nevertheless, the European Court of Human Rights is very likely hold that this punishment is inconsistent with Article 10 of the European Convention on Human Rights. A crucial case in this respect is Cumpana and Mazare v Romania 33348/96, (2005) 41 EHRR 14, [2004] ECHR 692 (17 December 2004), where the Court held that although some penalty would have been appropriate, disproportionately severe sanctions infringed the applicant journalists’ Article 10 rights. Read the rest of this entry »
1 Comment »
 In a classic example of giving with one hand and taking away with the other, the Supreme Court first held that the Irish Times could assert a privilege to decline to answer questions from a Tribunal, but then ordered the paper to pay the Tribunal’s costs. This is, to say the least, a curious and illogical decision, and it is very doubtful whether the European Court of Human Rights would find it compatible with Article 10 of the European Convention on Human Rights.
According to a report in yesterday’s Sunday Tribune (see also Saturday’s Irish Times and the BBC News website) the Police Service of Northern Ireland (PSNI) have been ordered to pay 75% of the costs incurred by Suzanne Breen, Northern Editor of the Sunday Tribune, in successfully resisting the PSNI’s attempt to compel her to disclose her sources. The general rule, subject to the court’s discretion, is that costs follow the event, so Breen might reasonably have expected that the PSNI would have to pay all of her costs, but she seems to be satisfied with the decision that they should pay 75%.
Recall that in Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf) (to which I will refer as Mahon Tribunal v Keena (No 1)) the Irish Times similarly resisted an attempt by the Mahon Tribunal to compel the newspaper to disclose the source of a leaked Tribunal document. Again, since costs follow the event (see Order 99 Rule 1 RSC), the Irish Times might reasonably have expected that the Tribunal would have to pay all of their costs; like Breen, they might well have been satisfied with a decision that the Tribunal should pay 75%; indeed, they have accepted a decision that both parties bear their own costs. However, last week, the Supreme Court did not choose any of these options, but instead ordered that the Irish Times had to pay the Tribunal’s costs, which have been estimated at more than €600,000.
It is peculiar that the Court should punish an action that it held was justified by journalist source privilege. In this post, I will look at the logical basis for this decision. In tomorrow’s post, I will look at the issues which arise under Article 10 of the European Convention on Human Rights. Read the rest of this entry »
5 Comments »
 Yesterday’s Irish Times reminds me of an interesting High Court judgment handed down early in the Summer. It’s called Dennehy v Independent Star Ltd trading as The Irish Daily Star Newspaper [2009] IEHC 458 (28 May 2009) and it concerns an attempt to bring a prosecution for criminal libel. Section 8 of the Defamation Act, 1961 (also here) provides
No criminal prosecution shall be commenced against any proprietor, publisher, editor or any person responsible for the publication of a newspaper for any libel published therein without the order of a Judge of the High Court sitting in camera being first had and obtained, and every application for such order shall be made on notice to the person accused, who shall have an opportunity of being heard against the application.
When the Defamation Act, 2009 (pdf) comes into effect in the new year, section 4 will repeal the 1961 Act and section 35 will abolish the common law crime of criminal or defamatory libel (the UK is soon to follow this lead). So, the Dennehy is likely to be last Irish case concerning this ancient crime. But the case also looks to the future, as one of the arguments made on behalf of the applicants was founded upon the European Convention of Human Rights, and the reasons why that argument failed are quite striking. Read the rest of this entry »
No Comments »
 “Predictions are difficult, especially about the future.” I have seen this variously attributed to Neils Bohr, Sam Goldwyn, and Yogi Berra. Whoever said it, it contains a grain of truth: when it comes to the future, all we can do is speculate. In my paper for last Saturday’s conference on Recent developments in Irish Defamation Law, I speculated on the prospect that the Defamation Act, 2009 (pdf) may be unconstitutional or incompatible with the ECHR in some important respects.
In Steel and Morris v UK 68416/01, (2005) 41 EHRR 22, [2005] ECHR 103 (15 February 2005) (the infamous McLibel case) the ECHR held that the applicants’ rights under the Convention had been infringed by the failure to allow them legal aid, in an inflexible presumption of falisty (affirmed here), and in the rule that a body corporate taking a defamation action need not prove special damage, in all three cases because these rules compounded the significant imbalance which they faced in defending a defamation action being taken against them by a multinational corporation (McDonald’s).
In Ireland, defamation is absolutely excluded from the legal aid regime by section 29(8)(a)(i) of the Civil Legal Aid Act, 1995 (also here), and the 2009 Act does not ameliorate this in any way; but since there is no constitutional right to civil legal aid at Irish law, if it is invalid, the remedy is a declaration of incompatibility with the ECHR under section 5 of the European Convention on Human Rights Act, 2003 (also here). The presumption of falisty could, by virtue of the interpretative obligation under section 2 of the ECHR Act, 2003 (also here), be removed by a literal interpreation of sections 2 and 6(1) of the 2009 Act. And the rule in section 12 that a body corporate can sue without proof of special damage could be reversed by a finding of unconstitutionality or a declaration of incompatibility.
Certain provisions of the Act relating to defences are also questionable. For example, section 15(1) provides for the abolition of pre-Act defences, but it fails to provide for a saver for any defences which may have been generated by the Constitution or the Convention, such as the emergent defence of responsible publication in the public interest. Again, section 20(1) provides for a defence of honest opinion, renaming and replacing the defence of fair comment. The plea in Hunter v Duckworth [2003] IEHC 81 (31 July 2003), dodged by the Supreme Court, was that the common law was defective having regard to the constitutional protections of the “right to express freely … convictions and opinions”. If the impact of the constitution in this area is determined at a later stage in Hunter, then section 20(1) will have to be measured against it. And the puny new defence of fair and reasonable publication in section 26, is likely to be overpowered by the development – driven by the Constitution and the Convention – of a public interest defence and new species of qualified privilege.
Of course, these are only prospects, even if they are open on the text of the Act as it stands. But they are still worthy of consideration, and they demonstrate that the Act raises as many questions as it has answered.
5 Comments »
|
|
Entries (RSS)