Category: ECHR

Comparative law in the ECHR

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| ECHR

Via ECHR blog, news of an important article:

Article on ECtHR and Comparative Law

Monika Ambrus, a colleague within the Netherlands School of Human Rights Research, based at Erasmus University Rotterdam, has posted ‘Comparative Law Method in the Jurisprudence of the European Court of Human Rights in the Light of the Rule of Law’ on SSRN. The article has appeared in the Erasmus Law Review (vol. 2. No. 3, 2009). This is the abstract:

In several cases, comparative law exercises have been given excessive weight, which has given rise to conflicting interpretations in the case law of the European Court of Human Rights (ECtHR). This use of the comparative law method by the Court has been widely criticised. The critical voices have generally argued in terms of what is prohibited by the principle of the rule of law, which the Court itself is also bound to take into account, namely the arbitrary use of power. In the light of these criticisms, it is a challenging task to examine whether and to what extent the comparative law method complies with the principle of the rule of law, which is the aim of this paper. An analysis of several ECtHR cases demonstrates that in many respects the comparative exercises of the Court indeed do not comply with the requirements set by the formal conception of the rule of law.

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Proportionality in the ECHR

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| ECHR

The principle of proportionality is one of the most important, and most mercurial, concepts in the case-law of the European Court of Human Rights. Antoine Buyse on ECHR blog brings news of an important new book on the topic:

New Book on Fair Balance

Book cover, via ECHR blogJonas Christoffersen, director of the Danish Institute of Human Rights, has just published a reworked version of his Ph.D. thesis as a book: Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights with Martinus Nijhoff Publishers. An important addition to the field of ECHR studies and a very extensive analytical work (670 pages) on a legally complicated principle. This is the abstract:

In one of the most important publications on the European Convention and Court of Human Rights in recent years, a wide range of fundamental practical and theoretical problems of crucial importance are addressed in an original and critical way bringing a fresh, coherent and innovative order into well-known battle zones.

The analysis revolves around the Court’s fair balance-test and comprises in-depth analyses of e.g. methods of interpretation, proportionality, the least onerous means-test, the notion of absolute rights, subsidiarity, formal and substantive principles, evidentiary standards, proceduralisation of substantive rights etc.

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FoE in the EHRLR

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| Blasphemy, Censorship, criminal libel, Defamation, ECHR, EU media policy, Freedom of Expression, Human Rights, Legal Journals and Law Reviews, libel tourism, Sedition

EHRLR cover, via ECHR BlogThe current issue of the European Human Rights Law Review ([2009] 3 EHRLR | table of contents (pdf) | hat tip ECHR blog) contains a wonderful piece by my colleague Dr Ewa Komorek entitled “Is Media Pluralism a Human Right? The European Court of Human Rights, the Council of Europe and the Issue of Media Pluralism” [2009] 3 EHRLR 395.

Here is the abstract (with added links):

The need for pluralist media stopped being purely a national concern a long time ago and thus it has for decades been subject to scrutiny by the Council of Europe and the European Court of Human Rights. Media pluralism has always come to their agenda as a prerequisite for freedom of expression guarded by Article 10 of the European Convention of Human Rights. It is important to distinguish the two ‘faces’ of media pluralism: internal (which may also be called content pluralism or diversity) and external (or structural). This article focuses on television broadcasting and argues that while the Court of Human Rights has essentially been successful in safeguarding internal pluralism, the protection of structural pluralism proved more difficult to achieve by means of the Court’s case law. This prompted the Council of Europe to step in and attempt to fill the gap with regulatory proposals.

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So, does Irish law now recognise a journalist source privilege?

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| ECHR, Freedom of Expression, General, Irish cases, Irish Law, Irish Society, Journalists' sources, Law, US Supreme Court

The Four Courts, by Darragh Sherwin, via Flickr.As I wrote in my previous post, the Supreme Court in Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf)) allowed the appeal against the decision of the High Court in Mahon v Keena [2007] IEHC 348 (23 October 2007). Fennelly J delivered the judgment of the Court, in which Murray CJ and Geoghegan, Macken and Finnegan JJ concurred, and its effect is that two Irish Times journalists could decline to answer questions about their sources (unsurprisingly, there is a lot of coverage in that paper: see here, here, here, here and here).

1. Introduction
There are at least three important aspects to Fennelly J’s decision. The first relates to his almost exclusive reliance on the European Convention on Human Rights (ECHR), rather than the Irish Constitution. The second relates to his approach to the issues in general and to his treatment of the High Court judgment in particular: in short, he felt that the High Court had overstated the balance against the appellants. And the third relates to what he had to say about the nature of a journalist source privilege: in short, he preferred to avoid such language in favour simply of a balancing test.…

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Traffic Data Retention, Irish-style, returns to the legislative agenda

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| data retention, Digital Rights, ECHR, ECJ

AC Grayling book cover, via BloomsburyThe Communications (Retention of Data) Bill 2009, published last week, has caused a bit of a stir in this morning‘s newspapers. It will give effect to EU Data Retention Directive 2006/24/EC of 15 March 2006 (blogged here) which recently survived challenge by the Irish Government in the European Court of Justice, and it will replace the radically misconceived and deeply flawed stop-gap Part 7 of the Criminal Justice (Terrorist Offences) Act, 2005 (also here) (blogged here).

In essence, the Bill requires telecommunications companies, internet service providers, and the like, to retain data about communications (though not the content of the communications); phone and mobile traffic data have to be retained for 2 years; internet communications have to be retained for one year. This is better than it could have been, in that the Directive would have allowed 2 years for all traffic data; but it is a lot worse than the minimum of 6 months allowed by the Directive. This will impose significant costs on those obliged to retain and secure the data, and those costs will be passed on to their already hard-pressed customers. And it is likely to drive international telecommunications and internet companies to European states which have introduced far less demanding regimes.…

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The limits of the ECHR’s protection of journalists’ sources

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| ECHR, Freedom of Expression, Journalists' sources

Fast and Furious movie poster, via WikipediaIn my previous post, I outlined some of the international instruments which provide for the protection of journalists’ sources. The leading court decision on the issue is the judgment of the European Court of Human Rights (ECHR) in the seminal and hugely influential Goodwin v UK Application no 17488/90, [1996] ECHR 16 (27 March 1996). And in Sanoma Uitgevers BV v the Netherlands Application no 38224/03 (31 March 2009), the Court reaffirmed Goodwin but set out its limits.

Goodwin turned on the interpretation of Section 10 of the Contempt of Court Act, 1981, which provides:

No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

In X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1 (HL), the House of Lords held that it was “in the interests of justice” to order a trainee journalist to disclose the identity of a source. However, in Goodwin the ECHR held that this infringed the journalists’ right to freedom of expression in Article 10 of the European Convention on Human Rights.…

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… or of the blogosphere?

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| ECHR, Freedom of Expression, Journalists' sources

Hungarian Civil Liberties Union logo, via their siteThe First Amendment to the US Constitution provides that “Congress shall make no law … abridging the freedom of speech, or of the press; …”. Does that and similar declarations of press freedom extend to the blogosphere? The question is made more difficult in the context of Article 10 of the European Convention on Human Rights, which is a general protection of freedom of expression which contains no direct reference to the media at all, though the European Court of Human Rights has long extolled the “watchdog” role of the press as of especial value in Article 10 jurisprudence. The question is made more difficult still in the context of the Treaties establishing the European Union, where speech issues arise not as elements of a straightforward freedom of expression guarantee but in the context of the fundamental economic rights upon which the EU is founded, but even there the European Court of Justice has long acknowledged the importance of freedom of expression especially as regards the media. Over on contentandcarrier, Hans Peter Lehofer has spotted some interesting asides in recent judgments of the European Court of Justice and the European Court of Human Rights, signalling how those courts may be about to build on these developments and expand press freedom to non-traditional media, such as the blogosphere.…

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Cowengate: no use crying over spilt milk

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| Blogging, Censorship, ECHR, Freedom of Expression, Irish Society, Sedition
'Silvio Berlusconi and Mara Carfagna, via New York Times
Silvio Berlusconi and Mara Carfagna, though not by Filippo Panseca

Yesterday’s Times Online has a short piece which begins [with added links]

A scarf is the only thing protecting the modesty of Silvio Berlusconi, the Italian Prime Minister, in a painting of him and his Minister for Equal Opportunities, Mara Carfagna, 32, a former topless model, as angels. The work by Filippo Panseca is in a show at Savona on the Italian Riviera. Mr Panseca, 69, said that he wanted to pay tribute to the Prime Minister, 72, in the exhibition, which also includes a painting in similar style of Mr Berlusconi’s wife Veronica Lario.

The same story is also covered in The Independent, The Telegraph, and The Daily Mail. The inevitable comparisons with Cowengate were drawn by the Evening Herald, which adds that Panseca said that if

Berlusconi bought the paintings he would donate the money to the earthquake victims of Abruzzo. Mr Berlusconi has yet to comment. But he seems unlikely to buy the pictures: last year, he censored a bare nipple in a copy of a renaissance painting hung in the government press room.

More seriously, though, it seems that 144 people complained to the Broadcasting Complaints Commission about RTÉ’s coverage, 9 about the original report, and 135 about the apology; and Suzy has posted a copy of RTÉs response to the BCC regarding those complaints.…

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