The 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. The conclusion is that although there is still a need for a binding ex ante action at the European level aimed at safeguarding pluralism in this ever concentrating sector, the efforts of the Council of Europe and the judgments of the European Court of Human Rights are vital for awareness raising and stimulating debate.

In Ewa’s view, therefore, media pluralism should be given a far stronger voice in European debates than it currently enjoys, and one way to achieve this would be to strength its status as a right not only in the Council of Europe but also in the EU. For example, Article 11(2) of the EU Charter of Fundamental Rights provides that “the freedom and pluralism of the media shall be respected”, and Ewa’s compelling analysis of the cognate Article 10 can go a long way towards giving full effect to this provision. But this is not the only interesting piece in the journal. Indeed, this issue is a veritable Aladdin’s Cave of fascinating articles: Read the rest of this entry »

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. Taking all these issues into account, I’m not convinced that it is an unequivocal recognition of a journalist source privilege as a matter of Irish law; instead, it seems to me that this is a very carefully circumscribed decision which is, at best, a muted victory for the journalists. Read the rest of this entry »

The 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.

Traffic data retention (like any example of pre-emptive and widespread surveillance) is simply a bad idea; it is a massive invasion of privacy; it is founded on the illiberal and anti-democratic suspicion that someone somewhere might be doing something; and it is not good enough to reply that if you have nothing to hide, you have nothing to fear from surveillance. As the prolific and challenging AC Grayling argues in his new book Liberty in the Age of Terror: A Defence of Civil Society and Enlightenment Values (Bloomsbury, 2009; reviewed by The Economist here), this pernicious assertion is “one of the most seductive betrayals of liberty” imaginable; it assumes that

the authorities will always be benign; will always reliably identify and interfere with genuinely bad people only; will never find themselves engaging in ‘mission creep’, with more and more uses to put their new powers and capabilities to; will not redefine crimes, nor redefine various behaviours or views now regarded as acceptable, to extend the range of things for which people can be placed under suspicion—and so considerably on.

The concerns might be met by strong protections coupled with meaningful oversight, but the Bill is worryingly bereft on this score. Although it imposes obligations to retain data, and to maintain it secure, and to prevent unauthorised access to data, it does not provide any redress to someone whose data is retained insecurely or accessed without authorisation; and the Data Protection Acts, 1988 (also here) and 2003 (also here) are inadequate to cope (for example, they would provide no criminal sanction for the News of the World’s recently-disclosed shenanigans). Worse than that, large-scale databases are peculiarly vulnerable to attack – an investigation by More4 News for Channel 4 reported last week (in a story that should give some pause to those planning a system to trace patients for Ireland) that more than 8,000 dangerous viruses have infected NHS computers in the last year, overloading networks, and massively compromising large amounts of personal data.

It is appropriate to restrict individual privacy provided that there is a good reason to do so, and the restrictions do not good too far. In the context of this Bill, the prevention of crime is a good reason, but the restrictions seem to go very far indeed, especially in the absence of proper protections and oversight. In S and Marper v UK 30562/04 [2008] ECHR 1581 (4 December 2008) one of the reasons given by the European Court of Human Rights for holding that the UK’s retention of innocent people’s DNA records on a criminal register infringed their right to privacy was the lack of sufficiently strong safeguards. I am a Director of Digital Rights Ireland; this is one aspect of our ongoing challenge to Ireland’s data retention regime; and this flawed Bill does nothing to alleviate these concerns.

In 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. Read the rest of this entry »

The 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.

First in time is the ECJ decision in Case C-73/07 Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy (noted here by Daithí), which concerned the distribution of information by subscription to a text messaging service. The ECJ commented that the medium which is used to transmit data, whether it be paper or radio or the internet, is not determinative as to whether an activity is undertaken ‘solely for journalistic purposes’, so that publications may be classified as ‘journalistic activities’

if their object is the disclosure to the public of information, opinions or ideas, irrespective of the medium which is used to transmit them. They are not limited to media undertakings and may be undertaken for profit-making purposes.

Then there is the more recent ECHR decision of Application no. 37374/05 Társaság a Szabadságjogokért v Hungary (noted here on the ECHR blog), in which the applicant – TASZ – was the Hungarian Civil Liberties Union. The ECHR commented that although the function of the press includes the creation of forums for public debate, the realisation of this function is not limited to the media. Indeed, the Court has repeatedly recognised civil society’s important contribution to the discussion of public affairs. Hence, since TASZ was an association involved in human rights litigation, it could

therefore be characterised, like the press, as a social “watchdog” … In these circumstances, the Court is satisfied that its activities warrant similar Convention protection to that afforded to the press.

On the basis of these quotes, he concludes:

Summing it up: ECJ and ECHR have clearly moved to grant traditional press freedoms not only to traditional media, but also to SMS-information services (and, if implicitly, bloggers!) and NGOs engaged in “the creation of forums for public debate”.

I like that parenthesis, and I think he is quite right (in the ECJ context, Daithí had already made the connection). The question of the extent to which bloggers are journalists and are entitled to extended legal protections analogous to any which the mainstream media may enjoy is a very important one. To take one example. In the very near future, I’m going to return to the question of journalists’ source privilege. Where it exits, should bloggers also have the benefit of it? Hans Peter Lehofer’s analysis suggests that, at least so far as the ECHR and the ECJ are concerned, the answer that is beginning to emerge in principle is: yes.

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. In essence, RTÉ’s position is that the original story was not a breach of taste and decency; whilst the apology was not a breach of objectivity. But this is inconsistent. As Clockwork Chartophylax points out

Either the original report was offensive and required an apology, or it was inoffensive and the apology was unnecessary and only made to avoid angering the Taoiseach, which is a clear failure of objectivity and impartiality. RTE management can’t have it both ways.

While we await the BCC’s reply, perhaps Messrs Cowen and Berlusconi might have friends visiting Iowa in the near future? If they do, they might receive an interesting present: a copy of Bill that seeks to prohibit political cartoons (at least in some election contexts) (see Volokh here and here, and Rick Hasen; hat tip: Media Law Prof Blog). Meanwhile, in an echo of my speculation about whether the caricatures constitute seditious libel, a Thai blogger has been sentenced to ten years imprisonment after pleading guilty under Thailand’s ugly lèse-majesté laws – his crime was to have posted anti-monarchy pictures and comments on his blog, and two journalists in the Ivory Coast have been convicted of “offending the head of state” and fined 20 million CFA francs (US$40,500 dollars) each.

In my first post on this issue, I argued that that the caricatures were protected political speech within the remit of Article 10 of the European Convention on Human Rights. Since then, TJ has pointed out to me (off blog) that there is a decision of the European Court of Human Rights directly on point. Read the rest of this entry »

William VIII, Duke of Brunswick (pictured left; 1806-1884) was ruling duke of the Duchy of Brunswick from 1830 until his death. A famous eccentric, he bequeathed at least two interesting events to history. First, he lost a famous chess game to Paul Morphy (the Bobby Fischer of his era). Second, he won an infamous libel appeal which now governs internet publication at English and Irish law.

The rule in Duke of Brunswick v Harmer (1849) 14 QB 185 is that each individual publication of a libel gives rise to a separate cause of action, subject to its own limitation period; it has been followed at the highest levels (Berezovsky v Michaels [2000] UKHL 25 (11 May 2000); Dow Jones v Gutnick (2002) 210 CLR 575, [2002] HCA 56 (10 December 2002)) and in the online context (Godfrey v Demon Internet Ltd [2001] QB 201, [1999] EWHC QB 244 (26 March 1999); Dow Jones v Gutnick again). US law is different: a defamatory publication gives rise to a single cause of action for libel, which accrues at the time of the original publication, and that the statute of limitations runs from that date (see, eg, Gregoire v GP Putnam’s Sons 81 NE 2d 45 (1948)).

In Loutchansky v Times Newspapers [2002] QB 783, [2001] EWCA Civ 1805 (05 December 2001) the Court of Appeal declined to follow the US rule and instead reaffirmed Duke of Brunswick v Harmer. The Court declined to “accept that the rule in the Duke of Brunswick imposes a restriction on the readiness to maintain and provide access to archives that amounts to a disproportionate restriction on freedom of expression”, and held that it applies to internet archives. In effect, every time a newspaper’s online archive is accessed, there is a new publication and the limitation period starts to run from that date, and not from the date of the original publication. This proposition has significant consequences for freedom of expression (see Amanda Russell and Margaret Smillie [2005] JILT 3). In the European Court of Human Rights, the Times therefore argued that the rule in Duke of Brunswick v Hamer exposes publishers to potential litigation without time limit, and therefore infringes Article 10 of the European Convention on Human Rights.

In Times Newspapers Ltd (Nos 1 and 2) v the United Kingdom (Applications 3002/03 and 23676/03, 10 March 2009) the ECHR (fourth section) unanimously held that there had been no violation of Article 10 on the facts of Loutchansky: Read the rest of this entry »

The European Convention on Human Rights (ECHR) was promulgated by the Council of Europe in 1950. The European Court of Human Rights was established under that Convention to enforce the rights protected by it, and it has recently handed down three very interesting judgments concerning Articles 6 (fair trial), 8 (privacy), and 10 (speech).

Article 6(1) provides that

… everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …

ECHR blog brings news of Application no 22330/05 Olujic v Croatia (05/02/2009), in which adverse public comments by three judges in advance of hearing a case against the applicant denied him a fair hearing within the meaning of Article 6. What makes the case all the more interesting is that Olujic had been President of the Supreme Court, the case concerned his dismissal from the bench for publicly fraternising with known criminals, the three judges had publicly and adversely commented about this after the allegations had been made, and one had been a rival candidate for the Presidency of the Court.

Article 8(1) provides:

Everyone has the right to respect for his private and family life, his home and his correspondence.

TJ and OUT-LAW bring news of Application no 1234/05 Reklos and Davourlis v Greece (11/12/2008) (in French; press release in English) in which the taking of photographs of a baby in a clinic without the parents’ consent constituted a breach of Article 8, even though the photographs had not been published. In classical conceptions, privacy is invaded as much by intrusion upon the private sphere (as the ECHR itself has already implied) as by publication of intimate details (as the ECHR has already held in the context of photographs). Photographs are thus potentially twice-damned: the taking of the photograph can itself constitute an intrusion, whilst its publication can amount to a further invasion of privacy.

Article 10(1) provides:

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. …

ECHR blog and First Amendment Law Prof Blog bring news of Application no 31276/05 Women on Waves v Portugal (03/02/2009) (in French; press release in English) in which the use of a warship to block the entry of a ship to Portugal to prevent its crew from disseminating information about abortion was unanimously held to have infringed Article 10. From an Irish perspective, perhaps the most interesting aspect of the case was the Court’s repeated reliance upon and affirmation of its previous decision in Application no 14234/88 & 14235/88 Open Door and Dublin Well Woman v Ireland (29/10/1992) [1992] ECHR 68 which had also found that a ban on abortion information infringed Article 10. More than that, these case involve prior restraints upon speech, and although the ECHR – unlike the Supreme Court of the US – has not announced a presumption against prior restraints, it has held that because of the dangers inherent in them, they call for the most careful scrutiny on the part of the Court (a point which has been echoed by Fennelly J in the Irish Supreme Court). The ECHR did not make this point in in Women on Waves, but it demonstrates just how hard it will be for a prior restraint to escape condemnation on the basis of Article 10.