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.

From today’s Bits Blog on the New York Times site:

Newspapers Argue for First Amendment Right to Snoop on Readers

Usually, when people talk about the trade offs between privacy and freedom of the press, the argument is about whether the public has the right to know some fact about an individual’s personal life.

The newspaper industry is now arguing that the First Amendment protects its right to follow users around the Internet so it can charge higher prices on advertising.

This argument was made in a filing by Newspaper Association of America commenting on the Federal Trade Commission’s proposal that the companies involved in advertising that uses what is called behavioral targeting create a self-regulatory code that limits their use of sensitive information. Read the rest of this entry »

I am a politics junkie – I will watch party conferences and conventions, and enjoy the experiences! And I still remember a Fianna Fáil Árd Fhéis (national party conference) in which Charlie Haughey began a key section of his leader’s speech by asserting: “The truth, as we in Fianna Fáil see it, is …”. I don’t remember what he said after that, because I was so flabbergasted at the audacity of making truth contingent upon a political point of view. Of course, this was only a small thing compared to the flabbergasting audacity of other aspects of Haughey’s career, but the attitude of subordinating truth to political power is not unique to him or to Fianna Fáil. A particularly egregious example is provided by reports this morning that the author of a book on anti-Semitism in Poland may face court action. According to Derek Scally in the Irish Times (sub req’d):

The public prosecutor in Krakow has launched a preliminary investigation into a US historian who says post-war Poland continued where the Nazis left off in persecuting Jews. Jan Tomasz Gross [home page at Princeton | wikipedia] could, under a law passed by the Kaczynski government, face a prison sentence if found guilty of “accusing the Polish nation of participating in communist or Nazi crimes”.

The new Polish edition of Dr Gross’s 2006 book, Fear – Anti-Semitism in Poland after Auschwitz, has caused a storm for challenging the country’s self-image as the heroic, leading martyr of the second World War. The book documents post-war pogroms that claimed the lives of up to 3,000 of Poland’s 300,000 Holocaust survivors. The most notorious pogrom happened on July 4th, 1946, in Kielce, when a mob rounded up and killed 42 returned Holocaust survivors after a false rumour spread that Jews had kidnapped and killed a local boy. …

I have previously blogged (here and here) about earlier attempts by the the Kaczynski government to legislate truth, and this most recent example is as abhorrent and misguided as they were. Either the Polish record after WWII is pure as the snow in Katyn Forest in winter, or it isn’t. Read the rest of this entry »

I have recently commented on this blog that the right to freedom of expression Article 40.6.1(i) has finally got some teeth!?. That process continued today in the Supreme Court, where Fennelly J uttered the line used as the title to this post. Read the rest of this entry »