Tag: Art 10

Comparing Abortion to the Holocaust « Strasbourg Observers

Amid all the discussion regarding the A., B. and C. v. Ireland judgment, it is interesting to note that last week, in one of its first freedom of expression judgments of 2011, the European Court of Human Rights was called upon to consider an interesting issue surrounding abortion, namely the conviction for defamation of an anti-abortion activist for comparing abortion to the Holocaust.

The applicants in Hoffer v. Germany were anti-abortion activists who had handed out pamphlets outside a medical clinic in Nuremburg.

This post on the Strasbourg Observers blog was written by Rónán Ó Fathaigh, a researcher working on a Ghent University Special Research Fund project entitled “Legal analysis and explorative research of the chilling effect on freedom of expression and information”.

Costs Regime in Peril after Strasbourg Court Ruling « UK Human Rights Blog

The only remaining question is the extent to which this judgment goes beyond publication cases. The Strasbourg Court has said that 100% uplift is chilling in defamation cases, and indeed the defamation problem is compound, involving, in some cases, evidence of astonishing complexity, and “luxury” parties – big media conglomerates versus celebrity claimants. But there is no particularly strong reason in principle why this ruling should be so limited. It is open to any unsuccessful litigant in a non-media case to make a case for transposition of this Article 10 solution/change by analogy; after all, the  Jackson proposals – without which this aspect of the Campbell case may never have seen the light of day – apply to a very wide collection of cases.

So once it becomes generally accepted that it is unjust to submit media defendants  to a costs regime which forces them to settle rather than defend their rights to free expression, it will follow as naturally as night follows day that non-media defendants who have other recognised interests to protect  should  not be obliged to pay up simply because they have no reasonable prospect of recovering their reasonable and proportionate costs if they manage to beat off an attack.

This is a superb post by Roaslind English about the impact on the UK’s costs regime of yesterday’s ECHR decision in MGN v UK 39401/04 (18 January 2011). There is a comprehensive round up of media coverage of the case on Inforrm’s blog. And Roy Greenslade has a characteristically clear-sighted analysis of the consequences:

In effect, the European Court – much-maligned by certain newspaper editors in the past – has pulled the rug from beneath lawyers who have made a habit of using CFAs. It means that claimants in privacy and libel cases will no longer be allowed to recover a success fee from defendants. That is a major plus for newspapers worried about the chilling effect of rising legal costs, but not only for them. … I believe the judgment is very wise. But it should mean a reform of the CFA system, not its elimination. We must not prevent people who genuinely cannot afford to sue the chance to take their grievances to court. It is, as ever, a matter of balancing rights.

Invasion of privacy and conditional free arrangements in the ECHR

In MGN v UK 39401/04 (18 January 2011) the Fourth Section of the European Court of Human Rights today held that the finding by the House of Lords in Campbell v MGN [2004] AC 457, [2004] UKHL 22 (6 May 2004) that MGN had invaded Naomi Campbell’s did not violate Article 10 of the Convention. However, the ECHR went to hold that the conditional fee arrangement (CFA) which increased the costs recoverable by Campbell from MGN (and approved by the House of Lords in Campbell v MGN [2005] UKHL 61 (20 October 2005) was contrary to Article 10. Some relevant extracts from the judgment:

II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION CONCERNING RECOVERABLE SUCCESS FEES

157. The parties devoted extensive submissions to the precise nature of this complaint. The Court considers that the applicant’s core complaint concerned the recoverability against it, over and above the base costs, of success fees which had been agreed between Ms Campbell and her legal representatives as part of a CFA. …

198. The Court will examine whether success fees recoverable against unsuccessful defendants are “necessary in a democratic society” to achieve [the legitimate aim of the protection of the rights of others within the meaning of Article 10(2)]. In particular, it must consider the proportionality of requiring an unsuccessful defendant not only to pay the reasonable and proportionate costs of the claimant, but also to contribute to the funding of other litigation and general access to justice, by paying up to double those costs in the form of recoverable success fees. …

201. However, the Court has found the most careful scrutiny on the part of the Court is called for when measures taken by a national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern (Jersild v. Denmark, cited above, § 35; and Bladet Tromsø and Stensaas v. Norway [GC], cited above, § 64. It is, moreover, not necessary to consider, in any particular case, whether a damages award has a chilling effect on the press as a matter of fact so that, for example, unpredictably large damages awards in defamation cases are considered capable of having such an effect (Independent News and Media and Independent Newspapers Ireland Limited v. Ireland, no. 55120/00, § 114, ECHR 2005-V (extracts)). …

217. … However, the Court considers that the depth and nature of the flaws in the system, highlighted in convincing detail by the public consultation process, and accepted in important respects by the Ministry of Justice, are such that the Court can conclude that the impugned scheme exceeded even the broad margin of appreciation to be accorded to the State in respect of general measures pursuing social and economic interests (the above-cited case of Tolstoy Miloslavsky v. the United Kingdom, at § 50). …

219. In such circumstances, the Court considers that the requirement that the applicant pay success fees to the claimant was disproportionate having regard to the legitimate aims sought to be achieved and exceeded even the broad margin of appreciation accorded to the Government in such matters.

220. Accordingly, the Court finds that there has been a violation of Article 10 of the Convention.

 

Contradictions in Defamation Cases « Strasbourg Observers

Contradictions in Defamation Cases

January 6, 2011

 

by Stijn Smet

Before its holiday break, the European Court of Human Rights released two judgments in defamation cases, Novaya Gazeta V Voronezhe v. Russia and Sofranschi v. Moldova. Both cases concern allegations of abuse and irregularities. While both judgments contain good elements, in my opinion they also reveal faulty reasoning on the part of the Court. Most interestingly, the judgments contradict each other on some crucial points. Thus one judgment provides alternatives to the shortcomings of the other.