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The European Convention on Human Rights: The
Right to Freedom of Expression and Information
restricted by Duties and Responsibilities in a
Democratic Society
Dirk Voorhoof
Ghent University, Belgium
Abstract
Article 10 of the European Convention for the protection of Human Rights and
Fundamental Freedoms and the case law by the European Court of Human Rights in
Strasbourg help to secure the right to freedom of expression and information in the
European democracies. This paper explores some characteristics and recent
developments of the European Court’s case law regarding media, journalism and
freedom of expression and information. It explains, also for a readership outside
Europe, what the (actual) impact is of the European Convention and of the European
Court of Human Rights on the practice of freedom of expression, media and
journalism in Europe.
Although Article 10 in principle prohibits interferences by public authorities
with the right to freedom of expression, it leaves open some possibilities and margin
for State authorities to limit, restrict or sanction certain types of expressions or media-
content, due to the “duties and responsibilities” related to communicating ideas and
information. This paper, in its first part, clarifies under which circumstances and
conditions state interferences with the right to freedom of expression and information
can be justified under the European Human Rights system. The second part of the
paper will focus on the added value created by the European Court’s (recent)
jurisprudence by safeguarding public debate and reporting on matters of public
interest, by protecting investigative journalism, whistle-blowing and journalistic
sources, and by guaranteeing access to information held by public authorities.
Introduction*
All parliamentary democracies in Europe guarantee the right to freedom of
expression and media freedom in their constitutions, media laws or human rights
acts. The practice and application of this freedom, however, still differs strongly
from state to state, and can fluctuate over periods of time. Specifically in the areas
* This paper elaborates on and updates a working paper published by the European University
Institute, Centre for Media Pluralism and Media Freedom (CMPF), in February 2014: D.
Voorhoof, “The right to freedom of expression and information under the European Human
Rights system: towards a more transparent democratic society”, EUI Working Paper
(Florence: EUI RSCAS 2014/12) 22 p., http://cadmus.eui.eu/bitstream/handle/1814/
29871/RSCAS_2014_12.pdf?sequence=1). The material analysed in this article is also based
on D. Voorhoof, “Freedom of Expression and Information, Media and Journalism under the
European Human Rights System : Characteristics, Developments and Challenges”, in P.
Molnar, ed., Turning Points in Free Speech and Censorship Around the Globe (Budapest:
CEU Press, 2014 (forthcoming)).
2 Dirk Voorhoof
of state security, public order, the protection of confidential or secret information,

the reputation of public persons, the right of privacy and in the domain of morals
and religion, the right to freedom of expression has been differently interpreted and
applied. Still the general tendency is that the scope and level of protection of
freedom of expression and information has been extended and upgraded over the
years in Europe. Public authorities have been less involved in prior restraint,
censorship, oppression and criminal prosecution as forms of interferences with the
right to freedom of expression and information.1
Article 10 of the European Convention for the protection of Human
Rights and Fundamental Freedoms (hereafter: the European Convention, or:
the Convention, or: ECHR) and the case law by the European Court of
Human Rights (ECtHR) have undoubtedly contributed to a higher level of
respect for the right to freedom of expression and media freedom in the
European democracies.2 Indeed, until a few decades ago, the limits and
1. Internet regulation, filtering and surveillance related to the war on terror and state security
show a tendency, however, to reduce some areas of freedom of expression and media freedom
in Europe since 11 September 2001. For a global and updated overview, see Unesco, World
Trends in Freedom of Expression and Media Developments (Paris: Unesco Publ., 2014),
http://unesdoc.unesco.org/images/0022/002270/227025e.pdf. See also M. Price, S. Verhulst
and L. Morgan, eds., Routledge Handbook of Media Law (New York: Routledge, 2013).
2. Other institutions and instruments of the European Convention on Human Rights and the
Council of Europe play an important role in monitoring and enforcing freedom of expression
as guaranteed under Article 10 ECHR, such as the Committee of Ministers’ supervision of the
execution of the Court’s judgments (www.coe.int/t/dghl/monitoring/execution/default_en.asp)
and the Commissioner of Human Rights, who plays a prominent role in promoting and
monitoring respect for human rights in the Council of Europe’s member states
(www.coe.int/t/commissioner/default_en.asp). By promulgating resolutions, declarations and
recommendations, the Parliamentary Assembly, the Committee of Ministers, and the ministers
responsible for media and new communication services promote the awareness and develop
guarantees for securing freedom of expression, e.g., in relation to court reporting, protection
of journalistic sources and protection of whistle-blowers, access to official documents, the
right to reply, public service media, independent regulatory authorities in the media sector,
media pluralism, coverage of election campaigns, the media in the context of the fight against
terrorism, blasphemy, religious insult, hate speech and the application of freedom of
expression principles on the Internet and the new media environment. Aspects of freedom of
expression are also reflected in and guaranteed by some Council of Europe Conventions, such
as the Revised European Convention on Transfrontier Television (ECTTV, CETS nr. 32) and
the European Convention on Access to Official Documents European (CETS nr. 205). The
Council of Europe also promotes professional standards in the media and self-regulatory
formats stimulating journalistic ethics or respecting ethical and basic democratic values on the
internet and in the new media and in online media environments. For more information, see
the website of the Council of Europe on Media and Information Society
(www.coe.int/t/dghl/standardsetting/media/) and of the Steering Committee of Media and
Information Society (CDMSI) (www.coe.int/t/dghl/standardsetting/media/CDMSI/default
_en.asp). See also: www.obs.coe.int/oea_publ/legal/ebook_committeeministers-coe.pdf.en and
www.obs.coe.int/oea_publ/legal/ebook_ParliamentaryAssembly.pdf.en.
The European Convention on Human Rights:… 3
restrictions of freedom of expression were determined by parliaments,

governments or other national state authorities, ultimately scrutinized by their
own domestic judicial authorities, without any further external control. This
situation, this “paradigm” has significantly changed in Europe, due to the
achievement of the European Convention on Human Rights and the
enforcement machinery in which the European Court of Human Rights plays
a crucial role.1 In an impressive amount of judgments the ECtHR has found
that the national level of protection of the right to freedom of expression did
not meet the requirements of Article 10 ECHR. The Court’s case law has
emphasised “that freedom of expression constitutes one of the essential
foundations of a democratic society and one of the basic conditions for its
progress and for each individual’s self-fulfilment”, while restrictions and
sanctions need a relevant, pertinent and sufficient motivation in terms that
there is a pressing social need to impose and enforce them. Restrictions and
limitations on the right to freedom of expression need to be interpreted
narrowly. The ECtHR has also clarified that freedom of expression and
information is not only to be respected by government and parliament, but
also by the judicial authorities in the member states.2 The recognition by the
European Court of a horizontal effect3 of Article 10 and of the positive
obligations for member states to protect the right to freedom of expression4
1. See also D.J. Harris, M. O’Boyle, E. P. Bates and C.M. Buckley, Law of the European
Convention on Human Rights (Oxford: Oxford University Press, 2009).
2. Regardless of how precisely the European Convention is internally applied or guaranteed in
the member states (monistic or dualistic approach). In some countries the European
Convention is given precedence over national law and the provisions of the Convention have
direct effect; in other countries the Convention has been ‘indirectly’ incorporated into
domestic law (e.g. in the UK by the Human Rights Act 1998 or in Germany by an approval in
the Constitution, the Zustimmungsgesetz under Art. 59 of the German Constitution
(Grundgesetz)). See also D.J. Harris, M. O’Boyle, E.P. Bates and C.M. Buckley, Law of the
European Convention on Human Rights (Oxford: Oxford University Press 2009).
3. The ECtHR at several occasions clarified how Article 10 ECHR is also to be applied in private legal
relationships and it has repeatedly assessed interferences by private persons in the light of Article
10(2) ECHR: ECtHR 29 February 2000, Case No. 39293/98, Fuentes Bobo v. Spain; ECtHR 6 May
2003, Case No. 44306/98, Appleby a.o. v. UK; ECtHR Grand Chamber 30 June 2009, Case No.
32772/02, Verein gegen Tierfabriken Schweiz (VGT) (n° 2) v. Switzerland; ECtHR 16 December
2008, Case No. 23883/06, Khursid Mustafa and Tarzibachi v. Sweden; ECtHR 16 July 2009, Case
No. 20436/02, Wojtas-Kaleta v. Poland; ECtHR 21 July 2011, Case No. 28274/08, Heinisch v.
Germany; ECtHR Grand Chamber 12 September 2011, Case Nos. 28955/06, 28957/06, 28959/06,
28964/06, Palomo Sánchez a.o. v. Spain; ECtHR 6 October 2011, Case No. 32820/09, Vellutini and
Michel v. France; ECtHR 10 May 2012, Case No. 25329/03, Frasila and Ciocirlan v. Romania;
ECtHR 10 January 2013, Case No. 36769/08, Ashby Donald a.o. v. France and ECtHR 16 July
2013, Case no. 1562/10, Remuszko v. Poland.
4. ECtHR 16 March 2000, Case No. 23144/99, Özgür Gündem v. Turkey; ECtHR Grand
Chamber 7 June 2012, Case No. 38433/09, Centro Europa 7 S.R.L. and Di Stefano v. Italy
and ECtHR 25 June 2013, Case No. 48135/06, Youth Initiative for Human Rights v. Serbia.
4 Dirk Voorhoof
has further extended the scope of the right to freedom of expression in

Europe.
The right to freedom of expression and information as guaranteed by
Article 10 of the Convention is applicable in all 47 member states of the
Council of Europe,1 from Norway to Cyprus, from Portugal to Russia and
from Iceland to Azerbaijan.2 The way Article 10 of the Convention has been
interpreted and applied by the European Court of Human Rights and has
been promoted by the Council of Europe, has manifestly helped to upgrade
and improve the level of freedom of expression and media freedom in
countries that became member states of the European Convention after the
fall of the Berlin Wall (9 November 1989), such as the Baltic states
(Estonia, Lithuania and Latvia), the Czech Republic and Slovenia.3 But also
in countries that already had a long-standing constitutional and democratic
tradition, the right to freedom of expression and information has been
broadened, strengthened, updated and upgraded under the influence of
Article 10 of the European Convention, especially regarding discussions on
matters of public interest, in protecting newsgathering activities and
journalistic sources, whistle-blowing, access to public documents, media
pluralism and internet freedom. In other Council of Europe member states
that have less solid democratic institutions or that have experienced growing
pains as they have moved toward democracy (such as in Turkey, Azerbaijan,
Russia, Georgia, Armenia, Moldova, Serbia, Ukraine and Hungary), respect
by the authorities for press freedom and freedom of (political) expression is
still often problematic at the domestic level. Therefore, Article 10 of the
1. For more information about the Council of Europe, see www.coe.int. The only states in
Europe which are not a member of the Council of Europe (and nor of the ECHR), are Belarus
and the Holy See (Vatican).
2. The 47 member states that at present have ratified the Convention are Albania, Andorra,
Austria, Armenia, Azerbaijan, Belgium, Bosnia & Herzegovina, Bulgaria, Croatia,
Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany,
Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg,
Macedonia, Malta, Moldova, Monaco, Montenegro, the Netherlands, Norway, Poland,
Portugal, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden,
Switzerland, Turkey, Ukraine and the United Kingdom. More than 800 million people
are actually living under the protection of the European Convention on Human Rights
and Fundamental Freedoms, as a “minimum rule” of human rights protection (Art. 53
ECHR). In the (near) future the European Union (EU) will accede to the ECHR as well,
bringing the acts and action of the EU under the scrutiny of the ECtHR. This process of
accession is now in a final stage: see European Union Treaty, Article 6(2) and Council
of Europe Protocol No. 14, Article 17.
3. See the developments in these countries reflected in the press freedom indexes of Reporters
without Borders and Freedom House.
Convention has become a crucial instrument to motivate, to stimulate or

even to compel the national authorities of these countries to abstain from
interfering in freedom of speech and press freedom, to respect freedom of
public debate, political expression and critical journalism to a higher degree
and to promote media pluralism and internet freedom.1
This paper explores the impact, some characteristics and recent
developments of the European Court’s case law regarding media, journalism
and freedom of expression and information.2 Although Article 10 in principle
prohibits interferences by public authorities with the right to freedom of
expression, it leaves open some possibilities and margin for State authorities
to limit, restrict or sanction certain types of expressions or media-content,
due to the “duties and responsibilities” related to the exercise of the right to
freedom of expression. This paper therefore will start by clarifying under
which circumstances and conditions state interferences with the right to
freedom of expression and information can be justified under the European
Human Rights system. Some examples will illustrate how the duties and
responsibilities related to publicly communicating information and ideas can
indeed justify limitations or sanctions because of some specific content
considered harmful for society or breaching the rights of others. Some speech
or media-content can even be categorically excluded from Article 10
protection. The second part of the paper will focus on the added value created
by the European Court’s (recent) jurisprudence, by protecting public debate
and reporting on matters of public interest, investigative journalism, whistle-
blowing and journalistic sources, and by guaranteeing access to information
held by public authorities.
1. For a global perspective, compare with Article 19 of the UN Covenant on Civil and Political
Rights (ICCPR) and the General Comment No. 34, Article 19: Freedoms of Opinion and
Expression, CCPR/C/GC/34, UNHRC 2011, http://www2.ohchr.org/english/bodies/hrc/
docs/GC34.pdf.
2. The case law analysed in this article includes the European Court’s jurisprudence since
December 1976 (ECtHR 7 December 1976, Case No. 5493/72, Handyside v. UK). In that
judgment the Court firmly emphasized the importance of freedom of expression in a
democratic society, but in casu found no breach of Article 10 of the Convention, as the
protection of minors was considered to justify the interference by public authorities against the
“Little Red Schoolbook” and its publisher, Mr. Handyside. The most recent jurisprudence of
the ECtHR integrated in this analysis is the judgment in the case Taranenko v. Russia of 15
May 2014, in which the Court found a violation of Article 10. The case is about the detention
and conviction of an activist who, during a protest action in a government building, had waved
placards with “Putin, resign!” (« , !») and distributed leaflets calling for the
Russian President’s resignation (ECtHR 15 May 2014, Case No. 19554/05, Taranenko v.
Russia). All together nearly a thousand judgments related to Article 10 ECHR, freedom of
expression, media and journalism.
6 Dirk Voorhoof
1. “Duties and responsibilities” as justification for interferences with the

right to freedom of expression and information
Article 10 of the European Convention reads as follows:
1. 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.
This Article shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health or morals, for
the protection of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for maintaining the
authority and impartiality of the judiciary.
Article 10(1) stipulates the principle of the right to freedom of
expression, “without interference by public authority”, while Article 10(2),
by referring to “duties and responsibilities” that go together with the exercise
of this freedom, opens the possibility for public authorities to interfere with
this freedom by way of formalities, conditions, restrictions and even
penalties. Yet, the main characteristic of Article 10(2) is precisely that, by
imposing the so-called “triple test”, it substantially reduces the possibility of
interference with the right to express, receive and impart information and
ideas. Interferences by public authorities are only allowed under the strict
conditions that any restriction or sanction must be “prescribed by law”1 must
1. In only a few cases the Court came to the conclusion that the condition “prescribed by law,”
which includes foreseeability, precision and publicity or accessibility and which implies a
minimum degree of protection against arbitrariness, was not fulfilled, such as in ECtHR 24
September 1992, Case No. 10533/83, Herczegfalvy v. Austria; ECtHR 23 September 1998,
Case No. 24838/94, Steel and Others v. UK; ECtHR 25 November 1999, Case No. 25594/94,
Hashman and Harrup v. UK; ECtHR 14 March 2002, Case No. 26229/95, Gaweda v. Poland;
ECtHR 25 January 2005, Case Nos. 37096/97 and 37101/97, Karademirci and Others v.
Turkey; ECtHR 17 January 2006, Case No. 35083/97, Goussev and Marenk v. Finland;
ECtHR 17 January 2006, Case No. 36404/97, Soini and Others v. Finland; ECtHR 18 July
2006, Case No. 75615/01, Štefanec v. Czech Republic; ECtHR 27 September 2007, Case No.
30160/04, Dzhavadov v. Russia; ECtHR 17 June 2008, Case No. 32283/04, Meltex Ltd. and
Mesrop Movsesyan v. Armenia; ECtHR Grand Chamber 14 September 2010, Case No.
38224/03, Sanoma Uitgevers BV v. The Netherlands; ECtHR 29 March 2011, Case No.
50084/06, RTBF v. Belgium; ECtHR 5 May 2011, Case No. 33014/05, Editorial Board of
Pravoye Delo and Shtekel v. Ukraine; ECtHR 25 October 2011, Case No. 27520/07, Akçam v.
Turkey; ECtHR 18 December 2012, Case No. 3111/10, Ahmet Yilderim v. Turkey and ECtHR
25 June 2013, Case No. 48135/06, Youth Initiative for Human Rights v. Serbia.
have a “legitimate aim” and finally and most decisively, must be “necessary
in a democratic society”.1
Although the Court’s case law gave recognition to the pre-eminent
role of the media in a state governed by the rule of law and has frequently
reiterated that the media play a vital role of “public watchdog” in a
democracy, as “purveyor of information”, still “abusing” freedom of
expression in all European States can be sanctioned in one or another
way, in accordance with Article 10(2) of the Convention. In some
exceptional cases the abuse of free speech cannot rely at all on the
protection of Article 10 ECHR.2
Various laws and regulations in European countries restrict freedom of
expression and media content, determining the responsibility of every person
under the law. The aim of such restrictions is to protect the national states’
interests (protection of state security and public order), the protection of morals,
the protection of reputation or privacy or more generally “the rights of others”,
the protection of confidentiality of information, or the authority and
impartiality of the judiciary. Other legal provisions are protecting personal data,
or prohibiting and punishing “hate speech” that incites to violence, racism,
xenophobia, hatred or discrimination. Also broadcasting law, audiovisual
media services regulations and legal provisions on advertising or other forms of
“commercial speech” contain restrictions on freedom of expression or on media
content.3 When such legal provisions, limiting the right of freedom of
1. See also E. Barendt, Freedom of Speech (Oxford: Oxford University Press, 2007); E.
Dommering, “Article 10 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR): Freedom of Expression,” in O. Castendyk, E. Dommering
and A. Scheuer, eds., European Media Law (Austin, TX: Wolters Kluwer, 2008), 35-80; J.
Casadevall, E. Myjer, M. O’Boyle and A. Austin, eds., Freedom of Expression: Essays in
Honour of Nicolos Bratza (Oisterwijk: Wolf Legal Publishers, 2012) and D. Voorhoof and T.
Mc Gonagle, ed., Freedom of Expression, the Media and Journalists. Case law of the
European Court of Human Rights (Strasbourg: European Audiovisual Observatory, 2013),
http://www.obs.coe.int/documents/205595/2667238/IRIS+Themes+III+(final+9+December+2
013).pdf/2e748bd5-7108-4ea7-baa6-59332f885418.
2. For an interesting analysis of the notion of “abuse” of human rights, see A. Sajó, ed., Abuse:
The Dark Side of Fundamental Rights (Utrecht: Eleven International, 2006). See also H.
Cannie and D. Voorhoof, “The Abuse Clause and Freedom of Expression under the European
Human Rights Convention: An Added Value for Democracy and Human Rights Protection?”,
Netherlands Quarterly of Human Rights 1 (2011): 54-83. See also ECtHR 17 December 2013,
Case No. 27510/08, Perinçek v. Switzerland (this judgment is not final: the case has been
referred to the Grand Chamber on 2 June 2014, on request of the Swiss Government).
3. For a an overview and analysis, see Commissioner for Human Rights, Human Rights in a
Changing Media Landscape (Strasbourg: Council of Europe Publishing, 2011); J. Casadevall,
E. Myjer, M. O’Boyle and A. Austin, eds., Freedom of Expression: Essays in Honour of
Nicolos Bratza (Oisterwijk: Wolf Legal Publishers, 2012) and M. Price, S. Verhulst and L.
Morgan, eds., Routledge Handbook of Media Law.
8 Dirk Voorhoof
expression and information, are applied in accordance with Article 10(2), there
is no violation of the right to freedom of expression in terms of the European
Convention. The interference by public authorities in such circumstances is
considered as legal, legitimate and justified. From this perspective, freedom of
expression and information as guaranteed under Article 10 of the European
Convention is relative or qualified, compared to the more absolute approach
found in the formulation of the First Amendment of the U.S. Constitution,
guaranteeing “freedom of speech, and of the press”, prohibiting public
authorities (‘Congress’) from abridging these freedoms. Due to the text of the
U.S. First Amendment, combined with a set of other factors, some limitations
and restrictions that are considered justified under the ECHR, would be
considered violating the U.S. free speech protection, such as e.g. in the domain
of defamation and ‘hate speech’.1 Article 10 ECtHR reflects an approach of
social responsibility and relativism of the right of freedom of expression, while
the U.S. Constitutional guarantee of free speech has a more individual, liberal
and categorical or absolute focus.2
An abundant case law of the European Court of Human Rights has made
clear however that national law prohibiting, restricting or sanctioning
expressions or information as forms of public communication may only be
applied if the interference by the authorities is prescribed by law in a
sufficiently precise way, is non-arbitrarily applied, is justified by a legitimate
aim and most importantly is to be considered “necessary in a democratic
society”. It is the European Court itself that has determined and elaborated
the characteristics of the vague and open notion of what can be considered
necessary in a democratic society in terms of limiting or restricting freedom
of expression and information. At many occasions the Court has emphasized
that freedom of expression “constitutes one of the essential foundations of a
democratic society. Subject to paragraph 2 of Article 10, it 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 the State or any sector of the population”. It also stated that this
freedom “is subject to the exceptions set out in Article 10 § 2, which must,
however, be interpreted narrowly”. According to the Court’s case law, an
open, pluralistic and democratic society by itself is the most effective, if not
the only, guarantor of respect for civil, political, cultural and social rights and
1. See F. Schauer , “The Exceptional First Amendment”, SSRN: 2005, http://ssrn.com/abstract=

668543.
2. Notice however that also the U.S. First Amendment has its limitations and boundaries: F.
Schauer , “The Bounderies of the First Amendment: A Preliminary Exploration of
Constitutional Salience”, SSRN: 2003, http://ssrn.com/abstract=405100.
freedoms. This means that Article 10 has to be interpreted from a perspective

of a high level of protection of freedom of expression and information, even
if expressed opinions or information are considered harmful to the State or
some groups, enterprises, organisations, institutions or public figures. The
need for any restrictions must be established convincingly, precisely because
freedom of expression is considered essential for the functioning of a
democratic society. This also reflects the inherent paradox with regard the
application of Article 10, as freedom of expression is considered a necessity
in and for a democratic society, while at the same time the restrictions and
limitations on that freedom are justified as well as being necessary in a
democratic society. Both the principle and its exceptions find their
justifications in the concept of a democratic society. This requires a very
thorough, well elaborated, consistent, independent and transparent analysis of
all factual elements, legal principles and interests involved in order to decide
finally whether an interference with the right to freedom of expression and
information is to be considered “necessary in a democratic society”.
In many cases - as well in numerous decisions on inadmissibility as in
judgments on the merits - the European Court of Human Rights has accepted
interferences with the rights guaranteed under Article 10(1) of the
Convention, also in terms of injunctions and in terms of criminal sanctions,
sometimes even imprisonment. In such cases the Court agreed with the
defending State and declared the application complaining about an alleged
violation of Article 10 manifestly ill-founded and hence inadmissible or, in a
later stage, it came to the conclusion that an interference was in accordance
with the “triple test” of Article 10 of the Convention. In each of these cases
the European Court found no violation of the right to freedom of expression
and information by accepting the argumentation that the interference at issue
was to be considered necessary in a democratic society.
In what follows, a set of examples will illustrate the legitimate character
of some justified interferences with the right to freedom of expression in
Europe, not amounting to a violation of Article 10 of the Convention. For
each category one or more cases are also referred to in which the Court did
find a violation of Article 10. These references indicate and clarify the limit
of the acceptable interferences with the right to freedom of expression and
information under the European Convention.
1.1. Incitement to violence, hatred, discrimination or terrorism

A type of speech or content of expression for which the European Court
does not guarantee a high level of protection - or rather any protection at all -
is “hate speech,” including incitement to racism, xenophobia, discrimination,
10 Dirk Voorhoof
hatred and violence or glorification of terrorism.1

Since Article 17 ECHR provides that nothing in this Convention “may
be interpreted as implying for any State, group or person any right to engage
in any activity or to perform any act aimed at the destruction of any of the
rights and freedoms set forth herein or at their limitation to a greater extent
than provided for in the Convention”, the European Court has excluded, in
some cases, the protection of Article 10 regarding speech or expressions that
were deemed to have the intention to destroy other rights and freedoms
enshrined in the Convention. The application of Article 17 of the Convention,
the so-called abuse clause, leads to categorical exclusion from protection of
the right to freedom of expression as guaranteed by Article 10. This approach
contrasts with the Court’s general approach, which implies that an
examination is required in the light of the case as a whole, taking into
consideration all its factual and legally relevant elements. It shows however
in a very clear way that expressions or media-content that goes contrary to
the text and spirit of the Convention are categorically classified as abuse of
the right of freedom of expression, and hence being excluded from protection
by the Convention.2
In Norwood v. The United Kingdom, a member of the British National
Party (BNP) had displayed a large poster with a photograph of the Twin
Towers in flames, accompanied by the words ‘Islam out of Britain - Protect
the British People’ and a symbol of a crescent and a star in a prohibition sign
in the window of his first-floor flat. The Court found that the words and
images on the poster amounted to a public expression of attack on all
Muslims in the United Kingdom, and therefore held that
“Such a general, vehement attack against a religious group, linking the
group as a whole with a grave act of terrorism, is incompatible with the
values proclaimed and guaranteed by the Convention, notably tolerance,
social peace and non-discrimination”.
1. See A. Weber, Manuel sur le discours de haine (Leiden: Martinus Nijhoff Publishers, 2009)
and A. Buyse, “Dangerous Expressions: the ECHR, Violence and Free Speech”, International
and Comparative Law Quarterly 2 (2014): 491-503. For a critical analysis, see S. Sottiaux,
“‘Bad Tendencies’ in the ECtHR’s ‘Hate Speech’ Jurisprudence,” European Constitutional
Law Review 1 (2011): 40–63. See, e.g., ECtHR (Decision) 23 June 2003, Case No. 65831/01,
Garaudy v. France; ECtHR (Decision) 16 November 2004, Case No. 23131/03, Norwood v.
UK; ECtHR (Decision) 20 February 2007, Case No. 35222/04, Pavel Ivanov v. Russia;
ECtHR 2 October 2008, Case No. 36109/03, Leroy v. France; ECtHR 16 July 2009, Case No.
15615/07, Féret v. Belgium and ECtHR 9 February 2012, Case No. 1813/07, Vejdeland and
Others v. Sweden.
2. For a critical analysis, see H. Cannie and D. Voorhoof, “The Abuse Clause and Freedom of
Expression under the European Human Rights Convention: An Added Value for Democracy
and Human Rights Protection?”, Netherlands Quarterly of Human Rights 1 (2011): 54–83.
For that reason the Court came to the conclusion that “the applicant' s display
of the poster in his window constituted an act within the meaning of Article 17,
which did not, therefore, enjoy the protection of Articles 10 or 14”.1
Another example is the Court’s decision in Garaudy v. France. This case
concerns a book written by Roger Garaudy entitled “The Founding Myths of
Israeli Politics”, which contains a chapter headed “The Myth of the Holocaust”.
The Court pointed out that the content of the book, denying the Holocaust by the
Nazi-regime during World War II, undermined the Convention’s underlying
values that support the fight against racism and anti-Semitism, and was capable
of seriously troubling the public order. As a consequence, Holocaust denial and
denying the crimes against humanity committed by the Nazis on the Jewish
community entailed the direct application (so called ‘guillotine effect’) of Article
17. The Court stated as follows
“The Court considers that the main content and general tenor of the
applicant' s book, and thus its aim, are markedly revisionist and therefore run
counter to the fundamental values of the Convention, as expressed in its
Preamble, namely justice and peace. It considers that the applicant attempts
to deflect Article 10 of the Convention from its real purpose by using his
right to freedom of expression for ends which are contrary to the text and
spirit of the Convention. Such ends, if admitted, would contribute to the
destruction of the rights and freedoms guaranteed by the Convention.
Accordingly, the Court considers that, in accordance with Article 17 of the
Convention, the applicant cannot rely on the provisions of Article 10 of the
Convention regarding his conviction for denying crimes against humanity”.2
In Ivanov v. Russia, the applicant accused the Jewish people of plotting a
conspiracy against the Russian people and ascribed fascist ideology to the
Jewish leadership. The Court held that
“such a general and vehement attack on one ethnic group is in
contradiction with the Convention' s underlying values, notably tolerance,
social peace and non-discrimination”.3
The Court however has started to show more reluctance to apply
directly Article 17 in cases on the right to freedom of expression.4 Instead,
1. ECtHR (Decision) 16 November 2004, Case No. 23131/03, Norwood v. UK.

2. ECtHR (Decision) 23 June 2003, Case No. 65831/01, Garaudy v. France. Compare: ECtHR 5
March 2013, Case No. 61005/09, Varela Geis v. Spain
3. ECtHR (Decision) 20 February 2007, Case No. 35222/04, Pavel Ivanov v. Russia. See also ECtHR
14 March 2013, Case No. 26261/05 and 26377/06, Kasymakhunov and Saybatalov v. Russia.
4. ECtHR 17 December 2013, Case No. 27510/08, Perinçek v. Switzerland (this judgment is not
final: the case has been referred to the Grand Chamber on 2 June 2014, on request of the
Swiss Government). See also ECtHR 25 January 2009, Case No. 20985/05, Orban and Others
v. France and ECtHR 22 April 2010, Case No. 40984/07, Fattulayev v. Azerbaijan.
12 Dirk Voorhoof
the Court evaluates expressions that incite to violation, hatred or

discrimination from the scope of Article 10, not categorically excluding
“hate speech” from the protection of Article 10(1), and applying the triple
test of Article 10(2). In some cases the Court finally came to the conclusion
that the (criminal) convictions at issue could be considered as fulfilling the
conditions of Article 10(2), including being considered as necessary in a
democratic society, hence finding no violence of Article 10. Interferences
and criminal convictions for incitement to hatred, violence or
discrimination against a person1, against certain minorities or groups of the
population, foreigners or Muslims2 and against homosexuals3 have been
considered as being legitimate and necessary interferences with the right to
freedom of expression, restricted by the duties and responsibilities related
to the exercise of this right in a democratic society.
In Vejdeland and Others v. Sweden the Court held that “inciting to
hatred does not necessarily entail a call for an act of violence, or other
criminal acts. Attacks on persons committed by insulting, holding up to
ridicule or slandering specific groups of the population can be sufficient
for the authorities to favour combating racist speech in the face of
freedom of expression exercised in an irresponsible manner”.4 The
criminal conviction of the applicants for distributing leaflets that
contained anti-gay offensive statements was considered from the scope of
Article 10 as necessary in a democratic society in order to protect the
rights of homosexuals. This means that the Court applies the principles
relating to freedom of expression and ‘hate speech’ also in the context of
incitement to discrimination based on sexual orientation. In this regard,
the Court stresses that discrimination based on sexual orientation is as
serious as discrimination based on “race, origin or colour”.5 The Court
has also emphasised that it is particularly conscious of the vital
importance of combating racial and gender discrimination in all its forms
and manifestations.6
Furthermore also injunctions, criminal convictions and other
interferences because of incitement to terrorism or glorification of terrorism
1. ECtHR Grand Chamber 22 October 2007, Case Nos. 21279/02 and 36448/02, Lindon,
Otchakovsky-Laurens and July v. France.
2. ECtHR 16 July 2009, Case No. 15615/07, Féret v. Belgium
3. ECtHR 9 February 2012, Case No. 1813/07, Vejdeland and Others v. Sweden.
4. ECtHR 9 February 2012, Case No. 1813/07, Vejdeland and Others v. Sweden. See also
ECtHR 16 July 2009, Case No. 15615/07, Féret v. Belgium.
5. ECtHR 9 February 2012, Case No. 1813/07, Vejdeland and Others v. Sweden
6. ECtHR 21 July 2011, Case Nos. 32181/04 and 35122/05, Sigma Radio Television Ltd. v.
Cyprus.
have been considered by the Court as necessary in a democratic society.1

On the other hand, in numerous cases against Turkey, the Court
considered that convictions for separatist or terrorist propaganda were to be
situated in the context of political debate. Firmly criticising the Turkish
authorities or the military, or (political) statements about problems and
developments in the Kurdish region or on religious matters, without however
inciting to violence, can count on the protection of Article 10. The Court
considered in many of these cases that “although certain particularly acerbic
passages (..) paint an extremely negative picture of the Turkish State and thus
give the narrative a hostile tone, they do not encourage violence, armed
resistance or insurrection and do not constitute hate speech”.2 Therefore the
Court did not consider the publications, news reports, interviews or speeches
at issue as ‘hate speech’, finding in a large number of judgments against
Turkey violations of Article 10.
In the case Perinçek v. Switzerland the Court has tried to clarify that
there are limits indeed in excluding ‘hate speech’ from the protection of the
European Convention. The case concerns the conviction in Switzerland of a
Turkish politician for publicly denying the existence of a genocide against
the Armenian people. On several occasions, Perinçek - at the time chairman
of the Turkish Workers’ Party - had described the Armenian genocide as “an
international lie”. He had particularly insisted that whatever massacres had
taken place did not meet the definition of genocide under international law.
The Swiss courts found Perinçek guilty of racial discrimination. In its
judgment of 17 December 2013, the Court considered the conviction of
Perinçek as a violation of Article 10. The Court underlined that the free
1. ECtHR 10 October 2006, Case No. 4119/01, Halis Do an (n° 3) v. Turkey; ECtHR (Decision)
22 March 2007, Case No. 6250/02, Gülcan Kaya v. Turkey; ECtHR (Decision) 29 May 2007,
Case No. 26870/04, Dieter Kern v. Germany; ECtHR 21 February 2008, Case No. 64116/00,
Yalçiner v. Turkey; ECtHR 2 October 2008, Case No. 36109/03, Leroy v. France; ECtHR
(Decision), 20 April 2010, Case No. 18788/09, Jean-Marie Le Pen v. France and ECtHR 27
January 2011, Case No. 16637/07, Aydin v. Germany.
2. See amongst many others ECtHR 13 July 2004, Case Nos. 26971/95 and 37933/97, Ay enur
Zarakolu and Belge Uluslararası Yayıncılık v. Turkey; ECtHR 13 January 2005, Case No.
36215/97, Da tekin v. Turkey; ECtHR 29 March 2005, Case No. 44104/98, Birol v. Turkey;
ECtHR 29 March 2005, Case No. 40287/98, Alinak v. Turkey; ECtHR 10 February 2009, Case
No. 27690/03, Güçlü v. Turkey; ECtHR 6 July 2010, Case Nos. 43453/04 and 31098/05,
Gözel and Özer v. Turkey; ECtHR 1 October 2013, Case Nos. 25764/09, 25773/09, 25786/09,
25793/09, 25804/09, 25811/09, 25815/09, 25928/09, 25936/09, 25944/09, 26233/09,
26242/09, 26245/09, 26249/09, 26252/09, 26254/09, 26719/09, 26726/09 and 27222/09,
Yalçınkaya and Others v. Turkey; ECtHR 15 October 2013, Case No. 9858/04, Mehmet Hatip
Dicle v. Turkey; ECtHR 22 October 2013, Case No. 52056/08, Bülent Kaya v. Turkey; ECtHR
17 December 2013, Case No. 12606/11, Yavuz and Yaylalı v. Turkey. See also ECtHR 4
December 2003, Case No. 35071/97, Gündüz v. Turkey.
14 Dirk Voorhoof
exercise of the right to openly discuss questions of a sensitive and

controversial nature is one of the fundamental aspects of freedom of
expression and distinguished a tolerant and pluralistic democratic society
from a totalitarian or dictatorial regime. According to the Court, rejecting the
legal characterisation as ‘genocide’ of the 1915 events was not such as to
incite hatred against the Armenian people. The Court was therefore of the
opinion that Perinçek has not abused his right to freedom of expression in a
way prohibited by Article 17 of the Convention. Nor was the conviction of
Perinçek necessary in a democratic society. The Court held that historical
research is by definition open to discussion and a matter of debate, without
necessarily leading to final conclusions or absolute truths. In the remainder of
its reasoning, the Court took the view that the Swiss authorities had failed to
show how there was a social need in Switzerland to punish an individual for
racial discrimination on the basis of declarations challenging only the legal
characterisation as ‘genocide’ of acts perpetrated on the territory of the
former Ottoman Empire in 1915 and the following years. According to the
Court such a pressing social need did exist regarding the denial of the
Holocaust, but not with regard to the Armenian ‘genocide’.1 This judgment
however is not final, as it was referred, in application of Article 43 of the
Convention, to the Grand Chamber of the European Court on 2 June 2014. It
is now up to the Grand Chamber of 17 judges to deliver a final ruling on the
case and eventually to clarify its approach (not) applying Article 17 of the
Convention in cases of freedom of expression and finally to decide whether
the statements by Perinçek do or do not justify the interference at issue.
1.2. Religion and morals

In cases where interferences are based on the protection of the religious
feelings of others or on morals,2 or on the protection of minors,3 the Court
1. ECtHR 17 December 2013, Case No. 27510/08, Perinçek v. Switzerland (this judgment is not
Swiss Government). See on the “instrumentalization” of the Holocaust, ECtHR 8 November
2012, Case No. 43481/09, PETA Deutschland v. Germany.
2. ECtHR 7 December 1976, Case No. 5493/72, Handyside v. UK; ECtHR 24 May 1988, Case
No. 10737/84, Müller and Others v. Switzerland; ECtHR 20 September 1994, Case No.
13470/87, Otto-Preminger-Institut v. Austria; ECtHR 25 November 1996, Case No.
17419/90, Wingrove v. UK and ECtHR 13 September 2005, Case No. 42571/98, I.A. v.
Turkey. See also ECtHR 10 July 2003, Case No. 44179/98, Murphy v. Ireland. Compare with
ECtHR 31 January 2006, Case No. 64016/00, Giniewski v. France and ECtHR 2 May 2006,
Case No. 50692/99, Aydin Tatlav v. Turkey.
3. ECtHR 7 December 1976, Case No. 5493/72, Handyside v. UK and ECtHR (Decision) 10
May 2011, Case No. 1685/10, Karttunen v. Finland. See also ECtHR (Decision) 8 December
2005, Case No. 40485/02, Nordisk Film & TV A/S v. Denmark.
has accepted a broad margin of appreciation by the member states, accepting

the interferences at issue - against books, movies or paintings exposed in
public - as being necessary in a democratic society.
The decision in Karttunen v. Finland illustrates such a finding by the
Court. In this case Ms Anni Ullikki Karttunen complained under Article 10
of the Convention that her right as an artist to freedom of expression had
been violated. She had incorporated pornographic pictures in her work in an
attempt to encourage discussion and raise awareness of how wide-spread and
easily accessible child pornography was. The work of Kartunnen, exposed in
an art gallery in Helsinki included hundreds of photographs of teenage girls
or otherwise very young women in sexual poses and acts, while according to
Finnish law the possession and distribution of these pictures were
criminalised. The European Court considered that
“their criminalisation was mainly based on the need to protect children
against sexual abuse as well as violation of their privacy but also on moral
considerations”.
The Court recognised

“that conceptions of sexual morality have changed in recent years.
Nevertheless, the Court does not find the view taken by the Finnish courts
unreasonable, especially as the present case concerned minors or persons
likely to be minors. The domestic courts, especially the District Court which
balanced at length the relationship between freedom of expression, on the one
hand, and morals and reputation and rights of others, on the other hand, found
that the applicant’s freedom of expression did not justify the possession and
public display of child pornography”.
Therefore the European Court found that the confiscation of the art work
and the criminal prosecution of the artist did not violate Article 10.1
Also offensive attacks on a religion can be restricted or sanctioned. In
I.A. v. Turkey the Court reiterated that religious people have to tolerate and
accept the denial by others of their religious beliefs and even the propagation
by others of doctrines hostile to their faith. A distinction is however to be
made between provocative opinions and abusive attacks on one' s religion.
According to the Court, one part of the book at issue contained an abusive
attack on the Prophet of Islam. It accepted that believers could legitimately
feel that these passages of the book constituted an unwarranted and offensive
attack on them. Hence, the conviction of the publisher was a measure that
1. ECtHR 7 December 1976, Case No. 5493/72, Handyside v. UK and ECtHR (Decision) 10
May 2011, Case No. 1685/10, Karttunen v. Finland. See also ECtHR (Decision) 8 December
2005, Case No. 40485/02, Nordisk Film & TV A/S v. Denmark.
16 Dirk Voorhoof
was intended to provide protection against offensive attacks on matters

regarded as sacred by Muslims. As the book was not seized and the publisher
had only to pay an insignificant fine, the Court came, by four votes to three,
to the conclusion that the Turkish authorities did not violate the right to
freedom of expression in this case.1
In Aydin Tatlav v. Turkey the Court did not exclude that Muslims could
nonetheless feel offended by the caustic commentary on their religion, but
this was not considered to be a sufficient reason in itself to justify the
criminal conviction of the author of the book. With regard the punishment
imposed on Tatlav, the Court is of the opinion that a criminal conviction
involving, moreover, the risk of a custodial sentence, could have the effect of
discouraging authors and editors from publishing opinions about religion that
are non-conformist and could impede the protection of pluralism, which is
indispensable for the healthy development of a democratic society. Taking
into consideration all the elements of the case, the Strasbourg Court came to
the conclusion that the interference by the Turkish authorities was
disproportionate to the aims pursued. Consequently, the Court held
unanimously that there has been a violation of Article 10 of the Convention.2
1.3. Secret and confidential information

At several occasions the European Court of Human Rights has accepted
interferences by public authorities as being justified to protect the secret
character or confidentiality of certain communications, information or data.3 A
striking example is the judgment in Pasko v. Russia. 4 The case concerns
Grigoriy Pasko, a Russian national who at the time of the events was a naval
officer and worked as a military journalist on the Russian Pacific Fleet’s
Newspaper Boyevaya Vakhta. Mr Pasko had been reporting on problems of
environmental pollution, accidents with nuclear submarines, transport of
military nuclear waste and other issues related to the activities of the Russian
Pacific Fleet. He had also been in contact on a free-lance basis with a Japanese
1. ECtHR 13 September 2005, Case No. 42571/98, I.A. v. Turkey.

2. ECtHR 2 May 2006, Case No. 50692/99, Aydin Tatlav v. Turkey. See also ECtHR 31 January
2006, Case No. 64016/00, Giniewski v. France and ECtHR 16 February 2010, Case No.
41056/04, Akda v. Turkey.
3. ECtHR 16 December 1992, Case No. 12945/87, Hadjianastassiou v. Greece. See also ECtHR 24
November 2005, Case No. 53886/00, Tourancheau and July v. France; CtHR 9 November 2006, Case
No. 64772/01, Leempoel and S.A. Ciné Revue v. Belgium; ECtHR 3 February 2009, Case No.
30699/02, Marin v. Romania. See also ECtHR (Decision) 8 February 2011, Case No. 30881/09,
Yleisradio Oy e.a. v. Finland; ECtHR 24 January 2012, Case No. 32884/10, Seckerson v. UK and
ECtHR 24 January 2012, Case No. 33510/10, Times Newspapers Ltd. v. UK.
4. ECtHR 22 October 2009, Case No. 69519/01, Pasko v. Russia.
TV station and a newspaper and had supplied them with information and a
video footage. When Mr Pasko was searched at the Vladivostok airport before
flying to Japan, some of his papers were confiscated with the explanation that
they contained classified information. He was arrested upon his return from
Japan and sentenced to four years’ imprisonment, as he was found guilty of
treason through espionage for having collected secret and classified
information containing actual names of highly critical and secure military
formations and units, with the intention of transferring this information to a
foreign national. After having accepted that the Russian authorities acted on a
proper legal basis, the Court observed that, as a serving military officer, Mr
Pasko had been bound by an obligation of discretion in relation to anything
concerned with the performance of his duties. The domestic courts had
carefully scrutinised each of his arguments and had found that he had collected
and kept, with the intention of transferring to a foreign national, information of
a military nature that had been classified as a State secret and which had been
capable of causing considerable damage to national security. Finally, Mr Pasko
been convicted of treason through espionage as a serving military officer and
not as a journalist. According to the European Court, there was nothing in the
materials of the case to support the applicant’s allegations that his conviction
had been overly broad or politically motivated or that he had been sanctioned
for any of his publications. The Court found that the domestic courts had struck
the right balance of proportionality between the aim of protecting national
security and the means used to achieve that purpose, namely the sentencing of
the applicant to a “lenient sentence”, much less severe than the statutory
minimum, notably four years’ imprisonment as compared to twelve to twenty
years’ imprisonment. Accordingly, the Court held that there had not been a
violation of Article 10 of the Convention.
In Stoll v. Switzerland the Grand Chamber was of the opinion that the
disclosure in a Sunday newspaper of (parts of) an ambassador’s confidential
report was capable of undermining the climate of discretion necessary to the
successful conduct of diplomatic relations, and of having negative repercussions
on the negotiations being conducted by Switzerland on the issue dealt with in
the report. The report concerned a strategic document, drew up by the Swiss
ambassador to the United States, classified as “confidential”, concerning
possible strategies with regard the compensations due to Holocaust victims and
Jewish families for unclaimed assets deposited in Swiss banks. The judgment
underlines that the fact that the journalist who published the article did not
himself act illegally by obtaining the leaked document is not necessarily a
determining factor in assessing whether or not he complied with his duties and
responsibilities: as a journalist he could not claim in good faith to be unaware
18 Dirk Voorhoof
that disclosure of the document in question was punishable under the Swiss
Criminal Code. Finally the Court emphasised that the impugned articles were
written and presented in a sensationalist style, that they suggested
inappropriately that the ambassador’s remarks were anti-Semitic, that they were
of a trivial nature and were also inaccurate and likely to mislead the reader.1
In other circumstances and different situations, the Court however
decided that a conviction of a journalist, editor or broadcaster for making
confidential or secret information public, could not be justified as being
necessary in a democratic, referring to the task of the media to report on
matters of public interest, in accordance with the principles of responsible
journalism or professional ethics.2 In some cases the Court has taken into
account that the information at issue was no longer confidential or that it had
already been spread in the public domain.3
1.4. Private life of heads of states, prime ministers, politicians and other
public figures
In cases in which journalists or media revealed information or published
pictures not concretely or effectively contributing to public debate or only
focusing on the (intimate) private life of the persons concerned,4 the Court
accepted (proportionate) interferences in their freedom of expression. On
1. ECtHR Grand Chamber 10 December 2007, Case No. 69698/01, Stoll v. Switzerland.
2. ECtHR Grand Chamber 21 January 1999, Case No. 29183/95, Fressoz and Roire v. France; ECtHR
18 May 2004, Case No. 58148/00, Editions Plon v. France; ECtHR 25 April 2006, Case
No. 77551/01, Dammann v. Switzerland; ECtHR 19 December 2006, Case No. 62202/00, Radio
Twist v. Slovakia; ECtHR 7 June 2007, Case No. 1914/02, Dupuis and Others v. France; ECtHR 14
December 2006, Case No. 76918/01, Verlagsgruppe News GmbH v. Austria; ECtHR 14 December
2006, Case No. 10520/02, Verlagsgruppe News GmbH (n° 2) v. Austria; ECtHR 24 April 2008,
Case No. 17107/05, Campos Dâmaso v. Portugal; ECtHR 19 January 2010, Case No. 16983/06,
Laranjeira Marques Da Silva v. Portugal; ECtHR 5 May 2011, Case No. 33014/05, Editorial
Board of Pravoye Delo and Shtekel v. Ukraine; ECtHR 28 June 2011, Case No. 28439/08, Pinto
Coelho v. Portugal; ECtHR 15 December 2011, Case No. 28198/09, Mor v. France. See also infra
regarding whistle-blowing and protection of journalistic sources.
3. ECtHR 26 November 1991, Case No. 13585/88, Observer and Guardian v. U.K.; ECtHR 26
November 1991, Case No. 13166/87, Sunday Times (n° 2) v. U.K.; ECtHR 9 February 1995,
Vereniging Weekblad “Bluf!” v. The Netherlands; ECtHR Grand Chamber 21 January 1999,
Case No. 29183/95, Fressoz and Roire v. France and ECtHR 17 January 2012, Case No.
20376/05, Varapnickait -Mažylien v. Lithuania.
4. ECtHR 9 November 2006, Case No. 64772/01, Leempoel and S.A. Ciné Revue v. Belgium and
ECtHR 3 February 2009, Case No. 30699/02, Marin v. Romania. See also ECtHR 14 March
2002, Case No. 46833/99, De Diego Nafria v. Spain and ECtHR Grand Chamber 17
December 2004, Case No. 33348/96, Cump n and Maz re v. Romania. See also ECtHR 4
June 2009, Case No. 21277/05, Standard Verlags GmbH (n° 2) v. Austria and ECtHR 14
January 2014, Case No. 73579/10, Ruusunen v. Finland and ECtHR 14 January 2014, Case
No. 69939/10, Ojala and Etukeno Oy v. Finland.
See also ECtHR 14 June 2007, Case No. 71111/01, Hachette Filipacchi Associés v. France.
several occasions the Court has observed that private individuals and to some
extent also public persons have a legitimate expectation of protection of their
private life.1 Freedom of the press does not extend to idle gossip about
intimate or extramarital relations merely serving to satisfy the curiosity of a
certain readership and not contributing to any public debate in which the
press has to fulfill its role of “public watchdog”.2 The Court made clear that
also public figures, including heads of state, prime ministers, ministers,
politicians or other public officials should have their intimate life and privacy
respected by the media.3 In a set of cases the Court also found violations of
Article 8 (breach of privacy), as the media reporting had been disrespectful
toward the right of privacy of the (public) persons concerned.4
1. ECtHR 6 February 2001, Case No. 41205/98, Tammer v. Estonia; ECtHR 28 January 2003,
Case No. 44647/98, Peck v. UK; ECtHR 30 March 2004, Case No. 53984/00, Radio France
and Others v. France; ECtHR 26 April 2004, Case No. 59320/00, Von Hannover v. Germany;
ECtHR 17 October 2006, Case No. 71678/01, Gourguénidzé v. Georgia; ECtHR 9 November
2006, Case No. 64772/01, Leempoel and S.A. Ciné Revue v. Belgium; ECtHR 9 April 2009,
Case No. 28070/06, A. v. Norway; ECtHR 16 April 2009, Case No. 34438/04, Egeland and
Hanseid v. Norway; ECtHR 4 June 2009, Case No. 21277/05, Standard Verlags GmbH (n° 2)
v. Austria; ECtHR 18 January 2011, Case No. 39401/04, MGN Limited v. UK and ECtHR 14
No. 69939/10, Ojala and Etukeno Oy v. Finland. Compare with ECtHR 19 September 2006,
Case No. 42435/02, White v. Sweden; ECtHR 10 February 2009, Case No. 3514/02,
Eerikäinen and Others v. Finland; ECtHR 28 April 2009, Case No. 39311/05, Karakó v.
Hungary; ECtHR 21 September 2010, Case No. 34147/06, Polanco Torres and Movilla
Polanco v. Spain and ECtHR 16 January 2014, Case No. 13258/09, Lillo-Stenberg and Sæther
v. Norway. See also ECtHR 25 November 2008, Case No. 36919/02, Armoniené v. Lithuania
and ECtHR 25 November 2008, Case No. 23373/03, Biriuk v. Lithuania.
2. ECtHR 4 June 2009, Case No. 21277/05, Standard Verlags GmbH (n° 2) v. Austria. See,
however, the dissenting opinion in this case arguing that the state of marriage of a head of
state can be regarded as a topic of public interest, that the rumours concerning the presidential
couple’s marriage that were circulated were of some relevance and that all in all the impugned
text remained within the limits of acceptable comment in a democratic society.
3. ECtHR 4 June 2009, Case No. 21277/05, Standard Verlags GmbH (n° 2) v. Austria; ECtHR
19 June 2012, Case No. 27306/07, GmbH & Co KG and Krone Multimedia GmbH & Co KG
v. Austria; ECtHR 19 June 2012, Case No. 1593/06, Kurier Zeitungsverlag und Druckerei
GmbH (n° 2) v. Austria; ECtHR 8 October 2013, Case No. 30210/06, Ricci v. Italy; ECtHR
14 January 2014, Case No. 73579/10, Ruusunen v. Finland and ECtHR 14 January 2014, Case
No. 69939/10, Ojala and Etukeno Oy v. Finland. See also ECtHR 28 May 2004, Case No.
58148/00, Editions Plon v. France.
4. ECtHR 6 February 2001, Case No. 41205/98, Tammer v. Estonia; ECtHR 26 April 2004, Case
No. 59320/00, Von Hannover v. Germany; ECtHR 5 July 2011, Case No. 41588/05, Avram
and Others v. Moldova; ECtHR 18 April 2013, Case No. 7075/10, Ageyevy v. Russia; ECtHR
31 October 2013, Case No. 12316/07, Popovski v. the Former Yugoslav Republic of
Macedonia; ECtHR 19 November 2013, Case No. 45543/04, Some an and Butiuc v.
Romania; ECtHR 12 December 2013, Case No. 20383/04, Khmel v. Russia; ECtHR 14
January 2014, Case No. 22231/05, Lavric v. Romania and ECtHR 18 February 2014, Case
No. 43912/10, Jalb v. Romania.
20 Dirk Voorhoof
There is no violation of Article 8 however, or a conviction of media or

journalists because of publishing information about individuals tarnishing
their reputation or containing information that might affect their private life,
is considered a breach of Article 10 when the information is related to an
issue of public interest.1 In the case of Von Hannover (no. 2) v. Germany the
Grand Chamber held unanimously that the publication of a picture of
Princess Caroline of Monaco illustrating an article about the Principality of
Monaco and the refusal by the German Courts to grant an injunction against
it, did not amount to a violation of the right of privacy of the princess. The
European Court was of the opinion that the princess, irrespective of the
question to what extent she assumed official functions, is to be regarded as a
public person. The article with the picture at issue did not solely serve
entertainment purposes and there was nothing to indicate that the photo had
been taken surreptitiously or by equivalent secret means such as to render its
publication illegal.2
In balancing the interests and rights guaranteed by Article 8 and 10, in
Mosley v. The United Kingdom the European Court also clarified that Article
8 does not require media to give prior notice of intended publications to those
who feature in them.3 As a pre-notification requirement would inevitably also
affect political reporting and serious journalism, having regard to the chilling
effect to which a pre-notification requirement risked giving rise and to the
doubts about its effectiveness, the European Court concluded that Article 8
did not require a legally binding pre-notification requirement.
1.5. Defamation without sufficient factual basis

In cases where journalists or media did not succeed giving reliable or
relevant evidence for (serious) allegations, insinuations or accusations, the
Court accepts convictions and (proportionate) sanctions imposed by the
1. ECtHR 19 September 2006, Case No. 42435/02, White v. Sweden and ECtHR 10 February 2009,
Case No. 3514/02, Eerikäinen and Others v. Finland; ECtHR 10 January 2012, Case No.
34702/07, Standard Verlags v. Austria; ECtHR Grand Chamber 7 February 2012, Case No.
39954/08, Axel Springer AG v. Germany and ECtHR 7 February 2012, Case Nos. 40660/08 and
60641/08, Von Hannover (n° 2) v. Germany. See also ECtHR Grand Chamber 21 January 1999,
Case No. 29183/95, Fressoz and Roire v. France; ECtHR Grand Chamber 20 May 1999, Case
No. 21980/93, Bladet Tromsø and Stensaas v. Norway; ECtHR 3 October 2000, Case No.
34000/96, Du Roy and Malaurie v. France; ECtHR 29 March 2001, Case No. 38432/97, Thoma
v. Luxembourg; ECtHR 25 June 2002, Case No. 51279/99, Colombani and Others v. France and
ECtHR 21 February 2012, Case Nos. 32131/08 and 41617/08, Tu alp v. Turkey.
2. ECtHR Grand Chamber 7 February 2012, Case Nos. 40660/08 and 60641/08, Von Hannover
(n° 2) v. Germany. See also ECtHR 19 September 2013, Case No. 8772/10, Von Hannover (n°
3) v. Germany.
3. ECtHR 10 May 2011, Case No. 48009/08, Mosley v. UK.
national authorities as not being in breach with Article 10 of the Convention.1

The requirement that a journalist needs to prove that the allegations made in
an article were “substantially true” on the balance of probabilities, constitutes
a justified restriction on the right to freedom of expression under Article
10(2) of the Convention.2 In some cases the obvious lack of evidence of
published allegations made the Court even decide on the (manifest)
inadmissibility of a complaint under Article 10 of the Convention.3
On the other hand, the Court has also considered that, as part of their role
as a “public watchdog,” the media’s reporting on “‘stories’ or ‘rumours’ -
emanating from persons other than an applicant - or ‘public opinion’” is to be
1. See ECtHR 26 April 1995, Case No. 15974/90, Prager and Oberschlick v. Austria; ECtHR 27
June 2000, Case No. 28871/95, Constantinescu v. Romania; ECtHR 7 May 2002, Case No.
46311/99, McVicar v. UK; ECtHR Grand Chamber 6 May 2003, Case No. 48898/99, Perna v.
Italy; ECtHR 30 March 2004, Case No. 53984/00, Radio France v. France; ECtHR 29 June
2004, Case No. 64915/01, Chauvy v. France; ECtHR Grand Chamber 17 December 2004,
Case No. 33348/96, Cump n and Maz re v. Romania; ECtHR Grand Chamber 17 December
2004, Case No. 49017/99, Pedersen and Baadsgaard v. Denmark; ECtHR 21 December 2004,
Case No. 61513/00, Busuioc v. Moldova; ECtHR 31 January 2006, Case No. 53899/00,
Stângu and Scutelnicu v. Romania; ECtHR 14 February 2008, Case No. 36207/03, Rumyana
Ivanova v. Bulgaria; ECtHR 22 May 2008, Case No. 17550/03, Alithia Publishing Company
Ltd. & Constantinides v. Cyprus; ECtHR 8 July 2008, Case No. 24261/05, Backes v.
Luxembourg; ECtHR 29 July 2008, Case No. 22824/04, Flux (n° 6) v. Moldova; ECtHR 16
September 2008, Case No. 36157/02, Cuc Pascu v. Romania; ECtHR 14 October 2008, Case
No. 78060/01, Petrina v. Romania; ECtHR 18 December 2008, Case No. 35877/04,
Mahmudov and Agazade v. Azerbaijan; ECtHR 5 February 2009, Case No. 42117/04, Brunet-
Lecomte and Others v. France; ECtHR 21 June 2011, Case No. 35105/04, Kania and Kittel v.
Poland; ECtHR 24 July 2012, Case No. 46712/06, Ziembi ski v. Poland; ECtHR 2 February
2012, Case No. 20240/08, R žový panter, o.s. v. Czech Republic; ECtHR 28 March 2013,
Case No. 14087/08, Novaya Gazeta and Borodyanskiy v. Russia; ECtHR 14 January 2014,
Case No. 22231/05, Lavric v. Romania; ECtHR 30 January 2014, Case No. 34400/10, De
Lesquen du Plessis-Casso (n° 2) v. France and ECtHR 29 April 2014, Case No. 23605/09,
Salumäki v. Finland. In some cases the Court found no violation of Article 10, while it
accepted that the applicant had not been guaranteed a fair trial and that there had been a
violation of Article 6(1) of the Convention: see, e.g., ECtHR 27 June 2000, Case No.
28871/95, Constantinescu v. Romania and ECtHR 4 November 2008, Case No. 42512/02,
Mihaiu v. Romania.
2. ECtHR 7 May 2002, Case No. 46311/99, McVicar v. UK and ECtHR Grand Chamber 17
December 2004, Case No. 49017/99, Pedersen and Baadsgaard v. Denmark.
3. See, e.g., ECtHR (Decision) 4 April 2006, Case No. 33352/02, László Keller v. Hongary;
ECtHR (Decision) 15 June 2006, Case No. 6928/04 and 6929/04, Corneliu Vadim Tudor v.
Romania; ECtHR (Decision) 8 February 2007, Case No. 3540/04, Falter Zeitschriften GmbH
v. Austria; ECtHR (Decision) 21 October 2008, Case No. 20953/06, Tomasz Wolek, Rafal
Kasprów and Jacek L ski v. Poland and ECtHR (Decision) 21 October 2008, Case No.
37115/06, Vittorio Sgarbi v. Italy. See also ECtHR (Decision) 16 October 2001, Case No.
45710/99, Verdens Gang and Kari Aarsted Aase v. Norway; ECtHR (Decision) 21 February
2002, Case No. 43525/98, Gaudio v. Italy; ECtHR (Decision) 20 November 2012, Case No.
9283/05, Dunca and SC Nord Vest Press SRL v. Romania and ECtHR 15 January 2013, Case
No. 29672/05, Ciuvic v. Romania.
22 Dirk Voorhoof
protected.1 The Court at several occasions accepted that value judgments,

allegations or statements only had “a slim factual basis” or that it was
sufficient that there was “no proof the description of events given in the
articles was totally untrue,” or that the “opinions were based on facts which
have not been shown to be untrue”.2 The Court accepted that value judgments
and criticism can be based on “unconfirmed allegations or rumours”.3
Journalists or editors of news media must also be given the opportunity in
defamation cases in court to rely on a defence of justification - that is to say
proving the truth or the factual basis of the allegation - to escape criminal or
civil liability.4 Therefore domestic courts should not refuse to consider the
evidence proposed by the journalist or editor in libel or defamation cases.
The Court does not accept the reasoning of domestic courts that allegations
of serious misconduct leveled against individuals or public persons should first
have been proven in criminal proceedings.5 In the Kasabova case the Court
clarified that “while a final conviction in principle amounts to incontrovertible
proof that a person has committed a criminal offence, to circumscribe in such a
way the manner of proving allegations of criminal conduct in the context of a
libel case is plainly unreasonable, even if account must be taken, as required by
Article 6(2), of that person’s presumed innocence”.6 Describing an act or
behavior of a politician as “illegal” is to be considered as expressing a personal
legal opinion amounting to a value judgment of which the accuracy cannot be
1. See ECtHR 25 June 1992, Case No. 13778/88, Thorgeir Thorgeirson v. Iceland and ECtHR 9
June 2009, Case No. 17095/03, Cihan Özturk v. Turkey.
2. See ECtHR 25 November 1999, Case No. 23118/93, Nilsen and Johnsen v. Norway; ECtHR
28 September 1999, Case No. 28114/95, Dalban v. Romania; ECtHR 26 February 2002, Case
No. 29271/95, Dichand and Others v. Austria and ECtHR 23 October 2007, Case No.
28700/03, Flux and Samson v. Moldova.
3. ECtHR 27 November 2007, Case No. 42864/05, Timpul Info-Magazin and Anghel v. Moldova. See
also ECtHR 9 June 2009, Case No. 17095/03, Cihan Özturk v. Turkey. The Court in this case
however also considered that “there was a sufficient factual basis for the applicant to make a critical
analysis of the situation and to raise questions about the restoration project, since the authorities had
already brought criminal proceedings against the applicant for breach of duty”.
4. ECtHR 29 March 2001, Case No. 38432/97, Thoma v. Luxembourg; ECtHR 25 June 2002,
Case No. 51279/99, Colombani and Others v. France;ECtHR 29 March 2005, Case No.
72713/01, Ukrainian Media Group v. Ukraine and ECtHR 14 December 2006, Case No.
29372/02, Karman v. Russia.
5. See ECtHR 25 November 1999, Case No. 23118/93, Nilsen and Johnsen v. Norway; ECtHR
29 July 2008, Case No. 22824/04, Flux (n° 6) v. Moldova; ECtHR 14 October 2008, Case No.
34434/02, Folea v. Romania; ECtHR 14 October 2008, Case No. 37406/03, Dyundin v.
Russia; ECtHR 23 October 2008, Case No. 14888/03, Godlevskiy v. Russia and ECtHR 2
April 2009, Case No. 24444/07, Kydonis v. Greece. Compare with ECtHR 27 June 2000, Case
No. 28871/95, Constantinescu v. Romania and ECtHR 14 October 2008, Case No. 78060/01,
Petrina v. Romania. See also ECtHR 17 April 2014, Case No. 5709/09, Brosa v. Germany.
6. ECtHR 19 April 2011, Case No. 22385/03, Kasabova v. Bulgaria. See also ECtHR 14
December 2006, Case No. 29372/02, Karman v. Russia
required to be proven.1 Media applying the standards of journalistic ethics or

journalists acting in consonance with the principles of “responsible journalism”
are strongly protected by Article 10 of the Convention.2
In Tu alp v. Turkey the Court reiterated that offensive language, in this case
criticising the Prime Minister, may fall outside the protection of freedom of
expression if it amounts to wanton denigration, for example where the sole intent
of the offensive statement is to insult. But the use of vulgar phrases in itself is not
decisive in the assessment of an offensive expression as it may well serve merely
stylistic purposes. Style constitutes part of communication as a form of
expression and is as such protected together with the content of the expression. In
addition, the Court observed that there was nothing in the case file to indicate that
Tu alp’s articles have affected the Prime Minister’s political career or his
professional and private life. The Court came to the conclusion that the domestic
courts failed to establish convincingly any pressing social need for putting the
Prime Minister’s personality rights above the journalist’s rights and the general
interest in promoting the freedom of the press where issues of public interest are
concerned. The Tu alp judgment continues a strong tradition in European Court
jurisprudence where freedom of expression prevails in cases of insult or
defamation of heads of state, presidents or high ranking politicians.3
1.6. Is the Court widening the “margin of appreciation”?

Especially in a number of Grand Chamber judgments the Court has
accepted far reaching interferences with the right to freedom of expression.
The outcome and rationale of some judgments in which the Court has found
no violation of the right to freedom of expression have raised concerns
1. ECtHR 27 May 2004, Case No. 57829/00, Vides Aizsardz bas Klubs v. Latvia. See also
ECtHR 16 November 2004, Case No. 56767/00, Selistö v. Finland and ECtHR 16 November
2004, Case No. 53678/00, Karhuvaara and Iltalehti v. Finland. See also ECtHR 17 April
2014, Case No. 5709/09, Brosa v. Germany.
2. ECtHR 23 October 2007, Case No. 28700/03, Flux and Samson v. Moldova; ECtHR 27
November 2007, Case No. 42864/05, Timpul Info-Magazin and Anghel v. Moldova and
ECtHR 10 January 2012, Case No. 34702/07, Standard Verlags GmbH v. Austria.
3. ECtHR 8 July 1986, Case No. 9815/82, Lingens v. Austria; ECtHR 1 July 1997, Case No.
20834/92, Oberschlick (n° 2) v. Austria; ECtHR Grand Chamber 28 October 1999, Case No.
28396/95, Wille v. Liechtenstein; ECtHR 12 July 2001, Case No. 29032/95, Feldek v.
Slovakia; ECtHR 25 June 2002, Case No. 51279/99, Colombani and Others v. France;
ECtHR 29 March 2005, Case No. 72713/01, Ukrainian Media Group v. Ukraine; ECtHR 29
maart 2005, Case No. 75955/01, Sokolowski v. Poland; ECtHR 19 December 2006, Case No.
62202/00, Radio Twist v. Slovakia; ECtHR 15 March 2011, Case No. 2034/07, Otegi
Mondragon v. Spain; ECtHR 28 April 2009, Case No. 39311/05, Karakó v. Hungary; ECtHR
1 June 2010, Case No. 16023/07, Gutiérrez Suárez v. Spain and ECtHR 21 February 2012,
Case Nos. 32131/08 and 41617/08, Tu alp v. Turkey. See also ECtHR 17 April 2014, Case
No. 20981/10, Mladina d.d. Ljubljana v. Slovenia.
24 Dirk Voorhoof
regarding the actual level of protection of press freedom in Europe.1 The

perception that the European Court has sometimes been too lenient in
accepting interferences with the right to freedom of expression is clearly
reflected in some dissenting opinions in annex to some recent judgments
finding no violation of Article 10 of the Convention.2
In Lindon, Otchakovsky-Laurens and July v. France, the dissenting judges
expressed the opinion that the Court’s judging no violation of Article 10 of the
Convention was “a significant departure from the Court’s case-law in matters of
criticism of politicians”, while in Stoll v. Switzerland the dissenters considered
the Court’s judgment by finding no violation of Article 10 “a dangerous and
unjustified departure from the Court’s well established case-law concerning the
nature and vital importance of freedom of expression in democratic societies.3
1. See the proceedings and conclusions of the Seminar on the European Protection of Freedom of
Expression: “Reflections on Some Recent Restrictive Trends,” Strasbourg, 10 October 2008, www-
ircm.u-strasbg.fr/seminaire_oct2008/index.htm. See also R. Ó Fathaigh and D. Voorhoof, “The
European Court of Human Rights, Media Freedom and Democracy,” in M. Price, S. Verhulst, and L.
Morgan, eds., Routledge Handbook of Media Law (New York: Routledge, 2013), 107–124.
2. It is to be noted that also, the other way around, the Court has been criticised for applying
Article 10 in a too protective way for media and journalism, sometimes not sufficiently taking
into consideration the rights of others or the margin of appreciation of the member states.
3. ECtHR Grand Chamber 22 October 2007, Case Nos. 21279/02 and 36448/02, Lindon,
Otchakovsky-Laurens and July v. France and ECtHR Grand Chamber 10 December 2007, Case
No. 69698/01. In Féret v. Belgium the dissenting judges also firmly argued why they disagreed
with the majority of the Court not finding a violation of Article 10 regarding the conviction for
“hate speech” of the leader of a political party. The dissenting judges expressed the opinion that
by confirming the criminal repression of political debate in this case, the Court neglected the
essence of freedom of expression: “confirmer la répression pénale du discours politique en
l'espèce va à l' encontre de la liberté d'
expression” (ECtHR 16 July 2009, Case No. 15615/07,
Féret v. Belgium). See also the dissenting opinions in ECtHR 29 July 2008, Case No. 22824/04,
Flux (n° 6) v. Moldova; ECtHR 17 February 2009, Case No. 38991/02, Saygili and Falakao lu
(n° 2) v. Turkey; ECtHR 24 February 2009, Case No. 46967/07, C.G.I.L. and Cofferati v. Italy;
ECtHR 4 June 2009, Case No. 21277/05, Standard Verlags GmbH (n° 2) v. Austria; ECtHR 16
July 2009, Case No. 10883/05, Willem v. France; ECtHR 31 May 2011, Case No. 3699/08,
Žugi v. Croatia; ECtHR Grand Chamber 12 September 2011, Cases nos. 28955/06, 28957/06,
28959/06 and 28964/06, Palomo Sánchez and Others v. Spain; ECtHR 26 June 2012, Case No.
12484/05, Ciesielczyk v. Poland; ECtHR 25 September 2012, Case No. 11828/08, Trade Union
of the Police in the Slovak Republic and Others v. Slovakia; ECtHR 9 October 2012, Case No.
29723/11, Szima v. Hungary; ECtHR 11 December 2012, Case No. 35745/05, Nenkova-Lalova
v. Bulgaria; ECtHR 10 October 2013, Case No. 26547/07, Print Zeitungsverlag GmbH v.
Austria; ECtHR 30 January 2014, Case No. 34400/10, De Lesquen du Plessis-Casso (n° 2) v.
France (this judgment is not final yet (May 2014) because of a pending request for referral to the
Grand Chamber) and ECtHR 4 February 2014, Case No. 11882/10, Pentikäinen v. Finland (this
judgment is not final: the case has been referred to the Grand Chamber on 2 June 2014, on
request of the applicant). See also some of the earlier dissenting opinions in ECtHR Grand
Chamber 17 December 2004, Case No. 49017/99, Pedersen and Baadsgaard v. Denmark;
ECtHR 13 September 2005, Case No. 42571/98, I.A. v. Turkey; ECtHR 24 November 2005,
Case No. 53886/00, Tourancheau and July v. France and ECtHR 14 June 2007, Case No.
71111/01, Hachette Filipacchi Associés v. France.
A dissenting opinion in another case is very illustrative in this context.

The dissenting judges of the European Court, being confronted with a
controversial finding of a non-violation of Article 10 by the majority in the
case Barata Monteiro da Costa Nogueira and Patrício Pereira v. Portugal,
pointed at a worrying trend, the Court’s supervisory role scrutinizing
fundamental rights and freedoms in Europe actually being under attack. The
essential message of the dissenters is that the finding of the majority in this
case contributes to the weakening of the philosophy of freedom of expression
itself. It emphasises that at a time when the winds are changing, it is the
Court’s task, more than ever, to reinforce freedom of expression and
information as a key element in democracy.1
Again on 13 July 2012 a robust dissenting opinion was added to a Grand
Chamber judgment in the case Mouvement raëlien suisse v. Switzerland. The
dissenters obviously disagree with the Court’s majority, finding no violation
of Article 10, this time in a case concerning a ban imposed by local
authorities on a poster campaign of an association, allegedly promoting
unlawful activities on their website. The dissenting opinion seems to deplore
the lack of protection guaranteed to freedom of expression, leaving too wide
a discretion for interpretations of limitations and restrictions, combined with
a too broad margin of appreciation left to the domestic authorities interfering
with freedom of expression and information within their jurisdiction. The
dissenting judges emphasise that “the right to freedom of expression under
Article 10 is an essential provision because it underpins the democracy that
lies at the heart of the Convention. Any restriction of that freedom must be
strictly justified by a pressing social need and narrowly circumscribed by
relevant and sufficient reasons”.2
Also the case Animal Defenders International v. UK3 shows a striking
difference of opinion among the Strasbourg judges, the Grand Chamber
holding, by nine votes to eight, that the UK’s ban on political advertising on
television did not violate Article 10 of the Convention. Essentially, the
1. Dissenting opinion of Tulkens, Popovi , and Sajó in ECtHR 11 January 2011, Case No.
4035/08, Barata Monteiro da Costa Nogueira and Patrício Pereira v. Portugal. See also D.
Voorhoof, “Tulkens on the Barricades of Freedom of Expression and Information,”
Strasbourg Observers blogpost, 24 August 2012,
http://strasbourgobservers.com/2012/08/24/tulkens-on-the-barricades-of-freedom-of-
expression-and-information/.
2. Dissenting opinion of Tulkens, Sajó, Lazarova Trajkovska, Bianku, Power-Forde, Vu ini ,
and Yudkivska in ECtHR Grand Chamber 13 July 2012, Case No. 16354/06, Mouvement
raëlien Suisse v. Switzerland.
3. ECtHR Grand Chamber 22 April 2013, Case No. 48876/08, Animal Defenders International v.
UK.
26 Dirk Voorhoof
majority of the judges accepts that a total ban on political advertising on

television, characterized by a broad definition of the term “political,” with no
temporal limitations and no room for exceptions, not even for a TV
advertisement by an NGO raising awareness on animals rights and
contributing to a public debate on animal protection, is in accordance with
the right to freedom of political expression. The dissenting judges argued for
a radically different approach, even pointing at the “double standard within
the context of a Convention whose minimum standards should be equally
applicable throughout all the States parties to it,” but their arguments could
not convince the majority of the Grand Chamber.1
Most recently, in Pentikaïnen v. Finland the dissenting judges expressed
the opinion that the majority’s finding of no violation of Article 10 was likely
to create a “chilling effect” on press freedom. In this case the European Court
found that a Finnish press photographer’s conviction for disobeying the police
while covering a demonstration did not breach his freedom of expression. The
European Court recognised that Pentikäinen, as a newspaper photographer and
journalist, had been confronted with an interference in his right to freedom of
expression. However, as the interference was prescribed by law, pursued
several legitimate aims (the protection of public safety and the prevention of
disorder and crime) and was to be considered necessary in a democratic
society, there was no violation of his right under Article 10 of the Convention.
His arrest was a consequence of his decision to ignore the police orders to leave
the area, while there was also a separate secure area which had been reserved
for the press. The Court also considered that the fact that the applicant was a
journalist did not give him a greater right to stay at the scene than the other
people and that the conduct sanctioned by the criminal conviction was not his
journalistic activity as such, but his refusal to comply with a police order at the
very end of the demonstration, when the latter was judged by the police to have
become a riot. The dissenting judges expressed the opinion it has not been
substantiated why it was necessary in a democratic society to equate a
professional journalist, operating within recognised professional limits in
covering the demonstration, with any of the people taking part in the
demonstration and to impose drastic criminal restraints on him. The dissenting
judges criticised sharply the imposition of restrictions on the journalist’s
1. After emphasizing being “perplexed” by the approach of the majority, one of the dissenting
opinions concludes: “Nothing has been shown in this case to suggest that the state of
democracy in the United Kingdom requires, by way of a ‘pressing need’, the wide ban on paid
‘political’ advertisements that is in issue here; or that the said democracy is less robust than in
other States parties to the Convention and cannot afford risk-taking with ‘issue-advertising’.
On the contrary, tradition and history force one to assert the very opposite”.
freedom of expression through his arrest, detention, prosecution and conviction

for a criminal offence simply because he had the courage to do his duty in
furtherance of the public interest.1 As this case has been referred to the Grand
Chamber by decision of the Court’s Panel on 2 June 2014, it is up to the Grand
Chamber of 17 judges to reconsider the arguments of the Finnish authorities
and of the applicant journalist in this case. It also illustrates that an actual
debate and reflection is taking place in Europe, also within the European Court
of Human Rights, how to secure a high level of freedom for media and
journalism in a democracy, without neglecting other rights and interests of
individuals and society.
2. The scope of freedom of expression: recent developments in the

ECtHR’s case law
2.1. Media as public watchdog and the role of NGOs

At numerous occasions the European Court has emphasized the
importance of an open public debate and the role of investigative journalism.
Particular attention is paid to the public interest involved in the disclosure of
information, contributing to debate on matters of public interest. The Court
has reiterated that
“In a democratic system the acts or omissions of government must be
subject to the close scrutiny not only of the legislative and judicial authorities
but also of the media and public opinion. The interest which the public may
have in particular information can sometimes be so strong as to override even
a legally imposed duty of confidence”.2
In such a context a journalist, a civil servant, an activist or a staff
member of an NGO should not be prosecuted or sanctioned because of
breach of confidentiality or the use of illegally obtained documents.3 The
Court has accepted that the interest in protecting the publication of
information originating from a source which obtained and retransmitted the
1. ECtHR 4 February 2014, Case No. 11882/10, Pentikäinen v. Finland (this judgment is not
applicant).
2. ECtHR Grand Chamber 12 February 2008, Case No. 14277/04, Guja v. Moldova and ECtHR
8 January 2013, Case No. 40238/02, Bucur and Toma v. Romania.
3. ECtHR Grand Chamber 21 January 1999, Case No. 29183/95, Fressoz and Roire v. France;
ECtHR 25 April 2006, Case No. 77551/01, Dammann v. Switzerland; ECtHR 7 June 2007,
Case No. 1914/02, Dupuis and Others v. France; ECtHR 26 July 2007, Case No. 64209/01,
Peev v. Bulgaria and ECtHR Grand Chamber 12 February 2008, Case No. 14277/04, Guja v.
Moldova. See also ECtHR 19 December 2006, Case No. 62202/00, Radio Twist v. Slovakia
and ECtHR 28 June 2011, Case No. 28439/08, Pinto Coelho v. Portugal.
28 Dirk Voorhoof
information unlawfully may in certain circumstances outweigh those of an

individual or an entity, private or public, in maintaining the confidentiality of
the information. A newspaper that has published illegally gathered emails
between two public figures, directly related to a public discussion on a matter
of serious public concern, can be shielded by Article 10 of the Convention
against claims based on the right of privacy as protected under Article 8 of
the Convention.1
The Court at several occasions has confirmed that press freedom
assumes even greater importance in circumstances in which State activities
and decisions escape democratic or judicial scrutiny on account of their
confidential or secret nature. The conviction of a journalist for disclosing
information considered to be confidential or secret may discourage those
working in the media from informing the public on matters of public interest.
As a result the press may no longer be able to play its vital role as “public
watchdog” and the ability of the press to provide accurate and reliable
information may be adversely affected.2 In cases in which journalists reported
about confidential information in a sensationalist way3 or in which the
revealed documents did not concretely or effectively contribute to public
debate or only concerned information about the private life of the persons
concerned,4 the Court accepted (proportionate) interferences in their freedom
of expression (supra).
The European Court has also made clear that in a democratic society, in
addition to the press, non-governmental organizations (NGOs), campaign
groups or organizations, with a message outside the mainstream must be able
to carry on their activities effectively and be able to rely on a high level of
freedom of expression, as there is “a strong public interest in enabling such
groups and individuals outside the mainstream to contribute to the public
debate by disseminating information and ideas on matters of general public
1. ECtHR (Decision) 16 June 2009, Case No. 38079/06, Jonina Benediktsdóttir v. Iceland.
See also ECtHR Grand Chamber 21 January 1999, Case No. 29183/95, Fressoz and
Roire v. France and ECtHR 19 December 2006, Case No. 62202/00, Radio Twist v.
Slovakia.
2. ECtHR Grand Chamber 10 December 2007, Case No. 69698/01, Stoll v. Switzerland. See also
ECtHR Grand Chamber 27 March 1996, Case No. 17488/90, Goodwin v. UK and ECtHR
Grand Chamber 21 January 1999, Case No. 29183/95, Fressoz and Roire v. France.
3. ECtHR Grand Chamber 10 December 2007, Case No. 69698/01, Stoll v. Switzerland.
4. ECtHR 9 November 2006, Case No. 64772/01, Leempoel and S.A. Ciné Revue v. Belgium and
ECtHR 3 February 2009, Case No. 30699/02, Marin v. Romania. See also ECtHR 14 March
2002, Case No. 46833/99, De Diego Nafria v. Spain and ECtHR Grand Chamber 17
December 2004, Case No. 33348/96, Cump n and Maz re v. Romania. See also ECtHR 14
No. 69939/10, Ojala and Etukeno Oy v. Finland.
interest such as health and the environment”.1 In a democratic society public

authorities are to be exposed to permanent scrutiny by citizens and everyone
has to be able to draw the public’s attention to situations that they consider
unlawful.2 The Court has also argued that freedom of expression is of major
importance for persons belonging to minority groups.3
2.2. Protection of whistle-blowers

In the Grand Chamber judgment in Guja v. Moldova, the Court
recognized the need of protection of whistleblowers by Article 10 of the
Convention. The Court noted
“that a civil servant, in the course of his work, may become aware of in-
house information, including secret information, whose divulgation or
publication corresponds to a strong public interest. The Court thus considers
that the signaling by a civil servant or an employee in the public sector of
illegal conduct or wrongdoing in the workplace should, in certain
circumstances, enjoy protection. This may be called for where the employee
or civil servant concerned is the only person, or part of a small category of
persons, aware of what is happening at work and is thus best placed to act in
the public interest by alerting the employer or the public at large”.
Although disclosure should be made in the first place to the person’s
superior or other competent authority or body, the Court accepted that when
such a practice is clearly impractical, the information could, as a last resort,
be disclosed to the public. The Court held that the dismissal of a civil servant
for leaking two confidential letters from the public prosecutor’s office to the
press was in breach of Article 10 of the Convention, also referring to the
1. ECtHR 23 September 1998, Case No. 24838/94, Steel and Others v. UK. See also ECtHR 25
August 1998, Case No. 25181/94, Hertel v. Switzerland; ECtHR 28 June 2001, Case No.
24699/94, VGT Verein gegen Tierfabriken v. Switzerland; ECtHR 4 October 2007, Case No.
32772/02, VGT Verein gegen Tierfabriken (n° 2) v. Switzerland; ECtHR 27 May 2004, Case
No. 57829/00, Vides Aizsardz bas Klubs v. Latvia and ECtHR 7 November 2006, Case No.
12697/03, Mamère v. France. See also ECtHR 29 October 1992, Case No. 14234/88 and
14235/88, Open Door and Dublin Well Women v. Ireland; ECtHR Grand Chamber 25
November 1999, Case No. 25594/94, Hashman and Harrup v. UK; ECtHR 20 September
2007, Case No. 57103/00, Çetin and akar v. Turkey; ECtHR 3 February 2009, Case No.
31276/05, Women on Waves v. Portugal; ECtHR 14 September 2010, Case Nos. 6991/08 and
15084/08, Hyde Park and Others (n° 5-6) v. Moldova; ECtHR 1 December 2011, Case Nos.
8080/08 and 8577/08, Schwabe and M.G. v. Germany; ECtHR 12 June 2012, Case Nos.
26005/08 and 26160/08, Tatár and Fáber v. Hungary; ECtHR 26 November 2013, Case No.
3753/05, Kudrevi ius and others v. Lithuania (referred to Grand Chamber) and ECtHR 15
May 2014, Case No. 19554/05, Taranenko v. Russia.
2. ECtHR 27 May 2004, Case No. 57829/00, Vides Aizsardz bas Klubs v. Latvia. See also
ECtHR 12 June 2012, Case. Nos. 26005/08 and 26160/08, Tatár and Fáber v. Hungary.
3. ECtHR 17 February 2004, Case No. 44158/98, Gorzelik v. Poland.
30 Dirk Voorhoof
serious chilling effect of the applicant’s dismissal for other civil servants or
employees, discouraging them from reporting any misconduct.1 In Bucur and
Toma v. Romania the Court considered that the general interest in the
disclosure of information revealing illegal activities within the Romanian
Intelligence Services (RIS) was so important in a democratic society that it
prevailed over the interest in maintaining public confidence in that
institution. The Court observed that the information about the illegal
telecommunication surveillance of journalists, politicians and business men
that had been disclosed to the press affected the democratic foundations of
the State. Hence it concerned very important issues for the political debate in
a democratic society, in which public opinion had a legitimate interest. The
fact that the data and information at issue were classified as ‘ultra-secret’ was
not a sufficient reason to interfere with the whistle-blower’s right in this case.
The conviction of Bucur for the disclosure of information to the media about
the illegal activities of RIS was considered as a violation of Article 10
ECHR. In its judgment the Court also relied on Resolution 1729(2010) of the
Parliamentary Assembly of the Council of Europe on protecting whistle-
blowers.2
Especially in cases where information is published on alleged corruption,
fraud or illegal activities in which politicians, civil servants or public
institutions are involved, journalists, publishers, media and NGOs can count
on the highest standards of protection of freedom of expression. The Court
has emphasized that “in a democratic state governed by the rule of law the
use of improper methods by public authority is precisely the kind of issue
about which the public has the right to be informed”.3 The Court expressed
the opinion that “the press is one of the means by which politicians and
1. ECtHR Grand Chamber 12 February 2008, Case No. 14277/04, Guja v. Moldova. See also
ECtHR 5 October 2006, Case No. 14881/03, Zakharov v. Russia; ECtHR 26 July 2007, Case
No. 64209/01, Peev v. Bulgaria; ECtHR 13 November 2008, Case Nos. 64119/00; 76292/01,
Kayasu v. Turkey; ECtHR 13 January 2009, Case No. 39656/03, Ayhan Erdo an v. Turkey;
ECtHR 19 February 2009, Case No. 4063/04, Marchenko v. Ukraine; ECtHR 26 February
2009, Case No. 29492/05, Kudeshkina v. Russia; ECtHR 16 July 2009, Case No. 20436/02,
Wojtas-Kaleta v. Poland; ECtHR 31 Marcht 2011, Case No. 6428/07, Siryk v. Ukraine;
ECtHR 21 July 2011, Case No. 28274/08, Heinisch v. Germany; ECtHR 18 October 2011,
Case No. 10247/09, Sosinowska v. Poland and ECtHR 8 January 2013, Case No. 40238/02,
Bucur and Toma v. Romania.
2. ECtHR 8 January 2013, Case No. 40238/02, Bucur and Toma v. Romania. Notice that in
some other cases the Court showed more respect for secret, classified military information:
ECtHR 22 October 2009, Case No. 69519/01, Pasko v. Russia. In this case the ECtHR failed
to apply the Guja-criteria, while the information at issue concerned serious environmental
issues, related to nuclear pollution (see supra).
3. ECtHR 22 November 2007, Case No. 64752/01, Voskuil v. The Netherlands.
public opinion can verify that public money is spent according to the
principles of accounting and not used to enrich certain individuals”.1
Defamation laws and proceedings cannot be justified if their purpose or
effect is to prevent legitimate criticism of public officials or the exposure of
official wrongdoing or corruption. A right to sue in defamation for the
reputation of officials could easily be abused and might prevent free and open
debate on matters of public interest or scrutiny of the spending of public
money.2
That is also the message of the Committee of Ministers’ Recommendation
CM/Rec(2014)7 on the protection of whistle-blowers. Recommendation
CM/Rec(2014)7 (30 April 2014) recognises “that individuals who report or
disclose information on threats or harm to the public interest (“whistle-blowers”)
can contribute to strengthening transparency and democratic accountability” and
it refers explicitly to the right of freedom of expression and information
guaranteed by Article 10 ECHR.
Therefore it is recommended that member States should have in place:

“a normative, institutional and judicial framework to protect individuals
who, in the context of their work-based relationship, report or disclose
information on threats or harm to the public interest”.
In order to fulfil this mission, the national framework in the member
states should foster an environment that encourages reporting or disclosure in
an open manner and individuals should feel safe to freely raise public interest
concerns.
It is recommended that “clear channels should be put in place for public
interest reporting and disclosures and recourse to them should be facilitated
through appropriate measures”. The channels for reporting and disclosures
comprise:
“- reports within an organisation or enterprise (including to persons
designated to receive reports in confidence);
- reports to relevant public regulatory bodies, law enforcement agencies and
supervisory bodies;
- disclosures to the public, for example to a journalist or a member of
parliament”.
It is obvious that the European Court’s case law has contributed to
raising awareness about the lack of protection of whistle-blowers in many
1. ECtHR 14 November 2008, Case No. 9605/03, Krone Verlag GmbH & Co (n° 5) v. Austria.
2. ECtHR 9 June 2009, Case No. 17095/03, Cihan Özturk v. Turkey.
32 Dirk Voorhoof
states in Europe. Recommendation CM/Rec(2014)7 of 30 April 2014 to the

member states requesting to take action for stimulating, facilitating and
protecting whistle-blowing is aiming to implement at the national level a
higher threshold of protection of public interest whistle-blowing, in line with
the European Court’s case law. 1
2.3. Protection of journalistic sources

An interference by public authorities by means of prosecution or other
judicial measures with regard to the journalist’s research and investigative
activities calls for the most scrupulous examination from the perspective of
Article 10 of the Convention.2 It is based on this perspective that journalistic
sources enjoy a very high level of protection in terms of Article 10 of the
Convention. According to the Court
“protection of journalistic sources is one of the basic conditions for press
freedom, as is recognised and reflected in various international instruments
including the Committee of Ministers Recommendation (..). Without such
protection, sources may be deterred from assisting the press in informing the
public on matters of public interest. As a result the vital public watchdog role
of the press may be undermined and the ability of the press to provide
accurate and reliable information may be adversely affected. Having regard
to the importance of the protection of journalistic sources for press freedom
in a democratic society and the potentially chilling effect an order of source
disclosure has on the exercise of that freedom, such a measure cannot be
compatible with Article 10 of the Convention unless it is justified by an
overriding requirement in the public interest”.3
Searches in news rooms and confiscations of journalistic material in
order to reveal the identity of an informant can hardly be justified from this
1.Committee of Ministers, Recommendation CM/Rec(2014)7 on the protection of whistle-

blowers, 30 April 2014, https://wcd.coe.int/ViewDoc.jsp?id=2188855&Site=CM
2. See ECtHR 24 February 1997, Case No. 19983/92, De Haes and Gijsels v. Belgium; ECtHR
Grand Chamber 21 January 1999, Case No. 29183/95, Fressoz and Roire v. France; ECtHR
Grand Chamber 20 May 1999, Case No. 21980/93, Bladet Tromsø and Stensaas v. Norway;
ECtHR 3 October 2000, Case No. 34000/96, Du Roy and Malaurie v. France; ECtHR 29
March 2001, Case No. 38432/97, Thoma v. Luxembourg; ECtHR 25 June 2002, Case No.
51279/99, Colombani and Others v. France; ECtHR 27 May 2004, Case No. 57829/00, Vides
Aizsardz bas Klubs v. Latvia; ECtHR 19 December 2006, Case No. 62202/00, Radio Twist v.
Slovakia; ECtHR 29 March 2005, Case No. 72713/01, Ukrainian Media Group v. Ukraine
and ECtHR 7 June 2007, Case No. 1914/02, Dupuis and Others v. France. See also ECtHR
16 July 2013, Case No. 73469/10, Nagla v. Latvia.
3. ECtHR Grand Chamber 27 March 1996, Case No. 17488/90, Goodwin v. UK. See also ECtHR
(Decision) 8 December 2005, Case No. 40485/02, Nordisk Film & TV A/S v. Denmark and
ECtHR 31 May 2007, Case No. 40116/02, Še i v. Croatia.
perspective. On several occasions, the European Court was of the opinion

that searches of media offices, the home and place of work of journalists or
reporters amounted to a violation of Article 10 of the Convention,
disrespecting the subsidiarity of the proportionality principle.1
An important additional element in this regard is that any interference
with the right to protection of journalistic sources must be attended with legal
procedural safeguards, reducing or even eliminating the possibility that the
police or public prosecutors can have access to the journalists’ sources,
unless after a decision by a court, a judge or another independent and
impartial body. In Sanoma Uitgevers BV v. the Netherlands the Grand
Chamber noted that First and foremost among these safeguards is the
guarantee of review by a judge or other independent and impartial decision-
making body (..). The requisite review should be carried out by a body
separate from the executive and other interested parties, invested with the
power to determine whether a requirement in the public interest overriding
the principle of protection of journalistic sources exists prior to the handing
over of such material and to prevent unnecessary access to information
capable of disclosing the sources'identity if it does not.
The Court noted that it was well aware “that it may be impracticable for the
prosecuting authorities to state elaborate reasons for urgent orders or requests. In
such situations an independent review carried out at the very least prior to the
access and use of obtained materials should be sufficient to determine whether any
issue of confidentiality arises, and if so, whether in the particular circumstances of
1. ECtHR 23 February 2003, Case No. 51772/99, Roemen and Schmit v. Luxembourg;
ECtHR 15 July 2003, Case No. 33400/96, Ernst and Others v. Belgium; ECtHR 22
November 2007, Case No. 64752/01, Voskuil v. The Netherlands; ECtHR 27 November
2007, Case No. 20477/05, Tillack v. Belgium; ECtHR 15 December 2009, Case No.
821/03, Financial Times Ltd. and Others v. UK; ECtHR Grand Chamber 14 September
2010, Case No. 38224/03, Sanoma Uitgevers BV v. The Netherlands; ECtHR 12 April
2012, Case No. 30002/08, Martin and Others v. France; ECtHR 28 June 2012, Case
Nos. 15054/07 and 15066/07, Ressiot and Others v. France; ECtHR 22 November 2012,
Case No. 39315/06, Telegraaf Media Nederland Landelijke Media N.V. and Others v.
The Netherlands; ECtHR 18 April 2013, Case No. 26419/10, Saint-Paul Luxembourg
S.A. v. Luxembourg and ECtHR 16 July 2013, Case No. 73469/10, Nagla v. Latvia. See
also Committee of Ministers of the Council of Europe, Recommendation No. R (2000) 7
on the right of journalists not to disclose their sources of information, 8 March 2000,
www.coe.int/t/dghl/standardsetting/media/; Parliamentary Assembly of the Council of
Europe, Recommendation 1950 (2011) on the Protection of Journalists’ Sources,
25 January 2011, http://assembly.coe.int/mainf.asp?Link=/documents/adoptedtext/ta11/
erec1950.htm; D. Banisar, Silencing Sources: An International Survey of Protections and
Threats to Journalists’ Sources (2007), www.privacyinternational.org and D. Voorhoof, “The
Protection of Journalistic Sources under Fire?,” in D. Voorhoof, ed., European Media Law:
Collection of Materials, 2012–2013 (Gent: Knops Publishing, 2012), 287–306,
http://europe.ifj.org/ assets/docs/ 147 /154/9355293-0d86c9a.pdf.
34 Dirk Voorhoof
the case the public interest invoked by the investigating or prosecuting authorities
outweighs the general public interest of source protection”.1
The Court furthermore clarified that the exercise of any independent
review that only takes place subsequently to the handing over of material
capable of revealing journalists’ sources would undermine the very essence
of the right to confidentiality. Therefore the judge or other independent and
impartial body must be in a position to carry out the weighing of the potential
risks and respective interests “prior” to any disclosure.
The ECtHR also requires that any decision interfering with the protection of
journalists’ sources “should be governed by clear criteria, including whether a
less intrusive measure can suffice to serve the overriding public interests
established. It should be open to the judge or other authority to refuse to make a
disclosure order or to make a limited or qualified order so as to protect sources
from being revealed, whether or not they are specifically named in the withheld
material, on the grounds that the communication of such material creates a
serious risk of compromising the identity of journalists’ sources (..). In situations
of urgency, a procedure should exist to identify and isolate, prior to the
exploitation of the material by the authorities, information that could lead to the
identification of sources from information that carries no such risk”.2
Only with respect of these procedural guarantees interferences with the
right to protection of journalists’ sources can be justified in order to meet an
“overriding requirement in the public interest”, like for instance preventing or
investigating major crime or acts of (racist) violence, protecting the right to
life or preventing that minors would be sexually abused and hence subjected
to inhuman or degrading treatment.3
2.4. Toward a Right of Access to Official Documents

An important new development is the Court’s recent shift toward
approaching access to public documents from the perspective of Article 10 of
the Convention. For a long time, the Court refused to apply Article 10 in
cases of refusals of access to public documents.4 The However, in a 2007
1. ECtHR Grand Chamber 14 September 2010, Case No. 38224/03, Sanoma Uitgevers BV v. The
Netherlands.
2. ECtHR Grand Chamber 14 September 2010, Case No. 38224/03, Sanoma Uitgevers BV v. The
Netherlands and ECtHR 16 July 2013, Case No. 73469/10, Nagla v. Latvia.
3. ECtHR (Decision) 8 December 2005, Case No. 40485/02, Nordisk Film & TV A/S v. Denmark
and ECtHR 31 May 2007, Case No. 40116/02, Še i v. Croatia.
4. The Court got on a new track in ECtHR (Decision) 10 July 2006, Case No. 19101/03,
Sdruženi Jiho eské Matky v. Czech Republic. See also W. Hins and D. Voorhoof, “Access to
State-Held Information as a Fundamental Right under the European Convention on Human
Rights,” European Constitutional Law Review 3 (2007): 114–26.
judgment the Court expressed its opinion that “particularly strong reasons
must be provided for any measure affecting this role of the press and limiting
access to information which the public has the right to receive,”1 implicitly
recognizing at least a right of access to information. In the spring of 2009 the
Court delivered two important judgments in which it recognized the right of
access to official documents. The Court made clear that when public bodies
hold information that is needed for public debate, the refusal to provide
documents in this matter to those who are requesting access is a violation of
the right to freedom of expression and information as guaranteed under
Article 10 of the Convention. In TASZ v. Hungary the Court’s judgment
mentioned the “censorial power of an information monopoly” when public
bodies refuse to release information needed by the media or civil society
organizations to perform their “watchdog” function. It also considered that
the State had an obligation not to impede the flow of information sought by a
journalist or an interested citizen. The Court referred to its consistent case
law in which it has recognized that the public has a right to receive
information of general interest and that the most careful scrutiny on the part
of the Court is called for when the measures taken by the national authority
are capable of discouraging the participation of the press, one of society' s
“watchdogs,” in the public debate on matters of legitimate public concern,
even when those measures merely make access to information more
cumbersome. The Court emphasized once more that the function of the press,
including the creation of forums for public debate, is not limited to the media
or professional journalists. Indeed, in the present case, the preparation of the
forum of public debate was conducted by a nongovernmental organization.
The Court recognized civil society’s important contribution to the discussion
of public affairs and qualified the applicant association, which is involved in
human rights litigation, as a social “watchdog”. In these circumstances the
applicant’s activities warranted Convention protection similar to that afforded
to the press. Furthermore, given the applicant’s intention to impart the
requested information to the public, thereby contributing to the public debate
concerning legislation on drug-related offences, its right to impart
information was clearly impaired.2
In Kenedi v. Hungary the European Court held unanimously that there
had been a violation of the Convention, on account of the excessively long
proceedings—over ten years—with which Mr. Kenedi sought to gain and
1.ECtHR 27 November 2007, Case No. 42864/05, Timpul Info-Magazin and Anghel v. Moldova.
2. ECtHR 14 April 2009, Case No. 37374/05, Társaság A Szabadságjogokért v. Hungary and
ECtHR 26 May 2009, Case No. 31475/05, Kenedi v. Hungary.
36 Dirk Voorhoof
enforce his access to documents concerning the Hungarian secret services.

The Court also reiterated that “access to original documentary sources for
legitimate historical research was an essential element of the exercise of the
applicant’s right to freedom of expression”. The Court noted that Mr. Kenedi
had obtained a court judgment granting him access to the documents in
question, following which the domestic courts had repeatedly found in his
favor in the ensuing enforcement proceedings. The administrative authorities
had persistently resisted their obligation to comply with the domestic
judgment, thus hindering Mr. Kenedi’s access to documents he needed to
write his study. The Court concluded that the authorities had acted arbitrarily
and in defiance of domestic law and it held, therefore, that the authorities had
misused their powers by delaying Mr. Kenedi’s exercise of his right to
freedom of expression, in violation of Article 10.1
More recently, in Youth Initiative for Human Rights v. Serbia, the
European Court has reiterated that “the gathering of information is an
essential preparatory step in journalism and is an inherent, protected part of
press freedom” and that “obstacles created in order to hinder access to
information which is of public interest may discourage those working in the
media or related fields from pursuing such matters. As a result, they may no
longer be able to play their vital role as “public watchdogs”, and their
ability to provide accurate and reliable information may be adversely
affected”.2 Referring to TASZ v. Hungary, the European Court stated
explicitly “that the notion of ‘freedom to receive information’ embraces a
right of access to information”. The Court is of the opinion that as the
applicant NGO, Youth Initiative for Human Rights, was obviously involved
in the legitimate gathering of information of public interest with the
intention of imparting that information to the public and thereby
contributing to the public debate, there has been an interference with its
right to freedom of expression. The Court found that the restrictions
imposed by the Serbian intelligence agency, resulting in a refusal to give
access to public documents, did not meet the criterion as being prescribed
by law, and therefore violated Article 10 of the Convention.
1. ECtHR 26 May 2009, Case No. 31475/05, Kenedi v. Hungary. The Court came to the
conclusion that in this case Article 13 (effective remedy) had also been violated since the
Hungarian system did not provide for an effective way of remedying the violation of the
freedom of expression in this situation. The Court found that the procedure available in
Hungary at the time and designed to remedy the violation of Kenedi’s Article 10 rights had
been proven ineffective. There had, therefore, been a violation of Article 13 read in
conjunction with Article 10 of the Convention.
2. ECtHR 25 June 2013, Case No. 48135/06, Youth Initiative for Human Rights v. Serbia.
In another recent judgment on the right of access to public documents

the Strasbourg Court has further clarified and expanded the scope of
application of Article 10 of the Convention. The applicant in this case was an
NGO, the Austrian association for the preservation, strengthening and
creation of an economically sound agricultural and forestry land ownership
(OVESSG). The Court considers that the refusal to give OVESSG access to
the requested documents amounted to an interference with its rights under
Article 10, as the association was involved in the legitimate gathering of
information of public interest with the aim of contributing to public debate.
The unconditional refusal by the Austrian regional authorities to give access
to a series of documents thus made it impossible for OVESSG to carry out its
research and to participate in a meaningful manner in the legislative process
concerning amendments of real property transaction law in the region. The
refusal to give access to the requested documents amounted to a violation of
Article 10 of the Convention.1 The Court’s recognition of the applicability of
the right to freedom of expression and information in matters of access to
official documents is undoubtedly an important new development which
further expands the scope of application of Article 10 of the Convention.2
Final observations and perspectives

Surveying the European Court’s jurisprudence related to Article 10 of
the Convention shows that the Court is securing high standards of freedom of
expression and protection of media and journalists. The Grand Chamber
judgments of 7 February 2012 in Axel Springer AG v. Germany and in Von
Hannover (n° 2) v. Germany,3 the recent findings of violations of Article 10
in several cases of protection of journalistic sources4 and in a series of
1. ECtHR 28 November 2013, Case. No. 39534/07, Österreichische Vereinigung zur Erhaltung,
Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirtschaftlichen
Grundbesitzes v. Austria.
2. See also P. Tiilikka, “Access to Information as a Human Right in the Case Law of the
European Court of Human Rights” Journal of Media Law 5 (2013): 79-103 and the European
Convention on Access to Official Documents, 18 June 2009, CETS nr. 205,
www.conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=205&CM=8&DF=24/09
/2012&CL=ENG.
3. ECtHR Grand Chamber 7 February 2012, Case No. 39954/08, Axel Springer AG v. Germany and
ECtHR 7 February 2012, Case Nos. 40660/08 and 60641/08, Von Hannover (n° 2) v. Germany.
4. ECtHR 15 December 2009, Case No. 821/03, Financial Times Ltd. and Others v. UK; ECtHR
Grand Chamber 14 September 2010, Case No. 38224/03, Sanoma Uitgevers BV v. The
Netherlands; ECtHR 12 April 2012, Case No. 30002/08, Martin and Others v. France; ECtHR
28 June 2012, Case Nos. 15054/07 and 15066/07, Ressiot and Others v. France; ECtHR 22
November 2012, Case No. 39315/06, Telegraaf Media Nederland Landelijke Media N.V. and
Others v. The Netherlands; ECtHR 18 April 2013, Case No. 26419/10, Saint-Paul Luxembourg
S.A. v. Luxembourg and ECtHR 16 July 2013, Case No. 73469/10, Nagla v. Latvia.
38 Dirk Voorhoof
judgments in relation to critical reporting by media and investigative

journalism1 clearly illustrate the awareness of the European Court regarding
the importance of freedom of expression and information in a democratic
society.
Especially the multiple references in the Court’s recent case law to the
danger of a “chilling effect”,2 and its impact on the finding of unjustified
interferences with media and journalists, help to guarantee a higher standard
of freedom of expression and information through the interpretation and the
application of Article 10 of the Convention. In Kaperzy ski v. Poland the
European Court emphasized that it
“must exercise caution when the measures taken or sanctions imposed by
the national authorities are such as to dissuade the press from taking part in a
discussion of matters of legitimate public concern (..). The chilling effect that
the fear of criminal sanctions has on the exercise of journalistic freedom of
1. See ECtHR 12 April 2011, Case No. 4049/08, Conceição Letria v. Portugal; ECtHR 19
April 2011, Case No. 22385/03, Kasabova v. Bulgaria; ECtHR 19 April 2011, Case No.
3316/04, Bozhkov v. Bulgaria; ECtHR 31 May 2011, Case No. 5995/06, Šabanovi v.
Montenegro and Serbia; ECtHR 28 June 2011, Case No. 28439/08, Pinto Coelho v.
Portugal; ECtHR 19 July 2011, Case No. 23954/10, Uj v. Hungary; ECtHR 26 July
2011, Case No. 41262/05, Ringier Axel Springer Slovakia, a.s. v. Slovakia; ECtHR 22
November 2011, Case No. 1723/10, Mizzi v. Malta; ECtHR 10 January 2012, Case No.
34702/07, Standard Verlags GmbH (n° 3) v. Austria; ECtHR 17 January 2012, Case No.
29576/09, Lahtonen v. Finland; ECtHR 21 February 2012, Case Nos. 32131/08 and
41617/08, Tu alp v. Turkey; ECtHR 19 June 2012, Case No. 3490/03, T n soaica v.
Romania; ECtHR 10 July 2012, Case No. 46443/09, Eiðsdóttir v. Iceland; ECtHR 10
July 2012, Case No. 43380/10, Hlynsdóttir v. Iceland; ECtHR 18 September 2012, Case
No. 39660/07, Lewandowska-Malec v. Poland; ECtHR 2 October 2012, Case No.
5126/05, Yordanova and Toshev v. Bulgaria; ECtHR 16 October 2012, Case No.
17446/07, Smolorz v. Poland; ECtHR 23 October 2012, Case No. 19127/06, Jucha and
ak v. Poland; ECtHR 20 November 2012, Case Nos. 36827/06, 36828/06, and
36829/06, Belek v. Turkey; ECtHR 27 November 2012, Case Nos. 13471/05 and
38787/07, Mengi v. Turkey; ECtHR 22 January 2013, Case Nos. 33501/04, 38608/04,
35258/05, and 35618/05, OOO Ivpress and Others v. Russia; ECtHR 12 February 2013,
Case No. 13824/06, Bugan v. Romania; ECtHR 23 July 2013, Case No. 33287/10,
Sampaio e Paiva de Melo v. Portugal; ECtHR 3 September 2013, Case No. 22398/05,
Ümit Bilgiç v. Turkey; ECtHR 17 September 2013, Case No. 16812/11, Welsh and Silva
Canha v. Portugal; ECtHR 22 October 2013, Case No. 11867/09, Soltész v. Slovakia;
ECtHR 29 October 2013, Case No. 66456/09, Ristamäki and Korvola v. Finland; ECtHR
3 December 2013, Case No. 64520/10, Ungváry and Irodalom Kft. v. Hongary; ECtHR 7
January 2014, Cases Nos. 21666/09 and 37986/09, Ringier Axel Springer Slovakia, a.s.
(No. 2-3) v. Slovakia and ECtHR 17 April 2014, Case No. 20981/10, Mladina d.d.
Ljubljana v. Slovenia.
2. E.g., when criminal law is applied to prosecute and sanction journalists while reporting on
matters of public interest, or in cases of prior restraint or when severe sanctions are imposed
on media of journalists, or when journalists are prohibited no longer to exercise their
profession.
expression is evident. . . . This effect, which works to the detriment of society

as a whole, is likewise a factor which goes to the proportionality, and thus the
justification, of the sanctions imposed on media professionals”.1
In Cump n and Maz re v. Romania (Grand Chamber 17 December
2004) the Court made clear that, although sentencing is in principle a matter
for the national courts, the imposition of a prison sentence for a press offence
is incompatible with the right to freedom of expression as guaranteed by
Article 10 of the Convention. Only in exceptional circumstances, notably
where other fundamental rights have been seriously impaired, as, for
example, in the case of hate speech or incitement to violence, a conviction to
imprisonment can eventually be justified. The Court observed that
“investigative journalists are liable to be inhibited from reporting on
matters of general public interest – such as suspected irregularities in the
award of public contracts to commercial entities – if they run the risk, as one
of the standard sanctions imposable for unjustified attacks on the reputation
of private individuals, of being sentenced to imprisonment or to a prohibition
on the exercise of their profession. The chilling effect that the fear of such
sanctions has on the exercise of journalistic freedom of expression is
evident”.2
Since Cump n and Maz re v. Romania the European Court, at several
occasions3 held that prison sentences for defamation cannot be justified under
Article 10, where the defamatory statements concern a matter of public
interest. This rule against prison sentences includes pardoned, suspended, or
conditional sentences, effectively removing from European legislatures and
courts the ability to impose such sentences in defamation cases to be situated
in public debate or political expression.4
The references to the “chilling effect”, the broadening of the scope of
application of Article 10 including acts of investigative journalism, protection
of sources, whistle-blowing and access to public documents and the strict
1. ECtHR 3 April 2012, Case No. 43206/07, Kaperzy ski v. Poland.

2. ECtHR Grand Chamber 17 December 2004, Case No. 33348/96, Cump n and Maz re v.
Romania.
3. See recently ECtHR 24 September 2013, Case No. 43612/02, Belpietro v. Italy.
4. ECtHR 18 December 2008, Case No. 35877/04, Mahmudov and Agazade v. Azerbaijan;
ECtHR 22 April 2010, Case No. 40984/07, Fattulayev v. Azerbaijan; ECtHR 6 July 2010,
Case No. 37751/07, Mariapori v. Finland; ECtHR 31 May 2011, Case No. 9559/06,
Šabanovi v. Montenegro and Serbia and ECtHR 24 September 2013, Case No. 43612/02,
Belpietro v. Italy. See also ECtHR 8 October 2013, Case No. 30210/06, Ricci v. Italy and
Parliamentary Assembly of the Council of Europe, Resolution 1577 (2007): Towards
decriminalization of defamation, http://assembly.coe.int/main.asp?Link=/documents/
adoptedtext/ta07/eres1577.htm.
40 Dirk Voorhoof
scrutiny of the pertinent and sufficient reasons for proportionate interferences

with the right to freedom of expression and information, have undoubtedly
helped to upgrade the level of protection of free speech, journalism and
media reporting in Europe.
The analysis of the Court’s case law has also demonstrated how the
European Court has developed finding a balance with the “duties and
responsibilities” justifying interferences, restrictions and sanctions, as freedom
of expression is also to respect the fundamental interests of society and the
rights of others. Too often however, member states have interfered in the rights
of citizens, journalists, media and NGO’s in a disproportionate way, e.g. by
means of injunctions, confiscations, criminal prosecutions and sentences to
imprisonment of citizens, activists or journalists, without sufficient or pertinent
reasons. The decisive condition formulated in Article 10(2) ECHR that any
interference with the right to freedom of expression and information must be
justified as being “necessary in a democratic society” has proofed to be a very
important, if not crucial condition to be fulfilled in order to guarantee freedom
of expression and information against unjustified or overbroad interferences by
public authorities. The Court’s case law has also clarified however that there is
still a margin, even a need for justified and proportionate limitations,
restrictions and sanctions, such as those related to hate speech, privacy,
protection of confidential information and libel or defamation.
The challenge for the future is to bring more European Convention
member states in line with the European Court’s case law and to inspire,
influence or persuade other states and regions in the world to upgrade the
freedom of expression of its citizens, to protect the freedom of newsgathering
and independent and critical reporting by journalists and NGOs and to create
more access to information and transparency on matters of interest for
society. Protecting and effectively guaranteeing these rights, but also
confronting the users with their “duties and responsibilities”, is a crucial step
toward developing the quality of democracy, stimulating diversity and
tolerance, guaranteeing the respect for human rights and ultimately helping to
realize a more sustainable and a better world to live in.
Discourse Analysis of Domination of
the Global Human Rights
Nasrin Mosaffa1
Vahid Ghorbani2
In this article, we are attempting to answer the question of how
the Global Human Rights as an idea which is in accordance with
common sense took shape. The conceptual and theoretical
framework and research method of this exploration is based on
discourse analysis and in step with Laclu and Mouffe' s agenda.
Therefore, phenomenon of Human Rights in the present analysis is
thought of as a discourse. This discourse, granted temporary
stability to central signs such as human dignity, liberty, equality,
tolerance that their meanings were being fluctuated in World War
II, around nodal point of “Human Rights” and has been dominated
in the agenda of International Politics. This discourse, of course
was validated by exclusion and rejection of other means of these
signs. The ultimate goal of this study is to show the contingent and
the historical of phenomenon of Human Rights.
Keywords: discourse analysis, human rights, human dignity, liberty,
equality, tolerance
1. Associate Professor of International Relations, University of Tehran

Email: [email protected]
2. A Student of International Relations at Tehran University
Sovereignty of States and International Law Documents:
Impressing or Impressed?
Heybatullah Najandi Manesh1

Seyyed Ali Husseini Azad2
Masoud Ahsan Nejad3
Sovereign States which originally were the sole actors in
international society, in the course of the humanization of
international law have been submitted to some commitments which
are mostly of human rights nature. Such development faded out the
role of sovereign States. This submission has been formed because of
several factors. At the top of these factors emergence and
development of human rights instruments is of high significance. On
the other hand, application of these instruments and therein norms
requires sovereign power which is essential for the execution of these
instruments.
This article focuses on this point and tried to answer this question
that to what extent the human rights instruments have decreased the
absolute sovereignty of States and on the other hand how and to what
degree the existence and continuation of the power of States
contribute to the realization of human rights norms.
Stating the point that the human rights instruments could decrease the
power of States, this article deals with the contribution of sovereignty
to emergence and continuation and sanction of human rights norms.
Keywords: sovereignty, human rights instruments, human
rights, respect and application of human rights norms
1. Assistant professor of the faculty of Law and Political Sciences, Allame Tabataba'
i University
2. A PhD student of International Law, Islamic Azad University
3. A MA graduate of International Law, Allame Tabataba' i University
Religion and Thick / Thin Human Rights
Seyyed Sadegh Haghighat1
Communitarians as the critics of liberalism involve a spectrum
from the left (such as A. McIntyre) to the right (such as M. Walzer).
They are Concentrated on some concepts such as "self", "tradition"
and "particularism". One of their critiques in ethics and human rights
is that these two spheres should be enriched by culture and tradition.
For this reason, they consider liberalism as a school of thought which
believes in thin human rights. It seems that religious and Islamic point
of view is closer to communitarianism than liberalism.
Keywords: communitarianism, liberalism, thick human rights,
thin human rights, religion, self, particularism, universalism
1. Associate professor of Political Sciences, Mofid University

Email: [email protected] & www.s-haghighat.ir
The Sovereignty of God and Sovereignty of People in
Iran's Constitution
Mahmoud Shafi'i 1
Sovereignty of God and sovereignty of people in the Constitution
are not contradictory but it is a two-sided sovereignty, implemented
by people through both establishing a political system and every day
public life without violating the limited eternal and general religious
laws. Hence, the source of popular sovereignty in the Constitution of
Islamic Republic is different from the source of sovereignty in both
secular and traditional theocratic political systems. In the secular
system, sovereignty belongs to people and is implemented by them
regardless of God' s sovereignty and God' s laws and in the theocratic
system; God' s sovereignty is realized unilaterally, regardless of
people' s will, by a person who is the direct deputy of God on the earth.
Although legitimacy in Islamic republic has two sources, but they are
so interpenetrated with each other that realization of each one relies on
the other. Because of natural as well as legal god-given freedom of
human beings, they can realize their sovereignty on the earth within
the framework of God' s general ordinances. In return, the sovereignty
of God is implemented on the earth only by human being' s free will.
Keywords: sovereignty of God, sovereignty of people, two-sided
sovereignty, Iran's Constitution, fundamental freedom
1. Assistant Professor of Political Sciences, Mofid University

The Universal Islamic Declaration
on Human Rights and the Problem of Inequalities
Seyyed Hassan Eslami1

The Universal Islamic Declaration on Human Rights (the UIDHR)
is the most important official replication to the Universal Declaration
of Human Rights (the UDHR) by Islamic countries, and based on that,
it has been attempted to provide a declaration containing the benefits
of the UDHR and at the same time devoid of its faults. However, a
detailed study of the UIDHR makes us uncertain in achieving these
objectives. In this study, after a brief introduction of the history and
development of the provisions of the UIDHR, incompatible cases with
the provisions of the UDHR are reported, some inequalities of rights
are recognized and arguments in favor of it are mentioned, interpreted
and analyzed. It appears that the UIDHR, as an universal document,
which seeks to ensure human rights, carries three major drawbacks;
first, implicit approval of some of inequalities of rights between men
and women based on gender and religion; second, fluid and variable
interpretative sources; third, lack of sanction. These three problems
have diminished the reputation of this declaration and changed it to a
number of non-binding ethical recommendations.
Keywords: the Universal Islamic Declaration on Human Rights
(UIDHR), Human Rights, equality of rights between men and
women, Islamic Law, conversion of religion, Organization of the
Islamic Cooperation (OIC)
1. Assistant Professor at University of Religions and Denominations

Justifying Reasons for Giving Employment Priorities to
Isargaran1 and Veterans in Iranian and American Law
Ali Akbar Gorji Azandaryani2
Younes Fathi3
Alireza Zare' Shahneh4
Equality is one of the principles and fundamental rights of human being.
There has been lots of talk about equality and justice, but the legal aspect of
this principle is still under dispute. Human beings are born equal, so their life
has an equal moral value. This principle, along with prohibiting
discrimination and bias rejection, has a great impact in the legislative and
administrative decisions and is accepted in the Constitution and international
norms. But here the important point in this matter is a formation of a paradox
in the concept of the principle of equality in today' s law. There is a kind of
discrimination in the legal and social relationship, within the quest for
equality. Privileges that granted to soldiers returning from war and their
descendants is an issue that arises during or immediately after every war and
because of its discriminatory nature becomes a controversial matter at first
glance, and there are widespread opinions regarding this issue. In this article,
we try to examine justifying reasons for giving employment priorities to
veterans based on the theory of permissible discrimination and equality and
to allude to isargaran and veterans'employment priority in Iran and the
United States law. Therefore, at first, we examine the theoretical discussions
and preference of veterans in America' s law. In the next part, in the light of
the findings of the first part, veterans and isargaran employment preference
will be debated in the United States and Iran' s judicial system. Discussing this
privilege, we conclude that this privilege is granted to veterans and isargaran
according to the theory of permissible discrimination and equality and none
of these theories is completely accepted by the legislature of Iran and
America and various theories have been used according to time and place.
Keywords: equality, positive decimation, Undue discrimination,
isargaran, employment priority, meritocracy, veterans
1. Isar is the Arabic word for altruism and, in the Iranian context, isargaran (plural of isargar) has
fairly specific connotations. "Isargari technically means giving selflessly and isargar refers to
someone who gives selflessly to a sacred cause, but now it has been adopted for a specific
meaning, namely somebody who has sacrificed in the name of the Islamic revolution.
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The European Convention on Human Rights: The Right to Freedom of

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of state security, public order, the protection of confidential or secret information,

restrictions of freedom of expression were determined by parliaments,

has further extended the scope of the right to freedom of expression in

Convention has become a crucial instrument to motivate, to stimulate or

1. “Duties and responsibilities” as justification for interferences with the

1. See F. Schauer , “The Exceptional First Amendment”, SSRN: 2005, http://ssrn.com/abstract=

freedoms. This means that Article 10 has to be interpreted from a perspective

1.1. Incitement to violence, hatred, discrimination or terrorism

hatred and violence or glorification of terrorism.1

1. ECtHR (Decision) 16 November 2004, Case No. 23131/03, Norwood v. UK.

the Court evaluates expressions that incite to violation, hatred or

have been considered by the Court as necessary in a democratic society.1

exercise of the right to openly discuss questions of a sensitive and

1.2. Religion and morals

has accepted a broad margin of appreciation by the member states, accepting

The Court recognised

was intended to provide protection against offensive attacks on matters

1.3. Secret and confidential information

1. ECtHR 13 September 2005, Case No. 42571/98, I.A. v. Turkey.

There is no violation of Article 8 however, or a conviction of media or

1.5. Defamation without sufficient factual basis

national authorities as not being in breach with Article 10 of the Convention.1

protected.1 The Court at several occasions accepted that value judgments,

required to be proven.1 Media applying the standards of journalistic ethics or

1.6. Is the Court widening the “margin of appreciation”?

regarding the actual level of protection of press freedom in Europe.1 The

A dissenting opinion in another case is very illustrative in this context.

majority of the judges accepts that a total ban on political advertising on

freedom of expression through his arrest, detention, prosecution and conviction

2. The scope of freedom of expression: recent developments in the

2.1. Media as public watchdog and the role of NGOs

information unlawfully may in certain circumstances outweigh those of an

interest such as health and the environment”.1 In a democratic society public

2.2. Protection of whistle-blowers

Therefore it is recommended that member States should have in place:

states in Europe. Recommendation CM/Rec(2014)7 of 30 April 2014 to the

2.3. Protection of journalistic sources

1.Committee of Ministers, Recommendation CM/Rec(2014)7 on the protection of whistle-

perspective. On several occasions, the European Court was of the opinion

2.4. Toward a Right of Access to Official Documents

enforce his access to documents concerning the Hungarian secret services.

In another recent judgment on the right of access to public documents

Final observations and perspectives

judgments in relation to critical reporting by media and investigative

expression is evident. . . . This effect, which works to the detriment of society

1. ECtHR 3 April 2012, Case No. 43206/07, Kaperzy ski v. Poland.

scrutiny of the pertinent and sufficient reasons for proportionate interferences

1. Associate Professor of International Relations, University of Tehran

Heybatullah Najandi Manesh1

1. Associate professor of Political Sciences, Mofid University

1. Assistant Professor of Political Sciences, Mofid University

Seyyed Hassan Eslami1

1. Assistant Professor at University of Religions and Denominations