Some commentary on recent case law of the Strasbourg Court relating to freedom of expression, media and journalism might give the impression that the Court of Human Rights has lost direction. This impression would be misleading.
Consideration of a case law over period of more than 35 years shows that the Court has created a wide range of protections for freedom of expression, journalistic freedom, freedom of the media and public debate in the member states of the Convention.
There can be no doubt that Article 10 of the European Convention on Human Rights as interpreted by the Court in Strasbourg has substantially contributed to a higher level of protection of freedom of expression in addition to the constitutional protection in the member states and complementary to other international treaties protecting freedom of expression and information.
Three Recent Examples
In a judgment of 25 June 2013 in the case of Youth Initiative for Human Rights v. Serbia (25 June 2013), for instance, the Court of Human Rights has reaffirmed the importance of NGOs acting in the public interest : “when a non-governmental organisation is involved in matters of public interest, such as the present applicant, it is exercising a role as a public watchdog of similar importance to that of the press”.
In Ahmet Yildirim v. Turkey (18 December 2012) the Court explicitly recognised the right of individuals to access the internet. In its ruling against the wholesale blocking of online content (on Google Sites), it asserted that the internet has now become one of the principal means of exercising the right to freedom of expression and information.
In Bucur and Thoma v. Romania (8 January 2013) the Court considered that the general interest in the disclosure of information revealing illegal activities within Intelligence Services was so important in a democratic society that it prevailed over the interest in maintaining public confidence in the security and intelligence services. The Court emphasised 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. Therefore the Court found that the sanction against the whistleblower who informed the media about the illegal activities by intelligence services in his country amounted to a violation of Article 10.
Europe’s First Amendment
Article 10 of the Convention – Europe’s “First Amendment” – has become a crucial instrument to stimulate and if need be to compel the national authorities of the 47 member states not only to abstain from interferences restricting media freedom and investigative journalism, but also to promote transparency, media pluralism and internet freedom.
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). The effects can, for example, been seen in the Baltic states (Estonia, Lithuania and Latvia), the Czech Republic, Slovakia and Slovenia.
But the influence has also been felt in countries that already had a longstanding constitutional and democratic traditions. 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, whistleblowing, access to public documents, media pluralism and internet freedom.
In other Council of Europe member states with less solid democratic institutions or with growing pains towards democracy, press freedom and freedom of (political) expression is still a very problematic issue, such as in Turkey, Azerbaijan, Russia, Georgia, Armenia, Moldova, Serbia, Ukraine and Hungary.
The practical and effective impact of Article 10 still differs from one member state to another, which by itself is an indication of the somewhat weak enforcement instruments of the Convention and of the very different levels of development of democracy and respect for human rights in the Convention’s member states.
These issues are explored in more detail in The Right to Freedom of Expression and Information under the European Human Rights System: Towards a more Transparent Democratic Society, paper published in the series of Working Papers at the European University Institute’s Centre for Media Pluralism and Media Freedom (EUI Working Paper, RSCAS 2014/12). This considers the characteristics and developments of the European Court’s case law focussing on participation in public debate, internet freedom, investigative journalism, newsgathering, whistleblowing and access to information. 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.
Dirk Voorhoof is professor at Ghent University (Belgium) and lectures European Media Law at Copenhagen University (Denmark). He is also a Member of the Flemish Regulator for the Media and of the Human Rights Centre at Ghent University.