The digital space is a powerful enabler for more inclusive democratic discourse, participation and policy-making. At the same time, digitisation comes with new challenges. The abundance of data in the online space and powerful algorithm-based technologies pose serious risks to privacy, as well as to other interrelated human rights. The trans-border nature of the Internet itself presents significant legislative and judicial challenges for existing legal and institutional frameworks. This book follows on from the June 2019 seminar paying tribute to the outstanding contribution of Lawrence Early, Jurisconsult of the European Court of Human Rights, as he was about to retire. The seminar brought together members of the judiciary and prominent legal practitioners and academics, as well as representatives of European institutions and non-governmental organisations. Speakers from different legal systems and jurisdictions exchanged views on the ways to address the complexity that protection of human rights online presents for the judiciary. The seminar focused on three major subjects: judicial protection of freedom of expression and the right to privacy in the digital environment; the concept of jurisdiction in the World Wide Web; and the implications of Big Data. Given the breadth and significance of the issues arising in this complex, technical and fast-evolving area, the publication of these keynote contributions will undoubtedly inform further reflection on these matters by judges, legislators, experts and, perhaps most importantly, the general public.
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THE DIGITAL AGE:
In honour of Lawrence Early
Sir Nicolas Bratza
Bertrand de la Chapelle
Nico van Eijk
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This book follows on from a seminar which took place on 28 June 2019 in Strasbourg to honour the outstanding achievements of Lawrence Early, Jurisconsult of the European Court of Human Rights, on the occasion of his retirement. Most of the contributions are expanded versions of panel interventions made during the event.
The seminar was organised by the European Court of Human Rights in conjunction with the Directorate General Human Rights and Rule of Law (Council of Europe).
Former Deputy Registrar of the European Court of Human Rights
The Editor-in-Chief would like to thank all of the contributors for the sterling efforts that they made to enable this book to be published so soon after the seminar. He would also like to thank the sponsors for their enthusiastic support.
Finally, he would like to thank the Directorate of the Jurisconsult and in particular Leif Berg, Head of its Case-Law Information and Publications Division, his assistant Mireille Moegling and editors Rebecca Bastier, Ioulia Iankova and Jane Swift for their invaluable assistance.
Organising Committee for the seminar
Stefano Piedimonte Bodini
Ministry for Foreign Affairs of Finland
Directorate General Human Rights and Rule of Law (Council of Europe)
Lawrence Early, former Jurisconsultof the European Court of Human Rights
SirNicolas Bratza QC, formerPresident of theEuropean Court of Human Rights
This volume contains the fruits of a fascinating seminar held at the European Court of Human Rights on 28 June 2019. The title of the seminar was “Human Rights Challenges in the Digital Age: Judicial Perspectives” and the event brought together outstanding speakers and panelists drawn from the international judiciary, from the academic world and from the ranks of experts in the field of media law and data protection.
The seminar was held to mark the retirement from the Strasbourg Court of Lawrence Early after 23 years as a member of the Registry of the Court, old and new, and, since March 2013, as the Court’s Jurisconsult.
The subject matter of the seminar could not have been a more fitting one to celebrate the exceptional career of someone in whose professional life media law, data protection and human rights had played such an important role. After starting his career as a member of the Northern Irish Bar and as a lecturer in law at the University of Sheffield, Lawrence Early joined the Council of Europe in 1982 as a lawyer in the Directorate of Legal Affairs, with the responsibility, among others, of drafting legal instruments and opinions on data protection, privacy and access to information. In 1991 he became the Head of the Media Law Section of the Directorate of Human Rights, a position he held for some five years. In that post his roles included the management of intergovernmental activities in the area of media law and policy and advising the new democracies on their press, broadcasting and journalism legislation in the light of the standards set by the European Convention on Human Rights and the Court’s case law.
In 1996 Lawrence joined the former Court as Head of a Legal Division. In 2001, he became Deputy Registrar of the Fourth Section of the new Court and in 2004 was appointed as Deputy Grand Chamber Registrar, a post in which he was responsible not only for ensuring the processing and quality checking of draft judgments submitted to the Grand Chamber and advising the Grand Chamber on matters of case law and procedure but also for managing the Court’s Research and Library Division.
In 2006 Lawrence was appointed as Registrar of the Fourth Section of the Court, a post he was to hold until his appointment as Jurisconsult. As someone who had the privilege of presiding in the Section for five of those years, it is difficult to overstate the contribution made by Lawrence to the work of the Section and to the Court as a whole. His considerable management skills, combined with a fine legal intelligence and detailed knowledge of Court procedures made him a priceless asset for the work of the Section. He had a prodigious capacity for work, being the last to leave the Court in the evening, clutching his familiar black brief case, stuffed to bursting point with cases on which he intended to work overnight. He also had an encyclopedic knowledge of the Court’s case law, with an uncanny ability to recall cases, sometimes long forgotten, which could provide guidance on the issues to be decided. Listening to Lawrence at weekly meetings discussing the cases that were to be deliberated by the Section the following day was like attending a masterclass on the Court’s jurisprudence. The authority with which he spoke about cases was always allied with characteristic courtesy, modesty and humour.
At the Section meetings themselves, Lawrence was an immensely reassuring presence. His deep knowledge of the Court’s case law, both substantive and procedural, proved invaluable. On some occasions he would offer wise counsel as to how the jurisprudence might be developed to advantage; on other occasions, he would offer suggestions as to how to resolve inconsistencies with what was proposed in other Sections, all of whose drafts he had meticulously read; on still other occasions, Lawrence would gently but firmly nudge the discussion back on track where he felt that the Court’s jurisprudence would go astray if a certain line of argument were to be followed. He remained however utterly loyal to the final decision of the Section even if the result reached was one with which he personally disagreed. A draftsman of the highest quality, he could invariably be relied on to refashion sentences and phrases in a draft judgment or decision which were clumsy or unclear so as to render them models of simplicity and elegance.
Outside the Section meetings themselves, Lawrence’s contribution to the work of the Court was of inestimable value. Generous and patient to a fault, his door was quite literally always open to provide advice and assistance, whether to judges, members of the Registry or representatives of the parties, all of whom beat a regular path to his office. Although his days were invariably full, Lawrence never gave the impression that one was imposing on his time, even if the case or matter on which his help or guidance was sought was one in which he was not directly involved. He remained in particular a constant source of support and encouragement for the more junior members of the Registry, whose pleasure in working under Lawrence was palpable.
But it was his achievements as Jurisconsult of the Court that the seminar was principally designed to honour. The post of Jurisconsult was first created in 2001, with the primary responsibility of ensuring the consistency and quality of the case law of the new Court, providing high-quality research on Convention, comparative and international law and ensuring knowledge of the case law within the Court itself and its dissemination beyond the Court. With his unique experience and knowledge of the case law and his management and diplomatic skills, Lawrence was an obvious choice for the post. As the Registrar of the Court put it in his speech at the conclusion of the seminar, “the vacancy notice could have been written for Lawrence” at a time in its history when the Court’s output was continually expanding and when the Court’s case law was increasingly accompanied by calls for greater clarity and consistency. It was a role that Lawrence was to fill with the utmost distinction. His masterly and witty presentation of case law developments and conflicts was a highlight of the weekly Registrars’ meetings and was, according to informed sources, guaranteed to enliven even the most mundane discussion.
Supported by an outstanding team of senior lawyers from different Divisions of the Court, the Jurisconsult service, with Lawrence at its helm, has grown in both importance and prominence to become a key and indispensable service within the Court, its influence extending well beyond the confines of the Court itself. One of the major innovations during Lawrence’s tenure has been the setting-up and expansion of the Superior Courts Network, designed to foster closer dialogue between the Court and national courts of Contracting States in their shared responsibility to protect Convention rights. The Network facilitates, through the Focal Points established in the respective courts, an exchange of information on recent decisions and judgments. It not only confers on higher courts that are parties to the Network privileged access to analyses, notes and other material on recent judgments of the Strasbourg Court, as well as research reports on a range of Convention matters, but provides the Strasbourg Court itself with a valuable source of information about domestic law and practice. In its short existence since it came into being in 2017, the Network has already established itself as a central feature of the Court’s armoury, some 82 superior courts from all parts of Europe having to date become its members. The success of the Network, established under Lawrence’s stewardship, may prove to be one of his most enduring legacies to the Court.
So far as the Strasbourg Court is concerned, it is no exaggeration to say (with apologies to Voltaire) “si Lawrence Early n’existait pas, il faudrait l’inventer”. At the seminar in his honour the Registrar of the Court expressed it somewhat differently when he spoke for all in the Court in summing up Lawrence’s contribution to its work: “He is one of the historic figures of the Registry and his departure will be felt by many as the end of an era. He represents a style of management that is seen as profoundly decent and fair and he is viewed with affection and esteem in equal measure by all who worked with him.”
But, as was also said at the seminar, “there is more to Lawrence than that”. A strong family man, his interests outside the professional sphere remain many and varied. His passion for, and knowledge of, modern literature and Irish poetry has always been matched by a broad range of interests, from football to theatre (the annual Edinburgh Festival fringe theatre being a particular favourite), from opera to pop music (especially that of the 1960s), from travel to cinema (including the films of Alfred Hitchcock, of whose work he is a special admirer). Among his manifold qualities, Lawrence’s common touch and his gift for friendship must rank very highly, every encounter with him being marked with a generosity of spirit and imbued with a gentle, if sometimes mischievous, sense of humour. No Court event will ever be quite the same without Lawrence and Jane, whose warmth, kindness and good humour have endeared them to a legion of friends and admirers within the Court and beyond.
What of the future, now that Lawrence is released from the burdens of office in the Court? An anecdote from 2012 may perhaps provide an answer. At a Section dinner, those present were invited to state whether they had any unfulfilled ambition, assuming that time, place, money and even talent provided no obstacle. The answers were as surprising as they were varied and included such careers as a fire fighter and a rock star. Lawrence ventured the thought that he would like to have been a journalist in New York. While certain of the other careers suggested at the dinner may by now be out of reach, who is to say that we will not one day be able to read Lawrence’s letters from America in the digital age?
ChristosGiakoumopoulos, DirectorGeneral, DirectorateGeneral Human Rights and Ruleof Law, Councilof Europe
Over the past ten years we have witnessed major global developments in the online environment that carry with them real “offline” consequences. Digital technologies today constitute serious challenges, such as: risks to privacy due to massive and uncontrolled data processing; the uncontrollable spread of hate messages and other abusive forms of expression online; new forms of cybercrime and child sexual abuse; or the use of the Internet for terrorist purposes and for sowing distrust and fear. However, digital technologies can also be used for good purposes; they can help expand our rights and protect us, for example from profiling and censorship.
In this highly complex context, where privacy rights are often directly confronted with national-security considerations, and where legitimate efforts to combat illegal content online can produce dramatic negative effects on freedom of expression, the risks for human rights are particularly high.
States as guarantors of human rights within their jurisdiction, are challenged by the complex and trans-border nature of the Internet and are pressured to look for workable solutions, including by introducing/ updating their relevant legislation and, at the level of domestic courts, by addressing the new challenges through judicial interpretation.
The core issue lies, however, in the fact that traditional management models hardly withstand the pressure from a rapidly changing world. New approaches are needed, such as the co-regulatory approach consistently promoted by the Council of Europe, to address without delay the constantly evolving challenges. At the same time, hasty or unbalanced responses may result in violations of individual human rights or in negative effects for whole groups and communities.
In these times of turbulent digital transition, our common values must serve as our foothold. It is crucially important that existing international instruments, that our landmark instrument, the European Convention for the Protection of Human Rights and Fundamental Freedoms, is complied with, both online and offline. It remains applicable and highly relevant irrespective of contextual changes brought about by technological development.
Countries that have committed to protect and promote human rights – all Council of Europe Member States – must shape their digital-related policies to ensure that they do not interfere inappropriately with human rights, and that legislative and regulatory frameworks are created that foster the best possible enjoyment of human rights. They must ensure that effective remedies are in place, and that relevant institutions, the judiciary first and foremost, are well prepared and properly equipped to understand and address effectively the complexity of human rights issues stemming from the online environment. Assisting its Member States in this challenging task is a high priority at the moment for the Council of Europe.
Only in the past three years have we developed a set of important guidelines and standards addressing the most pressing issues: the Guidelines on the protection of individuals with regard to the processing of personal data in a world of Big Data (2017)1 seek to ensure that when Big Data involves the processing of personal data, each of us is in a position to exercise our personal autonomy and our right to control our data; the Recommendation CM/Rec (2018) 22 on the roles and responsibilities of Internet intermediaries addresses the challenge of shaping a rule of law-based relationship between State authorities and intermediaries and their respective human rights obligations and responsibilities; the Committee of Ministers Declaration on the manipulative capabilities of algorithmic processes (13 February 2019), seeks to raise awareness about the dangers for democratic societies that emanate from the possibility of employing these technologies to manipulate and control not only economic choices but also social and political behaviours.
We are currently preparing a Recommendation on the human rights impacts of algorithmic systems that will provide concrete guidance to States in their roles as users, procurers and regulators of algorithms, and to private sector players on concrete issues such as how datasets should be managed, how data processing infrastructure should be developed, or how algorithms should be modelled and tested. Most importantly, as recently decided by the Committee of Ministers, Member States’ representatives will start examining, on the basis of broad multi-stakeholder consultations, the feasibility and potential elements of a legal framework for the development, design and application of artificial intelligence, based on the Council of Europe’s standards on human rights, democracy and the rule of law.
These standards can guide Council of Europe Member States in shaping their Internet-related policies. But already now, we must ensure that any adverse impact on human rights is remediable. Courts have a crucial role in ensuring redress for those who have experienced adverse effects, accountability for those who are responsible, and preventing such harms from recurring. Thus far, a clear template for the involvement of courts and other independent bodies in identifying and remedying rights violations stemming from digital technologies is missing. This seminar was intended to provide an opportunity to explore the ways to better secure the protection of human rights online, address current challenges facing the judiciary, and examine the role of the courts in mapping the way forward in a human rights compliant manner.
DirkVoorhoof, HumanRights Centre, Ghent University and LegalHuman Academy
This chapter explores and analyses how the European Court of Human Rights (ECtHR) has applied and integrated basic principles on the right to freedom of expression in the digital environment, while reflecting the technology’s specific features and particular nature of the Internet. It also attempts to clarify where the European Court has put the cursor and which guiding principles it has developed in some important areas of online freedom of expression and information, applying Article 10 ECHR. A search on Hudoc, the database of the ECtHR1, combining the key words “freedom of expression” and “Internet” selects 177 judgments, and 54 (mostly inadmissibility) decisions.2 More than 50 cases on Internet and free speech are in the pipeline, as communicated cases. The ECtHR is perceived as “the most important interpreter of human rights standards in Europe” and regarded as “influential far beyond the confines of its territorial jurisdiction”.3 Its case law on the right to freedom of expression in the digital age is assumed to offer guiding and binding principles with regard to the protection and limitations of this crucial right in a democratic society.4 The jurisprudence of the last 15 years shows how the ECtHR has been confronted with new dimensions, applications and liabilities in relation to the “duties and responsibilities” following from the exercise of the right to freedom of expression on the Internet.5 Especially since Ahmet Yildirim v. Turkey6, on the blocking of Google Sites, and the Grand Chamber judgment in Delfi AS v. Estonia7 regarding an Internet news platform’s liability for user-generated content, there is an increasing amount of cases dealing with interesting and challenging aspects of freedom of expression and information on the Internet.
While the ECtHR applied its standard case law finding that interferences with Internet content related to child pornography, explicit sexual content accessible for minors, copyright infringements and “hate speech” were necessary in a democratic society, the Court in a few other domains found violations of Article 10 ECHR, taking into consideration some Internet-specific features. These cases are concentrated around four clusters: (1) the blocking of websites and of social networking accounts (2) interferences with radical, extremist or offensive online content (3) the liability of online media platforms for user-generated content and for hyperlinks and (4) the impact of bulk interception of online communications on the right to freedom of expression. The Court’s jurisprudence situated in those four clusters of cases demonstrates how the ECtHR has helped to create a higher level of guaranteeing the right to freedom of expression in the online environment, “overruling” (the application of) provisions of national law curtailing in an arbitrary, unnecessary or disproportionate way the right protected under Article 10 ECHR.
The first judgment in which a reference to the Internet was part of the Court’s reasoning was in Éditions Plon v. France, on 18 May 2004.8 The case concerns an injunction prohibiting the distribution of the book Le Grand Secret, in which confidential medical information about the illness of the late president Mitterrand was disclosed. With regard to the order to maintain indefinitely the ban on the distribution of the book, more than nine months after Mitterrand’s death, the ECtHR observed inter alia that the book, of which about 40,000 copies had been sold, “had [also] been disseminated on the Internet and had been the subject of considerable media comment”. Accordingly, the information in the book was to a large extent no longer confidential in practice, and the preservation of medical confidentiality could no longer constitute an overriding requirement to uphold the injunction.9 The availability of confidential medical information on the Internet was referred to as an argument, amongst others, in favour of protecting the right to freedom of expression of the book’s publisher, even if the information at issue, in the book and on the Internet, had a negative impact on the confidentiality of medical information and on the right to privacy of the deceased president and his family. Some years later, in Aleksey Ovchinnikov v. Russia the Court clarified that in certain circumstances a restriction on reproducing information that has already entered the public domain – as it “had been widely discussed in the press and on the Internet” – may be justified, for example to prevent further airing of the details of an individual’s private life which do not come within the scope of any political or public debate on a matter of general importance.10
The first cases on freedom of expression in which the Internet played a more prominent role concerned explicit sexual content. Both in the case of Perrin v. the United Kingdom and in Pay v. the United Kingdom the ECtHR saw no reason to disregard the government’s arguments for upholding the justification of the interferences with the applicants’ posting of sexual explicit material on the Internet.11 In Perrin the ECtHR emphasised “that the web page in respect of which the applicant was convicted was freely available to anyone surfing the Internet and that, in any event, the material was... the very type of material which might be sought out by young persons whom the national authorities were trying to protect”. It also observed that the obscene material was available on the free preview page of the applicant’s website, “where there were no age checks”. In K.U.v. Finland a 12-year-old minor had been the subject of an advertisement of a sexual nature on an Internet dating site.12 Although the act was criminal and made the minor a target for approaches by paedophiles, the identity of the person who had placed the advertisement could not be obtained from the Internet service provider due to the legislation in place at the time in Finland. The ECtHR recognised that “freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and Internet services must have a guarantee that their own privacy and freedom of expression will be respected”. However, the Court emphasised that “such guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others”. Furthermore, the ECtHR expressed the expectation that, on the basis of Article 8 ECHR (right to private life), Member States should put in place “a system to protect child victims from being exposed as targets for paedophiliac approaches via the Internet”. According to the Court it was well-known that the Internet, precisely because of its anonymous character, could be used for criminal purposes such as those related to child sexual abuse. In cases related to sexual material and paedophiliac announcements on the Internet, the ECtHR referred explicitly to some specific characteristics of and risks or dangers in the Internet environment in order to strengthen the justification of the interferences at issue with the right to freedom of expression.
In K.U. v. Finland, cited above, the protection of minors against paedophiliac approaches justified limitations on the right to freedom of expression, and related anonymity rights13, while in the case of Karttunen v. Finland the ECtHR confirmed the justification of the criminal sanction for the possession, reproduction and public display of child pornography, downloaded from the Internet, in the context of artistic expression.14 Although the artist’s intention was not to commit a criminal act but to criticise easy Internet access to child pornography, possessing and distributing sexually obscene pictures depicting children was still an act subject to criminal liability that necessitated a proportionate interference with the applicant’s right to freedom of expression.
In the case of Times Newspapers Ltd v. the United Kingdom15, the ECtHR dealt in a more comprehensive way with freedom of expression in the digital environment, elaborating on some general principles on access to news and information and on specific features of the Internet. The Court’s approach illustrates that characteristics of newspapers’ Internet archives and the kind of specific interference with Internet content, can have an influence on the outcome of the finding of a (non) violation of Article 10 ECHR. The judgment in Times Newspapers Ltd observed the “substantial contribution made by Internet archives to preserving and making available news and information. Such archives constitute an important source for education and historical research, particularly as they are readily accessible to the public and are generally free”. The ECtHR also considered two levels of the media’s contribution to society:
while the primary function of the press in a democracy is to act as a “public watchdog”, it has a valuable secondary role in maintaining and making available to the public archives containing news which has previously been reported.16
The ECtHR had to decide whether a rule under United Kingdom law, based on a judgment of 1849, whereby a new cause of action in libel proceedings accrues each time defamatory material on the Internet was accessed ( “the Internet publication rule”), constituted a justifiable and proportionate restriction on the right to freedom of expression.17 The ECtHR used the occasion to refer to positive aspects of the Internet and its particular importance by stating that “in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general’. Nevertheless, it came to the conclusion that the finding by the domestic courts about the applicant’s liability for the continued publication of two defamatory articles on its Internet archive justified a proportionate restriction on the Times Newspapers’ right to freedom of expression, and that accordingly there had been no violation of Article 10 ECHR. The ECtHR observed that the Internet archive in question was managed by Times Newspapers itself and that it was not ordered to remove the potentially defamatory articles from its Internet archive. It considered that the requirement to publish an appropriate qualification to an article contained in an Internet archive, where it has been brought to the notice of a newspaper that a libel action has been initiated in respect of that same article published in the written press, constituted a proportionate interference with the right to freedom of expression. In such circumstances no problems arose linked to ceaseless liability for libel. The judgment however also made clear that the continued publication on the Internet should not lead to a ceaseless liability for defamation, unless in exceptional circumstances, as in the case at issue.
In Editorial Board of Pravoye Delo and Shtekel v. Ukraine the ECtHR recognised that “the policies governing reproduction of material from the printed media and the Internet may differ”, but it found that the different treatment for liability of journalistic reporting based on Internet sources breached Article 10 ECHR.18 The ECtHR observed that Ukrainian law exempts journalists from civil liability for verbatim reproduction of material published in the press, guaranteeing journalists’ freedom to disseminate statements made by others. However, no such immunity existed for journalists reproducing material from (non-registered) Internet sources. The ECtHR referred to “the role the Internet plays in the context of professional media activities” and it considered that the absence of a sufficient legal framework at the domestic level allowing journalists “to use information obtained from the Internet without fear of incurring sanctions seriously hinders the exercise of the vital function of the press as a ‘public watchdog’”. In the Court’s view, the complete exclusion of such information from the field of application of the legislative guarantees of journalists’ freedom may itself give rise to an unjustified interference with the right to freedom of expression and press freedom under Article 10 ECHR. Notice that the ECtHR in general terms justified the option for a differentiated approach between the traditional media and the Internet, due to the higher “risk of harm” induced by the latter. The ECtHR stated that “the Internet is an information and communication tool particularly distinct from the printed media, especially as regards the capacity to store and transmit information. The electronic network, serving billions of users worldwide, is not and potentially will never be subject to the same regulations and control. The risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press”. This made the Court conclude that the policies governing reproduction of material on the Internet “undeniably have to be adjusted according to the technology’s specific features in order to secure the protection and promotion of the rights and freedoms concerned”.
A Grand Chamber judgment in 2012 referred in a very specific way to the Internet.19 Permission for a poster campaign was refused by the authorities on the grounds of public order and morals, because of the alleged support by the applicant association of human cloning, geniocracy and sensual meditation. As the content of the poster itself was not objectionable, the ECtHR took into consideration the content of the applicant’s website referred to on the poster, including a hyperlink on that website. The Grand Chamber agreed with the domestic authorities that since the poster clearly aimed at promoting the organisation’s website, it had to have regard to its content. This approach by the majority of the Grand Chamber was sharply criticised in a joint dissenting opinion by seven judges, esteeming that prohibiting the applicant association from displaying posters mainly on account of the content of its website was problematic.20 Also the aspect of liability for hyperlinking was criticised in a dissenting opinion.21 It is interesting to notice that the approach supported by the dissenting judges in Mouvement raëlien suisse v. Switzerland is more recently reflected in the Court’s majority finding in Magyar Jeti Zrt v. Hungary. The Court’s “updated” approach implicates that only in certain particular circumstances the posting of a hyperlink may potentially engage the aspect of liability.22
The case of Wegrzynowski and Smolczewski is particularly interesting23, as it clarified the application of freedom of expression when conflicting with personality rights.24 The case concerns the complaint by two lawyers that a newspaper article damaging to their reputation – which the Polish courts, in previous libel proceedings, had found to be based on insufficient information and in breach of their rights – remained accessible to the public on the newspaper’s website. The two lawyers complained that the Polish authorities, by refusing to order that the online version of the news article should be removed from the newspaper’s website archive, breached their rights to respect for their private life and reputation as protected by Article 8 ECHR. The Court stated “that it is not the role of judicial authorities to engage in rewriting history by ordering the removal from the public domain of all traces of publications which have in the past been found, by final judicial decisions, to amount to unjustified attacks on individual reputations”. The ECtHR referred in particular to the approach by the Polish courts suggesting that, instead of removing defamatory content from the Internet, “it would be desirable to add a comment to the article on the website informing the public”, in this case about the outcome of the civil proceedings in the defamation case.
The ECtHR has also introduced and applied important principles with regard to the “right to be forgotten” in relation to the media’s right to freedom of expression online. The ECtHR dismissed an Article 8 “right to be forgotten” application in respect of online information on German media portals concerning a murder conviction of two persons, M.L. and W.W. The ECtHR agreed with the refusal by the German Federal Court of Justice to issue an injunction prohibiting three different media organisations from continuing to allow Internet users access to documentation about a 15-year-old murder case, mentioning the names in full of the convicted murderers. The ECtHR again referred to the substantial contribution made by Internet archives to preserving and making available news and information, as archives constitute an important source for education and historical research, particularly as they are readily accessible to the public and are generally free. It confirmed that the media have the task of participating in the creation of democratic opinion, by making available to the public old news items that had been preserved in their online archives. In balancing Article 8 and 10 ECHR the ECtHR referred to the fact that the dissemination of the online articles was limited in scope, especially as some of the material was subject to restrictions such as paid access or a subscription, and that M.L. and W.W. did not provide information about any attempts made by them to contact search-engine operators with a view to making it harder to trace information about them. The ECtHR observed that M.L. and W.W. were not asking for the removal of the reports in question, but only that they be anonymised, and that rendering material anonymous was a less restrictive measure in terms of press freedom than the removal of an entire article. However, because of the importance of maintaining the online accessibility of press reports which have been recognised as lawful and constituted information capable of contributing to a debate in a democratic society, and because of M.L.’s and W.W.’s former conduct vis-à-vis the press, the ECtHR found that the refusal to order anonymisation did not violate Article 8 ECHR.25
Also in a series of other decisions and judgments the ECtHR has balanced the right to privacy and reputation under Article 8 ECHR with the rights guaranteed under Article 10 ECHR.26 The judgments in the Internet cases balancing Article 8 and Article 10 rights illustrate how the ECtHR looked at the positive value of the Internet playing “an important role in enhancing the public’s access to news and facilitating the dissemination of information in general’, or acting as “public watchdog”. On the other hand it made clear that privacy rights under Article 8 ECHR may justify limitations on the right to freedom of expression on the Internet, precisely because of some specific characteristics of Internet exposure of privacy related information. An example is Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland, a case on data protection and data journalism.27 The ECtHR agreed with the Finnish authorities that the applicants could not rely on the exception of journalistic activities28, as the publication of an overly large amount of taxation data was not justified by a public interest. The Grand Chamber clarified that the journalistic purposes derogation “is intended to allow journalists to access, collect and process data in order to ensure that they are able to perform their journalistic activities”, while the right of access to public documents does not by itself justify the dissemination en masse of such “raw data in unaltered form without any analytical input”. The Court considered that the dissemination of the data at issue rather might have enabled curious members of the public to categorise named individuals, who are not public figures, and that this could be regarded “as a manifestation of the public’s thirst for information about the private life of others and, as such, a form of sensationalism, even voyeurism”. The ECtHR especially emphasised “the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life”, and it mentioned the risks of “mass collection, processing and dissemination of data”.
In a judgment and in two decisions in 2013 and 2014, the ECtHR made clear that the application and enforcement of copyright law, also in the online environment, has to respect the right to freedom of expression and information as guaranteed by Article 10 ECHR. However, the ECtHR found the concrete enforcement measures of copyright protection not in breach of Article 10 ECHR.29
Ashby Donald and Others v. France30 concerned the conviction of three fashion photographers for copyright infringement following the publication of pictures on an Internet site. The ECtHR agreed that the conviction for breach of copyright and the award of damages did not violate Article 10 ECHR. The ECtHR in particular referred to the commercial character of the applicant’s website and the lack of contribution to a debate of public interest, as the photos merely reported on the presentation of the Paris fashion show.
The second case concerned the complaint by two of the co-founders of The Pirate Bay, that their conviction for complicity to commit crimes in violation of the Swedish Copyright Act had breached their freedom of expression and information.31The Court held in Neij and Sunde Kolmisoppi v. Sweden that sharing, or allowing others to share files or digital material such as movies, music and computer games on the Internet, even copyright-protected material and for profit-making purposes, was indeed covered by the right to “receive and impart information” under Article 10 ECHR. Taking into consideration the circumstances of the case however, the ECtHR stated that the domestic courts had rightly balanced the competing interests at stake when convicting the co-founders of The Pirate Bay. Therefore it rejected the application as manifestly ill-founded. In its decision the ECtHR explicitly recognised that “the applicants put in place the means for others to impart and receive information”. Hence, an interference with facilitating this kind of sharing digital material is to be considered within the scope of Article 10 ECHR.
Both in Ashby Donald and Others and in Neij and Sunde Kolmisoppi the Court is of the opinion that there were reasons to afford the State authorities a “wide” margin of appreciation justifying the inference with the applicants’ right of freedom of expression and information as guaranteed under the ECHR, being necessary in the interest of protecting the rights of the copyright-holders. Where precisely the fair balance is in the online context is actually being discussed in a series of pending cases at national level, with the Court of Justice of the EU as an important actor and vector in this domain.32
The third case, Akdeniz v. Turkey33 concerned the blocking of access to two websites streaming music without respecting copyright law. The ECtHR found that the blocking measure against the two music-sharing websites did not make the applicant a “victim” (Article 34 ECHR), and therefore it declared the application inadmissible. The Court refused to consider the victim status of the applicant essentially for two reasons. First, the applicant had only been deprived of one way among others of listening to music and he had at his disposal many other means of having access to a range of musical works, without thereby contravening the rules governing copyright. Secondly, the two blocked websites did not provide information that was of particular interest for the applicant, and the blocking of access did not prevent him from taking part in a public debate.
In cases of “hate speech” or incitement to discrimination, violence or hatred on the Internet the ECtHR has consistently applied its classical approach minimising the protection of this kind of discourse or even excluding it from protection under Article 10 ECHR. In the case of Belkacem v. Belgium concerning religious extremism on the Internet, the ECtHR confirmed that defending Sharia while calling for violence to establish it, could be regarded as “hate speech”.34 The Court held that, in accordance with Article 17 ECHR (prohibition of abuse of rights/abuse clause) the discourse at issue posted on the Internet could not even be considered to fall under the right to freedom of expression under Article 10 ECHR.
In Smajić v. Bosnia and Herzegovina the ECtHR found that a sentence to one year’s imprisonment, suspended for a period of three years, and the seizure of the applicant’s personal computer and laptop amounted to a legitimate and necessary interference with the right to freedom of expression.35 The applicant had incited national, racial and religious hatred, discord or intolerance by posting, under a pseudonym, a series of publicly accessible statements on an Internet forum of a website called Bosnahistorija. The ECtHR found that the domestic courts examined the case with care and in conformity with the principles embodied in Article 10 ECHR and gave relevant and sufficient reasons for Smajić’s conviction. The ECtHR explicitly referred to the fact that the contents of the posts on the Internet forum “had been fully available for access by anyone, and could thus be considered a ‘public place’”.
In the case of Willem v. France the ECtHR emphasised that the applicant had not only called participants in a meeting to boycott Israeli products in the municipality of which he was the mayor, but that this message had also been distributed on the Internet website of the municipality, which aggravated the incitement to discrimination.36
In E.S. v. Austria about incitement to religious intolerance during a seminar organised by a political party, the ECtHR in particular referred to the circumstance that “the seminars were widely advertised to the public on the Internet and via leaflets”.37
More recently, in Williamson v. Germany, the ECtHR decided in a case of Holocaust denial expressed during an interview recorded in Germany and broadcast on Swedish television, but also published on the video-sharing Internet platform YouTube and reported in German media, that this kind of speech was not protected by the right to freedom of expression and information under Article 10 ECHR.38 The ECtHR agreed with the findings by the domestic courts that the offence was committed in Germany, because the key feature of the offence (Schwerpunkt der Tathandlung), the interview, was carried out there and afterwards also made public in Germany by some media and on the Internet.
In Delfi AS, cited above, it was of decisive importance that the interference with the right to freedom of expression on the Internet concerned a form of “hate speech”. According to the ECtHR the offensive comments posted on an online media platform were “tantamount to an incitement to hatred or to violence” and they “were manifest expressions of hatred and blatant threats to the physical integrity” of a person. Referring to “the risk of harm posed by content and communications on the Internet”, the Court accepted the necessity in a democratic society to interfere with this kind of discourse and to hold the applicant’s online news platform liable for hosting such messages on its website. The ECtHR also attached weight to the consideration “that the ability of a potential victim of hate speech to continuously monitor the Internet is more limited than the ability of a large commercial Internet news portal to prevent or rapidly remove such comments”. In Delfi AS, but also in some other cases related to (alleged) defamatory or privacy-protected content, the ECtHR referred to the dangers, harm or negative impact of the Internet, emphasising that “the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms is certainly higher than that posed by the press, as unlawful speech, including hate speech and calls to violence, can be disseminated as never before, worldwide, in a matter of seconds, and sometimes remain persistently available online”.
A very particular “sanction” for offensive and threatening statements on social media is the decision by the ECtHR of inadmissibility, because of abuse of the right of application within the meaning of Article 35 § 3 (a) ECHR. In the case of Zhdanov and Others v. Russia39 the ECtHR found that insulting statements on social media hosted by Instagram and VKontakte, authored by Mr Alekseyev, a well-known LGBT activist, were “virulently and personally offensive and threatening”. One post suggested setting fire to the European Court of Human Rights. After a warning by the Court and the occasion to withdraw the offensive and threatening statements from his social networking accounts, Alekseyev continued publishing offensive statements about the judges of the ECtHR, statements which the ECtHR found outside “the limits of normal, civic and legitimate criticism”, with the “determination to harm and tarnish the image and reputation of the institution of the European Court of Human Rights and its members”. This made the Court conclude that “by continuing to publish insults about the Court and its judges after the warning, the applicant has shown disrespect to the very institution to which he had applied for the protection of his rights”. The ECtHR also mentioned the fact that the impugned statements were published “on social networking accounts accessible to all”, and that Alekseyev thereby sought to ensure “the widest possible circulation of his accusations and insults”. The ECtHR found that the applicant’s conduct in terms of his offensive allegations on the Internet was contrary to the purpose of the right of individual application (Articles 34 and 35 ECHR), constituting an abuse of that right, and therefore it declared Alekseyev’s complaint inadmissible. The majority’s findings on this issue were sharply criticised in a dissenting opinion by three judges, arguing that the decision to declare Mr Alekseyev’s application an abuse of the right of application might have a “chilling effect” and “touches on the much weightier and more sensitive issue of freedom of speech in the digital era”.40
The overview of the Strasbourg jurisprudence at this point might give the impression that the influence or support of the case law of the ECtHR on the right to freedom of expression in Internet cases is very relative. Only in the case of Editorial Board of Pravoye Delo and Shtekel, cited above, the Court found a violation of Article 10 ECHR directly related to online freedom of expression41, while in Wegrzynowski and Smolczewski and in M.L. and W.W. v. Germany, both cited above, the right to freedom of expression and the importance of the accessibility of online news archives prevailed in casu over the invoked right to reputation or “right to be forgotten”. It is to be observed however that apart from these cases, the other cases referred to in the overview so far were dealing with interferences related to sexual explicit content, paedophiliac announcements, personal data protection, copyright infringements and forms of “hate speech”, with no obvious public interest to guarantee the expression, distribution, reception or access of this kind of speech, data or information in a democratic society. The circumstance that the offensive, obscene, harmful, copyright protected or damaging information was made accessible on the Internet amplified the justification of the interferences at issue.
When looking at another series of cases, the picture however changes. Especially with regard to the right of access to the Internet and blocking orders, the limited liability for “hosting” user-generated content and for hyperlinking, the ECtHR has created a manifest added value for the right to freedom of expression and information in the digital environment, referring to some specific features of the Internet. The Court has also made clear that political and extremist or radical speech on the Internet can count on a high level of protection and that bulk surveillance of journalists’ communications without sufficient (procedural) safeguards violates Article 10 ECHR. The Court’s case law in the following four clusters of issues will be briefly presented hereafter.42
With Ahmet Yildirim, cited above, on the blocking of Google Sites, the ECtHR delivered an important judgment recognising the right of individuals to access the Internet, asserting that the Internet has become one of the principal means of exercising the right to freedom of expression and information.43 The Court observed that a blocking order that renders “large quantities of information inaccessible substantially restricted the rights of Internet users and had a significant collateral effect” on the material that has not been found to be illegal. In Cengiz and Others v. Turkey the ECtHR referred to YouTube as being “undoubtedly an important means of exercising the freedom to receive and impart information and ideas. In particular... political content ignored by the traditional media is often shared via YouTube, thus fostering the emergence of citizen journalism”.44 The Court referred to YouTube as “a unique platform on account of its characteristics, its accessibility and above all its potential impact”.45
In particular in Cengiz and Others the ECtHR considered it necessary to determine whether the applicants, all three occupying academic positions in different universities, had victim status as required by the Convention. It noted that although the applicants were not directly affected by the blocking order, they had actively used YouTube for professional purposes, downloading or accessing videos on YouTube for use in their academic work. The ECtHR also observed that the blocking order precluded access to specific information which was not accessible by other means.46 The Court accordingly accepted that in the present case YouTube had been an important means by which the applicants could exercise their right to receive and impart information or ideas and that they could legitimately claim to have been affected by the blocking order even though they had not been directly targeted by it.47
More recently in Kablis v. Russia the Court applied its highest standard of scrutiny under Article 10 ECHR finding that a blocking procedure of some Internet posts and of a social media account violated the applicant’s right to freedom of expression.48
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