Regulatory
Law

Freedom of expression

The scope of the right to freedom of expression under Article 10 of the European Convention were comprehensively reviewed by the European Court of Human Rights in the case of Kulis v Poland - 15601/02 [2008] ECHR 210.

‘… freedom of expression, as secured in paragraph 1 of Article 10, 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. Subject to paragraph 2, 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. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see, among many other authorities, Oberschlick v. Austria (no. 1) , judgment of 23 May 1991, Series A no. 204, § 57, and Nilsen and Johnsen v. Norway [GC] , no. 23118/93, § 43, ECHR 1999 VIII).

 ‘There is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV). Moreover, the limits of acceptable criticism are wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his words and deeds by journalists and the public at large, and he must consequently display a greater degree of tolerance (see Lingens v. Austria , judgment of 8 July 1986, Series A no. 103, p. 26, § 42; Incal v. Turkey , judgment of 9 June 1998, Reports 1998-IV, p. 1567, § 54; and Scharsach and News Verlagsgesellschaft v. Austria , no. 39394/98, § 30, ECHR 2003 XI). No doubt Article 10 § 2 enables the reputation of others – that is to say, of all individuals – to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues (see Lingens v. Austria , cited above).

 ‘The pre-eminent role of the press in a State governed by the rule of law must not be forgotten. Although it must not overstep various bounds set, inter alia, for the prevention of disorder and the protection of the reputation of others, it is nevertheless incumbent on it to impart information and ideas on political questions and on other matters of public interest. Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders (see Castells v. Spain , judgment of 23 April 1992, Series A no. 236, § 43). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria , judgment of 26 April 1995, Series A no. 313, p. 19).

‘News reporting based on interviews, whether edited or not, constitutes one of the most important means whereby the press is able to play its vital role of “public watchdog” (see, for instance, The Observer and The Guardian v. the United Kingdom , judgment of 26 November 1991, Series A no. 216, pp. 29-30, para. 59). The punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so (see Jersild v. Denmark , cited above).

 ‘One factor of particular importance is the distinction between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment may be excessive where there is no factual basis to support it (see Turhan v. Turkey , no. 48176/99, § 24, 19 May 2005; and Jerusalem v. Austria , no. 26958/95, § 43, ECHR 2001-II).

‘Although freedom of expression may be subject to exceptions they “must be narrowly interpreted” and “the necessity for any restrictions must be convincingly established” (see the above-mentioned Observer and Guardian judgment, p. 30).