Part 2 - Media Freedom Theories ECHR

Media freedom theory: democracy & public discourse

• Free speech is essential for a functioning democracy.

• It allows citisens to make informed decisions, hold the government accountable, and participate in public debate.

Media freedom theory: marketplace of ideas

• The best test of truth is the power of a thought to get itself accepted in the competition of the market (Holmes J., Abrams v. US).

• The remedy for false speech is more (true) speech, not enforced silence (Brandeis J., Whitney v. California). \

• The government should not act as the "Ministry of Truth" (US v. Alvarez).

Media freedom theory: negative theory of free speech

• We protect free speech because we distrust the government's power to decide what is true or acceptable.

• Giving the government censorship power is inherently dangerous. This is a classic US First Amendment theory.

What are the two main models for understanding "Media Freedom" as distinct from general "Freedom of Expression"?

1. Press-as-Technology: Media freedom is just the absence of censorship (US approach). No special protection for the press over any other speaker (e.g., Facebook).

2. Lex Specialis: Media freedom is a specialized right that differs in scope (e.g., source protection) and intensity (media speech gets stronger protection). This is the ECtHR's approach (e.g., Jersild).

List four specific guarantees that fall under "Media Freedom" beyond general free speech.

1. Confidentiality of Journalistic Sources: Protection against forced disclosure (Goodwin v. UK).

2. Newsgathering: Protection for investigative journalism activities (Nordisk Film v. Denmark).

3. Privileged Access to Information: Journalists and "social watchdogs" (NGOs) have a qualified right to access state-held information (Magyar Helsinki Bizottság v. Hungary).

4. Exemptions from Legal Requirements: E.g., from GDPR data erasure for journalistic purposes (Art. 85 GDPR).

What is the functional vs. formal approach to defining "who is a journalist"? Which does the ECtHR prefer?

• Formal: Someone with a degree, employed by a media outlet, or in a professional organization.

• Functional (ECtHR): Someone who does journalistic work. This can include NGOs ("social watchdogs") and bloggers, who thus have similar rights and duties (Fatullayev v. Azerbaijan).

What are some of the "duties and responsibilities" that journalists have under Article 10(2) ECHR?

• Reliable and accurate research (factual basis must be solid, especially for serious allegations).

• Good faith and communicating remaining doubts.

• Giving defamed persons a right to reply.

• Using a proportionate tone (though strong polemics are allowed in heated debates).

• Transparency of ownership and conflicts of interest (see Art. 6 EMFA).

Explain the three-step test for justifying an interference with a human right (e.g., Art. 10 ECHR).

1. Scope: Does the right protect the activity?

2. Interference: Has there been an act by a state (or state-aligned) actor?

3. Justification (the "Balancing Exercise"):

   • Legality: Prescribed by law (accessible and foreseeable).

   • Legitimacy: Pursues a legitimate aim (e.g., national security, rights of others).

   • Proportionality: Necessary in a democratic society and proportionate to the aim pursued (pressing social need).

What is the "Margin of Appreciation" and how does it affect the balancing exercise?

It's the discretion given to national authorities by international courts (like the ECtHR).

• Broad Margin: Given when there is high empirical or normative uncertainty (e.g., morals, national security). Leads to less harmonization.

• Narrow Margin: Given when speech is political or concerns the judiciary. Leads to stricter scrutiny.

• Key point: It's not a free pass. The state's reasons must still be "relevant and sufficient."

What are the key Axel Springer AG v. Germany (2012) criteria for balancing privacy (Art. 8) and media freedom (Art. 10)?

1. Contribution to a matter of public concern (high for political reporting, low for pure entertainment/titillation).

2. The victim's status (Politicians → wide scrutiny; Private individuals → strong protection).

3. The victim's prior conduct (Did they invite public scrutiny?).

4. Subject-matter, form, and impact (Fact vs. opinion; photo vs. text).

5. Severity of the sanction.

6. Veracity of the publication (True vs. false).

What is the "Right to be Forgotten" (RTBF) from Google Spain v. AEPD (CJEU 2014)?

A data subject can request a search engine operator to de-index information about them, unless the public's preponderant interest in accessing the information (e.g., due to the person's role in public life) justifies the interference. Under the GDPR (Art. 17), this right is subject to the right of freedom of expression and information.

What are the four Delfi v. Estonia (2015) criteria for holding an online platform liable for user comments?

1. Context of the comments (e.g., incitement to hatred).

2. Liability of the actual author (problem of anonymity).

3. Measures taken by the platform (prevent/remove defamatory comments "without delay").

4. Consequences for the platform (Was the fine/sanction proportionate?).

What is the Guja v. Moldova (2008) criteria for whistleblowing protection?

1. Public concern of the information.

2. Authenticity of the information (good faith if inaccurate).

3. Exhaustion of other internal remedies first (unless futile).

4. Motive of the whistleblower (not personal grievance).

5. Damage to employer vs. public interest in disclosure.

6. Proportionality of the sanction.

Halet v. Luxembourg (2023)

Grand Chamber confirmed that a superseding public interest can justify a whistle-blower’s disclosure, even if other Guja criteria (e.g., exhausting internal remedies) are not fully met.

Practical takeaway: A domestic decision that engages sufficiently with ECtHR criteria may be found compatible, but the Grand Chamber here showed that a strong public interest in the information can tip the balance in favour of the whistle-blower.

According to the ECtHR in Magyar Helsinki Bizottság v. Hungary (2016), when does Article 10 protect a right of access to information (FOI)?

Access is protected if it is instrumental to the exercise of freedom of expression. This requires:

1. The information request is a relevant preparatory step to contribute to a public debate.

2. The information itself is of public interest.

3. The applicant is a journalist or an organization contributing to public debate (a "social watchdog" like an NGO).

What is the significance of Handyside v. UK (1976)? What

• It established that freedom of expression applies not just to inoffensive information, but also to information that "offends, shocks or disturbs" the state or any sector of the population.

• This is a demand of "pluralism, tolerance and broadmindedness."

Handyside facts

• ‘Little Red School Book’ withdrawn from market for sexual content

• Author argued this was suppression of speech under Art.10 ECHR

• The ECtHR held that the UK was within its margin of appreciation to determine what is harmful to morals for its own society, because there is no uniform European conception of morals.

Famous Handyside quote [para. 49]

Freedom of expression "constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every man."

What is the holding of Sunday Times v. UK (No. 1) (1979) regarding the role of the press?

The press acts as a "public watchdog" .

• It has the task of imparting information and ideas on matters of public interest.

• The public has a right to receive them.

• This function is particularly important for the press, even when reporting on sensitive issues like the administration of justice.

Sunday Times v. UK (no1) facts

• Thalidomide disaster causing defects in babies where women too the drug.

• Parents sued manufacturer.

• Sunday Times planned article criticizing settlement offers.

• UK court issued injunction to prevent contempt of court (civil cases ongoing).

• Ruling: Violation of Art. 10. Interference was lawful and legitimate but not necessary in a democratic society. The risk to judicial authority was minimal. Public interest in knowing the truth outweighed.

• Key principle: The press is a "public watchdog." The public has a right to receive information on matters of public concern.

What are the two competing rights in the Von Hannover v. Germany (No. 1) (2004) case, and what was the key principle established?

• Competing Rights: Princess Caroline's right to respect for her private life (Art. 8 ECHR) vs. the media's freedom of expression (Art. 10 ECHR).

• Key Principle: Even if a person is in a public place, they still have a "reasonable expectation of privacy" for purely private activities.

• Photographs depicting private activities taken in public cannot be published without a legitimate public interest.

Von Hanover Facts

Princess Caroline of Monaco was photographed engaging in everyday private activities (e.g., shopping, horseback riding, dining with friends) while in public places.

Issue: German courts allowed publication of the photos, holding that a person cannot be "private in public."

In Jersild v. Denmark (1994), why was a journalist who broadcast racist interviews by a youth group (the "Greenjackets") not held liable?

The ECtHR held that punishing a journalist for disseminating statements made by another person would seriously hamper the press's role as a public watchdog.

• The journalist's purpose was to expose and analyse racist attitudes, not to promote them.

• The media has the right and responsibility to report on offensive ideas to foster public debate, as long as they maintain a degree of distance and do not endorse the views.

Jerslid facts

A journalist broadcast an interview with a youth group (the "Greenjackets") who made racist and hateful statements.

Issue: The journalist was prosecuted and punished for assisting in the dissemination of racist speech.

Bladet Tromsø and Stensaas v. Norway (ECtHR, 1999)

• published excerpts and then the full report of a government-appointed seal hunting inspector, Mr. Lindberg.

• The report alleged that crew members of a seal hunting vessel (the Harmoni) had committed criminal acts and been cruel to seals.

• The Ministry of Fisheries had temporarily withheld the report to allow the accused crew to defend themselves.

• The newspaper redacted the crew's names, included rebuttals from the crew, and covered the debate over several days.

• The crew sued the newspaper for defamation and won in Norwegian courts.

Issue: Did the defamation conviction of the newspaper violate Article 10 ECHR (freedom of expression)?

Ruling: Yes – violation of Article 10 (unanimous Grand Chamber).

• Seal hunting was a matter of serious public concern.

• The newspaper acted in good faith as a "public watchdog" .

• The inspector's report came from an official source (Ministry of Fisheries), so the press was entitled to rely on its credibility without independently verifying every detail.

• The defamation was not particularly serious (names redacted; allegations presented with some exaggeration, which is protected).

• The public interest in debate outweighed the crew's reputation rights.

• A well-known German actor ("X"), famous for playing a police superintendent on TV, was arrested at the Oktoberfest for possessing 0.23 grams of cocaine.

• The newspaper Bild published an article about the arrest, including his name, photo, prior drug conviction, and details from official sources (police and prosecutor).

• The actor sued for breach of privacy. German courts issued an injunction against further publication, fined the publisher €5,000 (later reduced to €1,000), and ordered costs.

Issue: Did the German court orders violate the newspaper's freedom of expression under Article 10 ECHR?

Ruling: Yes – violation of Article 10

Key reasoning (applying six balancing criteria from ECtHR case law):

1. Contribution to public debate: The arrest was a public judicial fact; the actor was a public figure whose TV role (law enforcement) increased public interest.

2. How well known: The actor was "sufficiently well known to qualify as a public figure" – disagreeing with German courts.

3. Prior conduct: He had actively sought the limelight, reducing his legitimate expectation of privacy.

4. Method of obtaining information: The journalist obtained it from official sources (police, prosecutor) – no bad faith.

5. Content, form, consequences: The articles only stated facts, no disparaging expressions; the arrest happened in public at a major public event (Oktoberfest).

6. Severity of sanction: Fines were lenient but still had a "chilling effect" on the press.

Conclusion: The interference was not necessary in a democratic society and was disproportionate. The public interest in knowing about the actor's arrest outweighed his privacy rights.