Terrorism and Freedom of Expression Impact on Media and Journalism The ECtHR still on the barricades for Freedom of Expression?

Dirk Voorhoof, Ghent University & Copenhagen University

Iceland hosting FOE-conference

RSF Press Freedom Ranking 2008 Freedom House Press Freedom Ranking 2008

Iceland nr. 1 : we’re on the right place to put the spotlights on threats on the right on freedom of expression (FoE).

Iceland’s excellent record in Strasbourg: only one violation of Article 10, in 1992 ECtHR, 25 June 1992, Thorgeir Thorgeirson v. Iceland Violation of Article 10

‘members of police units Reykjavik = wild beasts in uniform’

Conviction for defamation was not necessary in democratic society, intention was investigation into alleged violent behaviour of some metropolitan police units in Iceland, clear matter of public interest Since 1992 no more violations of Article 10 ECHR by Strasbourg Court

ECtHR has upgraded standards on FoE in Europe also in cases related to (anti)terrorism In many cases violation of Art. 10 by Turkey - support or even reference to Kurdish independence movement - criticizing military actions by the State in South-East Turkey - references to the role or actions of PKK - interviews with PKK-members … are considered in Turkey as support to terrorism, incitement to hatred amongst the population or separatist propaganda

ECtHR has upgraded standards on FoE in Europe ECtHR considered in most cases these interferences in FoE in relation to terrorism / Kurdish context as a violation of Art. 10 ECtHR considers these interferences only in accordance with Art. 10 IF - there is an incitement to violence (wording, text) - there is a (real) risk that this incitement can lead to the use of violence, armed resistance or an uprising

Relative impact of cases related to FoE and terrorism Turkey keeps on prosecuting and convicting media, journalists, members of human rights NGO’s and politicians … for incitement to hatred, separatist propaganda and offences under the anti terrorism law nr. 3713 ECtHR on 21/10/2008 again found FIVE violations of Article 10 Kanat & Bozan (text of Öcalan on emancipation of women) Saygili and Falakaoğlu (identification of an officer active in anti terror) Salihoğlu (possession of copies of banned issues of magazine) - Unay (politician, speech, support to Kurds) - Isak Tepe (idem)

… more recent violations by Turkey

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Aktan v. Turkey, 23 September 2008 (Kurdish media independence) Demirel en Ates nr. 3, 9 December 2008 (interview PKK)!!

Imza t. Turkije, 20 januari 2009 (Texts of PKK) Özer t. Turkije, 5 May 2009 (Marxist speech, fair struggle, The Court observed, in particular, that the article and leaflet in question amounted to political appeals and did not call for either violence or bloody revenge)

ECtHR confirms case law in support of FOE and freedom of the media to report and comment on these issues of major interest for society

ECtHR 9 December 2008, Demirel en Ates nr. 3

“The fact that interviews or statements were given by a member of a proscribed organisation (PKK) cannot in itself justify a blanket ban on the exercise of freedom of expression”. “Regard must be had instead to the words used and the context in which they were published, with a view to determining whether the impugned text, taken as a whole, can be considered an incitement to violence” “As such the wording of Article 6 § 2 of Law no. 3713 and its application in the instant case falls short of the Convention requirements”

Violation of Article 10 ECRH !

“Media freedom must not fall victim to anti-terrorist laws” Statement by COE Secretary General (Terry Davis) on the occasion of World Press Freedom Day on 3 May 2009 “It is true that we live in dangerous and uncertain times, but in order to protect our societies from the threats we face, we need more, not fewer human rights. We need more, not less freedom of expression”.

“It is possible to combat terrorism robustly and effectively while fully respecting freedom of expression and information. That is why I call on our member states to ensure that their national anti-terrorist laws and practices comply with the Council of Europe ’s standards”.

“We must ensure that any legislation concerning this fundamental right fully respects Article 10 of the European Convention on Human Rights and the case law of the European Court of Human Rights”.

However: role of ECHR and ECtHR in matters of FoE and antiterrorism is rather weak - takes 7-12 years - only relative impact on member states - margin of appreciation ! and more recently: worrying application by ECtHR of standards FoE in some cases

Recent restrictive trend in case law ECtHR, including regarding FoE and terrorism and esp. investigative journalism

Seminar in ECtHR Strasbourg 10 October 2008

Lindon, Otchakovsky-Laurens and July v. France (GC), 22 October 2007 Stoll v. Switzerland (GC), 10 December 2007 Rumyana Ivanova v. Bulgaria, 14 February 2008 Alithia Publ. Company Ltd. & Constantinides v. Cyprus, 22 May 2008 Backes v. Luxembourg, 8 July 2008 Soulas a.o. v. France, 10 July 2008 Flux (n °6) v. Moldova, 29 July 2008 Cuc Pascu v. Romania, 16 September 2008

and …

Denis Leroy v. France, 2 October 2008, “Reasons for serious concern regarding the future of freedom of expression in Europe” See http://www-ircm.u-strasbg.fr/seminaire_oct2008/index.htm

Dissenting opinions Stoll v. Switzerland Grand Chamber 10 December 2007

… 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

More robust dissenting opinions Flux nr. 6 v. Moldova, 29 July 2008 (4/3) The dissenting judges (Bonello, joined by Björgvinsson and Sikuta) express the fear “that this judgment of the Court has thrown the protection of freedom of

expression as far back as it possibly could

” and “this is a sad day for freedom of expression” (!!!)

LEROY v. FRANCE 2 October 2008

A 9/11-cartoon whose message, according to its author, was criticizing US imperialism French courts and the European Court of Human Rights concluded that the essence of the message of the cartoon was condoning and glorifying terrorism

LEROY v. FRANCE 2 October 2008 Unanimous judgment!

Although

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Aim/intention was to criticise US-imperialism, satire Made on 9/11, no time for distanced reflection Week later: apologies, cartoonist took distance, made clear that intention was not to glorify violence and made reference to human suffering of victims No real, serious risk that this cartoon would incite to terrorist attacks in Basque region

-

However, no application of Art. 17 (+)

LEROY v. FRANCE 2 October 2008

Request for referral to Grand Chamber

REJECTED

by panel of 5 judges (art. 43 ECHR) Judgment final since 6 April 2009

Judgment of ECtHR with impact on freedom of expression of cartoonists!

Other examples:

DIETER KERN v. GERMANY, ECtHR 29 May 2007 Dismissal of civil servant, no violation Art. 10 Press release by Bündnis Recht referring to 9/11 attacks, condoning ‘attacks’ on US-imperialism, adding that:

“The strikes should rather serve as a warning to America perhaps not to act as the policeman of the world on all continents and finally to ensure that less control is being accorded to certain power constellations within America!

The

Bündnis Rechts fiercely condemns all terrorist attacks no matter by

whom and expresses its condolences to all innocent, civil victims of such attacks. Terrorist attacks, no matter against whom, are basically unacceptable and intolerable”.

Dismissal, incitement to terrorism, no violation of Art. 10

Other examples:

ECtHR 10 July 2006, Sdruženi Jihočeské Matky v. Czech Republic, appl. 19101/03 Access to administrative documents (protected under Art. 10!) REFUSED Documents regarding some aspects of safety of nuclear power station Request by environmental group (Mother Earth) Court accepted argument that there was a risk that the documents might fall in hands of terrorists

ECtHR 31 March 2009, Sanoma Uitg. v. Netherlands Company complained of having been compelled to hand over the CD-ROM that could reveal the identity of journalistic sources

THE COURT: “ It is disquieting that the prior involvement of an independent judge is no longer a statutory requirement (..). As it was, the public prosecutor obtained the approval of the investigating judge even without being so obliged by domestic law (..); the Court considers this, as an addition to the applicant company's entitlement under statute of review post factum of the lawfulness of the seizure by the Regional Court (..), to satisfy the requirements of Article 10 in the present case.

The Court is bound to agree with the Regional Court that the actions of the police and the public prosecutors were characterised by a regrettable lack of moderation (..). Even so, in the very particular circumstances of the case, the Court finds that the reasons advanced for the interference complained of were ‘relevant’ and ‘sufficient’ and ‘proportionate to the legitimate aims pursued’.

There has accordingly been no violation of Article 10 of the Convention

”.

ECtHR 31 March 2009, Sanoma Uitg. v. Netherlands

Dissenters !

“(the police) without any prior judicial assessment or authorisation, arrived at one of the applicant's editorial offices, ordered the editors to surrender all photographic and other materials required for an investigation, declined to give details as to the necessity for the demand, refused to entertain any objection based on journalistic undertakings of confidentiality, threatened, arrested and detained the editor in chief and further threatened to close and search all of the applicant company's premises for an entire weekend. What occurred in this case, (..) , is not far removed from (and in certain respects goes beyond) the type of ‘drastic measure’ previously criticised by this Court in finding a violation of Article 10 of the Convention. The absence of any statutory requirement for prior judicial involvement in a case such as this, is, (..) somewhat more than ‘disquieting’ (as the majority considers) and the actions of the police are a great deal more than ‘regrettable’ ".

ECtHR 17 February 2009

Saygili en Falakaoğlu (n° 2) v. Turkey Conviction and temporary ban on newspaper for publishing declarations of prisoners opposing new prison system and advocating for robust action against it ECtHR: no violation of Article 10 (5/2) Dissenting opinions : “The majority considers that the message conveyed by the newspaper was “not a peaceful one” and that it went beyond “a mere criticism” of the new prison system. Such a consideration is disquieting. ‘Watchdogs’ are not meant to be peaceful puppies; their function is to bark and to disturb the appearance of peace whenever a menace threatens. A new and, in our view, a dangerous threshold in the protection of free speech has been reached if expression may be suppressed, lawfully, because it is neither “peaceful” nor confined to “mere criticism”. Such qualifications are new conditions precedent to the right to exercise such freedom and are not reflected in this Court’s case law”

“ Media freedom must not fall victim to anti terrorist laws” Statement by COE Secretary General (Terry Davis) on the occasion of World Press Freedom Day on 3 May 2009 “We must ensure that any legislation concerning this fundamental right fully respects Article 10 of the European Convention on Human Rights and the case law of the European Court of Human Rights”.

More is needed “urgent need”

(ICJ, Banisar, Braman)

+ readjust the approach of ECtHR as ultimate watchdog over FoE in Europe!

Coda

“When peace prevails and the authority of the Government is undisputed there is no difficulty of preserving the safeguards of liberty.

It is in times of fear and crisis that a legal order’s true commitment to human rights is tested”

(S. Sottiaux, Terrorism and the Limitation of Rights, p. 410 quoting Justice Davis, 1866, Milligan case, US)