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Team Number: 021
___________________________________________________________________________
THE EUROPEAN HUMAN RIGHTS
MOOT COURT COMPETITION
2013
Adam
(Applicant)
vs.
State of Evrylia
(Government)
___________________________________________________________________________
Submission for the Applicant
SUMMARY OF THE RESULTS
Evrylian courts lacked jurisdiction to adjudicate the civil case. The decision of Evrylian
courts to accept jurisdiction was unforeseeable for the applicant and also conducive to a
strong chilling effect for him and for other online journalists in Favonia. Therefore Evrylia
has violated freedom of expression under Art. 10 and right to fair hearing under Art. 6(1).
Provided that the Court considered that the interference was reasonably foreseeable, Evrylian
courts in any case illegitimately interfered with access to content outside the State’s territorial
boundaries by ordering the applicant to delete the post. Such a measure was clearly outside
the scope of the State’s adjudicative powers.
Provided that the Court does not accept the objection concerning the lack of jurisdiction,
the applicant notes that the present case relates to important matters of legitimate public
concern. Therefore, the reasons adduced by the national authorities to justify the interference
were not sufficient to deem the interference necessary in a democratic society. The excessive
sanctions imposed upon the applicant were capable of having a chilling effect on the freedom
of expression guaranteed to members of the press. In conclusion, the decision to order the
applicant to remove a blog post discussing a topic of public interest was manifestly
disproportionate to the legitimate aim pursued in the meaning of Art. 10.
Concerning the criminal proceedings, blocking access to the applicant’s blog site in
Evrylia was not necessary in a democratic society. The blocking order, which constituted a
prior restraint on the freedom of expression, was executed too late for it to have any
significant protective effect in Evrylia, and thus constituted a disproportionate measure. With
regard to the taking down of the Phrendbook profile, it is noted that this interruption
constituted an interference with the applicant’s right to private life, right to freedom of
expression and right to assembly. The order was neither necessary nor foreseeable: the
impact of the communication in Phrendbook with respect to the general public was very
limited, hyperlinks did not contain any racist material, the unduly delayed injunction order
was not effective to protect the minority, the interference was highly unexpected and there
were more effective remedies available. Thus, Evrylia violated the applicant’s rights as
guaranteed under Arts. 8, 10 and 11.
Evrylia has also violated the applicant’s rights as guaranteed under Art. 6(1), since the
prosecutor failed to conduct criminal investigations in reasonable time. Furthermore, it is
submitted that the applicant’s rights under Art. 4(1) of Protocol no. 7 were violated by an
injunction issued in separate criminal proceedings.
3(20)
TABLE OF CONTENTS
SUMMARY OF THE RESULTS .............................................................................................. 2 CONTENTS ............................................................................................................................... 3 LIST OF REFERENCES ........................................................................................................... 3 LIST OF ABBREVIATIONS .................................................................................................... 7
ADMISSIBILITY OF THE APPLICATION ............................................................................ 7 MERITS OF THE CASE ........................................................................................................... 8
4 Violation of Article 10: ....................................................................................................... 8 4.1 Civil proceedings ......................................................................................................... 8
a) General remarks concerning the applicability of Article 10 ...................................... 8
b) The Evrylian courts violated the Articles 10 and 6(1) when claiming jurisdiction ... 9 c) The sanctions imposed on the applicant violated his rights under Article 10 ......... 13
4.2 Criminal proceedings ................................................................................................. 15 a) Blocking access to the blog site in Evrylia was not necessary in a democratic
society .......................................................................................................................... 15 b) Taking down the Phrendbook profile was neither foreseeable nor necessary ......... 16 c) Threat of imprisonment in hate speech legislation is disproportional ..................... 16
5 Violation of Articles 8 and 11: Evrylian authorities unreasonably interfered with the
confidential correspondence, private life and freedom of assembly of the applicant .......... 17
6 Violation of Article 6(1): Criminal investigations were not conducted in reasonable time
.............................................................................................................................................. 19
7 Violation of Article 4(1) of the Protocol no. 7.................................................................. 20 JUST SATISFACTION ........................................................................................................... 20
LIST OF REFERENCES
1 Conventions and treaties
Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of
acts of a racist and xenophobic nature committed through computer systems, Council of
Europe (28 Jan 2003) (ETS No. 189)
Brussels I Regulation (2001): Council Regulation (EC) No 44/2001 of 22 December 2000
on jurisdiction and the recognition and enforcement of judgments in civil and commercial
matters, European Council (22 Dec 2000)
Convention for the Protection of Human Rights and Fundamental Freedoms, Council of
Europe (4 Nov 1950)
Lugano Convention (2007): Convention on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters, European Union and European
Free Trade Association (30 Oct 2007)
2 Case Law of the European Court of Human Rights
Axel Springer AG v. Germany [GC], no. 39954/08 (7 Feb 2012)
Brumarescu v. Romania [GC], no. 28342/95 (28 Oct 1999)
4(20)
Chauvy and Others v. France, no. 64915/01 (29 Jun 2004)
Cihan Öztürk v. Turkey, no. 17095/03 (9 Jun 2009)
Colaço Mestre and SIC - Sociedade Independente de Comunicação S.A. v. Portugal, nos.
11182/03 and 11319/03 (26 Apr 2007)
Copland v. the United Kingdom, no. 62617/00 (3 Apr 2007)
Cumpănă and Mazăre v. Romania [GC], no. 33348/96 (17 Dec 2004)
Dalban v. Romania [GC], no. 28114/95 (28 Sep 1999)
Delfi v. Estonia, no. 64569/09 (10 Oct 2013)
Demir and Baykara v. Turkey [GC], no. 34503/97 (12 Nov 2008)
Djavit An v. Turkey, no. 20652/92 (20 Feb 2003)
Doustaly v. France, no. 26256/95 (23 Apr 1998)
Editions Plon v. France, no. 58148/00 (18 May 2004)
Engel and Others v. the Netherlands, nos. 5100/71, 5101/71, 5102/71, 5354/72 and
5370/72 (8 Jun 1976)
Erbakan v. Turkey, no. 59405/00 (6 Jul 2006)
Erdoğdu and İnce v. Turkey [GC], nos. 25067/94 and 25068/94 (8 Jul 1999)
Flux and Samson v. Moldova, no. 28700/03 (23 Oct 2007)
Frezzoz and Roire v. France [GC], no. 29183/95 (21 Jan 1999)
Handyside v. the United Kingdom, no. 5493/72 (7 Dec 1976)
Jersild v. Denmark [GC], no. 15890/89 (23 Sep 1994)
Jerusalem v. Austria, no. 26958/95 (27 Feb 2001)
Juppala v. Finland, no. 18620/03 (2 Dec 2008)
Kangasluoma v. Finland, no. 48339/99 (20 Jan 2004)
Lehtinen v. Finland, no. 34147/96 (13 Sep 2005)
Lingens v. Austria, no. 9815/82 (8 Jul 1986)
Maestri v. Italy [GC], no. 39748/98 (17 Feb 2004)
Malone v. the United Kingdom, no. 8691/79 (2 Aug 1984)
Matthews v. the United Kingdom [GC], no. 24833/94 (18 Feb 1999)
McFeeley and Others v. the United Kingdom, no. 8317/78 (15 May 1980)
McVicar v. the United Kingdom, no. 46311/99 (7 May 2002)
Medvedyev and Others v. France [GC], no. 3394/03 (29 Mar 2010)
Michaud v. France, no. 12323/11 (6 Dec 2012)
Niemietz v. Germany, no. 13710/88 (16 Dec 1992)
Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03 (22 Feb 2007)
5(20)
Nilsen and Johnsen v. Norway [GC], no. 23118/93 (25 Nov 1999)
Nilsson v. Sweden (dec.), no. 73661/01 (13 Dec 2005)
Observer and Guardian v. the United Kingdom, no. 13585/88 (26 Nov 1991)
Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99 (17 Dec 2004)
Perrin v. the United Kingdom (dec.), no. 5446/03 (18 Oct 2005)
Petroff v. Finland, no. 31021/06 (3 Nov 2009)
Pfeifer v. Austria, no. 12556/03 (15 Nov 2007)
Plattform “Ärzte für das Leben” v. Austria, no. 10126/82 (21 Jun 1988)
Polanco Torres and Movilla Polanco v. Spain, no. 34147/06 (21 Sep 2010)
Salapa v. Poland, no. 35489/97 (19 Dec 2002)
Salov v. Ukraine, no. 65518/01 (6 Sep 2005)
Selistö v. Finland, no. 56767/00 (16 Nov 2004)
Sergey Zolotukhin v. Russia [GC], no. 14939/03 (10 Feb 2009)
Skałka v. Poland, no. 43425/98 (27 May 2003)
Sorvisto v Finland, no. 19348/04 (13 Jan 2009)
Stubbings and Others v. the United Kingdom, nos. 22083/93 and 22095/93 (22 Oct 1996)
The Sunday Times v. the United Kingdom (no. 1), no. 6538/74 (26 Apr 1979)
Süßmann v. Germany [GC], no. 20024/92 (16 Sep 1996)
Thorgeir Thorgeirson v. Iceland, no. 13778/88 (25 Jun 1992)
Von Hannover v. Germany, no. 59320/00 (24 Jun 2004)
Von Hannover v Germany (no. 2) [GC], nos. 40660/08 and 60641/08 (7 Feb 2012)
X and Y v. the Netherlands, no. 8978/80 (26 Mar 1985)
Yildirim v. Turkey, no. 3111/10 (18 Dec 2012)
Zimmermann and Steiner v. Switzerland, no. 8737/79 (13 Jul 1983)
Other Cases
Joined Cases C-509/09 and C-161/10 eDate Advertising GmbH v. X and Olivier Martinez
and Robert Martinez v. MGN Limited [2011] ECJ, ECR I-10269 (25 Oct 2011)
Berezovsky v. Michaels [2000] UKHL, 1 WLR 1004 (11 May 2000)
Dow Jones and Company Inc v. Gutnick [2002] HCA 56, 210 CLR 575 (10 Dec 2002)
3 Secondary sources
Soft law
CM/Rec(2011)7 Recommendation of the Committee of Ministers to member states on a
new notion of media, Council of Europe (21 Sep 2011)
CM/Rec(2011)8 Recommendation of the Committee of Ministers to member states on the
6(20)
protection and promotion of the universality, integrity and openness of the Internet,
Council of Europe (21 Sep 2011)
CM/Rec(2012)4 Recommendation of the Committee of Ministers to member States on the
protection of human rights with regard to social networking services, Council of Europe
(4 Apr 2012)
Decl-04.07.2012E Declaration of the Committee of Ministers on the Desirability of
International Standards dealing with Forum Shopping in respect of Defamation, “Libel
Tourism”, to Ensure Freedom of Expression, Council of Europe (4 Jul 2012)
European Parliament resolution of 10 May 2012 with recommendations to the
Commission on the amendment of Regulation (EC) No 864/2007 on the law applicable to
non-contractual obligations (Rome II) (2009/2170(INI)) OJ C 261 E/17, 10 Sep 2013
Explanatory Report to the Additional Protocol to the Convention on Cybercrime
(28 Jan 2003) (ETS No. 189)
Joint Declaration on Freedom of Expression and the Internet, the UN Special Rapporteur
on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the
Media, the OAS Special Rapporteur on Freedom of Expression and the ACHPR Special
Rapporteur on Freedom of Expression and Access to Information (1 Jun 2011)
Report of the Parliamentary Assembly, The principle of the Rule of Law, Doc. 11343,
Council of Europe (6 Jul 2007)
Literature
Boscovic, Olivera: Boskovic on Rome II and Defamation, Online Symposium Rome II and
Defamation. Conflict of Laws .Net, 2010 <http://conflictoflaws.net/2010/boskovic-on-
rome-ii-and-defamation/> (accessed 15 Nov 2013)
Edel, Frédéric: The length of civil and criminal proceedings in the case-law of the
European Court of Human Rights, 2nd Edition, Council of Europe Publishing, 2007
Jakubowicz, Karl: A new notion of media? Media and media-like content and activities on
new communication services, Media and Information Society Division, Directorate
General of Human Rights and Legal Affairs Council of Europe, 2009
Keller, Perry: European and International Media Law, Oxford University Press, 2011
Privacy Study: Comparative Study on the Situation in the 27 Member States as Regards
the Law Applicable to Non-Contractual Obligations Arising Out of Violations of Privacy
and Rights Relating to Personality, Final Report, European Commission, 2009
Weber, Anne: Manual on Hate Speech, Council of Europe Publishing, 2009
7(20)
LIST OF ABBREVIATIONS
ACHPR African Commission on Human and Peoples’ Rights
Art(s). Article(s)
ECHR European Convention on Human Rights and Fundamental Freedoms
ECJ European Court of Justice
OAS Organization of American States
OSCE Organization for Security and Co-operation in Europe
UN United Nations
ADMISSIBILITY OF THE APPLICATION
1. As a contracting party to the ECHR and all its Additional Protocols, Evrylia is
responsible for securing to everyone within its jurisdiction the rights and freedoms defined in
ECHR. The applicant, Mr Victor Adams, is a direct victim of a breach of his rights and
freedoms as guaranteed under the ECHR. With respect to the civil proceedings, as well as the
proceedings relating to the injunction, the applicant has exhausted all domestic remedies
available for him in Evrylia. The final judgment on the civil proceedings against the applicant
became final on 20 March 2013 and the injunction order on 20 June 2013. The application is
thus in compliance with the limit set down in Art. 35(1). With respect to the pending criminal
proceedings in Evrylia, the threat of imprisonment and unreasonably long duration of the
criminal proceedings are sufficient to result in the violation of ECHR.1 The matter has not
been brought before another international adjudicative body.
2. In accordance with Art. 35(3)(b), it is submitted that the applicant has suffered a
significant disadvantage due to the injunction that lead to the blocking of his journalistic blog
in Evrylia and the taking down of his social media sites as well as the restrictions imposed on
his freedom of expression in connection with the libel proceedings. The above-mentioned
services are essential for Mr Adams to exercise his rights both as a journalist and a private
person. It is therefore submitted that there has been a violation of his rights as guaranteed
under Articles 6, 8, 10, and 11 of the ECHR and Article 4 of the Protocol no. 7. to the ECHR.
1 Erdoğdu and İnce v. Turkey, § 53 and Sorvisto v. Finland, § 72.
8(20)
MERITS OF THE CASE
4 Violation of Article 10:
4.1 Civil proceedings
a) General remarks concerning the applicability of Article 10
3. As guaranteed under Art. 10, everyone has the right to freedom of expression,
including the right to receive and impart information and ideas without interference by public
authority and regardless of frontiers. In order to be deemed acceptable, any interferences with
this right need to satisfy the conditions set out in Art. 10(2). Consequently, any restriction
imposed upon the freedom of expression needs to be prescribed by law, pursue a legitimate
aim and be necessary in a democratic society. This test of “necessity in a democratic society”
requires the Court to determine whether the interference corresponded to a pressing social
need.2
4. Art. 10(2) leaves a margin of appreciation to the Contracting States as regards the
initial evaluation of the pressing social need implied by necessity in this context. However,
the applicant stresses the fact that this margin of appreciation is not unlimited – in fact, it is
especially restricted in cases where the freedom of the press is concerned.3 It is also to be
noted that every "restriction" or "penalty" imposed on the freedom of expression must be
proportionate to the legitimate aim pursued (principle of proportionality).4
5. Your Court has referred to the freedom of expression as a right that constitutes one of
the essential foundations of a democratic society as well as one of the basic conditions for its
progress and for the development of every man. It has been affirmed that this right does not
relate 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.5 There is little
scope under Art. 10(2) for restrictions on debate of questions of public interest.6
6. Moreover, the Court has insisted on the essential role of a free press in ensuring the
proper functioning of a democratic society by imparting information and ideas on all matters
of public interest. In order for the press to be able to play its vital role of "public watchdog",
any restrictions to the freedom of expression must be narrowly interpreted and the need for
such restrictions convincingly established.7 In this respect, it has been stated by the Court that
2 Handyside v. the United Kingdom, § 48 and The Sunday Times v. the United Kingdom (no. 1), § 62. 3 See, e.g., Editions Plon v. France, § 44. 4 Handyside v. the United Kingdom, § 49. 5 Ibid. 6 See, among many other authorities, Observer and Guardian v. the United Kingdom, 59 §. 7 Observer and Guardian v. the United Kingdom, 59 § and Handyside v. the United Kingdom, § 49.
9(20)
insofar as journalistic freedom is concerned, this freedom may also be considered to cover a
possible recourse to a degree of exaggeration, or even provocation.8
7. Also the distinction between statements of fact and value judgements needs to be
taken into account when evaluating the question of proof of impugned statements. In general,
the existence of facts can be demonstrated, while the truth of value judgements is not
susceptible of proof. Requiring the delivery of proof of a value judgement thus infringes the
freedom of opinion itself and the right guaranteed under Art. 10.9 As your Court has observed
concerning “false statements of fact”, Art. 10 as such does not prohibit discussion or
dissemination of information received even if it is strongly suspected that this information
might not be truthful. To suggest otherwise would deprive persons of the right to express
their views and opinions about statements made in the mass media and would thus place an
unreasonable restriction on the freedom of expression.10
8. Turning to the present case, it must be noted, first of all, that the right to freedom of
expression also encompasses the technology enabling it, and the Internet can now be
considered to constitute one of the principal means of disseminating information.11
Furthermore, the concept of media should today be understood in a broader sense than ever
before.12 Even though the applicant did not write his blog as a part of his professional
activities with FTVN, the blog in question was, nevertheless, an extension of his professional
persona: a journalistic weblog in which he was able to expand on issues that did not get into
the media he is working for.13 He was well aware of journalism ethics and standards and, as
evidenced by the fact that he also shared links to his posts with other journalists in their
Phrendbook forum, also considered these writings to constitute part of his professional
activities. It may be adduced based on the above circumstances that he was acting as a
member of the press in the present matter, as well.
b) The Evrylian courts violated the Articles 10 and 6(1) when claiming jurisdiction
9. As your Court has stated, ECHR is a living instrument and needs to be interpreted in
the light of present-day conditions.14 Through the recognition of the dynamic and evolutive
nature of ECHR, the Court has made sure that the rights of ECHR are effective and practical,
not theoretical and illusory. Further, the Court has taken into consideration the recent legal
8 See, among others, Pedersen and Baadsgaard v. Denmark, § 71. 9 Lingens v. Austria, § 46. 10 Salov v. Ukraine, § 113. 11 Yildirim v. Turkey, § 54. 12 CM/Rec(2011)7, § 7. 13 See, mutatis mutandis, Jakubowicz (2009), p. 22. 14 Matthews v. the United Kingdom, § 39.
10(20)
development on the European and international level and exercised comparative law method
in its judgments along with basic principle of teleology.15 Thus, the Court has taken note of
international standards and jurisprudence as contextual elements.16
10. As is generally known, defamation laws and the relevant conflict-of-law rules differ
much between European States. The current situation makes the legislation unforeseeable for
the media, especially as far as Internet publications are concerned.17 According to Evrylian
legislation, jurisdiction to adjudicate is granted to the courts “of the place where the harmful
event occurred or may occur”. The provision is formulated almost identically to the
provision which is in force in 31 European States.18 According to the ECJ, this jurisdiction
rule needs to be interpreted in a manner that enables the plaintiff to choose the venue.19
11. The above-mentioned provision is problematic especially in cases relating to Internet
content. First, the universal accessibility of the Internet makes the law in force unpredictable
for the journalists, because when the journalist publishes an article regarding a foreign
person, the journalist might be sued in a foreign State, even though his or her purpose was to
publish the article only in and for the citizens of the State in which the journalist has his or
her habitual residence. Second, in the cases in which the law in force provides the plaintiff
with the opportunity of selecting the venue, there is a risk of “forum shopping” and “law
shopping”, as the plaintiff’s choice may be guided by the law that is most favourable to
him.20 Third, the principle fails to take into account circumstances in which the plaintiff and
the defendant are in an unequal financial position. Especially in cases where celebrities (with
strong financial power and worldwide reputation) act as plaintiffs and individual journalists
(small media actors with no such financial strength) as defendants, the inequality of arms is
obvious if the plaintiff is allowed to choose the venue. This might be problematic also as
regards Art. 6(1) (unfair trial).21
12. Joint Declaration of UN, OSCE, OAS and ACHPR emphasises that “[j]urisdiction in
legal cases relating to Internet content should be restricted to States to which those cases
have a real and substantial connection, normally because the author is established there, the
content is uploaded there and/or the content is specifically directed at that State.”22 Further,
15 Demir and Baykara v. Turkey, §§ 65, 153 and 154. 16 See, among others, Yildirim v. Turkey, §§ 31–37. 17 See, e.g., Privacy Study (2009) (European Commission), p. 8, 116 and 142–143. 18 Lugano Convention (2007), Art. 5(3); Brussels I Regulation (2001), Art. 5(3). 19 eDate Advertising GmbH v. X and Olivier Martinez and Robert Martinez v. MGN Limited, § 52. 20 Privacy Study (2009), p. 15. About forum shopping see e.g. Berezovsky v. Michaels [2000] UKHL and Dow
Jones and Company Inc v. Gutnick [2002] HCA 56. 21 Decl-04.07.2012E, §§ 6 and 8. 22 Joint Declaration on Freedom of Expression and the Internet (2011), § 4(a).
11(20)
Committee of Ministers has stated, referring to the Joint Declaration23, that “[t]here is a
general need for increased predictability of jurisdiction, especially for journalists, academics
and the media.”24 Furthermore, “libel tourism constitutes a serious threat to the freedom of
expression and information”.25 The situation in Europe is uncertain as regards Internet
defamation and jurisdiction rules, and the rules themselves are not satisfying.26 Consequently,
there is a “pressing social need” to adopt a closest connection test to the ECHR, preventing
libel tourism and increasing foreseeability.
13. According to Art. 10(2), the freedom of expression may be subject to restrictions only
if they are prescribed by law. The Court has stated that the ‘prescribed by law’ criterion does
not refer to only codified law but also covers unwritten law, and thus the whole legal
system.27 Sometimes “law” also refers to international legal standards.28 Again the criterion
requires that the law is foreseeable in a manner that the citizen is able to regulate his or her
conduct and foresee the consequences which his actions may entail, at least to a degree where
such consequences are not entirely unexpected.29 Furthermore, Art. 6(1) protects fair trial and
the principle of the rule of law, which includes the principle of legal certainty, needs to be
taken into account.30 The principle of the rule of law and legal certainty is linked to the test of
foreseeability.31
14. Small media operators, like the applicant, have been seen as key actors in a plural and
diverse media landscape, and also the most vulnerable as far as interference with their
freedom of expression is concerned. The defamation laws can be misused against journalists,
which can have a serious chilling effect.32 In the present case, the applicant is a Favonian
resident, he administers his blog in Favonia and his main purpose is to publish news to the
Favonian people. Despite the fact that the blog is widely followed in Evrylia, the universal
accessibility of the Internet makes it impossible for the applicant to select his audience. The
applicant’s article might not have been illegal according to Favonian legislation. It is very
important for small media actors for any jurisdiction over them to be restricted to the State in
23 Decl-04.07.2012E, § 9. 24 Decl-04.07.2012E, § 8. 25 Decl-04.07.2012E, § 13. 26 Privacy Study (2009), p. 142-143. European Parliament resolution (2012), Sections D and F and Annex to the
Resolution, Article 5a(2) and 5a(4). 27 The Sunday Times v. the United Kingdom (no. 1), § 47. 28 Medvedyev and Others v. France, § 79. 29 The Sunday Times v. the United Kingdom (no. 1), § 49 and Yildirim v. Turkey § 57. 30 Brumarescu v. Romania, § 61. 31 Malone v. the United Kingdom, § 68. See also Report of the Parliamentary Assembly, The principle of the
Rule of Law, Doc. 11343, 6 July 2007, appendix II, § I(2). 32 CM/Rec(2011)7, §§ 64 and 66. See also Decl-04.07.2012E, § 6.
12(20)
which they are working. This enables the applicant to regulate his behaviour accordingly,
taking into account the legal system of the State in which he exercises his editorial control.
Furthermore, there is also a serious imbalance in financial strength between the parties
(inequality of arms). The plaintiff is a well-known football player with a worldwide
reputation. Such an imbalance might enable the plaintiff to misuse defamation law just to
silence the press.
15. The Court has stated that professionals may use legal guidance in order to predict the
consequences of their behaviour and to take into account the differences that might be present
in another legal system.33 If this legal rule was applied to the present case, keeping a blog
would become expensive for the applicant who does not gain any financial profits from the
blog. This would endanger the applicant’s freedom of expression and public’s right to receive
information, as one great source of information was threatened to vanish. It is not reasonable
to expect that an individual blogger, albeit a professional journalist, should study foreign law
every time when publishing news on the Internet. In addition, the intention of the applicant
could be taken into account (cf. the effect test34 of the USA); the applicant’s purpose was not
to harm K or attack against him, but to publish a general interest article.
16. The applicant’s case will be a precedent for similar cases. Thus, it is essential that the
Court takes into account the wider effects of its judgment. In Europe, some States still
maintain criminal liability for defamation and there are also substantial differences regarding
the balance of the right to reputation and freedom of expression between the States.35 Thus,
these differences need to be taken into account, as well as the considerable chilling effect
which they, especially a possible criminal liability, have to the journalists.
17. Provided that the Court considers the interference by Evrylia reasonably foreseeable,
Evrylian courts in any case lacked jurisdiction to order the applicant to delete the post. As the
Committee of Ministers has stated, States must “ensure that their actions within their
jurisdictions do not illegitimately interfere with access to content outside their territorial
boundaries”.36 The order to delete the post did have a major influence outside the territory of
Evrylia and thus it was illegitimate and disproportional. The applicant posted on his blog site
an apology which would have been sufficient to compensate the harm caused to K in
Evrylian territory.37
33 Perrin v. the United Kingdom (dec.). 34 Keller (2011), pp. 242–243. 35 Privacy Study (2009), pp. 42–51. 36 CM/Rec(2011)8, section 1.1. of the General Principles. 37 See e.g. Boscovic (2010).
13(20)
c) The sanctions imposed on the applicant violated his rights under Article 10
i Necessity in a democratic society
18. Provided that the Court does not accept the objection concerning the lack of
jurisdiction, the applicant submits the following remarks on the substance of the libel
proceedings. First of all, the applicant acknowledges the fact that the right to protection of
reputation is a right which is protected under Art. 8 as part of the right to respect for private
life.38 In balancing the rights guaranteed under Arts. 8 and 10, the relevant criteria in the
balancing exercise include the following elements: contribution to a debate of general
interest, how well known the person concerned is, the subject of the report, the prior conduct
of the person concerned, the method of obtaining the information and its veracity, the
content, form and consequences of the publication, and the severity of the sanction
imposed.39
19. In the applicant’s view, the blog post in question first and foremost concerns issues of
public interest and is, as such, firmly grounded in the realm of public discussion.40 As
established by the Court, the public interest value is not limited merely to political issues, but
also covers for instance matters relating to sportsmen.41 Your Court has held that when
private individuals enter the public arena, they lay themselves open to public scrutiny and
criticism and greater tolerance is therefore required of them.42 The blog post in question
concerns the controversial behaviour of a figure who is both well known to the public and
who has himself sought out this public attention through his presence in the media and
commercial contracts. By exposing himself to public scrutiny, K has thus also exposed
himself to the risk of negative attention being bestowed upon him. Even though public
figures are as such not outside the scope of protection as guaranteed under Art. 843, the
present blog post relates to matters of general interest – namely the possibility of granting
Favonian nationality to a football player with alleged criminal connections – and voices
serious concerns which the public has the right to be aware of. As a member of the press, the
applicant had the right to impart the information, and the public had the right to receive it.44
20. Furthermore, also the possible negative impact on the rights of those in need of
38 Chauvy and Others v. France, § 70; Pfeifer v. Austria, § 35; and Polanco Torres and Movilla Polanco v.
Spain, § 40. 39 Delfi v. Estonia, § 83; Axel Springer AG v. Germany, §§ 89–95; and Von Hannover v. Germany (no. 2), §§
108–113. 40 See, è contrario, Von Hannover v. Germany, § 65. 41 See, e.g., Nikowitz and Verlagsgruppe News GmbH v. Austria, § 10; and Colaço Mestre and SIC - Sociedade
Independente de Comunicação S.A. v. Portugal, §§ 28–30. 42 Jerusalem v. Austria, §§ 38–39. 43 See, e.g. Von Hannover v. Germany, §§ 63–66. 44 Lingens v. Austria, § 41 and The Sunday Times v. the United Kingdom (no. 1), § 65.
14(20)
protection, such as the possible victims of human trafficking, need to be taken into account.45
Your Court has previously emphasised that vulnerable individuals in particular are entitled to
State protection, in the form of effective deterrence, against serious breaches of personal
integrity.46 In this respect, the applicant is of the opinion that the vulnerable position of the
possible victims of human trafficking and the minors possibly involved in the events speak in
favour of the applicant’s right to impart the information.
21. The applicant acknowledges the view presented by the Court on several instances that
the protection of the right of journalists to impart information on issues of general interest
requires that they should act in good faith, on an accurate factual basis, and provide “reliable
and precise” information in accordance with the ethics of journalism.47 However, in the
evaluation of the factual basis required, also the above-mentioned classification into factual
statements and value judgements has to be considered. In this respect, the applicant is of the
opinion that the statements contained in the blog post consist mainly of the latter. Drawing
inferences from the existing facts, such as, for example, attributing or imputing motives or
intentions to someone’s behaviour, is generally intended to convey opinions, and is more akin
to value judgements.48 Insofar as the applicant is presenting his own conclusions concerning
the personality of K and not merely quoting his sources, his statements consist of value
judgements not susceptible of proof.
22. The applicant acknowledges that a certain level of evidentiary standard is applicable
to factual assertions. Your Court has also deemed it necessary that the sources can in this
regard be reasonably considered reliable with respect to the allegations.49 However, as a part
of their role as public watchdog, the media’s reporting on “stories” or “rumours” emanating
from other persons is to be protected.50 In this respect, it has been considered sufficient that
the information given had not been proven to be totally untrue.51 This was also true in the
present case, since at the time that the story was published there was nothing to suggest that
the information contained in the blog post was false as such.
23. When assessing the proportionality of interference, also the nature and severity of the
actions taken need to be taken into account.52 Any sanctions imposed on journalists for
45 See, e.g., Juppala v. Finland, § 25. 46 X and Y v. the Netherlands, §§ 21–27 and Stubbings and Others v. the United Kingdom, §§ 62–64. 47 Juppala v. Finland, §§ 42–43; Selistö v. Finland, § 54; and Frezzoz and Roire v. France, § 54. 48 Nilsen and Johnsen v. Norway, § 50. 49 McVicar v. the United Kingdom, § 84. 50 Thorgeir Thorgeirson v. Iceland, § 65 and Cihan Öztürk v. Turkey, § 28. 51 Dalban v. Romania, § 50 and Flux and Samson v. Moldova, § 24. 52 Skałka v. Poland, §§ 41–42 and Cumpănă and Mazăre v. Romania, §§ 111–124.
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relaying information to the public are inconceivable without particularly serious reasons. In
the present case, such reasons are lacking. The sanctions imposed upon the applicant – the
order to delete the blog post, to post an apology, the obligation to pay 15 000 € in damages,
and the coercive fine – were capable of having a chilling effect on the freedom of expression
guaranteed to the press, especially when considering the considerable amount of the damages.
In any event, the sanctions were not justified in the light of the factors set out above.
4.2 Criminal proceedings
a) Blocking access to the blog site in Evrylia was not necessary in a democratic society
24. The principal aim of the applicant’s Bligg page was the dissemination of information
concerning matters of general interest to the public. In the evaluation of the legitimateness of
the State’s actions, a careful balance needs to be struck between protecting the right to
freedom of expression and prohibiting advocacy of hatred on the grounds of nationality.
Blocking access to a blog site constitutes a prior restraint on the freedom of expression as it
prevents new Evrylian readers from accessing the blocked content in the future. The court has
long held that the significant dangers inherent in prior restraints require “most careful
scrutiny”, and especially so when the press is concerned.53 In this respect, the State needs to
afford a measure of legal protection against arbitrary interferences by public authorities with
the rights guaranteed under ECHR.54
25. Your Court has in the past placed special emphasis on the principle of proportionality
as a yardstick for evaluating whether the national authorities have overstepped their margin
of appreciation.55 Even though the comments posted in the applicant’s blog were clearly
identifiable as hate speech, the principle of proportionality, inherent in the adjective
"necessary", required that the applicant had been ordered to remove the offending comments
before more far-reaching courses of action were embarked upon. As a small media operator,
he does not have sufficient resources available for him to be able to moderate all the
comments in real time. The only alternative left for him would be to close the comment
section altogether to avoid liability, which would in turn deprive Internet users of a valuable
way of engaging in matters of public debate.
26. Furthermore, the injunction order in question was not executed until three years after
the original blog post was written. A certain level of consistency is required from the states’
attitudes: the national authorities cannot sanction remarks or actions that they have not
53 Observer and Guardian v. the United Kingdom, § 60. 54 Maestri v. Italy, § 30. 55 See, e.g. Handyside v. the United Kingdom, § 49.
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previously sanctioned or have even tolerated.56 This is especially true in a case in which a
considerable amount of time has passed since the comments were posted.57 Failing to take
speedier action, Evrylia had subsequently lost its right to intervene at a later point.
27. In general, the purpose of an interim measure is to provide protection from an
imminent risk of irreparable damage.58 However, at the time that the injunction was finally
executed, it no longer had the capacity to prevent the dissemination of the allegedly offensive
comments in any effective way, nor could it prevent the possible effects of these comments in
Evrylia. Any possible protective function of the injunction had been lost due to the State’s
failure to act within a reasonable time.
b) Taking down the Phrendbook profile was neither foreseeable nor necessary
28. In the present case, applicant’s entire Phrendbook profile, along with the journalists’
forum group, was taken down. In the applicant’s opinion, the Evrylian provision on blocking
orders was not formulated with sufficient precision: although the order was as such based on
national legislation59, it was not foreseeable for the applicant that his Phrendbook profile,
which was connected to the impugned blog post only by a link posted therein, could be taken
down entirely. Such a consequence was entirely unexpected: the Phrendbook profile itself did
not contain any information classifiable as hate speech, and the applicant’s intention was only
to publish a link to the his news article and not to the comment section thereof. Hyperlinks as
such do not contain any racist material, just a URL to the blog site where the actual material
is visible. If Evrylian authorities had restricted the blocking order only to the applicant’s blog
site and enforced it without undue delay, it would have prevented any possible harm in
Evrylian territory, since the hyperlinks would have not opened the blog site. The injunction
also constituted a disproportional measure, since there was no plausible connection with the
interference and the social need pursued.60
c) Threat of imprisonment in hate speech legislation is disproportional
29. The Court has stated that a prison sentence will be compatible with journalists’
freedom of expression only in exceptional circumstances, notably where other fundamental
rights have been seriously impaired, as, for example, in the case of hate speech or incitement
to violence.61 According to the Court, the punishment of a journalist for statements made by
56 Erbakan v. Turkey, §§ 67–68. See also Weber (2009), p. 45. 57 Erbakan v. Turkey, § 68. 58 Erbakan v. Turkey, § 68. Cf. Editions Plon v. France, §§ 51–55. 59 See Evrylian law concerning Internet publications and prevention of Internet offences, Section VII(1). 60 See, mutatis mutandis, Yildirim v. Turkey and the concurring opinion of judge Pinto de Albuquerque. 61 Cumpănă and Mazare v. Romania, § 115.
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another person should not be envisaged unless there are particularly strong reasons for it.62
Further, the mere risk of a prison sentence in connection with criminal proceedings may as
such have a serious chilling effect. This threat itself may be disproportionate and lead to the
violation of Art. 10, even if such a sanction has not been issued.63 Lastly, the applicant’s
intention relating to dissemination of racist material has been an essential element in the
Court’s case-law on deciding whether the applicant could be held criminally liable or not.64
30. The applicant stresses that his purpose was not to propagate racist views; the same is
also evidenced by the caveat added to his blog site. The sanction for speech offence in
Evrylia is particularly severe: six months to three years of imprisonment. There is no option
for a fine. Even though the criminal investigations are only pending, a threat of a prison
sentence and a strict liability arising from user-based content is in its severity
disproportionate to the legitimate aim pursued. Accompanied by the delayed injunction, the
threat had a manifestly disproportionate effect. There has thus been a violation of Art. 10.
5 Violation of Articles 8 and 11: Evrylian authorities unreasonably interfered with the
confidential correspondence, private life and freedom of assembly of the applicant
31. The Committee of Ministers has highlighted the importance of social media platforms
as a valuable tool for communication between individuals, and as such warrants protection
under the ECHR.65 According to Art. 8, everyone has the right to respect for his private and
family life and correspondence without interference by a public authority. The right to private
life and correspondence is also protected on the Internet.66
32. Furthermore, Art. 11 guarantees the right to peaceful association, whether it is private
or public, and irrespective of its form or the role of the participant in the assembly.67 The
right to peaceful association also relates to the right to form or be affiliated with a group or
organization pursuing particular aims,68 and therefore also covers such unofficial groups as
the EvryFav forum. Art. 11 is connected to Art. 10 in the sense that both include the right to
express opinions on controversial issues, even if such opinions annoy or give offence to
others.69 In addition, any interference with the rights guaranteed under Arts. 8 and 11 has to
be "prescribed by law", pursue one or more of the aims enumerated and be "necessary in a
democratic society" to achieve that or those aims.
62 Jersild v. Denmark, § 35. 63 Erdoğdu and İnce v. Turkey, § 53 and Erbakan v. Turkey, § 69. 64 Jersild v. Denmark, § 33. See also Weber (2009), pp. 33–35. 65 CM/Rec(2012)4, §§ 1, 6 and 15. 66 Copland v. the United Kingdom, §§ 41–42. 67 Djavit An v. Turkey, §§ 48 and 60. 68 McFeeley and Others v. the United Kingdom (dec.), § 114. 69 Plattform "Ärzte für das Leben" v. Austria, § 32.
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33. The notion of “private life” is to be interpreted broadly, and respect for private life
thus comprises, to a certain degree, the right to establish and develop relationships with other
human beings – not only relationships with family members and the “inner circle” but also
professional relationships.70 Furthermore, the right to correspondence protects the
confidentiality of “private communication” and uninterrupted communication with others
regardless of its content and form.71 Consequently, if the correspondence is interrupted or
censored in any manner, this results in an interference in the meaning of Art. 8(2).
34. Art. 3 of the Additional Protocol to the Convention on Cybercrime obliges Evrylia to
criminalise intentional distributing, or otherwise making available, racist material to “the
public” through a computer system. Furthermore, according to the Explanatory Report to the
Additional Protocol, private communications or expressions are protected by Art. 8 and
clearly left outside of the notion of “the public”. In addition, it depends on the circumstances
of the case whether the dissemination was made to the public or not. Several objective factors
can be taken into account in the assessment, including the number of receivers and the
relationship between the sender and the receiver/s.72
35. The applicant’s private Phrendbook profile served as a means for him to keep in
contact with his friends, family, and colleagues. The impact of this forum with respect to the
general public was very limited, and thus the potentially harmful effects of the link were also
minor. On the other hand, the account in question was highly valuable for the applicant with
respect to both his private and professional life. First of all, the communication on the private
Phrendbook platform “wall”, accessible only by the applicant’s friends and family, falls
clearly within the notion of “private life” as regards Art. 873 and, moreover, can be regarded
as “private communication” in the meaning of the right to confidential correspondence.
36. Second, the forum group “EvryFav Media” served as an important medium for
interaction with other journalists and their trade unions, and constituted an integral part of the
applicant’s professional life. In the latter sense, it should be taken into consideration that by
rendering the journalists’ forum inaccessible, the injunction also substantially restricted the
rights of third parties and thus had a significant collateral effect.74 With respect to the
evaluation of the effects of the infringement and its proportionality with regard to Arts. 8 and
70 Niemietz v. Germany, § 29. 71 Salapa v. Poland, § 91–94 and Michaud v. France, § 90. 72 Explanatory Report to the Additional Protocol to the Convention on Cybercrime, §§ 29–31. 73 See, e.g., Niemietz v. Germany, § 29. 74 See, mutatis mutandis, Yildirim v. Turkey, § 66.
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11, the applicant refers to the above grounds presented in connection with the discussion of
the violation of Art. 10 (see §§ 26–28).
6 Violation of Article 6(1): Criminal investigations were not conducted in reasonable
time
37. The Art. 6(1) places a positive obligation for the State to organise its legal system in a
manner that enables the conduction of proceedings within a "reasonable time".75 The
assessment of reasonability can be based for instance on the date on which the person was
notified of the criminal investigations.76 Approximately a three-year time period of total
inactivity in a single jurisdictional level could be justified only by exceptional
circumstances.77 Even in cases where there might have been a good explanation for the delay,
the Court has held that a delay of three years is an unreasonably long period.78 The
reasonable length of proceedings depends on the circumstances of the case, and at least
following criteria need to be taken into account: the complexity of the case, the conduct of
the applicant and the relevant authorities and what was at stake in the proceedings for the
applicant.79 The reasonability assessment can be performed even if the case is still pending.80
38. The present case is not particularly complex, since user-based comments in the blog
site clearly fulfil the essential elements of the hate speech offence in Evrylia and also
provoked violence towards Kroppa minority, causing clear danger to the public safety. Thus,
there are only a few questions remaining: first, whether the applicant is responsible for the
user-based content, and second, whether there was the intention of provoking by the links
created and whether the latter linking was conducive to cause danger to the public safety.
39. Applicant has not done anything to delay the criminal investigations. Besides filing
for injunction, the prosecutor has failed to bring the main criminal charge before the courts
since the investigations were opened. Three years clearly constitutes an unreasonable time for
the criminal investigations to be pending before the prosecutor’s office.
40. In addition, the Court has distinguished a group of cases which should be dealt with
great urgency.81 For one, special diligence is required in cases considering individuals’
professional activities, for instance when the case has direct influence on the way the
applicant carries on his profession or when the continuation of the applicant’s professional
75 Zimmermann and Steiner v. Switzerland, § 29. 76 Kangasluoma v. Finland, § 26. 77 Zimmermann and Steiner v. Switzerland, § 27. 78 Petroff v. Finland, § 23. 79 Lehtinen v. Finland, § 30. 80 Sorvisto v. Finland, § 72. 81 Süßmann v. Germany, § 61. See also Edel (2007), p. 43.
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activity depends in large measure on the proceedings.82 The sanction of hate speech crime in
Evrylia is particularly severe for a speech offence, especially when the applicant is not the
writer of the comments. It causes a serious chilling effect on journalists. Consequently, the
proceedings are of utmost interest to the applicant. Evrylia left the applicant in an uncertain
position for three years and there has thus been a violation of the Art. 6(1).
7 Violation of Article 4(1) of the Protocol no. 7
41. The applicant stresses that, noting especially the excessive length of the injunction
proceedings, the injunction could be regarded as “criminal” in the meaning of the “ne bis in
idem principle” provided for in the Art. 4(1) of Protocol no. 7. The legal characterization of
the procedure under national law cannot be the sole criterion of relevance for the applicability
of this principle”.83 The Court has set out three criteria (Engel criteria)84 to be considered in
determining whether or not there was a “criminal charge”: the legal classification of the
offence under national law; the very nature of the offence; and the degree of severity of the
penalty that the person concerned risks incurring. They can also be applied cumulatively.85
42. The applicant stresses that the injunction meets the aforementioned criteria: the
injunction was imposed due to a minor offence (disseminating) allegedly committed by the
applicant, and it has had severe consequences in the circumstances where the imposing has
been unreasonably prolonged. In fact, the applicant considers that the severity of the measure
was in itself so significant that it could be viewed as a criminal sanction.86 Moreover, the
applicant notes that the injunction was imposed in separate proceedings which, in the
circumstances of the case, did not have a sufficiently close connection to the main
proceedings “in substance and in time” to consider the injunction to be part of the main
proceedings.87 Thus, there has been a violation of Art. 4(1) of Protocol no. 7.
JUST SATISFACTION
43. Based on the above-mentioned, the applicant considers evident that Evrylia has breached
its Convention obligations. Should the Court find a violation, it is submitted that it should, under
Art. 41, award the applicant ‘just satisfaction’ and order the reimbursement of the full costs and
expenses incurred.
82 See, mutatis mutandis, Doustaly v. France, § 48. See also Edel (2007), p. 46. 83 Sergey Zolotukhin v. Russia, § 52. 84 Engel and Others v. the Netherlands, § 85. 85 Sergey Zolotukhin v. Russia, § 52. 86 Nilsson v. Sweden (dec.). 87 See, mutatis mutandis, Nilsson v. Sweden (dec.).