Freedom of Expression and Defamation Under the European Convention on Human Rights

First in a two-part series about how Italy’s libel laws violate freedom of expression guaranteed by the European Convention on Human Rights. Above: the European Court of Human Rights in Strasbourg, France. Photo by Alfredovic at Italian Wikipedia. Licensed via Wikimedia Commons.

As a member of the Council of Europe, an international organization comprised of 47 European member states, Italy is bound by the European Convention on Human Rights and subject to the jurisdiction of the European Court of Human Rights in Strasbourg, France.

The European of Court of Human Rights (ECHR) has held on several occasions, however, that Italy’s defamation and libel laws do not fulfill its international obligations under the European Convention, particularly with respect to freedom of expression.

This article is first in a two-part series about how Italy’s criminal defamation statutes violate Article 10 of the European Convention. The first part outlines European standards for freedom of expression and how the court has applied those standards to the member states’ national defamation laws.

The second part will explain how Italy’s laws fail to conform to the standards established by the Court. Part 2 will also discuss Italy’s failed efforts to reform its libel laws and the geo-political consequences of its legislative shortcomings.

Freedom of Expression in Europe: The Right to Receive and Impart Information and Ideas

Article 10 of the European Convention on Human Rights states:

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

Just as the U.S. Supreme Court defines “speech” broadly, the ECHR has held that “expression” is not limited to written or spoken words, but includes pictures, images, actions intended to express an idea or present information, and even clothing in some instances.[i]

A parsing of the statutory language shows that Article 10 actually establishes three related freedoms: to hold opinions, to impart information and ideas, and to receive information and ideas. The ECHR has held that this first right – to hold opinions – is generally inviolable. Any restrictions on this right would amount to thought control or indoctrination of citizens, which the Court has described as “inconsistent with the nature of a democratic society.”[ii]

States furthermore cannot distinguish between citizens based on their viewpoints – i.e. treat certain believers better or worse than others – and cannot force citizens to state their opinions on certain matters.[iii]

Also similarly to the U.S. Supreme Court, the ECHR has held that the freedom to impart information and ideas is “one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every man.”[iv]

In 1986, the Court observed that the press in particular is “tasked with imparting information and ideas on political issues [and] other areas of public interest.” and held that, “The public also has a right to receive them.” The freedom to receive information includes the right to gather information through all possible lawful sources, including international television broadcasts.[v]

Thus the media has the right to impart information and ideas to the public, and the public has the right to be adequately informed, particularly on matters of public interest. These freedoms, however, are not absolute.

Article 10 goes on to say that the freedom of expression “carries with it duties and responsibilities” and therefore can be subject to “formalities, conditions, restrictions or penalties” that are necessary “in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

These are often called the “paragraph 2 restrictions” because they appear in Article 10, paragraph 2 of the European Convention.

Article 10 and Defamation

The ECHR has established a three-prong test to determine whether a state’s interference with freedom of expression is legitimate according to the paragraph 2 restrictions. The interference must 1) be a formality, condition, restriction or penalty prescribed by law, 2) the law must be aimed at protecting one or more of the interests stated in paragraph 2, and 3) the interference must be necessary in a democratic society. The state has the burden of proving all three requirements according to the following standards established by the ECHR.

1. Prescribed by Law

Interference with freedom of expression must be based in national law that is public, accessible and predictable, the ECHR has held.[vi] The law must be public because freedom of expression is so valuable that restrictions must have the democratic legitimacy that accompanies public Parliamentary acts or common-law legal formulations.[vii]

“Accessible” means that citizens must have adequate indication of the law. The law must also be “formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail,” the Court has held. The key is that citizens must be afforded a “measure of legal protection in domestic law against arbitrary interferences by public authorities.”[viii]

2. Aimed at Protecting a Stated Interest

In 1979, the ECHR held that the list of restrictions in paragraph 2 is exhaustive.

“No other criteria than those mentioned in the exception clause itself may be at the basis of any restrictions, and these criteria, in turn, must be understood in such a way that the language is not extended beyond its ordinary meaning,” the Court wrote.[ix]

Therefore the state must first identify the value or interest, and then it must confirm that the interest is listed among the paragraph 2 restrictions.

Defamation is, broadly speaking, a valid restriction on the freedom of expression because it has the legitimate aim of “protect[ing] the reputation or rights of others.”

However, the interest claimed must adhere closely to the interest listed. In borderline cases, the freedom of the individual should outweigh the state’s claim of over-riding interest.[x]

For example, enhanced penalties for insulting public officials implicitly protect more than just the reputation of the individual, and instead serve to protect the image or honor of the state/ government. Since “image of the state” is not a paragraph 2 restriction, most of these enhanced penalties would be held invalid for not protecting a stated interest.[xi]

The ECHR has also held that defamation statutes are only valid when applied to expressions of fact, not value judgments.[xii] Since the right to hold opinions is inviolable, the natural extension is that states cannot punish people for expressing those opinions. Defendants can only be held to answer for the veracity of the facts underlying those opinions — not for expressing opinions that might harm another’s reputation.

3. Necessary in a Democratic Society

The third requirement for restricting freedom of expression is meant to guarantee that the national law in question follows a broader legal concept called “proprtionality,” meaning the aim was proportional to the method employed to achieve it.[xiii]

In an Article 10 case, the aim would be the interest listed in paragraph 2, and the method would be the interference on speech. The ECHR has held that an interference is “necessary” if there exists a “pressing social need” for it.[xiv] European states are allowed a certain “margin of appreciation” in determining whether the need exists, but must follow a wide body of jurisprudence developed in the area of defamation.[xv]

The ECHR has issued several rulings applying the proportionality principle to defamation in general and criminal defamation specifically.

First, the Court has held that enhanced penalties for defaming politicians are not proportional even if the state can prove that they closely adhere to the interest of protecting the subject’s reputation. The Convention protects harsh criticism leveled at politicians because “freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention,” the Court wrote.[xvi]

More specifically, “The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual” because the politician “inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists at the public at large,” the Court wrote.[xvii] The politician must therefore “display a greater degree of tolerance” of criticism.

Second, courts must accept the “good faith defense,” meaning that defamation laws cannot punish journalists who have sufficient reason to believe a particular piece of information was true at press time. This reflects a very pragmatic understanding of the media business, namely that news is a “perishable commodity” and that delaying publication even for a short period “may well deprive it of all its value and interest.”[xviii]

For criminal defamation, the “good faith defense” is even stronger: criminal defamation statutes cannot punish journalists who believed the information they published was true. In other words, penal code provisions should only apply to intentional defamation; all other forms should be civil crimes.[xix]

The court has also never held that a jail sentence was proportionate to the crime of defamation, even in the case of intentional defamation.[xx] Jail sentences “endanger the very core of the freedom of expression and function as censorship for the entire media, hampering the press in its role of watchdog,” according to one scholar.[xxi]

[i] Muller and Others v. Switzerland (1988); Chorherr v. Austria (1993); Stevens v. the United Kingdom (1986).

[ii] Van Dijk and Van Hoof, Theory and Practice of the European Convention on Human Rights at 412 (Kluwer 1990) (quoting a Report of the Committee of Ministers).

[iii] Vogt v. Germany (1995).

[iv] Handyside v. United Kingdom (1976).

[v] Autronic AG v. Switzerland (1990).

[vi] Sunday Times v. the United Kingdom (1979).

[vii] Monica Macovei, Freedom of Expression: A Guide to the Implementation of Article 10 of the European Convention on Human Rights at 31 (Council of Europe 2004).

[viii] Leander v. Sweden (1987).

[ix] Sunday Times v. The United Kingdom (1979).

[x] A. Rzeplinski, “Restrictions on the Expression of Opinions or Disclosure of Information on Domestic or Foreign Policy of the State,” Budapest 1997, CoE Monitor (97) at 3.

[xi] Macovei, supra, at 34.

[xii] Lingens v. Austria (1986).

[xiii] Proportionality is a general principle enshrined in Article 27 § 3 of the European Convention. See also, Macovei, supra, at 35.

[xiv] Observer and Guardian v. the United Kingdom.

[xv] Macovei, supra, at 35.

[xvi] Lingens v. Austria (1986).

[xvii] Id.

[xviii] Sunday Times II v. United Kingdom (1991).

[xix] Macovei, supra, at 52.

[xx] Id.

[xxi] Id.