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).
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