Necessary in a democratic society
‘(a) The test of “necessity in a democratic
society” requires the Court to determine whether
the interference corresponded to a pressing
social need. The Contracting States have a
certain margin of appreciation in assessing
whether such a need exists, but it goes hand in
hand with European supervision, embracing both
the legislation and the decisions applying it,
even those delivered by independent courts. The
Court is therefore empowered to give the final
ruling on whether a “restriction” is reconcilable
with freedom of expression as protected by
Article 10.
(b) The Court’s task in exercising its
supervisory function is not to take the place of
the competent domestic courts but rather to
review under Article 10 the decisions they have
taken pursuant to their power of appreciation.
This does not mean that the supervision is
limited to ascertaining whether the respondent
State exercised its discretion reasonably,
carefully or in good faith; what the Court has to
do is to look at the interference complained of
in the light of the case as a whole, including
the content of the statements held against the
applicant and the context in which he or she has
made them.
(c) In particular, the Court must determine
whether the reasons adduced by the national
authorities to justify the interference were
relevant and sufficient and whether the measure
taken was proportionate to the legitimate aims
pursued. In doing so, the Court has to satisfy
itself that the national authorities, basing
themselves on an acceptable assessment of the
relevant facts, applied standards which were in
conformity with the principles embodied in
Article 10.
(d) The Court must also ascertain whether the
domestic authorities struck a fair balance
between the protection of freedom of expression
as enshrined in Article 10 and the protection of
the reputation of those against whom allegations
have been made, a right which, as an aspect of
private life, is protected by Article 8 of the
Convention.’ Bozhkov v Bulgaria
[2011] ECHR 700 (an Article 10 case.)
Categories: 6th edition, Appendix, updates