The European Union makes great play of its commitment to free expression. All EU countries are signatories to the European Convention on Human Rights, Article 10 of which 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.

Clause two of the article stipulates several exceptions to this, but citizens of the EU are, broadly speaking, free to criticise their governments and heads of state, to question officials and hold power to account. But this doesn’t mean that there are not real challenges to free speech.

As more and more communication strays into the realm of publication via social media, people in democratic countries find themselves increasingly subjected to restrictions on free speech. In the UK, laws meant to govern different types of communication are now used to bring prosecutions for speech on social media.

Cases such as those of Liam Stacey, Azhar Ahmed and Paul Chambers in the UK have seen prosecution for the posting of “offensive” or “menacing” content on social networks, under laws designed either to prevent the outbreak of violence, or harassment via emails and phonecalls. The question for the democratic world raised by social technology is complex: do we continue with old laws, create new ones governing social media interaction, or accept the idea that the speed with which technology advances will make governing of online communication impractical if not impossible?

Azhar Ahmed was convicted for posting “grossly offensive” material (above) on Facebook

The issue of “extremism” often collides with free speech. In the UK, members of (now-banned) group Al Muhajiroun have faced prosecution for, among other crimes, calling for the death of British soldiers in Afghanistan, and burning poppies on Rememberance Day. Judgments in these cases have essentially found the perpetrators guilty of “offensive” statements and actions which run counter to the general societal consensus, disregarding any notion of protected political speech.Throughout Europe, many countries which experienced the full horrors of Nazism have laws against the denial or belittling of the Holocaust. While the impulse to prevent a repeat of the rise of Nazism, as well as to honour the memories of those who were murdered, is understandable, such laws can only be seen as a direct contravention of the right to free expression, placing a certain topic, however sensitive, beyond the limits of discussion. Far-right figures such as David Irving, Horst Mahler and Jean Marie Le Pen have all been convicted for Holocaust denial.French President Francois Hollande has signalled his intentionto bring in similar laws to criminalise denial of the Armenian massacres of 1915, in a mirror of Turkey’s penal code, which prevents discussion of the same subject.

Privacy and reputation

Privacy and reputation have also proved controversial. English libel laws have been particularly contentious over the last three years, with Index and its partners in the Libel Reform Campaign arguing that they have a chilling effect on free speech in the UK and beyond. Cases such as those brought against science writer Simon Singh and cardiologist Dr Peter Wilmshurst, as well as several infamous “libel tourism” cases, where claimants with little or no reputation in British society used London’s court to silence criticism abroad, demonstrated the need for reform.The campaign has focused on providing a strong public interest defence, allowing journalists, academics and bloggers to write freely and honestly on controversial issues and public figures without fear of long and potentially ruinous defamation cases brought by the rich and powerful. However, a balance must be struck between the right to free expression and the right of redress for people who have been genuinely wronged.

The European Court of Human Rights has seen several controversial cases bringing the press into conflict with individuals’ right to privacy. Cases such as Von Hannover v Germany, MGN v United Kingdom, Mosley v United Kingdom have all been key in the definitions of public sphere, public interest and privacy, seen the pendulum swing back and forth in an area that, it seems, will forever be contentious. In Spain and Germany, reputation issues have led to moves to stop search engines from indexing sites detailing previous bankruptcies etc, as part of the controversial idea of a “right to be forgotten”.

Breaches of privacy via “phone hacking” brought about a crisis in the British media, leading to the establishment of the Leveson Inquiry, due to report in autumn 2012. The Inquiry is expected to make recommendations on the regulation of the press, an issue approached in many different ways throughout Europe. In Britain, “state regulation” is seen by many as having negative conotations for free expression, though many countries, including Ireland have established some kind of “statutory underpinning” of the press. In Hungary, draconian laws severely limiting media ownership and press freedom have been partially withdrawn after an international outcry.

The Leveson Inquiry has also thrown up questions of media ownership, with widespread concern at the dominance of the national newspaper market by Rupert Murdoch’s News International. The most troubling excess of this dominance was seen during Silvio Berlusconi’s rule as prime minister in Italy, when dissenting voices were marginalised bothy by state television and by Berlusconi’s TV stations, which held a huge portion of the market.

The shifting nature of public discourse in democratic societies means that the debate over free expression can take on many different forms. But the crucial point is that any restriction on free speech must be reasonable, proportionate, and limited. An assumption in favour of free expression should be the norm.

Padraig Reidy is News Editor at Index on Censorship. He tweets at @mepadraigreidy

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The European Court of Human Rights based its decision on “the margin of appreciation” that is accorded to every country to solve certain problems in its own way, according to its own traditions and inclinations. The message of today’s decision is directed to the UK Parliament — “it’s over to you”. There is a duty to protect privacy, but we can do it in our own way, so long as we do not err on the one hand by suppressing information of genuine public interest, or on the other, allowing intimate facts of no value to be intrusively obtained and published for sniggering entertainment.

The real problem is first to find a sensible test to distinguish between the two, and secondly to devise a legal approach that will serve to deter abuses of privacy whilst maintaining open justice and free expression. Today’s judgment does nothing to solve the first problem, which arises because of its incoherent decision in the “Princess Caroline” case, which defined privacy in terms of “enhancing personal development” and amounted to little more than vague psycho-babble. But it did provide some helpful pointers in solving the second. Mosley was awarded £60,000 by a judge in England, and received a massive 250,000 euros in Germany, and is suing for more compensation in France and Italy. A law which allows such sums to be awarded for blatant breaches, after open court proceedings, provides an adequate remedy to victims.

Of course, Mosley’s argument is understandable. Post publication damages will not put the genie back in the bottle. The victim will never be the same again, the secret will be out, and money cannot compensate for the humiliation. True enough, but the courts cannot perform miracles. They cannot, as his judge pointed out, be like King Canute, policing the electronic waves of incoming information. Do we really want Scotland Yard to spend our tax money on a “twitter squad” arresting those who indulge in internet speculation about the going-on in secret courts?

Moreover, a law that made invasion of privacy a civil wrong (tort) with damages of up to (say) £250,000 awarded by a jury, would operate in time as an effective deterrent. Jury verdicts are publicly acceptable, whereas decisions on such subjective moral issues by judges (perceived as middle-class and male) are not. Well may judges rail against “sniggering tabloids”, as the Euro court has in its Mosley decision, but the final verdict should be left to a representative sample of readers in the jury box. Would Max have won his case before a jury? His spanking episode with five prostitutes might have struck them as morally reprehensible, or they might have thought him pretty good for his age. The point is that over time, if juries award heavy damages against tabloid intrusion, tabloids will think twice — or three times — about intruding. They will take care to ensure they have a public interest rationale before they do it again.

The tension between free speech and privacy is inevitable, and there is no ideal solution. But we must stick to our constitutional principles: justice must always be seen to be done, and remedies for human rights abuses must be workable, publicly acceptable, and should not bring the courts into disrepute. So Parliament should sweep away super-injunctions and all the Euro-nonsense that has accreted to the concept of privacy, and pass a law creating a civil wrong of publishing intimate personal details, unjustified by exposing crime or serious impropriety, protecting public health or safety, or revealing hypocrisy. Either party should be entitled to opt for trial by jury, with damages capped at £250,000.

This would provide a solution consistent with our traditions and our European obligations. No more secret courts, no more prior restraint. Let the press be free — and let it take the consequences if it abuses that freedom. In other words — those of the Duke of Wellington — “Let it publish and be damned”.

Geoffrey Robertson QC is co-author of Robertson & Nicol on Media Law (Penguin, 5th Ed.). He wrote Index on Censorship submissions to the European court in the Mosley case

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Victory for Mosley would have meant that media outlets would have been required to contact subjects of stories prior to publication. But there were fears that such a step would lead to a rise in interim injunctions barring publication.

In a ruling published this morning, the Strasbourg court judges noted that:

having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court is of the view that Article 8 [the right to privacy] does not require a legally binding pre-notification requirement.

Case of Mosley v. the United Kingdom

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In a judgment in Mirror Group News versus United Kingdom, the court said the “flaws” of success fees and the CFA system “are such that the Court can conclude that the impugned scheme exceeded even the broad margin of appreciation to be accorded to the State in respect of general measures pursuing social and economic interests.”

The Mirror newspaper brought the case to Strasbourg after it was forced to pay £500,000 in costs and success fees to model Naomi Campbell, after it was found to have breached her privacy by photographing her leaving a drug addiction treatment centre. The court upheld that there had been no breach of the Mirror’s free expression in the privacy ruling won by Campbell.

Media Legal Defence Initiative, the Open Society Justice Initiative, Index on Censorship, English PEN, Global Witness and Human Rights Watch jointly intervened in the case to express serious concern about the costs of defending libel and privacy claims in the UK. NGOs and small publishers — including bloggers — are extremely vulnerable to the threat of a costly libel or privacy actions in the UK. They simply do not have the means to defend themselves, and are easily forced to apologise and retract allegations even when they know them to be true.

Jo Glanville, editor of Index on Censorship said: “This is a resounding triumph, spelling the end of success fees in defamation and privacy cases, one of the most serious chilling effects on freedom of expression in the UK.”

CASE OF MGN LIMITED v. THE UNITED KINGDOM

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If the European Court of Human Rights allows Mosley’s application, that rule would be effective across Europe.

Such a rule would be disastrous for investigative reporting of all kinds — by the media as well as by NGOs. It would mean that a local paper that has been leaked documents showing corruption in the local council, for example, would be forced to notify those named in the story. The subjects would without doubt take out an injunction, probably on grounds of breach of confidence, and the story could not be published for months — if the newspaper concerned has the funds to litigate at all (readers of this blog will be aware how costly litigation is in the UK). If it doesn’t, then the story would not see the light of day at all. The story would affect NGOs as well. Global Witness, the human rights NGO, have said that should Mosley’s rule be brought in, they would no longer be able to publish hard-hitting reports on topics such as blood diamonds, and their staff and sources would be put in danger.

Media elsewhere across Europe would encounter similar problems. Reporting on the activities of large odious multinationals such as Trafigura (whose dumping of toxic waste in West Africa and subsequent litigation across Europe to prevent the story being reported hit the headlines in 2009) would be even more difficult than it already is, and oligarchs in Russia or Ukraine could use such a new privacy law to muzzle what is left of the independent media in these countries.

To protect the right of the media to continue publish information on issues of public interest — and the right of the public to receive it — the Media Legal Defence Initiative along with Index on Censorship, the International Media Lawyers Association, the European Publishers Council, the Russia-based Mass Media Defence Centre, the Romanian Helsinki Committee, the Bulgarian Access to Information Programme and Global Witness jointly intervened in the Mosley case to warn the Court of the wider implications of Mosley’s request. Mosley’s request is wholly incompatible with the fundamental right to freedom of expression, guaranteed in Article 10 of the Convention, and we urge the European Court to dismiss his application. Geoffrey Robertson QC’s submissions on our behalf are found below.

Mosley v United Kingdom – Submission Dated 23.03.10

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Yesterday, the European Court Human Rights (ECHR) ruled that the Azerbaijani government must release imprisoned journalist Eynulla Fatullayev.

He was sentenced to eight years in prison in 2007 after being convicted of defamation, terrorism and tax evasion charges, convictions human rights groups call politically motivated. The court ruled that Fatullayev was currently serving the sentence for offences which violate the European Convention on Human Rights and ordered that he be paid €25,000 as compensation. The ECHR affirmed that Fatullayev’s rights to freedom of expression and a fair trial have been contravened in Azerbaijan, which has been a member of the Council of Europe since 2001.

The news raised mixed hopes in Azeri society. Though the country’s authorities say they will challenge the ruling, human rights activists believe the government may be forced to comply with the judgment.

Fatullayev’s father was pleased with the verdict but expressed fears said the authorities might attempt to hamper Eynulla’s release from jail . “The ruling verified that my son was innocent and jailed just because of his journalistic activity. I thank the international community in their firm and objective stance and unanimous support,” he said. Well-known journalist Shahveled Chobanoglu argued that “the verdict was an important victory for the suppressed activists and outspoken journalists” in Azerbaijan, which has a long record of stifling at the media freedom and suppressing dissent.

But, the government seems a long way from accepting the ECHR’s verdict. Chingiz Esgerov, Azerbaijan’s representative in the ECHR, argued that “the ECHR has no authority to give orders to the courts of other countries” and “the country’s legislation does not envision the release of a prisoner only on a basis of the ECHR”. The government has vowed to take the case to the Grand Chamber of the ECHR “to support the interests of Azerbaijan Republic”. In practice, the decision of the ECHR comes into force within three months of its issuance provided that a motion is not presented to consider the case in the Grand Chamber.

Intigam Aliyev, a well-known lawyer said the verdict will not change, even if the authorities manage to appeal it before the Grand Chamber. “Regardless of any further court instances at the ECHR, the ultimate decision will be in favor of Fatullayev, as the gross violation of his rights is crystal-clear and was substantiated by the objective and professional lawyers of the ECHR”.

Read more on the Eynulla Fatullayev case and his most recent trial on “trumped up” drugs charges

Vugar Gojayev is a freelance journalist writing on the developments in the South Caucasus

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