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Guide on Article 10 of the European Convention on Human Rights

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Guide on Article 10 of the European Convention on Human Rights Guide on Article 10 of the European Convention on Human Rights Freedom of expression Updated – 30 April 2021 This Guide has been prepared by the Registry and does not bind the Court Guide to Article 10 of the Convention – Freedom of expression Publishers or organisations wishing to translate and/or reproduce all or part of this Guide in the form of a printed or electronic publication are invited to contact [email protected] for information on the authorisation procedure. If you wish to know which translations of the Case-Law Guides are currently under way, please see Pending translations. This Guide was originally drafted in French. It is updated regularly and, most recently, on 30 April 2021. It may be subject to editorial revision. The Case-Law Guides are available for downloading at www.echr.coe.int (Case-law – Case-law analysis – Case- law guides). For publication updates please follow the Court’s Twitter account at https://twitter.com/ECHR_CEDH. © Council of Europe/European Court of Human Rights, 2021 European Court of Human Rights 2/129 Last update: 30.04.2021 Guide to Article 10 of the Convention – Freedom of expression Table of contents Note to readers .............................................................................................. 8 I. Introduction ............................................................................................ 10 A. Methodology used in this Guide ............................................................................................... 10 B. General considerations on Article 10 in the Court’s case-law .................................................. 11 II. Admissibility of Article 10 of the Convention .......................................... 12 A. Applicability of Article 10 of the Convention ............................................................................ 12 B. Other admissibility issues ......................................................................................................... 14 1. Exhaustion of domestic remedies (Article 35 § 1) .............................................................. 14 2. Victim status (Article 35 § 3 (a)) .......................................................................................... 15 3. Absence of significant disadvantage (Article 35 § 3 (b)). .................................................... 16 III. The Court’s examination of Article 10 cases: a step-by-step analysis ..... 17 A. Whether there was an interference with the exercise of the right to freedom of expression, and the forms of interference ............................................................................... 17 B. The three “tests”: the lawfulness of the interference, its legitimacy, and its necessity in a democratic society .................................................................................................................... 19 1. “Lawfulness of the interference” test ................................................................................. 19 2. “Legitimacy of the aim pursued by the interference” test ................................................. 21 3. “Necessity of the interference in a democratic society” test ............................................. 22 a. Existence of a “pressing social need” ........................................................................... 22 b. Assessment of the nature and severity of the sanctions ............................................. 23 i. The least restrictive measure .................................................................................. 23 ii. General measures ................................................................................................... 24 c. Requirement of relevant and sufficient reasons .......................................................... 24 C. Conflict between two rights protected by the Convention: the balancing exercise ................ 24 1. Article 6 § 2 of the Convention ........................................................................................... 25 2. Article 9 of the Convention ................................................................................................. 25 3. Article 11 of the Convention ............................................................................................... 26 4. Article 1 of Protocol No. 1 ................................................................................................... 26 IV. The protection of the reputation or rights of others .............................. 27 A. Methodology ............................................................................................................................ 27 B. Fair balance between freedom of expression and the right to respect for private life in the context of publications (intimate aspects of an individual’s life and reputation) .................... 28 1. Publications (photographs, images and articles) relating to the intimate aspects of an individual’s life or that of his or her family ........................................................................ 29 a. The criteria and their application ................................................................................. 29 i. Contribution to a debate of public interest ............................................................. 29 ii. The degree to which the person concerned is well known .................................... 31 iii. Prior conduct of the person concerned ................................................................. 32 iv. Method of obtaining the information and its veracity .......................................... 32 v. Content, form and consequences of the impugned article .................................... 33 2. Elements and benchmarks of the Court’s reasoning specific to defamation cases (protection of reputation) .................................................................................................. 35 European Court of Human Rights 3/129 Last update: 30.04.2021 Guide to Article 10 of the Convention – Freedom of expression a. Elements of definition and framing : some considerations .......................................... 35 i. The existence of an objective link between the impugned statement and the person claiming protection under Article 10 § 2 of the Convention ..................... 35 ii. The level of seriousness of the attack on reputation ............................................. 36 b. Benchmarks and elements in assessing whether the interference was proportionate to the legitimate aim of the protection of reputation ......................... 38 i. Content-related elements ....................................................................................... 38 Forms/means of expression .............................................................................. 38 Distinction between statements of fact and value judgments .......................... 38 Procedural issues: standard and burden of proof, equality of arms ................. 40 Defences ............................................................................................................. 42 ii. Context-related elements ....................................................................................... 43 Role and status of the person making the impugned statement ...................... 43 Target of the impugned statement .................................................................... 43 iii. The nature of measures and penalties in response to defamation ....................... 47 Criminal penalties .............................................................................................. 47 Civil and restorative measures and sanctions.................................................... 48 V. The role of “public watchdog”: increased protection, duties and responsibilities ........................................................................................ 51 A. The role of watchdog ................................................................................................................ 51 B. Rights, duties and responsibilities connected to the function of journalist ............................. 52 1. Information gathering ......................................................................................................... 52 a. Research and investigation activities ............................................................................ 52 b. Access to specific sites and localities, and presence therein, for the purpose of gathering information .................................................................................................. 52 c. The lawfulness of a journalist’s conduct ....................................................................... 54 2. Duties and responsibilities which relate to editorial decision-making ............................... 55 a. Reliable and precise information: responsibilities with regard to verification and transmission ................................................................................................................. 55 b. Other responsibilities: editors and publishing directors of newspapers, readers, contributors .................................................................................................................. 57 VI. Protection of journalistic sources .......................................................... 58 A. General principles ..................................................................................................................... 58 B. Definitions,
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