Fwd: The Freedom Of Expression Versus The Right To Privacy - Considerations - Human Rights - Worldwide

[Gunnar Larson]

---------- Forwarded message ---------
From: Gunnar Larson <g at xny.io>
Date: Thu, Feb 22, 2024, 12:57 PM
Subject: The Freedom Of Expression Versus The Right To Privacy -
Considerations - Human Rights - Worldwide
To: <cypherpunks at cpunks.org>


FBI, yesterday in Chelsea the NYPD was at the door and I would not open
it... I think this had to do with the Mayor Adams?  Looking through the
peep hole, there were several officers with the body cameras 📷 going. I
filed a new NYPD FOIL for the new footage.

What happened yesterday makes this article below one of my favorites. I
think this explains yesterday probably better than anything.

Gunnar

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https://www.mondaq.com/human-rights/1426622/the-freedom-of-expression-versus-the-right-to-privacy---considerations


Worldwide: The Freedom Of Expression Versus The Right To Privacy -
Considerations

21 February 2024

As an essential attribute of democracy, freedom of expression is
legitimised through a range of both national and international instruments.
In the European Convention on Human Rights (hereinafter - the Convention)
this concept was reinforced in Article 10. In the case of Handyside v. the
United Kingdom, we observe the importance given by the European Court of
Human Rights (ECHR) to this principle - "freedom of expression constitutes
one of the essential foundations of a [democratic] society, one of the
basic conditions for its progress and for the development of every man".

In the same case, the European Court emphasised that freedom of expression
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".

Freedom of expression is not an absolute right and, as the Court showed in
Morice v. France, it is accompanied by exceptions that require a strict
interpretation, and the need to restrict it must be convincingly
established.

Any interference with the applicant's right to freedom of expression needs
to be conclusively and unequivocally motivated by the court, considering
the principle of proportionality. In addition, it is necessary to argue
that this interference is a necessary one in a democratic society.

Thus, if in the exercise of the right to express one's opinion some
unjustified insult is resorted to infringing the right to a good
reputation, the court is called to take into account all aspects of the
case, including analysing whether the main purpose of the value judgement
was rather to raise public awareness of a matter of public interest, even
if expressed in an exaggerated or provocative manner, rather than denigrate.

We are in the presence of a violation of Article 10 of the Convention when
the reasons invoked by the national courts cannot be considered relevant
and sufficient to justify the interference with the right to freedom of
expression of an applicant and when this interference is disproportionate
in relation to the legitimate aim pursued.

In the Marunić v. Croatia case, the European Court decided that there was a
violation of Article 10 of the Convention, finding that the interference
with the applicant's freedom of expression in the form of summary dismissal
was not necessary in a democratic society to protect the reputation and
rights of the society in question. In this case, the applicant, director of
a municipal company providing services of public interest, was summarily
dismissed following public statements in which she defended herself,
statements made a week after the president of the company criticised her
activity in an article of the press. The dismissal decision was motivated
by the fact that her statements to the press harm the company's reputation.
The applicant complained that her statements to the press were made only to
refute the false accusations against her and that her dismissal violated
her right to freedom of expression.

The Court held that, although the obligation of loyalty, reserve and
discretion normally prevents employees from publicly criticising the
employers' activity, in the present case the essential element is the
appearance in the press of the other member of the company's management and
the public criticism of the activity of the applicant. Under these
conditions, she could not remain silent and not defend her reputation in
the same way. It would be regarded as stretching the duty of loyalty to
request otherwise.

The internal laws of the member-states may require the proof of the
veracity of the statements made publicly, and this does not seem to
contravene Article 10. On the contrary, such measures are intended to
prevent gratuitous personal attacks, with unnecessarily hurtful comments,
that is, without any valid justification.

In the case of Axel Springer AG v. Germany, it was shown that the quality
of public personality of the person whose reputation protection is weighed
against the restriction of freedom of expression plays an important role.
This being a sufficiently well-known actor, and the fact that he had been
arrested in public and actively sought to come to the fore by revealing
information about his private life in a series of interviews, meant that
his legitimate belief that his private life will be effectively protected
was limited.

We observe a similar perspective in the case of Axel Springer AG v. Germany
(no. 2), where the Court noted that the case concerned aspects of public
interest and that the former chancellor, insofar as he had occupied one of
the highest political positions of the Federal Republic of Germany, had a
duty to show a much greater degree of tolerance than a private person.

In the constant jurisprudence of the Strasbourg Court it is highlighted
that the limits of acceptable criticism are greater towards a politician
than towards a private person. Politicians unavoidably and knowingly expose
themselves to the scrutiny of their every word and deed by the public and
must therefore display a greater degree of tolerance for criticism.

In the decision of Mladina D. D. In Ljubljana v. Slovenia, the Court
likewise emphasised that the limits of acceptable criticism are greater in
relation to a politician, particularly as he himself had made controversial
public statements, than in relation to a private person. Both the context
in which the editor's article was written (an intense political debate) and
the style used (similar to the parliamentarian's provocative behaviour and
comments) were not sufficiently taken into account by the national courts.
Therefore, the article was not a gratuitous personal attack on the MP, but
a reply to the MP's own public remarks. Consequently, it was concluded that
the domestic courts had not struck a fair balance between the competing
interests of protecting the reputation or rights of the parliamentarian and
the publisher's right to freedom of expression.

In Reznik v. Russia the applicant complained that his right to freedom of
expression had been disproportionately restricted. The European Court ruled
that it was indeed violated Article 10 of the Convention, finding that the
applicant did not exceed the limits of acceptable criticism, that his
statement was based on a sufficient factual basis and that the Moscow
Court, which convicted him of libel, did not base its decision on an
acceptable assessment of the relevant facts. In particular, the tribunal
did not maintain any balance between the need to protect the petitioners'
reputation and the public interest. Furthermore, although the applicant was
ordered to pay only a small sum of money as compensation, the initiation of
a libel suit against him was likely to have a chilling effect on his
freedom of expression.

The case of Rodriguez Ravelo v. Spain concerned language used by a lawyer
in a written application that contained value judgments about a female
judge and attributed reprehensible behaviour to her. The applicant
complained about the conviction and the sentence imposed on the grounds
that they represented a disproportionate interference with the exercise of
his right to express himself freely in the context of his professional
duties. The Court decided that Article 10 of the Convention was violated.
Certainly, the applicant's conviction and sentence were provided for by law
and the interference with the exercise of his right to freedom of
expression had pursued the legitimate aim of protecting the judge's
reputation and rights and maintaining the authority and impartiality of the
judiciary. However, the Court found that the applicant's conviction could
have a deterrent effect on lawyers called upon to defend their clients. The
Spanish criminal courts therefore did not strike a fair balance between the
need to maintain the authority of the judiciary and the need to protect
freedom of expression. The punishment pronounced against the lawyer was
therefore not proportionate to the legitimate aim pursued and was therefore
not necessary in a democratic society. We observe that this sanction in the
specific circumstances of the case were excessive.

A case also worthy of attention is Morice v. France, in which the
conviction of a lawyer, considering the observations presented in the
press, for complicity in slander against investigating judges who had been
recused from the judicial investigation regarding the death of a judge was
targeted. The applicant argued that the conviction for complicity in
defamation violated his right to freedom of expression under Article 10 of
the Convention. It was not disputed in this case that the decision to
convict the applicant constituted an interference with the exercise of his
right to freedom of expression, as provided by law, to protect his
reputation or the rights of others. The Court decided, however, that there
was a violation of Article 10 of the Convention, noting that the conviction
for complicity in slander pronounced against the applicant can be seen as a
disproportionate interference with his right to freedom of expression and
therefore was not necessary in a democratic society within the meaning of
Article 10.

At the same time, it should be noted that, considering his specific status
and his position in the administration of justice, the Court considers that
the lawyer cannot be assimilated to a journalist. Indeed, their respective
places and missions in judicial debate are inherently different. The
journalist must communicate, in compliance with his duties and
responsibilities, information and ideas on all matters of general interest,
including those relating to the administration of justice. In turn, the
lawyer acts as an actor of the justice system, directly involved in its
operation and in the defence of a party. Therefore, he cannot be
assimilated to an external witness responsible to inform the public.

Another important aspect to consider refers to the attestation of the
existence of any element suggesting bad faith on the part of the person
issuing public statements, as was shown in the judgement of Kanellopoulou
v. Greece. At the same time, in this case the European Court established
that the Greek courts did not place the applicant's statements in the
specific context of the case, nor did they correctly consider the suffering
felt by the applicant when she made the statements, in this case being the
patient who endured the shortcomings of an operation conducted by a renown
cosmetic surgeon. Therefore, we conclude that the consequences suffered by
a person due to the actions of another plays a significant role when it
comes to expressing their opinion publicly.

Often there is an incidence between Article 10 (freedom of expression) with
Article 8 (the right to respect for private and family life) of the
Convention. In such situations, the incidence between these values must be
balanced and analysed in relation to the concrete circumstances of the
case, as well as the legitimate goal pursued by each of the parties, to
avoid disproportionate sanctions. When we talk about the violation of
Article 8 of the Convention, the consequences that may exist are discussed,
such as: the stigmatization of an individual, which has a major impact on
his honour and reputation and affects his private and family life;
inability to continue working; being forced to leave his home or the
community he belongs to, leading to his social exclusion; the suffering of
extremely serious damages in terms of psychological and moral integrity,
but also physical (aggression from other people, self-flagellation,
suicide), etc. The gravity of such consequences must not be the subject of
speculation, but a causal link between the statement and the effect will be
proved in order to convince an impartial and independent court of the truth
of such facts.

In this sense the Petrenco v. Republic of Moldova case becomes relevant. At
the time of the facts, the applicant was the president of the Association
of Historians from the Republic of Moldova and a university professor. He
complained that his reputation had been damaged because of the publication
of claims in the official newspaper of the Moldovan government suggesting
that he had collaborated with the KGB in his past. The European Court
decided that Article 8 of the Convention was infringed, finding that the
reasons invoked by the Moldovan courts to protect the right to freedom of
expression of the newspaper and the author of the article in dispute were
insufficient for the first against the right to respect the reputation of
the applicant. The Court observed, in particular, that the article was
published in the context of an animated debate of great public interest and
that the applicant, who was a public figure, was obliged to tolerate
greater public scrutiny and criticism than if he had been a private person.
Therefore, the general tone of the article and the offensive language did
not in themselves constitute a violation of the applicant's right to
respect for his reputation. However, by suggesting that the applicant
collaborated with the KGB as if it were an established fact, to the extent
that it was mere speculation on the part of the author, the article
overstepped the bounds of acceptable commentary in the context of a public
interest debate.

The courts are called upon to strike a fair balance between the relevant
interests when two rights of equal importance, such as freedom of
expression and respect for privacy, are brought before them, explaining at
length and reasonably the reasons why one value takes precedence over the
other in each individual case and subjecting the interference on any right
to the test of proportionality.

We believe that the right to verbalise observations or criticisms on a
subject of general interest, even if in a harsh or even acidic manner,
should not be restricted in a democratic society in the absence of relevant
and absolutely justified reasons, especially if it is about value
judgments, made in general terms and having a sufficient factual basis.
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