10.1 Introduction
Democracy and freedom of expression are intertwined in the European Court of Human Rights (hereinafter, ‘the ECtHR’ or ‘the Court’) case law. Article 10 (Freedom of Expression) of the European Convention on Human Rights (hereinafter, ‘the ECHR’ or ‘the Convention’) introduces obligations on Member States to protect the right to freedom of expression. The scope of the right is broad, and as such, it clarifies that any limitation on the freedom of expression must be prescribed by law, pursue a legitimate aim, and be necessary in a democratic society (e.g., protecting the reputation or rights of others). In addition, Articles 17 (Prohibition of abuse of rights) and 18 (Limitation on use of restrictions on rights) of the ECHR are also relevant in assessing the scope and legitimacy of restrictions against the freedom of expression. In protecting the right to the freedom of expression and robust public debate, which are the foundations and pre-conditions for a democratic society, strong safeguards have been developed by the ECtHR in its case law interpreting the Convention.
Within this case law, the defence of democracy as a legitimate aim of limiting the freedom of expression is a relatively unnoticed part of European case law. More often, the discussion has been on the abuse of rights provision, which is closely related to extreme political movements that try to promote undemocratic ideologies. In this connection, the Court has reiterated that the general purpose of Article 17 is to prevent individuals or groups with totalitarian aims from exploiting the principles enunciated in the Convention in their own interests.Footnote 1
There has been consensus on certain fundamental doctrines related to freedom of expression and defending democracy. However, these are more designed for a traditional media environment that does not reflect the prevailing internet-based system of expression in our current society. In the contemporary system, the defence of democracy is a more complex and multifaceted phenomenon than just guaranteeing the protection of democracy from extreme movements and the most serious hate speech. That is, pre-emptive measures have become a key part of the tools for defending democracy. This means that there need to be strong foundations for securing public debate, including a diverse and pluralist media environment that would enable safeguards against disinformation and other attacks on the democratic system. In contemporary society, the concept of the media as a public watchdog has also evolved into more of a diverse network of watchdogs, consisting of different actors, from the media to non-governmental organisations (NGOs) and even academics.
In addition, there is a fear of abuses of the defence of democracy argument. Sanctions and other restrictive measures could be used to silence critical voices and democratic opposition. This development in applying ulterior purposes is inevitable when looking at how Article 18 of the Convention has emerged in the Court’s case law. There is more evidence of using different sanctions for ulterior motives, especially against those in opposition.
Against this background, this chapter tries to systematise current interpretative doctrines that the ECtHR applies in cases related to defending democracy and the rule of law under Article 10. In addition, it looks at the approach to contextualism taken by the Facebook’s Oversight Board. The idea is to analyse these doctrines in light of present-day conditions and to evaluate how the doctrines are adaptable to the new media environment. In so doing, this chapter first focuses on the question of how European history and the historico-political context have been taken into account and what the key principles have been in assessing the width of the margin of appreciation in relation to the right to freedom of expression in the Court’s interpretation in particular regard to defending democracy. Section 2 will then further outline established doctrines of defending democracy in the Court’s case law. Section 3 of the chapter delves more into how the emergence of internet-based media and enhanced access to a space of social debate has further complicated the case law, where the focus has shifted more to encompassing freedom of expression online for upholding democracy as a system rather than merely restricting extremists or hate speech. The section also considers the threats of disproportionately restrictive measures on public debate, which might undermine democracy and fall under Article 18. The section also looks into the positive obligations and how a regulatory framework requiring pluralism would be essential as a pre-emptive measure against threats to democracy. The final section provides a concluding observation on how the ECtHR has dealt with the defence of democracy argumentation in relation to freedom of expression and the evolving nature of such established doctrines in the face of the current media environment and democratic society.
10.2 Historical Context and Stability of Democracy Argumentation
According to the Court’s case law, the defence of democracy argumentation must be interpreted in light of European history. Consequently, the argumentation of protecting democracy is founded on the history of the twentieth century and especially on how fragile democracy can be in times of transition and where certain resurfacing ideologies pose a threat to democracy, referring to the ideologies and even symbols of authoritarian regimes, whether under Nazism or Communism.
Context is part of the defending democracy doctrines, and the Court emphasises a careful examination of context,Footnote 2 particularly when symbols with multiple meanings are used for the expression of political views.Footnote 3 Therefore, the Court does not exclude that certain symbols are not always ‘equally permissible in all places and [at] all times’, stating that ‘the display of a contextually ambiguous symbol at the specific site [of mass murders] may in certain circumstances express identification with the perpetrators of those crimes’ and that a ban on demonstrations when held on a specific day of remembrance may ‘represent a pressing social need’ and thus ‘necessitate an interference with the right to freedom of expression’.Footnote 4
In the case of Vogt v. Germany, history was essential for assessing whether the restriction on the freedom of expression in the name of defending democracy was in accordance with the Convention. The Court analysed whether a legitimate aim existed to restrict the rights of civil servants when the political loyalty requirement was applied to a teacher in a public school who was a member of a communist party and was dismissed on account of her political activities. The political loyalty requirement requires that state employees are loyal in actively upholding a free democratic constitutional system. The Court noted that the notion of the civil service being ‘the guarantor of the Constitution and democracy has special importance in Germany because of that country’s experience under the Weimar Republic, which, when the Federal Republic was founded after the nightmare of Nazism, led to its constitution being based on the principle of a “democracy capable of defending itself” (wehrhafte Demokratie)’.Footnote 5
The same idea of historical experiences and using democratic processes to promote totalitarian movements was also mentioned in the Refah Partisi case (2003).Footnote 6 The communist authoritarian past was relevant in the Ždanoka v. Latvia case, where the Court established and consolidated the current criteria for the ‘self-defence’ of democracy. The Ždanoka judgment includes an extended doctrinal summary under the title Democracy and its protection in the Convention system, where it acknowledges that ‘democracy constitutes a fundamental element of “European public order”’ and the Preamble of the Convention makes a connection between the realisation and the maintenance of human rights and fundamental freedoms with ‘effective political democracy’.Footnote 7 It also refers to the common heritage of political traditions, ideals, freedom, and the rule of law of European countries enshrined within the Convention, where, in fact, on many occasions, the Court has reiterated that the Convention exists ‘to maintain and promote the ideals and values of a democratic society’.Footnote 8 According to the Ždanoka judgment, democracy is the only political model contemplated by the Convention and, accordingly, the only one compatible with it.Footnote 9
In the Ždanoka case, the Court referred to the principle that:
in order to guarantee the stability and effectiveness of a democratic system, the State may be required to take specific measures to protect itself. Thus, in the above-cited Vogt judgement, with regard to the requirement of political loyalty imposed on civil servants, the Court acknowledged the legitimacy of the concept of a ‘democracy capable of defending itself’ (paras. 51 and 59).Footnote 10
The Court applies very careful reference to the historico-political background, which makes the same measure acceptable in one country and yet incompatible in another with different historico-political contexts.Footnote 11 Regarding a state with a less established democratic tradition or institutions, or those with a totalitarian past, therefore, the Court considers that the margin of appreciation is different, noting in such a state, national authorities would be better placed to ‘assess the difficulties faced in establishing and safeguarding the democratic order’.Footnote 12 Under the Court’s scrutiny, the Latvian context was different because the Court acknowledged that there might be a threat against the new democratic order and a ‘resurgence of ideas which, if allowed to gain ground, might appear capable of restoring the former regime’.Footnote 13
One of the key arguments in this contextual approach was that in the field of election-related rights, there was a wide margin of appreciation, but also in the Latvian context, the Court affirmed that the Parliament should keep statutory restrictions under constant review.Footnote 14 The Court also referred to European integration as one of the key elements to be taken into account as a contributing factor for Latvia’s stability. Therefore, the election context impacts the proportionality test and gives more discretion to national authorities.
In this section, we have looked at the Court’s deliberation so far based on European history and historico-political contextuality in its judgments in relation to defending democracy and protecting the freedom of expression of individuals, especially when political views are expressed. We can say that the foundational correlation between democracy and the Convention has been clearly demarcated in its interpretations, and democratic society is a central concept in the ECHR. Moreover, the ECtHR has applied the democracy argumentation since the start of its work, particularly when talking about the general principles of interpretation, as the Court founded its argumentation in the Soering case that as ‘[t]he general spirit of the Convention, [is] an instrument designed to maintain and promote the ideals and values of a democratic society’.Footnote 15
Furthermore, ‘an effective political democracy’ is mentioned in the Preamble and ‘democratic society’ appears in six of the Articles (6, 8, 9, 10, 11, and 2 of Protocol 4) of the ECHR. The emphasis on the value of protecting the democratic system is deeply rooted in European history and human rights atrocities, and the reason to draft the Convention and establish its supervisory system in the spirit of the Universal Declaration of Human Rights was to ensure that such events would never be repeated in Europe.
10.3 Established Doctrines on Defending Democracy in the ECtHR Case Law and Heckler’s Veto
Now that we have looked at the approach that the Court has taken in regard to the defence of democracy and the freedom of expression in its case law, in this section, we will highlight some of the established doctrines and principles related to defending democracy.
The key doctrinal element in defending democracy is the Prohibition of the Abuse of Rights, enshrined in Article 17 of the Convention. Against the background of the provision is the idea that a state, group, or person does not have a right to activities aimed at the destruction of the rights and freedoms of others. For example, the Court has, in the case of Refah Partisi et al. v. Turkey, reiterated that ‘no one should be authorised to rely on the Convention’s provisions in order to weaken or destroy the ideals and values of a democratic society’.Footnote 16 In the case of Ždanoka v. Latvia, furthermore, by referring to the consideration during the drafting of the Convention, the Court acknowledged that certain rights could not be used in order to ‘destroy’ certain other rights set forth by the Convention, stating:
It was precisely this concern which led the authors of the Convention to introduce Article 17, which provides: ‘Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention’.Footnote 17
The Court has also set forth the principles for assessing the breadth of the margin of appreciation afforded to national authorities in its freedom of expression case law. Freedom of expression is closely related to democracy. According to the Court, freedom of expression constitutes one of the essential foundations of a democratic society, and the basic conditions for its progress and each individual’s self-fulfilment.Footnote 18 As such, the Court states, ‘in a democratic system, the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion’.Footnote 19 This means that authorities should tolerate even harder criticisms from the public, yet the key principle is set that ‘where such remarks incite violence against an individual or a public official or a sector of the population, the State authorities enjoy a wider margin of appreciation when examining the need for interference with freedom of expression’.Footnote 20 As stated in the joint dissenting opinion in Sürek and Özdemir v. Turkey, judges have expressed that even though freedom of expression constitutes one of the foundations of democratic society, speech inciting violence undermines democracy.Footnote 21
As such, the Court has accepted that states can limit rights guaranteed under the Convention in order to defend democracy.Footnote 22 Furthermore, these measures can also be implemented in a pre-emptive manner. That is, states cannot be required to wait for authoritarian forces ‘to take steps that might prejudice civil peace and the country’s democratic regime’ before intervening.Footnote 23 The Court referred to the possibility of preventing attempts against democratic regimes even before they occur. It approached the situation with the purpose of deference to national courts and other authorities. Therefore, the national courts, after detailed scrutiny of European supervision, can take restrictive measures to protect democracy. However, there are different contexts to be taken into account in the discourse of defending democracy; that is, how much the line should be stretched to tolerate minority opinions.
In contemplating this question, let us examine the Vajnai v. Hungary case, where the Court deliberated over disproportionate restrictions in the name of defending democracy and was concerned that free speech and opinion would be subjected to a heckler’s veto, which would negate freedom of expression.Footnote 24 The heckler’s veto is invoked in situations where hecklers or demonstrators silence a speaker without the intervention of the law. The heckler’s veto is thought to happen when the government considers restrictions on a speech with the anticipated or actual reactions of the opponents of the speech.Footnote 25
In this case, Attila Vajnai was convicted of using a symbol of an international workers’ movement, which was considered a totalitarian symbol and prohibited in Hungary. The Court recognised the systematic terror of communist rule in several countries and regarded that ‘it remains a serious scar in the mind and heart of Europe’.Footnote 26 It is understandable that these symbols can cause uneasiness or seem disrespectful. Such sentiments cannot limit the freedom of expression. However, the Court went on to consider that this was about feelings rather than rational fears. The Court reviewed the proportionality of restrictions against Vajnai and considered that such a restriction based on satisfying ‘the dictates of public feeling – real or imaginary – cannot be meeting the pressing social need requirement in a democratic society’.Footnote 27
The disproportionate conviction obviously reflects the legislative framework that did not previously provide any further qualification for wearing certain symbols. The authorities did not have to weigh wearing the symbol and other interests in order to find a fair balance. In their report to the Committee of Ministers, they referred to the new formulation of legislation, which does not base criminal conviction on the mere display of a symbol, but also includes an additional formulation, stating ‘in a manner that is capable of disturbing public peace, in particular that violates the human dignity of victims of totalitarian systems or the due reverence for the dead’.Footnote 28 The national legislation now determines more precisely the condition under which wearing such a symbol is prohibited and leads to a conviction.
So far, the established doctrine reflects an era where democracy was organised by political parties. However, a contemporary democratic system has a more complex structure with different layers. In addition to the model of a representative democratic system, there is also a direct democracy element, with NGOs having a major impact on the public debate on specific questions of interest.
10.4 Distinguishing between Traditional and Internet-Based Media and Freedom of Expression
In terms of assessing the balance of journalistic freedom and the legitimate restriction of the freedom of expression by a state in the context of traditional media, the Court identified four key elements to be considered in the hate speech case of Jersild v. Denmark in 1994. Those were (a) the manner in which the feature was prepared, (b) its contents, (c) the context in which it was broadcast, and (d) the purpose of the programme.Footnote 29 In this case, the applicant, a journalist, made a documentary containing extracts from a television interview he had conducted with three members of a group of young people calling themselves the Greenjackets, who had made abusive and derogatory remarks about immigrants and ethnic groups in Denmark. The applicant was convicted of aiding and abetting the dissemination of racist remarks, and he alleged a breach of his right to freedom of expression.
While the national courts laid emphasis on issues different from those of the Court, considering that the applicant had intended to include the racist remarks and edited the feature in that way, the Court took a different view and considered that the objective purpose of the feature was not the propagation of racist views and ideas. The Court drew a distinction between the members of the Greenjackets, who had made openly racist remarks, and the applicant, who had sought to expose, analyse, and explain this particular group of youths and to deal with ‘specific aspects of a matter that already then was of great public concern’.Footnote 30 It was opined that the documentary as a whole was not aimed at propagating racist views and ideas but at informing the public about a social issue. Accordingly, the Court held that there had been a violation of Article 10 of the Convention.
What was interesting in the different approaches taken by the national courts and the European Court was the consideration of the scope of the assessment. That is, the Court considered that there were editorial decisions, especially related to the news value of the items that were broadcast by the media. According to the Court, there was no reason to question the editorial staff’s own appreciation of the news or information value of the impugned item, and emphasis was also placed on the fact that it was part of a serious news programme.Footnote 31
Now, how has the established case law since the Jersild case reflected the situation in social media and the responsibility of social media giants such as Twitter/X and Facebook? How can we apply the four factors mentioned in the Jersild case to internet-based media? First of all, the ‘context in which something is broadcast’ is one of the trickiest parts of transforming the broadcast context to social media because one of the key features of social media has been its ability to provide everyone with access to the social discussion in a more or less public sphere. It should not matter whether a person is mostly providing his or her own personal comments or whether a person is representing his or her institutional position. But are there, or should there be, different requirements for those with a more formal media status?
For some time, the internet’s role in the media environment and public debate has been acknowledged in the Court’s case law. Internet-based media has become one of the key focal points in the Court’s interpretation of freedom of expression in recent years, as seen in the case of Delfi v. Estonia. In this case, the Court reminded us of the important role played by the internet in enhancing the public’s access to news and facilitating the dissemination of information,Footnote 32 and later the Court elaborated further, noting that the function of bloggers and popular users of social media may also be assimilated to that of public watchdogs,Footnote 33 insofar as the protection afforded by Article 10 is concerned. An essential factor in the Court’s argumentation was the interrelationship between the functioning of the political system and the role of the press and NGOs.Footnote 34
The Court has also articulated a need for a legislative framework applicable to the imparting of information received from the internet. For example, in the Ukrainian case of the Editorial Board of Pravoye Delo and Shtekel, the Court considered that the absence of a sufficient legal framework could have negative consequences for the freedom of expression. It found that the lack of legislation at the domestic level allowing journalists to use information obtained from the internet without fear of sanctions for such use seriously hinders the exercise of the vital function of the press as a public watchdog.Footnote 35
Online media outlets are also often now applicants before the Court. One recent interesting judgment was in the case of OOO Memo v. Russia, where an executive body of the state instigated the defamation case. The Court made a new interpretative approach and considered that executive bodies do not have the same rights as legal entities. In previous cases, the question was more about proportionality, and in the OOO Memo case, the Court chose a different line of interpretation. That is, the argumentation comes from the need for the close scrutiny of public power in order to prevent the abuse of power and corruption of public office in a democratic system. The Court saw that if executive bodies could file civil defamation cases, it would place an excessive and disproportionate burden on the media, creating an inevitable chilling effect. The conclusion was that restricting the freedom of expression on the basis of the defamation inflicted on the executive body did not have a legitimate aim.Footnote 36
In another case, Cicad v. Switzerland, the Court considered it proportionate that, through a court order, the applicant was to remove an article from a website and publish the main findings on its website.Footnote 37 In the Hungarian case of Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt, other special features of the internet were considered necessary to be taken into account when deciding whether certain measures are proportionate or not, including expressions in the comment area. According to the Court, ‘comments, albeit belonging to a low register of style, are common in communication on many internet portals – a consideration that reduces the impact that can be attributed to those expressions’.Footnote 38
Another aspect that is typical of the contemporary media environment is that there are actors who deliberately aim to use different forms of disinformation as a way of destabilising democratic systems and societies through abusing the freedom of expression. The flood of disinformation and other hybrid tactics used in the new media environment can be described as, according to some scholars, information disorder and information pollution.Footnote 39 According to the Council of Europe report, the forms of disinformation are (a) false context, (b) imposter content, (c) manipulated content, and (d) fabricated content. In these distributions of disinformation, the role of different types of new media has become an essential factor to be taken into account.Footnote 40 Often, this means that social media platforms, for example, are taking a key role in the dissemination process and spreading distrust in the democratic system. The Joint Declaration from the United Nations (UN) and the Organization for Security and Co-operation in Europe (OSCE), African Union, and Organization of American States rapporteurs have emphasised the positive duties of states especially in promoting a free, independent, and diverse media environment.Footnote 41
As we have previously seen, the defence of democracy doctrine has been developed in the context of protecting the democratic system from those with totalitarian beliefs and a totalitarian history, especially in relation to electoral candidates or the loyalty requirements set for civil servants, but also in relation to pre-emptively dissolving political parties with objectives that are contrary to, and thus weakening or destructive to, the democratic system.
In the course of this development, the question of anti-democratic forces and their imminent threat to democracy has led to accepting pre-emptive measures against such forces, even accepting the dissolution of political parties. Some scholars have warned about the risks of abuse and unclear limits of defending democracy. This was raised, especially in the context of peace-time limitations.Footnote 42 Of course, given the current situation, this criticism has to be reviewed in light of Russia’s war against Ukraine. The threat of using disinformation to overthrow democratic governments, and even more generally to destabilise democratic processes that might have been previously seen as highly unlikely, is now very concrete in countries neighbouring Russia, and even elsewhere where Russian influence and hybrid tactics can cause imminent danger to the democratic system.
In a new media environment, which needs to be distinguished from earlier interpretative lines of print and audiovisual media, one of the significant issues involves anonymity. It has become an important part of social media that people are allowed to express views while maintaining their anonymity. Its value in social media posts and different digital platforms has been widely accepted. The idea behind anonymity is that it provides the opportunity to avoid reprisals or unwanted attention and thus promotes the free flow of opinions, ideas, and information, as was mentioned in one of the key cases in this context, that of Standard Verlagsgesellschaft mbH v. Austria (no. 3).
In the instant case, the lack of any balancing between the opposing interests [(see paragraph 94 above)] overlooks the function of anonymity as a means of avoiding reprisals or unwanted attention and thus the role of anonymity in promoting the free flow of opinions, ideas and information, in particular if political speech is concerned which is not hate speech or otherwise clearly unlawful. In view of the fact that no visible weight was given to these aspects, the Court cannot agree with the Government’s submission that the Supreme Court struck a fair balance between opposing interests in respect of the question of fundamental rights.Footnote 43
This is, however, one extension that also caused criticism within the Court. Judge Eicke saw that the Court’s line of argument could cause problems for victims of abusive speech, stating that:
the extension of Article 10 in this context will not be capable of being limited to service providers under the E-Commerce Directive who are also media companies but will ultimately have to be applied to any ‘bloggers and popular users of the social media’, with the consequent (negative) impact on the ability of victims of abusive posts to seek access to court for the purposes of protecting themselves and their reputation.Footnote 44
Another interesting case is that of Ecodefence and 60 others v. Russia, where one of the most elaborate attempts by a state to create a legal regime placed a significant chilling effect on different NGOs and their choice to seek or accept any amount of foreign funding, especially in respect of politically sensitive or domestically unpopular topics. The case concerned the Foreign Agent Act and its concept of political activities carried out by so-called foreign agents, which could also include any views expressed in interviews or even social media posts by those ‘foreign agents’.Footnote 45
There is a more rigorous approach to online media hatred that also emphasises the role of governments in criminalising hate speech. This has especially been seen in recent cases against minority groups. Hate speech related to a person’s sexual orientation is a key factor in the case of Oganezova v. Armenia, where an inadequate response was considered a violation of Article 3 of the Convention together with Article 14.Footnote 46
10.4.1 From Article 17 to Article 18: From Restricting Extremists to Using Defending Democracy as an Excuse to Control Opposition
In the Court’s case law, Article 17 (prohibition of the abuse of rights) has allowed measures, especially restrictions and sanctions against those extreme groups denying the rights of others, particularly when comments amounted to hate speech and countered the values and ideologies enshrined in the Convention.Footnote 47 This was the provision used in the cases reviewing convictions of neo-Nazi groups in Germany. It was later used in cases involving those denying the Holocaust and atrocities committed during the Second World War,Footnote 48 and also against those who clearly did not accept the same democratic values that were part of European heritage.
One of the interesting questions to be discussed relates to the future role of Article 17. Some scholars have argued that focusing hate speech cases on Article 17 can lead to a chilling effect and consider that it is better to use an argumentation based on Article 10 instead when reviewing hate speech.Footnote 49 Cannie and Voorhof consider that the current situation has led to inconsistent argumentation when some cases are considered under Article 17 and some under Article 10.
The Court itself acknowledged that there should be a high threshold in applying Article 17 in the Perincek v. Switzerland case, as follows:
However, Article 17 is, as recently confirmed by the Court, only applicable on an exceptional basis and in extreme cases (see Paksas v. Lithuania [GC], no. 34932/04, § 87 in fine, 6 January 2011). Its effect is to negate the exercise of the Convention right that the applicant seeks to vindicate in the proceedings before the Court. In cases concerning Article 10 of the Convention, it should only be resorted to if it is immediately clear that the impugned statements sought to deflect this Article from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention (see, as recent examples, Hizb ut-Tahrir and Others v. Germany (dec.), no. 31098/08, §§ 73–74 and 78, 12 June 2012, and Kasymakhunov and Saybatalov v. Russia, nos. 26261/05 and 26377/06, §§ 106–13, 14 March 2013).Footnote 50
This high threshold has been applied to new media cases such as Lilliendal v. Iceland, where the comments of the applicants were considered under Article 10 of the Convention, and the Court saw no reason to substitute the views of a national court. The Court’s approach after Perincek seems to focus primarily on the review under Article 10 of the Convention rather than giving too much weight to the abuse clause consideration. However, the abuse clause can be seen as an interpretative aid for the balancing test in Article 10 of the Convention.
The abuse of rights discourse in Article 17 is founded on the idea that the state does not act in bad faith, and state authorities would not abuse their powers for their own ulterior purposes. And for those authorities that operate in bad faith, there is Article 18 (Limitation on the use of restrictions on rights). The new era, which requires the application of Article 18, refers inherently to the use of different kinds of sanctions by a state (or a dominant party) to cause fear among those in opposition, for example, by using various public interest reasonings as an excuse for controlling and restricting the activities of opposition parties. These bad faith acts suppress political pluralism; for example, sanctioning political opponents by referring to public safety, which is a worrying trend, as states are ready to use courts and authorities for ulterior purposes, especially those that suit those in power and against their political adversaries.
In terms of its application, there is a high threshold to apply Article 18, since the Court has also acknowledged that the restrictions, coming from governments, can also serve to pursue a plurality of purposes simultaneously.Footnote 51
Using restrictions for political purposes against opposition has been a relevant issue in many European countries in recent years. In the Navalnyy v. Russia case (GC), the Court applied Article 18, saying that there was an ulterior purpose for the restrictions, ‘namely to suppress that political pluralism, which forms part of “effective political democracy” governed by “the rule of law”, both being concepts to which the Preamble to the Convention refers’.Footnote 52 The Court continues by saying, ‘[A]s the Court has pointed out, notably in the context of Articles 10 and 11, pluralism, tolerance and broadmindedness are hallmarks of a democratic society’.Footnote 53
10.4.2 Changing Responsibilities and Obligations in the Field of Freedom of Expression
One of the most interesting questions concerning defending democracy relates to the distribution of responsibility. To what extent can we transport the key rules of liability from traditional media to internet-based media, and what factors distinguish media platforms with editorial procedures compared with social media platforms? This leads to questions on the responsibilities of individuals and of those providing the platforms for unlawful expression. From the outset, the responsibilities differ from traditional media, in which clear rules place the onus on the publisher, who is ultimately responsible for every publication.
In internet-based media in the instance of speech that could cause instability and threaten the democratic system, no similar editorial structures exist to pre-emptively prevent any such speech from being published. The question is more about the obligation to remove material that would be unlawful and incite hatred and violence afterwards. Emphasis is also placed on social media rules, such as the Facebook community standards, which are monitored.Footnote 54 Facebook community standards emphasise social media as an environment not based on intimidation and exclusion. Facebook’s hate speech policy is founded on anti-discrimination. The prohibited hate speech includes attacks against people on the basis of their ‘protected characteristics’ – race, sexual orientation, sex, gender identity, disability, or serious disease – but it also includes people’s immigration status. The attacks can be violent speech, dehumanising speech, or mocking of concepts, events, or victims of hate crimes. Some exceptions are made when the content is satirical.
A number of detailed examples provided by the Facebook community standards are quite astounding. It is also interesting to note that the recent decision by Facebook’s Oversight Board (hereinafter, ‘Board’ or ‘Oversight Board’) refers to a strong contextual approach. The Board has taken decisions where it has already dealt with several questions of contextual interpretation. The Board recently overturned a decision to remove a post (2022-008-FB-UA) comparing the Russian army in Ukraine to Nazis and quoting a poem that calls for the killing of fascists. The basis of the Board’s review was the six-part threshold test mentioned in the Rabat Plan of Action.Footnote 55 The test includes (a) context, (b) speaker, (c) intent, (d) content and form, (e) extent of speech act, and (f) likelihood, including imminence.
The ECtHR doctrine on Facebook and social media responsibilities is under development. The Grand Chamber reviewed Facebook-related issues in the case of Sanchez v. France (15.5.2023). The case was referred to the Grand Chamber after the judgement of that Chamber found no violation of Article 10 of the Convention. The Grand Chamber came to the same conclusion that there was no violation of Article 10 of the Convention, but elaborated the reasoning and developed the necessity test. The Grand Chamber’s argumentation is based on an assessment in concreto of the specific circumstances of the case.
The Grand Chamber presented an argumentation based on an assessment in concreto of the specific circumstances of the case and the margin of appreciation. The applicant was convicted because he did not delete unlawful comments (incitement to violence against Muslims) on the ‘wall’ of his Facebook account. The Grand Chamber found that the decisions of the domestic courts were based on relevant and sufficient reasoning.Footnote 56 The Sanchez case is interesting because it analysed the standards applied by national authorities and whether they were in conformity with the principles embodied in Article 10. The proportionality of the impugned penalty followed the test set out in the Chamber judgement: (a) the context of the comments, (b) the steps taken by the applicant to remove the comments once posted, (c) the possibility of holding the authors liable instead of the applicant, and lastly, (d) the consequences of the domestic proceedings for the applicant.Footnote 57 The elaborate argumentation relates to the context and developments in the function of the internet. The Grand Chamber considered that because the internet has become one of the principal means for individuals to express their opinion, any interference should be examined particularly carefully in order to avoid a chilling effect, carrying a risk of self-censorship. At the same time, there are other dangers related to the dissemination of hate speech. The Court applies the concepts of defamatory speech and other types of clearly unlawful speech, including hate speech and speech inciting violence.Footnote 58
In the electoral context, there is broad freedom of expression, but ‘in the case of a racist or xenophobic discourse, such a context contributes to stirring up hatred and intolerance, as the positions of the candidates will inevitably harden and slogans or catchphrases become more prominent than reasoned arguments’. The entire argumentation relates to the concern that reasonable argumentation has suffered and ‘the impact of racist and xenophobic discourse is then likely to become greater and more harmful’.Footnote 59 The argumentation is based on the premise that the role of politicians is to avoid comments that foster intolerance. They should be careful to defend democracy and its principles, their ultimate aim being to govern.Footnote 60 The context of an election makes racist and xenophobic discourse more harmful.Footnote 61 The Court developed its review under the premise of the shared liability of all actors involved. Therefore, it is not only the responsibility of the producer. Nevertheless, to exempt producers from all liability might facilitate or encourage abuse and misuse, including hate speech and calls to violence, but also manipulation, lies, and disinformation.Footnote 62
There are also other contributions to the discussion of context. The UN Special Rapporteur Frank La Rue focused his report on this question and highlighted the perspective that context should be taken into account while analysing hate speech.Footnote 63 His basic argumentation was that ‘what is deeply offensive in one community may not be so in another’. La Rue pointed out that the various factors worthy of consideration could relate to tensions between different racial and religious communities, discrimination against the targeted group, the tone and content of the speech, the person inciting hatred, and the means of disseminating the expression of hate. La Rue also considered the difference of weight for publications to small and restricted groups versus publications on a mainstream website.
The applicant’s own behaviour is also relevant in assessing the proportionality of sanctions. The Court suggested in particular that a politician experienced in communication must be aware of the greater risk of excessive and immoderate remarks that might appear and necessarily become visible to a wider audience. The Court refers to the deliberate choice of the applicant in making his ‘wall’ public and also to his being a professional in matters of online communication strategy.Footnote 64 The Court’s scrutiny is closely related to facts and whether the applicant was reasonably expected to review the content of the comments and if necessary delete them. In the case of the applicant, excessive traffic that might prevent the applicant from effectively monitoring the situation did not exist.Footnote 65
This is one of the most controversial parts of the Chamber’s interpretation. To what extent is a person responsible for something published on their Facebook ‘wall’, which cannot be compared to professional websites or a journalistic website? If the liability is extended to the owner of the Facebook ‘wall’, what kind of monitoring is adequate, and would this kind of sanction lead to self-censorship?
The problem is also related to the question of demonstrating the intent of incitement to hatred. For example, the European Commission against Racism and Intolerance (ECRI) has reminded us that it is often difficult to establish intent because the speech might not articulate intent clearly. The speech might be unambiguous, and the intent to incite racial hatred might be inferred from the strength of the language of the speech or other relevant circumstances. The ECRI mentions in connection with this the former behaviour of the speaker.Footnote 66
One of the ongoing topics is how community standards impact countries with weak national human rights protection. The Oversight Board has been particularly concerned about ‘Facebook removing content on matters in the public interest in countries where national legal and institutional protections for human rights, in particular freedom of expression, are weak’.Footnote 67 This is reiterated especially in the Russian and Turkish context and the problems with freedom of expression in these countries. In the Pro-Navalnyy protest case (2021-004-FB-UA), the Board considered that Facebook should have considered the situation in Russia.Footnote 68 The Board stated: ‘Facebook should have considered the environment for freedom of expression in Russia generally, and specifically government campaigns of disinformation against opponents and their supporters.’Footnote 69 The Board explains its approach in the Pro-Navalnyy protest case, balancing values used in the community standard: ‘The decision to remove this content failed to balance Facebook’s values of “Dignity” and “Safety” against “Voice”. Political speech is central to the value of “Voice” and should only be limited where there are clear “Safety” or “Dignity” concerns.’Footnote 70 The Board especially considered ‘Voice’ as especially important in a country such as Russia, where freedom of expression is routinely suppressed.
The Oversight Board also overturned a Turkish case where the applicant’s Instagram post was originally removed.Footnote 71 The post was encouraging people to discuss the solitary confinement of Abdullah Öcalan, a founding member of the Kurdistan Workers’ Party (PKK). The user did not advocate violence in their post and did not express support for Öcalan’s ideology or the PKK. Instead, he or she sought to highlight human rights concerns about Öcalan’s prolonged solitary confinement, which had also been raised by international bodies. As the post was unlikely to result in harm, its removal was not necessary or proportionate under international human rights standards.Footnote 72
One of the interesting continuums that also sheds light on the limits of argumentation over protecting democratic states relates to case law under Article 11 and cases where political parties have been faced with a dissolution. The objective of these dissolutions has often been related to a threat to democracy that these parties cause with their political activities. One recent key case was DTP v. Turkey, where the Turkish court approved the dissolution of the Party for a Democratic Society (DTP), supporting a peaceful resolution to the Kurdish problem.Footnote 73 In this case, the Court did not accept the government’s argumentation that the political party’s goals were themselves against democracy. The DTP fully supported a peaceful solution to the Kurdish question and recognised Kurdish identity in Turkey. The Court assessed whether the DTP project was against the democratic system. The political system must, if functioning properly, allow parties to introduce views that are contrary to the prevailing guidelines.Footnote 74 According to the Court, the DTP political project did not seek to undermine the democratic system, but emphasised the fact that it refused to use violence.Footnote 75
10.4.3 The Role of Public Watchdogs and the Promotion of a Free, Independent, and Diverse Media Environment in the Court’s Case Law
Noting that freedom of expression is acknowledged as one of the foundations of a democratic society, this naturally means that the interpretation of freedom of expression should also reflect the changing nature and characteristics of the prevailing democratic society. In this respect, it is imperative to note that, looking at past decades, freedom of expression has been understood mostly from the perspective of traditional media, that is, print and audiovisual media, which is different from the more diverse current media environment.
Democracy has always been closely related to public debate and the maintenance of transparency within the system, but the views of those engaging in public debate in the past have not been as diverse as they could have been. As such, we can say that the traditional understanding of those whose speech should be protected is also in transition. As a consequence, how to balance the pluralism and diverse views expressed in the media and at the same time uphold the independence of the media have become essential questions to consider.
In a democratic system, the media has an important role as a public watchdog. It has a right to impart news and ideas and disseminate information on difficult and controversial issues. In order to have public debate on important social issues, the Convention allows reporting on issues that might include expressions not protected by the Convention. In the balancing process between freedom of expression and restrictions based on protecting democracy and the rights of others, context is a key factor and has an obvious impact on the limits of free speech.
The role of the media as a public watchdog has often been mentioned in the Court’s case law since the Barthold case,Footnote 76 and has applied pressure to both print and broadcast news. It has been used in the context of public debate and in arguing how important it is in a democratic society not to hamper public debate with disproportionate sanctions. In the famous Jersild case, the role of news reporting and interviews was emphasised as one of the most important means whereby the press is able to play a vital role as public watchdog.Footnote 77 Later, the protection of sources was considered to be vital to the role of the press as a public watchdog, and in Goodwin v. the UK the Court also acknowledged the chilling effect that the disclosure of sources would cause.Footnote 78
These cases in the 1980s and 1990s reflect the traditional media environment and the media’s role in the democratic system. However, the watchdog concept has evolved in recent years to include a larger group of actors, which is better suited to the new media environment. In a number of cases, the Court has discussed the different kinds of roles public watchdogs could perform in a democratic society, especially the impact of restrictions on public debate in the case of censorship in the name of personality rights.Footnote 79 In particular, the case of Magyar Helsinki Bizottság v. Hungary (2016) specified what kinds of actors would qualify as public watchdogs in the context of freedom of expression. The Court based its interpretation on the key task in a democratic society, which is to facilitate and foster the public’s right to receive and impart information and ideas.Footnote 80
The Court mentioned in the Magyar Helsinki case the creation of platforms for public debate. The Court used an analogy between the press and NGOs, drawing attention to matters of public interest. The Court used the characterisation of the social watchdog as warranting similar protection. In this line of consideration, the role of civil society was recognised as making an ‘important contribution to discussion of public affairs’.Footnote 81 The Court also recognised the roles of scholars. According to the Court, a high level of protection also extends to academic researchers and authors of literature on matters of public concern.Footnote 82
More recently, the Court has extended its approach to the media environment. The key concepts in the NIT SRL v. Moldova case are media pluralism and independent media. The NIT SRL case introduces key concepts relevant in creating a media environment that in itself provides the pre-emptive self-defence of democracy. In NIT SRL, the Court considered the key principles of pluralism in the media, stating that it is ultimately part of the positive obligation to guarantee that diverse political programmes are proposed and debated. The Court mentioned that these also mean programmes that question the current system, provided that they do not harm democracy. It is not only sufficient to provide a plurality of channels, but it is also necessary to provide effective access to such channels and guarantee the diversity of programmes reflecting, as far as possible, the variety of opinions in society.Footnote 83 The Court considers it dangerous that some corporations have a dominant position and can exercise pressure on broadcasters and eventually curtail their editorial freedom, undermining freedom of expression.Footnote 84 It is important to note that external and internal pluralism should not be considered in isolation, as external pluralism normally refers to multiple channels, and internal pluralism allows the content of the channel to be diverse.
The Court referred to the multifaceted character and sheer complexity of issues concerning media pluralism. There are a variety of means to be deployed by the state to regulate effective pluralism. Therefore, there is a wide margin of appreciation for authorities regarding the choice of means to ensure media pluralism.Footnote 85
This wider discretion relates to the choice of means, but the Court also referred to a long tradition of case law, acknowledging that the margin is narrow when it comes to editorial freedom of the press and choosing what appropriate journalistic methods to use. The NIT SRL case gives a detailed analysis of Moldova’s regulatory system and background, going into how the regulatory framework was operated and which kind of oversight was provided. It was noticed that legislation existed behind the regulatory framework that was drafted in order to provide proportionality. The legislation was made with careful consideration and genuine effort to strike a fair balance between competing interests. That this fair balance was achieved at parliamentary level is paramount. According to the Court, the regulative framework was also supervised, and the state operated well within its margin of appreciation.
In addition to journalistic sources (Goodwin v. the UK) becoming more important than ever, it is also a question of protecting whistleblowers under the scope of Article 10 and defending democracy. There is a strong continuum that has emphasised the importance of imparting information and reporting on illegal conduct and wrongdoings.Footnote 86 The same has also been confirmed by the UN Special Rapporteur, who referred to an expanded view on the concept of journalism expressed by the Human Rights Committee, that the practice of journalism is carried out by ‘professional full-time reporters and analysts, as well as bloggers and others who engage in forms of self-publication in print, on the Internet or elsewhere (Human Rights Committee, general comment No. 34, para. 44)’.Footnote 87
Spreading an increasing amount of disinformation leads to disturbing impacts on trust and confidence in a democratic system. Distributing disinformation seeks to control media and public opinion. There are often ulterior motives behind disinformation.Footnote 88 These reasons are often part of political tactics, and their purpose can be misleading in the discussion. It is also often part of a state’s hybrid tactics to destabilise other states during elections and other democratic processes by using disinformation and other forms of influence.
While previous case law has approached defending democracy from the perspective of traditional forms of activities related to election rights, new restrictions under the Court’s scrutiny often reveal a widespread aim of preventing opposition forces from participating in public debate rather than using old-fashioned media channels. Recent cases also reflect that the Court has become active in requiring positive obligations to protect those who are victims of hate speech, especially towards minorities. When you cannot control the media as previously, the measures seem severe, and the rights protected under the Convention are questioned comprehensively.
The role of media companies has become instrumental, especially in recognition of media pluralism in a healthy democracy. In addition to national media outlets, social media giants can influence the distribution of disinformation. What is the responsibility of those giving a platform to hate speech and disinformation? What is the role of Article 17 that so far has been related to a rather small number of extremist opinions? Could it be used by those who are distributing disinformation? What is the role of extraterritorial jurisdiction doctrine in new media? These are some of the essential questions to be answered in order to deal with those abusing their freedom of expression for hate speech and disinformation.
10.5 Concluding Observations
So far, the development of the defending democracy doctrine has been considered to involve only very narrow extreme political movements pursuing totalitarian ideologies. The relevance of the historico-political context, and especially the history of events in Europe, have made it necessary for the Court to establish a doctrine based on the ‘self-defence’ of democracy. The Court has repeatedly reminded us of the scars related to Nazism and Communism. It has also reminded us about specific threats related to religious extremism. The historico-political context in different countries, especially the stability of the democratic system, constitutes one of the relevant issues to be assessed in the process of achieving a fair balance. On the one hand, this has allowed different standards in countries that have close historical connections to human rights atrocities in the past; for example, those who are denying historical events such as the Holocaust are considered under Article 17, thus examining their conduct as an abuse of rights. On the other hand, historical context is relevant in states with a short democratic history and, in some cases, forces with support for old authoritarian regimes.
But the contextual discussion is also currently bringing another side of contextualism. The proportionality test should also take into account the prevailing level of protection of the freedom of expression in the country. This is apparent in the recent cases before Facebook’s Oversight Board, considering that weak protection should also have an impact on applying community standards and considering whether removing posts is proportionate. Obviously, the Board has acknowledged that in countries such as Russia and Turkey, there should be a higher threshold for removing Facebook posts.
The European Court’s doctrines on the breadth of the margin of appreciation can provide a clear sign that regulating a complex and multifaceted issue requires a wider margin. Still, when authorities enter into the questions at the core of journalistic activities, such as the choice of journalistic methods, the margin is obviously narrow.
Democracy should be founded on pluralistic media, which, as one of the public watchdogs, ensures critical public debate on issues of public interest. When the authorities start making decisions on what is an acceptable issue to be discussed and what is not, this will ultimately lead to restrictions that jeopardise the core of freedom of expression. The Court states that it is not for the authorities or the Court ‘to review the press’s own appreciation of the news or information value of an item or to substitute their views for those of the press on what methods of objective and balanced reporting should be adopted by journalists’.Footnote 89
When regulating audiovisual media, it has been necessary to take into account practical issues related to limited frequencies. Case law has continued to adopt, little by little, new elements related to a contemporary democratic system, in which democracy is something beyond elections and more about a comprehensive democratic system. On a global level, we are already seeing increasing repressions of freedom of expression and media integrity under the guise of fighting disinformation and protecting infrastructure against cyber-attacks.Footnote 90 This kind of trend can also be detrimental to European countries.
Threats in the new media environment are, to a certain extent, similar to traditional print or audiovisual media. The Court founded its case law on the idea of the chilling effect that different sanctions can have on the media. It was important that the media and journalists were able to impart information to the public without censorship. The media’s access to information was key to performing as a public watchdog over those in power. With the democratic system becoming more complex, including multiple other actors in addition to the media, who are directly imparting information, it is necessary to talk of public watchdogs in the plural, including those who challenge the government and corporations, whether they be individual activists or networks of activists.
However, an even more significant development in the case law is related to understanding that the defence of democracy is related to understanding how modern democracy works and especially how one of the foundations of democratic society, freedom of expression, has transformed in the new media environment. There is ultimately a fear that restrictions become rules and protection comes as an exception. The Oversight Board has revealed many fundamental failings in respect to social media giants such as Facebook and Instagram removing posts, leading to a quest for transparency and specified rules on removing posts because the policy currently applied is in danger of silencing social debate.
Freedom of expression has changed substantially in the sense that governments are acting in bad faith against opposition parties. From Article 17 and extreme groups, it is now Article 18 that is not just an infrequent curiosity of the Convention but trending in cases such as Navalnyy. At the same time, more restrictions towards NGOs are being discussed, as in the case of Ecodefence and 60 others v. Russia. The linking issue in these cases is that the aim is to have a chilling effect and control the social debate.
There is a lack of clear interpretative guidance, especially concerning social media posts and applying traditional freedom of expression doctrines to them. It is not simply a case of proceeding with the Jersild doctrine, when at that time the situation was much clearer as to ‘informing the public about a social issue’. In the new media environment, there is a strong need to develop criteria for freedom of expression and how best to apply these in different contexts. The Court has already decided several cases since Delfi v. Estonia. Despite the idea of source neutrality, a different context must be taken into account when modifying doctrines to be relevant to cases where the role of digital media has become central.
Open access