Team Number: 021

___________________________________________________________________________

THE EUROPEAN HUMAN RIGHTS

MOOT COURT COMPETITION

2013

Adam

(Applicant)

vs.

State of Evrylia

(Government)

___________________________________________________________________________

Submission for the Applicant

SUMMARY OF THE RESULTS

Evrylian courts lacked jurisdiction to adjudicate the civil case. The decision of Evrylian

courts to accept jurisdiction was unforeseeable for the applicant and also conducive to a

strong chilling effect for him and for other online journalists in Favonia. Therefore Evrylia

has violated freedom of expression under Art. 10 and right to fair hearing under Art. 6(1).

Provided that the Court considered that the interference was reasonably foreseeable, Evrylian

courts in any case illegitimately interfered with access to content outside the State’s territorial

boundaries by ordering the applicant to delete the post. Such a measure was clearly outside

the scope of the State’s adjudicative powers.

Provided that the Court does not accept the objection concerning the lack of jurisdiction,

the applicant notes that the present case relates to important matters of legitimate public

concern. Therefore, the reasons adduced by the national authorities to justify the interference

were not sufficient to deem the interference necessary in a democratic society. The excessive

sanctions imposed upon the applicant were capable of having a chilling effect on the freedom

of expression guaranteed to members of the press. In conclusion, the decision to order the

applicant to remove a blog post discussing a topic of public interest was manifestly

disproportionate to the legitimate aim pursued in the meaning of Art. 10.

Concerning the criminal proceedings, blocking access to the applicant’s blog site in

Evrylia was not necessary in a democratic society. The blocking order, which constituted a

prior restraint on the freedom of expression, was executed too late for it to have any

significant protective effect in Evrylia, and thus constituted a disproportionate measure. With

regard to the taking down of the Phrendbook profile, it is noted that this interruption

constituted an interference with the applicant’s right to private life, right to freedom of

expression and right to assembly. The order was neither necessary nor foreseeable: the

impact of the communication in Phrendbook with respect to the general public was very

limited, hyperlinks did not contain any racist material, the unduly delayed injunction order

was not effective to protect the minority, the interference was highly unexpected and there

were more effective remedies available. Thus, Evrylia violated the applicant’s rights as

guaranteed under Arts. 8, 10 and 11.

Evrylia has also violated the applicant’s rights as guaranteed under Art. 6(1), since the

prosecutor failed to conduct criminal investigations in reasonable time. Furthermore, it is

submitted that the applicant’s rights under Art. 4(1) of Protocol no. 7 were violated by an

injunction issued in separate criminal proceedings.

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TABLE OF CONTENTS

SUMMARY OF THE RESULTS .............................................................................................. 2 CONTENTS ............................................................................................................................... 3 LIST OF REFERENCES ........................................................................................................... 3 LIST OF ABBREVIATIONS .................................................................................................... 7

ADMISSIBILITY OF THE APPLICATION ............................................................................ 7 MERITS OF THE CASE ........................................................................................................... 8

4 Violation of Article 10: ....................................................................................................... 8 4.1 Civil proceedings ......................................................................................................... 8

a) General remarks concerning the applicability of Article 10 ...................................... 8

b) The Evrylian courts violated the Articles 10 and 6(1) when claiming jurisdiction ... 9 c) The sanctions imposed on the applicant violated his rights under Article 10 ......... 13

4.2 Criminal proceedings ................................................................................................. 15 a) Blocking access to the blog site in Evrylia was not necessary in a democratic

society .......................................................................................................................... 15 b) Taking down the Phrendbook profile was neither foreseeable nor necessary ......... 16 c) Threat of imprisonment in hate speech legislation is disproportional ..................... 16

5 Violation of Articles 8 and 11: Evrylian authorities unreasonably interfered with the

confidential correspondence, private life and freedom of assembly of the applicant .......... 17

6 Violation of Article 6(1): Criminal investigations were not conducted in reasonable time

.............................................................................................................................................. 19

7 Violation of Article 4(1) of the Protocol no. 7.................................................................. 20 JUST SATISFACTION ........................................................................................................... 20

LIST OF REFERENCES

1 Conventions and treaties

Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of

acts of a racist and xenophobic nature committed through computer systems, Council of

Europe (28 Jan 2003) (ETS No. 189)

Brussels I Regulation (2001): Council Regulation (EC) No 44/2001 of 22 December 2000

on jurisdiction and the recognition and enforcement of judgments in civil and commercial

matters, European Council (22 Dec 2000)

Convention for the Protection of Human Rights and Fundamental Freedoms, Council of

Europe (4 Nov 1950)

Lugano Convention (2007): Convention on jurisdiction and the recognition and

enforcement of judgments in civil and commercial matters, European Union and European

Free Trade Association (30 Oct 2007)

2 Case Law of the European Court of Human Rights

Axel Springer AG v. Germany [GC], no. 39954/08 (7 Feb 2012)

Brumarescu v. Romania [GC], no. 28342/95 (28 Oct 1999)

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Chauvy and Others v. France, no. 64915/01 (29 Jun 2004)

Cihan Öztürk v. Turkey, no. 17095/03 (9 Jun 2009)

Colaço Mestre and SIC - Sociedade Independente de Comunicação S.A. v. Portugal, nos.

11182/03 and 11319/03 (26 Apr 2007)

Copland v. the United Kingdom, no. 62617/00 (3 Apr 2007)

Cumpănă and Mazăre v. Romania [GC], no. 33348/96 (17 Dec 2004)

Dalban v. Romania [GC], no. 28114/95 (28 Sep 1999)

Delfi v. Estonia, no. 64569/09 (10 Oct 2013)

Demir and Baykara v. Turkey [GC], no. 34503/97 (12 Nov 2008)

Djavit An v. Turkey, no. 20652/92 (20 Feb 2003)

Doustaly v. France, no. 26256/95 (23 Apr 1998)

Editions Plon v. France, no. 58148/00 (18 May 2004)

Engel and Others v. the Netherlands, nos. 5100/71, 5101/71, 5102/71, 5354/72 and

5370/72 (8 Jun 1976)

Erbakan v. Turkey, no. 59405/00 (6 Jul 2006)

Erdoğdu and İnce v. Turkey [GC], nos. 25067/94 and 25068/94 (8 Jul 1999)

Flux and Samson v. Moldova, no. 28700/03 (23 Oct 2007)

Frezzoz and Roire v. France [GC], no. 29183/95 (21 Jan 1999)

Handyside v. the United Kingdom, no. 5493/72 (7 Dec 1976)

Jersild v. Denmark [GC], no. 15890/89 (23 Sep 1994)

Jerusalem v. Austria, no. 26958/95 (27 Feb 2001)

Juppala v. Finland, no. 18620/03 (2 Dec 2008)

Kangasluoma v. Finland, no. 48339/99 (20 Jan 2004)

Lehtinen v. Finland, no. 34147/96 (13 Sep 2005)

Lingens v. Austria, no. 9815/82 (8 Jul 1986)

Maestri v. Italy [GC], no. 39748/98 (17 Feb 2004)

Malone v. the United Kingdom, no. 8691/79 (2 Aug 1984)

Matthews v. the United Kingdom [GC], no. 24833/94 (18 Feb 1999)

McFeeley and Others v. the United Kingdom, no. 8317/78 (15 May 1980)

McVicar v. the United Kingdom, no. 46311/99 (7 May 2002)

Medvedyev and Others v. France [GC], no. 3394/03 (29 Mar 2010)

Michaud v. France, no. 12323/11 (6 Dec 2012)

Niemietz v. Germany, no. 13710/88 (16 Dec 1992)

Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03 (22 Feb 2007)

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Nilsen and Johnsen v. Norway [GC], no. 23118/93 (25 Nov 1999)

Nilsson v. Sweden (dec.), no. 73661/01 (13 Dec 2005)

Observer and Guardian v. the United Kingdom, no. 13585/88 (26 Nov 1991)

Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99 (17 Dec 2004)

Perrin v. the United Kingdom (dec.), no. 5446/03 (18 Oct 2005)

Petroff v. Finland, no. 31021/06 (3 Nov 2009)

Pfeifer v. Austria, no. 12556/03 (15 Nov 2007)

Plattform “Ärzte für das Leben” v. Austria, no. 10126/82 (21 Jun 1988)

Polanco Torres and Movilla Polanco v. Spain, no. 34147/06 (21 Sep 2010)

Salapa v. Poland, no. 35489/97 (19 Dec 2002)

Salov v. Ukraine, no. 65518/01 (6 Sep 2005)

Selistö v. Finland, no. 56767/00 (16 Nov 2004)

Sergey Zolotukhin v. Russia [GC], no. 14939/03 (10 Feb 2009)

Skałka v. Poland, no. 43425/98 (27 May 2003)

Sorvisto v Finland, no. 19348/04 (13 Jan 2009)

Stubbings and Others v. the United Kingdom, nos. 22083/93 and 22095/93 (22 Oct 1996)

The Sunday Times v. the United Kingdom (no. 1), no. 6538/74 (26 Apr 1979)

Süßmann v. Germany [GC], no. 20024/92 (16 Sep 1996)

Thorgeir Thorgeirson v. Iceland, no. 13778/88 (25 Jun 1992)

Von Hannover v. Germany, no. 59320/00 (24 Jun 2004)

Von Hannover v Germany (no. 2) [GC], nos. 40660/08 and 60641/08 (7 Feb 2012)

X and Y v. the Netherlands, no. 8978/80 (26 Mar 1985)

Yildirim v. Turkey, no. 3111/10 (18 Dec 2012)

Zimmermann and Steiner v. Switzerland, no. 8737/79 (13 Jul 1983)

Other Cases

Joined Cases C-509/09 and C-161/10 eDate Advertising GmbH v. X and Olivier Martinez

and Robert Martinez v. MGN Limited [2011] ECJ, ECR I-10269 (25 Oct 2011)

Berezovsky v. Michaels [2000] UKHL, 1 WLR 1004 (11 May 2000)

Dow Jones and Company Inc v. Gutnick [2002] HCA 56, 210 CLR 575 (10 Dec 2002)

3 Secondary sources

Soft law

CM/Rec(2011)7 Recommendation of the Committee of Ministers to member states on a

new notion of media, Council of Europe (21 Sep 2011)

CM/Rec(2011)8 Recommendation of the Committee of Ministers to member states on the

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protection and promotion of the universality, integrity and openness of the Internet,

Council of Europe (21 Sep 2011)

CM/Rec(2012)4 Recommendation of the Committee of Ministers to member States on the

protection of human rights with regard to social networking services, Council of Europe

(4 Apr 2012)

Decl-04.07.2012E Declaration of the Committee of Ministers on the Desirability of

International Standards dealing with Forum Shopping in respect of Defamation, “Libel

Tourism”, to Ensure Freedom of Expression, Council of Europe (4 Jul 2012)

European Parliament resolution of 10 May 2012 with recommendations to the

Commission on the amendment of Regulation (EC) No 864/2007 on the law applicable to

non-contractual obligations (Rome II) (2009/2170(INI)) OJ C 261 E/17, 10 Sep 2013

Explanatory Report to the Additional Protocol to the Convention on Cybercrime

(28 Jan 2003) (ETS No. 189)

Joint Declaration on Freedom of Expression and the Internet, the UN Special Rapporteur

on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the

Media, the OAS Special Rapporteur on Freedom of Expression and the ACHPR Special

Rapporteur on Freedom of Expression and Access to Information (1 Jun 2011)

Report of the Parliamentary Assembly, The principle of the Rule of Law, Doc. 11343,

Council of Europe (6 Jul 2007)

Literature

Boscovic, Olivera: Boskovic on Rome II and Defamation, Online Symposium Rome II and

Defamation. Conflict of Laws .Net, 2010 <http://conflictoflaws.net/2010/boskovic-on-

rome-ii-and-defamation/> (accessed 15 Nov 2013)

Edel, Frédéric: The length of civil and criminal proceedings in the case-law of the

European Court of Human Rights, 2nd Edition, Council of Europe Publishing, 2007

Jakubowicz, Karl: A new notion of media? Media and media-like content and activities on

new communication services, Media and Information Society Division, Directorate

General of Human Rights and Legal Affairs Council of Europe, 2009

Keller, Perry: European and International Media Law, Oxford University Press, 2011

Privacy Study: Comparative Study on the Situation in the 27 Member States as Regards

the Law Applicable to Non-Contractual Obligations Arising Out of Violations of Privacy

and Rights Relating to Personality, Final Report, European Commission, 2009

Weber, Anne: Manual on Hate Speech, Council of Europe Publishing, 2009

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LIST OF ABBREVIATIONS

ACHPR African Commission on Human and Peoples’ Rights

Art(s). Article(s)

ECHR European Convention on Human Rights and Fundamental Freedoms

ECJ European Court of Justice

OAS Organization of American States

OSCE Organization for Security and Co-operation in Europe

UN United Nations

ADMISSIBILITY OF THE APPLICATION

1. As a contracting party to the ECHR and all its Additional Protocols, Evrylia is

responsible for securing to everyone within its jurisdiction the rights and freedoms defined in

ECHR. The applicant, Mr Victor Adams, is a direct victim of a breach of his rights and

freedoms as guaranteed under the ECHR. With respect to the civil proceedings, as well as the

proceedings relating to the injunction, the applicant has exhausted all domestic remedies

available for him in Evrylia. The final judgment on the civil proceedings against the applicant

became final on 20 March 2013 and the injunction order on 20 June 2013. The application is

thus in compliance with the limit set down in Art. 35(1). With respect to the pending criminal

proceedings in Evrylia, the threat of imprisonment and unreasonably long duration of the

criminal proceedings are sufficient to result in the violation of ECHR.1 The matter has not

been brought before another international adjudicative body.

2. In accordance with Art. 35(3)(b), it is submitted that the applicant has suffered a

significant disadvantage due to the injunction that lead to the blocking of his journalistic blog

in Evrylia and the taking down of his social media sites as well as the restrictions imposed on

his freedom of expression in connection with the libel proceedings. The above-mentioned

services are essential for Mr Adams to exercise his rights both as a journalist and a private

person. It is therefore submitted that there has been a violation of his rights as guaranteed

under Articles 6, 8, 10, and 11 of the ECHR and Article 4 of the Protocol no. 7. to the ECHR.

1 Erdoğdu and İnce v. Turkey, § 53 and Sorvisto v. Finland, § 72.

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MERITS OF THE CASE

4 Violation of Article 10:

4.1 Civil proceedings

a) General remarks concerning the applicability of Article 10

3. As guaranteed under Art. 10, everyone has the right to freedom of expression,

including the right to receive and impart information and ideas without interference by public

authority and regardless of frontiers. In order to be deemed acceptable, any interferences with

this right need to satisfy the conditions set out in Art. 10(2). Consequently, any restriction

imposed upon the freedom of expression needs to be prescribed by law, pursue a legitimate

aim and be necessary in a democratic society. This test of “necessity in a democratic society”

requires the Court to determine whether the interference corresponded to a pressing social

need.2

4. Art. 10(2) leaves a margin of appreciation to the Contracting States as regards the

initial evaluation of the pressing social need implied by necessity in this context. However,

the applicant stresses the fact that this margin of appreciation is not unlimited – in fact, it is

especially restricted in cases where the freedom of the press is concerned.3 It is also to be

noted that every "restriction" or "penalty" imposed on the freedom of expression must be

proportionate to the legitimate aim pursued (principle of proportionality).4

5. Your Court has referred to the freedom of expression as a right that constitutes one of

the essential foundations of a democratic society as well as one of the basic conditions for its

progress and for the development of every man. It has been affirmed that this right does not

relate 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.5 There is little

scope under Art. 10(2) for restrictions on debate of questions of public interest.6

6. Moreover, the Court has insisted on the essential role of a free press in ensuring the

proper functioning of a democratic society by imparting information and ideas on all matters

of public interest. In order for the press to be able to play its vital role of "public watchdog",

any restrictions to the freedom of expression must be narrowly interpreted and the need for

such restrictions convincingly established.7 In this respect, it has been stated by the Court that

2 Handyside v. the United Kingdom, § 48 and The Sunday Times v. the United Kingdom (no. 1), § 62. 3 See, e.g., Editions Plon v. France, § 44. 4 Handyside v. the United Kingdom, § 49. 5 Ibid. 6 See, among many other authorities, Observer and Guardian v. the United Kingdom, 59 §. 7 Observer and Guardian v. the United Kingdom, 59 § and Handyside v. the United Kingdom, § 49.

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insofar as journalistic freedom is concerned, this freedom may also be considered to cover a

possible recourse to a degree of exaggeration, or even provocation.8

7. Also the distinction between statements of fact and value judgements needs to be

taken into account when evaluating the question of proof of impugned statements. In general,

the existence of facts can be demonstrated, while the truth of value judgements is not

susceptible of proof. Requiring the delivery of proof of a value judgement thus infringes the

freedom of opinion itself and the right guaranteed under Art. 10.9 As your Court has observed

concerning “false statements of fact”, Art. 10 as such does not prohibit discussion or

dissemination of information received even if it is strongly suspected that this information

might not be truthful. To suggest otherwise would deprive persons of the right to express

their views and opinions about statements made in the mass media and would thus place an

unreasonable restriction on the freedom of expression.10

8. Turning to the present case, it must be noted, first of all, that the right to freedom of

expression also encompasses the technology enabling it, and the Internet can now be

considered to constitute one of the principal means of disseminating information.11

Furthermore, the concept of media should today be understood in a broader sense than ever

before.12 Even though the applicant did not write his blog as a part of his professional

activities with FTVN, the blog in question was, nevertheless, an extension of his professional

persona: a journalistic weblog in which he was able to expand on issues that did not get into

the media he is working for.13 He was well aware of journalism ethics and standards and, as

evidenced by the fact that he also shared links to his posts with other journalists in their

Phrendbook forum, also considered these writings to constitute part of his professional

activities. It may be adduced based on the above circumstances that he was acting as a

member of the press in the present matter, as well.

b) The Evrylian courts violated the Articles 10 and 6(1) when claiming jurisdiction

9. As your Court has stated, ECHR is a living instrument and needs to be interpreted in

the light of present-day conditions.14 Through the recognition of the dynamic and evolutive

nature of ECHR, the Court has made sure that the rights of ECHR are effective and practical,

not theoretical and illusory. Further, the Court has taken into consideration the recent legal

8 See, among others, Pedersen and Baadsgaard v. Denmark, § 71. 9 Lingens v. Austria, § 46. 10 Salov v. Ukraine, § 113. 11 Yildirim v. Turkey, § 54. 12 CM/Rec(2011)7, § 7. 13 See, mutatis mutandis, Jakubowicz (2009), p. 22. 14 Matthews v. the United Kingdom, § 39.

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development on the European and international level and exercised comparative law method

in its judgments along with basic principle of teleology.15 Thus, the Court has taken note of

international standards and jurisprudence as contextual elements.16

10. As is generally known, defamation laws and the relevant conflict-of-law rules differ

much between European States. The current situation makes the legislation unforeseeable for

the media, especially as far as Internet publications are concerned.17 According to Evrylian

legislation, jurisdiction to adjudicate is granted to the courts “of the place where the harmful

event occurred or may occur”. The provision is formulated almost identically to the

provision which is in force in 31 European States.18 According to the ECJ, this jurisdiction

rule needs to be interpreted in a manner that enables the plaintiff to choose the venue.19

11. The above-mentioned provision is problematic especially in cases relating to Internet

content. First, the universal accessibility of the Internet makes the law in force unpredictable

for the journalists, because when the journalist publishes an article regarding a foreign

person, the journalist might be sued in a foreign State, even though his or her purpose was to

publish the article only in and for the citizens of the State in which the journalist has his or

her habitual residence. Second, in the cases in which the law in force provides the plaintiff

with the opportunity of selecting the venue, there is a risk of “forum shopping” and “law

shopping”, as the plaintiff’s choice may be guided by the law that is most favourable to

him.20 Third, the principle fails to take into account circumstances in which the plaintiff and

the defendant are in an unequal financial position. Especially in cases where celebrities (with

strong financial power and worldwide reputation) act as plaintiffs and individual journalists

(small media actors with no such financial strength) as defendants, the inequality of arms is

obvious if the plaintiff is allowed to choose the venue. This might be problematic also as

regards Art. 6(1) (unfair trial).21

12. Joint Declaration of UN, OSCE, OAS and ACHPR emphasises that “[j]urisdiction in

legal cases relating to Internet content should be restricted to States to which those cases

have a real and substantial connection, normally because the author is established there, the

content is uploaded there and/or the content is specifically directed at that State.”22 Further,

15 Demir and Baykara v. Turkey, §§ 65, 153 and 154. 16 See, among others, Yildirim v. Turkey, §§ 31–37. 17 See, e.g., Privacy Study (2009) (European Commission), p. 8, 116 and 142–143. 18 Lugano Convention (2007), Art. 5(3); Brussels I Regulation (2001), Art. 5(3). 19 eDate Advertising GmbH v. X and Olivier Martinez and Robert Martinez v. MGN Limited, § 52. 20 Privacy Study (2009), p. 15. About forum shopping see e.g. Berezovsky v. Michaels [2000] UKHL and Dow

Jones and Company Inc v. Gutnick [2002] HCA 56. 21 Decl-04.07.2012E, §§ 6 and 8. 22 Joint Declaration on Freedom of Expression and the Internet (2011), § 4(a).

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Committee of Ministers has stated, referring to the Joint Declaration23, that “[t]here is a

general need for increased predictability of jurisdiction, especially for journalists, academics

and the media.”24 Furthermore, “libel tourism constitutes a serious threat to the freedom of

expression and information”.25 The situation in Europe is uncertain as regards Internet

defamation and jurisdiction rules, and the rules themselves are not satisfying.26 Consequently,

there is a “pressing social need” to adopt a closest connection test to the ECHR, preventing

libel tourism and increasing foreseeability.

13. According to Art. 10(2), the freedom of expression may be subject to restrictions only

if they are prescribed by law. The Court has stated that the ‘prescribed by law’ criterion does

not refer to only codified law but also covers unwritten law, and thus the whole legal

system.27 Sometimes “law” also refers to international legal standards.28 Again the criterion

requires that the law is foreseeable in a manner that the citizen is able to regulate his or her

conduct and foresee the consequences which his actions may entail, at least to a degree where

such consequences are not entirely unexpected.29 Furthermore, Art. 6(1) protects fair trial and

the principle of the rule of law, which includes the principle of legal certainty, needs to be

taken into account.30 The principle of the rule of law and legal certainty is linked to the test of

foreseeability.31

14. Small media operators, like the applicant, have been seen as key actors in a plural and

diverse media landscape, and also the most vulnerable as far as interference with their

freedom of expression is concerned. The defamation laws can be misused against journalists,

which can have a serious chilling effect.32 In the present case, the applicant is a Favonian

resident, he administers his blog in Favonia and his main purpose is to publish news to the

Favonian people. Despite the fact that the blog is widely followed in Evrylia, the universal

accessibility of the Internet makes it impossible for the applicant to select his audience. The

applicant’s article might not have been illegal according to Favonian legislation. It is very

important for small media actors for any jurisdiction over them to be restricted to the State in

23 Decl-04.07.2012E, § 9. 24 Decl-04.07.2012E, § 8. 25 Decl-04.07.2012E, § 13. 26 Privacy Study (2009), p. 142-143. European Parliament resolution (2012), Sections D and F and Annex to the

Resolution, Article 5a(2) and 5a(4). 27 The Sunday Times v. the United Kingdom (no. 1), § 47. 28 Medvedyev and Others v. France, § 79. 29 The Sunday Times v. the United Kingdom (no. 1), § 49 and Yildirim v. Turkey § 57. 30 Brumarescu v. Romania, § 61. 31 Malone v. the United Kingdom, § 68. See also Report of the Parliamentary Assembly, The principle of the

Rule of Law, Doc. 11343, 6 July 2007, appendix II, § I(2). 32 CM/Rec(2011)7, §§ 64 and 66. See also Decl-04.07.2012E, § 6.

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which they are working. This enables the applicant to regulate his behaviour accordingly,

taking into account the legal system of the State in which he exercises his editorial control.

Furthermore, there is also a serious imbalance in financial strength between the parties

(inequality of arms). The plaintiff is a well-known football player with a worldwide

reputation. Such an imbalance might enable the plaintiff to misuse defamation law just to

silence the press.

15. The Court has stated that professionals may use legal guidance in order to predict the

consequences of their behaviour and to take into account the differences that might be present

in another legal system.33 If this legal rule was applied to the present case, keeping a blog

would become expensive for the applicant who does not gain any financial profits from the

blog. This would endanger the applicant’s freedom of expression and public’s right to receive

information, as one great source of information was threatened to vanish. It is not reasonable

to expect that an individual blogger, albeit a professional journalist, should study foreign law

every time when publishing news on the Internet. In addition, the intention of the applicant

could be taken into account (cf. the effect test34 of the USA); the applicant’s purpose was not

to harm K or attack against him, but to publish a general interest article.

16. The applicant’s case will be a precedent for similar cases. Thus, it is essential that the

Court takes into account the wider effects of its judgment. In Europe, some States still

maintain criminal liability for defamation and there are also substantial differences regarding

the balance of the right to reputation and freedom of expression between the States.35 Thus,

these differences need to be taken into account, as well as the considerable chilling effect

which they, especially a possible criminal liability, have to the journalists.

17. Provided that the Court considers the interference by Evrylia reasonably foreseeable,

Evrylian courts in any case lacked jurisdiction to order the applicant to delete the post. As the

Committee of Ministers has stated, States must “ensure that their actions within their

jurisdictions do not illegitimately interfere with access to content outside their territorial

boundaries”.36 The order to delete the post did have a major influence outside the territory of

Evrylia and thus it was illegitimate and disproportional. The applicant posted on his blog site

an apology which would have been sufficient to compensate the harm caused to K in

Evrylian territory.37

33 Perrin v. the United Kingdom (dec.). 34 Keller (2011), pp. 242–243. 35 Privacy Study (2009), pp. 42–51. 36 CM/Rec(2011)8, section 1.1. of the General Principles. 37 See e.g. Boscovic (2010).

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c) The sanctions imposed on the applicant violated his rights under Article 10

i Necessity in a democratic society

18. Provided that the Court does not accept the objection concerning the lack of

jurisdiction, the applicant submits the following remarks on the substance of the libel

proceedings. First of all, the applicant acknowledges the fact that the right to protection of

reputation is a right which is protected under Art. 8 as part of the right to respect for private

life.38 In balancing the rights guaranteed under Arts. 8 and 10, the relevant criteria in the

balancing exercise include the following elements: contribution to a debate of general

interest, how well known the person concerned is, the subject of the report, the prior conduct

of the person concerned, the method of obtaining the information and its veracity, the

content, form and consequences of the publication, and the severity of the sanction

imposed.39

19. In the applicant’s view, the blog post in question first and foremost concerns issues of

public interest and is, as such, firmly grounded in the realm of public discussion.40 As

established by the Court, the public interest value is not limited merely to political issues, but

also covers for instance matters relating to sportsmen.41 Your Court has held that when

private individuals enter the public arena, they lay themselves open to public scrutiny and

criticism and greater tolerance is therefore required of them.42 The blog post in question

concerns the controversial behaviour of a figure who is both well known to the public and

who has himself sought out this public attention through his presence in the media and

commercial contracts. By exposing himself to public scrutiny, K has thus also exposed

himself to the risk of negative attention being bestowed upon him. Even though public

figures are as such not outside the scope of protection as guaranteed under Art. 843, the

present blog post relates to matters of general interest – namely the possibility of granting

Favonian nationality to a football player with alleged criminal connections – and voices

serious concerns which the public has the right to be aware of. As a member of the press, the

applicant had the right to impart the information, and the public had the right to receive it.44

20. Furthermore, also the possible negative impact on the rights of those in need of

38 Chauvy and Others v. France, § 70; Pfeifer v. Austria, § 35; and Polanco Torres and Movilla Polanco v.

Spain, § 40. 39 Delfi v. Estonia, § 83; Axel Springer AG v. Germany, §§ 89–95; and Von Hannover v. Germany (no. 2), §§

108–113. 40 See, è contrario, Von Hannover v. Germany, § 65. 41 See, e.g., Nikowitz and Verlagsgruppe News GmbH v. Austria, § 10; and Colaço Mestre and SIC - Sociedade

Independente de Comunicação S.A. v. Portugal, §§ 28–30. 42 Jerusalem v. Austria, §§ 38–39. 43 See, e.g. Von Hannover v. Germany, §§ 63–66. 44 Lingens v. Austria, § 41 and The Sunday Times v. the United Kingdom (no. 1), § 65.

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protection, such as the possible victims of human trafficking, need to be taken into account.45

Your Court has previously emphasised that vulnerable individuals in particular are entitled to

State protection, in the form of effective deterrence, against serious breaches of personal

integrity.46 In this respect, the applicant is of the opinion that the vulnerable position of the

possible victims of human trafficking and the minors possibly involved in the events speak in

favour of the applicant’s right to impart the information.

21. The applicant acknowledges the view presented by the Court on several instances that

the protection of the right of journalists to impart information on issues of general interest

requires that they should act in good faith, on an accurate factual basis, and provide “reliable

and precise” information in accordance with the ethics of journalism.47 However, in the

evaluation of the factual basis required, also the above-mentioned classification into factual

statements and value judgements has to be considered. In this respect, the applicant is of the

opinion that the statements contained in the blog post consist mainly of the latter. Drawing

inferences from the existing facts, such as, for example, attributing or imputing motives or

intentions to someone’s behaviour, is generally intended to convey opinions, and is more akin

to value judgements.48 Insofar as the applicant is presenting his own conclusions concerning

the personality of K and not merely quoting his sources, his statements consist of value

judgements not susceptible of proof.

22. The applicant acknowledges that a certain level of evidentiary standard is applicable

to factual assertions. Your Court has also deemed it necessary that the sources can in this

regard be reasonably considered reliable with respect to the allegations.49 However, as a part

of their role as public watchdog, the media’s reporting on “stories” or “rumours” emanating

from other persons is to be protected.50 In this respect, it has been considered sufficient that

the information given had not been proven to be totally untrue.51 This was also true in the

present case, since at the time that the story was published there was nothing to suggest that

the information contained in the blog post was false as such.

23. When assessing the proportionality of interference, also the nature and severity of the

actions taken need to be taken into account.52 Any sanctions imposed on journalists for

45 See, e.g., Juppala v. Finland, § 25. 46 X and Y v. the Netherlands, §§ 21–27 and Stubbings and Others v. the United Kingdom, §§ 62–64. 47 Juppala v. Finland, §§ 42–43; Selistö v. Finland, § 54; and Frezzoz and Roire v. France, § 54. 48 Nilsen and Johnsen v. Norway, § 50. 49 McVicar v. the United Kingdom, § 84. 50 Thorgeir Thorgeirson v. Iceland, § 65 and Cihan Öztürk v. Turkey, § 28. 51 Dalban v. Romania, § 50 and Flux and Samson v. Moldova, § 24. 52 Skałka v. Poland, §§ 41–42 and Cumpănă and Mazăre v. Romania, §§ 111–124.

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relaying information to the public are inconceivable without particularly serious reasons. In

the present case, such reasons are lacking. The sanctions imposed upon the applicant – the

order to delete the blog post, to post an apology, the obligation to pay 15 000 € in damages,

and the coercive fine – were capable of having a chilling effect on the freedom of expression

guaranteed to the press, especially when considering the considerable amount of the damages.

In any event, the sanctions were not justified in the light of the factors set out above.

4.2 Criminal proceedings

a) Blocking access to the blog site in Evrylia was not necessary in a democratic society

24. The principal aim of the applicant’s Bligg page was the dissemination of information

concerning matters of general interest to the public. In the evaluation of the legitimateness of

the State’s actions, a careful balance needs to be struck between protecting the right to

freedom of expression and prohibiting advocacy of hatred on the grounds of nationality.

Blocking access to a blog site constitutes a prior restraint on the freedom of expression as it

prevents new Evrylian readers from accessing the blocked content in the future. The court has

long held that the significant dangers inherent in prior restraints require “most careful

scrutiny”, and especially so when the press is concerned.53 In this respect, the State needs to

afford a measure of legal protection against arbitrary interferences by public authorities with

the rights guaranteed under ECHR.54

25. Your Court has in the past placed special emphasis on the principle of proportionality

as a yardstick for evaluating whether the national authorities have overstepped their margin

of appreciation.55 Even though the comments posted in the applicant’s blog were clearly

identifiable as hate speech, the principle of proportionality, inherent in the adjective

"necessary", required that the applicant had been ordered to remove the offending comments

before more far-reaching courses of action were embarked upon. As a small media operator,

he does not have sufficient resources available for him to be able to moderate all the

comments in real time. The only alternative left for him would be to close the comment

section altogether to avoid liability, which would in turn deprive Internet users of a valuable

way of engaging in matters of public debate.

26. Furthermore, the injunction order in question was not executed until three years after

the original blog post was written. A certain level of consistency is required from the states’

attitudes: the national authorities cannot sanction remarks or actions that they have not

53 Observer and Guardian v. the United Kingdom, § 60. 54 Maestri v. Italy, § 30. 55 See, e.g. Handyside v. the United Kingdom, § 49.

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previously sanctioned or have even tolerated.56 This is especially true in a case in which a

considerable amount of time has passed since the comments were posted.57 Failing to take

speedier action, Evrylia had subsequently lost its right to intervene at a later point.

27. In general, the purpose of an interim measure is to provide protection from an

imminent risk of irreparable damage.58 However, at the time that the injunction was finally

executed, it no longer had the capacity to prevent the dissemination of the allegedly offensive

comments in any effective way, nor could it prevent the possible effects of these comments in

Evrylia. Any possible protective function of the injunction had been lost due to the State’s

failure to act within a reasonable time.

b) Taking down the Phrendbook profile was neither foreseeable nor necessary

28. In the present case, applicant’s entire Phrendbook profile, along with the journalists’

forum group, was taken down. In the applicant’s opinion, the Evrylian provision on blocking

orders was not formulated with sufficient precision: although the order was as such based on

national legislation59, it was not foreseeable for the applicant that his Phrendbook profile,

which was connected to the impugned blog post only by a link posted therein, could be taken

down entirely. Such a consequence was entirely unexpected: the Phrendbook profile itself did

not contain any information classifiable as hate speech, and the applicant’s intention was only

to publish a link to the his news article and not to the comment section thereof. Hyperlinks as

such do not contain any racist material, just a URL to the blog site where the actual material

is visible. If Evrylian authorities had restricted the blocking order only to the applicant’s blog

site and enforced it without undue delay, it would have prevented any possible harm in

Evrylian territory, since the hyperlinks would have not opened the blog site. The injunction

also constituted a disproportional measure, since there was no plausible connection with the

interference and the social need pursued.60

c) Threat of imprisonment in hate speech legislation is disproportional

29. The Court has stated that a prison sentence will be compatible with journalists’

freedom of expression only in exceptional circumstances, notably where other fundamental

rights have been seriously impaired, as, for example, in the case of hate speech or incitement

to violence.61 According to the Court, the punishment of a journalist for statements made by

56 Erbakan v. Turkey, §§ 67–68. See also Weber (2009), p. 45. 57 Erbakan v. Turkey, § 68. 58 Erbakan v. Turkey, § 68. Cf. Editions Plon v. France, §§ 51–55. 59 See Evrylian law concerning Internet publications and prevention of Internet offences, Section VII(1). 60 See, mutatis mutandis, Yildirim v. Turkey and the concurring opinion of judge Pinto de Albuquerque. 61 Cumpănă and Mazare v. Romania, § 115.

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another person should not be envisaged unless there are particularly strong reasons for it.62

Further, the mere risk of a prison sentence in connection with criminal proceedings may as

such have a serious chilling effect. This threat itself may be disproportionate and lead to the

violation of Art. 10, even if such a sanction has not been issued.63 Lastly, the applicant’s

intention relating to dissemination of racist material has been an essential element in the

Court’s case-law on deciding whether the applicant could be held criminally liable or not.64

30. The applicant stresses that his purpose was not to propagate racist views; the same is

also evidenced by the caveat added to his blog site. The sanction for speech offence in

Evrylia is particularly severe: six months to three years of imprisonment. There is no option

for a fine. Even though the criminal investigations are only pending, a threat of a prison

sentence and a strict liability arising from user-based content is in its severity

disproportionate to the legitimate aim pursued. Accompanied by the delayed injunction, the

threat had a manifestly disproportionate effect. There has thus been a violation of Art. 10.

5 Violation of Articles 8 and 11: Evrylian authorities unreasonably interfered with the

confidential correspondence, private life and freedom of assembly of the applicant

31. The Committee of Ministers has highlighted the importance of social media platforms

as a valuable tool for communication between individuals, and as such warrants protection

under the ECHR.65 According to Art. 8, everyone has the right to respect for his private and

family life and correspondence without interference by a public authority. The right to private

life and correspondence is also protected on the Internet.66

32. Furthermore, Art. 11 guarantees the right to peaceful association, whether it is private

or public, and irrespective of its form or the role of the participant in the assembly.67 The

right to peaceful association also relates to the right to form or be affiliated with a group or

organization pursuing particular aims,68 and therefore also covers such unofficial groups as

the EvryFav forum. Art. 11 is connected to Art. 10 in the sense that both include the right to

express opinions on controversial issues, even if such opinions annoy or give offence to

others.69 In addition, any interference with the rights guaranteed under Arts. 8 and 11 has to

be "prescribed by law", pursue one or more of the aims enumerated and be "necessary in a

democratic society" to achieve that or those aims.

62 Jersild v. Denmark, § 35. 63 Erdoğdu and İnce v. Turkey, § 53 and Erbakan v. Turkey, § 69. 64 Jersild v. Denmark, § 33. See also Weber (2009), pp. 33–35. 65 CM/Rec(2012)4, §§ 1, 6 and 15. 66 Copland v. the United Kingdom, §§ 41–42. 67 Djavit An v. Turkey, §§ 48 and 60. 68 McFeeley and Others v. the United Kingdom (dec.), § 114. 69 Plattform "Ärzte für das Leben" v. Austria, § 32.

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33. The notion of “private life” is to be interpreted broadly, and respect for private life

thus comprises, to a certain degree, the right to establish and develop relationships with other

human beings – not only relationships with family members and the “inner circle” but also

professional relationships.70 Furthermore, the right to correspondence protects the

confidentiality of “private communication” and uninterrupted communication with others

regardless of its content and form.71 Consequently, if the correspondence is interrupted or

censored in any manner, this results in an interference in the meaning of Art. 8(2).

34. Art. 3 of the Additional Protocol to the Convention on Cybercrime obliges Evrylia to

criminalise intentional distributing, or otherwise making available, racist material to “the

public” through a computer system. Furthermore, according to the Explanatory Report to the

Additional Protocol, private communications or expressions are protected by Art. 8 and

clearly left outside of the notion of “the public”. In addition, it depends on the circumstances

of the case whether the dissemination was made to the public or not. Several objective factors

can be taken into account in the assessment, including the number of receivers and the

relationship between the sender and the receiver/s.72

35. The applicant’s private Phrendbook profile served as a means for him to keep in

contact with his friends, family, and colleagues. The impact of this forum with respect to the

general public was very limited, and thus the potentially harmful effects of the link were also

minor. On the other hand, the account in question was highly valuable for the applicant with

respect to both his private and professional life. First of all, the communication on the private

Phrendbook platform “wall”, accessible only by the applicant’s friends and family, falls

clearly within the notion of “private life” as regards Art. 873 and, moreover, can be regarded

as “private communication” in the meaning of the right to confidential correspondence.

36. Second, the forum group “EvryFav Media” served as an important medium for

interaction with other journalists and their trade unions, and constituted an integral part of the

applicant’s professional life. In the latter sense, it should be taken into consideration that by

rendering the journalists’ forum inaccessible, the injunction also substantially restricted the

rights of third parties and thus had a significant collateral effect.74 With respect to the

evaluation of the effects of the infringement and its proportionality with regard to Arts. 8 and

70 Niemietz v. Germany, § 29. 71 Salapa v. Poland, § 91–94 and Michaud v. France, § 90. 72 Explanatory Report to the Additional Protocol to the Convention on Cybercrime, §§ 29–31. 73 See, e.g., Niemietz v. Germany, § 29. 74 See, mutatis mutandis, Yildirim v. Turkey, § 66.

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11, the applicant refers to the above grounds presented in connection with the discussion of

the violation of Art. 10 (see §§ 26–28).

6 Violation of Article 6(1): Criminal investigations were not conducted in reasonable

time

37. The Art. 6(1) places a positive obligation for the State to organise its legal system in a

manner that enables the conduction of proceedings within a "reasonable time".75 The

assessment of reasonability can be based for instance on the date on which the person was

notified of the criminal investigations.76 Approximately a three-year time period of total

inactivity in a single jurisdictional level could be justified only by exceptional

circumstances.77 Even in cases where there might have been a good explanation for the delay,

the Court has held that a delay of three years is an unreasonably long period.78 The

reasonable length of proceedings depends on the circumstances of the case, and at least

following criteria need to be taken into account: the complexity of the case, the conduct of

the applicant and the relevant authorities and what was at stake in the proceedings for the

applicant.79 The reasonability assessment can be performed even if the case is still pending.80

38. The present case is not particularly complex, since user-based comments in the blog

site clearly fulfil the essential elements of the hate speech offence in Evrylia and also

provoked violence towards Kroppa minority, causing clear danger to the public safety. Thus,

there are only a few questions remaining: first, whether the applicant is responsible for the

user-based content, and second, whether there was the intention of provoking by the links

created and whether the latter linking was conducive to cause danger to the public safety.

39. Applicant has not done anything to delay the criminal investigations. Besides filing

for injunction, the prosecutor has failed to bring the main criminal charge before the courts

since the investigations were opened. Three years clearly constitutes an unreasonable time for

the criminal investigations to be pending before the prosecutor’s office.

40. In addition, the Court has distinguished a group of cases which should be dealt with

great urgency.81 For one, special diligence is required in cases considering individuals’

professional activities, for instance when the case has direct influence on the way the

applicant carries on his profession or when the continuation of the applicant’s professional

75 Zimmermann and Steiner v. Switzerland, § 29. 76 Kangasluoma v. Finland, § 26. 77 Zimmermann and Steiner v. Switzerland, § 27. 78 Petroff v. Finland, § 23. 79 Lehtinen v. Finland, § 30. 80 Sorvisto v. Finland, § 72. 81 Süßmann v. Germany, § 61. See also Edel (2007), p. 43.

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activity depends in large measure on the proceedings.82 The sanction of hate speech crime in

Evrylia is particularly severe for a speech offence, especially when the applicant is not the

writer of the comments. It causes a serious chilling effect on journalists. Consequently, the

proceedings are of utmost interest to the applicant. Evrylia left the applicant in an uncertain

position for three years and there has thus been a violation of the Art. 6(1).

7 Violation of Article 4(1) of the Protocol no. 7

41. The applicant stresses that, noting especially the excessive length of the injunction

proceedings, the injunction could be regarded as “criminal” in the meaning of the “ne bis in

idem principle” provided for in the Art. 4(1) of Protocol no. 7. The legal characterization of

the procedure under national law cannot be the sole criterion of relevance for the applicability

of this principle”.83 The Court has set out three criteria (Engel criteria)84 to be considered in

determining whether or not there was a “criminal charge”: the legal classification of the

offence under national law; the very nature of the offence; and the degree of severity of the

penalty that the person concerned risks incurring. They can also be applied cumulatively.85

42. The applicant stresses that the injunction meets the aforementioned criteria: the

injunction was imposed due to a minor offence (disseminating) allegedly committed by the

applicant, and it has had severe consequences in the circumstances where the imposing has

been unreasonably prolonged. In fact, the applicant considers that the severity of the measure

was in itself so significant that it could be viewed as a criminal sanction.86 Moreover, the

applicant notes that the injunction was imposed in separate proceedings which, in the

circumstances of the case, did not have a sufficiently close connection to the main

proceedings “in substance and in time” to consider the injunction to be part of the main

proceedings.87 Thus, there has been a violation of Art. 4(1) of Protocol no. 7.

JUST SATISFACTION

43. Based on the above-mentioned, the applicant considers evident that Evrylia has breached

its Convention obligations. Should the Court find a violation, it is submitted that it should, under

Art. 41, award the applicant ‘just satisfaction’ and order the reimbursement of the full costs and

expenses incurred.

82 See, mutatis mutandis, Doustaly v. France, § 48. See also Edel (2007), p. 46. 83 Sergey Zolotukhin v. Russia, § 52. 84 Engel and Others v. the Netherlands, § 85. 85 Sergey Zolotukhin v. Russia, § 52. 86 Nilsson v. Sweden (dec.). 87 See, mutatis mutandis, Nilsson v. Sweden (dec.).