2013 Team Number: 092 __________________________________________________________________________

THE EUROPEAN HUMAN RIGHTS MOOT COURT COMPETITION YEAR CASE OF ADAM v. EVRYLIA

V.A. (Complainant)

Vs

EVRYLIA (Respondent)
__________________________________________________________________________

Submission for the Applicant

TABLE OF CONTENTS I. LIST OF REFERENCES............................................................................................................. 3 II. LIST OF ABBREVIATIONS .................................................................................................... 4 III. SUMMARY .............................................................................................................................. 5 IV. LEGAL PLEADING ................................................................................................................ 6 PART A: ADMISSIBILITY OF CLAIM ................................................................................... 6 1. Scope within Art. 1 of the Convention ................................................................................ 6 2. Applicant Status ................................................................................................................... 6 3. Victim status ........................................................................................................................ 6 PART B: MERITS OF THE CLAIM ......................................................................................... 7 1. The civil proceedings against the applicant for defamation ................................................ 7 1.1. Violation of article 10 .................................................................................................. 7 1.1.1. Freedom of expression and a free media pillars for a democratic society ...... 7 1.1.2. The opinions that offend, shock or disturb ........................................................ 8 1.2. Violation of Article 10: freedom of opinion ................................................................ 8 1.2.1. Factual statement and expressing an opinion ..................................................... 9 1.2.2. A matter of public interest ................................................................................. 9 1.3. Violation of article 10: freedom of information ......................................................... 10 1.4. Proof of good faith and public interest. The factual basis.......................................... 10 1.5. Priority for the freedom of expression ....................................................................... 11 2. The criminal proceedings against the applicant for endorsing hate-speech ...................... 12 2.1. The liability of the applicant for endorsing hate-speech ............................................ 12 2.2. Violation of Article 10 ............................................................................................... 13 2.2.1. Freedom of expression ..................................................................................... 14 2.2.2. Freedom of information ................................................................................... 15 2.2.3. The risk of self-censorship of the press ........................................................... 16 2.2.4. The measure was not necessary in a democratic society ................................. 16 2.3. Violation of the right to respect for private and family life (article 8) ...................... 18 2.3.1. The right to develop relationships with other human beings ........................... 18 2.3.2. The right to reputation...................................................................................... 19 2.3.3. The interference was not justified .................................................................... 19 PART C: Remedies ................................................................................................................... 20

I. LIST OF REFERENCES 1. Conventions and treaties

I. Convention for the Protection of Human Rights and Fundamental Freedoms, (entered into force 3 September, 1953) II. Convention on Cybercrime, Budapest, 23 September 2001. III. Committee of Ministers, Declaration CM(2005) 56 final IV. Committee of Ministers, Declaration of 28 May 2003.

2. Cases Autronic AG v. Switzerland, no. 12726/87, 22 May 1990; Bladet Troms and Stensaas v. Norway, no. 21980/93, 20 May 1999; DeHaes et Gisels v. Belgium, no. 19983/92, 24 February 1997; Dichand and others vs. Austria, no. 29271/95, 26 February 2002; Fressoz and Roire v. France, 29183/95, 21 January 1999; Guerra and Others v. Italy, 116/1996/735/932, 19 February 1998; Hadjianastassiou v. Greece, no. 12945/87, 16 December 1992; Handyside v. United Kingdom, no. 5493/72, 7 December 1976; Jerusalem v. Austria, no. 26958/95, 27 February 2001; Lingens v. Austria, no. 9815/82, 8 July 1986; Mazare v. Romania, no. 33348/96, 17 December 2004; Niemietz v. Germany, no. 13710/88, 16 December 1992; Novaya Gazeta And Borodyanskiy v. Russia, no. 14087/08, 28 March 2013; Oberschlick v. Austria, no. 11662/85, 23 May 2001; Observer and Guardian v. the United Kingdom, no. 13585/88, 26 November 1991; Observer and Guardian vs. U.K., no.13585/88, 26 November 1991; Paturel v. France, no. 54968/00 , 22 decembrie 2005; Pfeifer v. Austria, no. 12556/03, 15 November 2007; Pretty v United Kingdom, no. 2346/02, 29 April 2002; Radio France v. France, no. 53984/00 , 30 March 2004; 3

Soering v. the United Kingdom, no. 14038/88, 07 July 1989; Sunday Times v. the United Kingdom, no. 6538/74, 26 April 1979; Thorgeirson v. Iceland, no. 13778/88, 25 June 1992; Times Newspapers Ltd v. the United Kingdom, nos. 3002/03 and 23676/03, 10 March 2009; Yildrim v. Turkey, no. 3111/10, 18 December 2012.

3. Secondary sources 1. Active Watch International case law on article 10, Freedom of expression, Active Watch Press, Bucharest 2008 2. Brsan, Corneliu, European Convention of Human Rights comment on articles, All Beck Press, Bucharest, 2005; 3. International Telecommunications Union - poll (2012); 4. Macovei M., Dgli A., Mihai D., Legal guide for journalists, 3rd edition, Active Watch Press, Bucharest, 2009; 5. Renucci, Jean-Franois Trait de droit uropen des droits de lhomme, Hamangiu Press 2009, p.185. 6. Sudre, Frdric Droit europen et international des droits de lhomme, Presses Universitaires de France, Paris, 2008 ; 7. Ursula Kilkelly, The right to respect for private and family life, Human rights handbooks, No. 1, 2003.

II. LIST OF ABBREVIATIONS 1. 2. 3. 4. 5. ECHR - European Convention of Human Rights ECtHR - European Court of Human Rights ETD Evrylian Telecommunications Directorate V.A. - Victor Adam D.K. David K.

III. SUMMARY Evrylia and Favonia are in good terms and have similar background in many areas including culture, education, social life. Both of them are members of the Council of Europe and ratified the Convention. The coach of the Favonian national football team has recently made statements to the effect that he was examining the possibility of obtaining Favonian nationality for D.K., Evrylian citizen, so that he could play for the country. In this context, V.A., Favonian and Evrylian national, who is a well-known journalist, posted on his blog an article about an alleged connection between D.K. and some individuals involved in drug and human trafficking. D.K.s nationality has triggered certain offending commentaries. These comments were added in the context in which D.K. is a part of the Kroppa minority and in Favonia there is a wide-spread anti-Kroppa sentiment. Hearing about the article, D.K. started an action against V.A. for defamation invoking prejudices regarding his career and private life. After the civil proceedings, the national courts ordered V.A. to pay damages, to delete the blog post and to make a public apology, dismissing the applicants appeal. Although V.A. published apologies, enforcement proceedings were instituted. On 20 September 2010, the Evrylian Prosecutor Generals department opened an investigation against V.A., considering him responsible for the comments on his blog, thus implicitly endorsing these statements. Following the prosecutor injunction, the blog was blocked together with any subsequent reference to it, after the appellate court dismissed V.A.s appeal on 20 June 2013. On 30 July 2013, V.A. brought an application before the European Court of Human rights, asking the Court to recognize a violation of his rights.

IV. LEGAL PLEADING PART A: ADMISSIBILITY OF CLAIM 1. Scope within Art. 1 of the Convention Evrylia is a contracting party to the ECHR and its associated protocols. As a consequence, the Evrylian government is bound to respect the rights and freedoms protected by the Convention. 2. Applicant Status The claim is filed against the Evrylian government by the applicants lawyer, thus being in a representative position, in accordance to the Art.45. Additionally, the individual application satisfies all the conditions mentioned in Art. 35: 1.1. All domestic remedies have been exhausted, according to the generally

recognised rules of international law, and within a period of six months from the date on which the final decision was taken- the final decision regarding the civil proceedings being set on 20 March 2013 and the one established for the criminal proceedings on 20 June 2013; 2.2. The applicant, V.A., is known by name; 2.3. It is not substantially the same as a matter that has already undergone examination by the Court and it has not been already submitted to another procedure of international investigation or settlement; 2.4. It is compatible with the provisions of the Convention and the Protocols and the invoked rights are protected by the Convention. 3. Victim status V.A. has been a victim in the extent that he has suffered a violation of his rights and freedoms protected by the Convention. The claimant has a personal interest to act. Therefore, an internal measure (taking down of his entire BBligg page and private Phrendbook profile, including his forum group) justifies the existing application. V.A. has suffered a significant disadvantage, being a direct victim, under art. 35 (1) of the blocking procedure. Additionally, by being forced to respect the final decision, complying with the three measures (fine, the deletion of the post and

the public apology), the applicants rights and freedoms provided by the Convention have been violated. PART B: MERITS OF THE CLAIM 1. The civil proceedings against the applicant for defamation In the civil proceedings, D.K. argued against V.A. the fact that the written article is offending and defamatory. The tribunal and Appellate Court from Evrylia ordered V.A. to pay damages, to delete the blog post and to post a public apology. 1.1. Violation of article 10 The democratic development of a society involves the plurality of ideas and conceptions about world and life and relationships between society members. Even from the first important decision, ECTtR stated that freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man1. 1.1.1. Freedom of expression and a free media pillars for a democratic society The first paragraph of the article 10 establishes its content, followed by its limits. As stated, a democratic society is characterized by openness, pluralism, tolerance. It encourages open discussion on matters of public interest. At the same time, freedom of expression can not be conceived without the freedom of thought and conscience. V.A. is a well-known journalist with an influential television news channel in Favonia. He also has a personal blog, with wide coverage, being visited by many readers. As an active figure in the press field, he plays an important role in imparting information regarding all kinds of different areas. Therefore, the press contribution in a democratic society manages to continuously show its great value. It is important to underline that the media plays an essential role in a democratic society. Although it must not exceed, among other limitations, the protection of other persons reputation,

Handyside v. United Kingdom, no. 5493/72, 24, 7 December 1976.

it is the duty of the press to impart information and ideas on all matters of public interest. The publics right to receive such information and ideas adds to the obligation of the media to transmit them. If this were not so, the press would not be able to fulfill its vital role of a public watchdog2. The impact of the proliferation of online information must also be discussed, especially as Europe is the continent with the greatest number of individual internet users, counting a little over 220 million in 2012. European countries also make for a half of the top of the countries with the highest internet penetration rate, having an average of considerably more than half of the population being active online3. 1.1.2. The opinions that offend, shock or disturb Freedom of speech includes not only the pieces of information received in a favourable way or with indifference by the public opinion, but also the ones that offend, shock or disturb. These are the consequences of the pluralism, tolerance, and democratic spirit and these principles are of particular importance as far as the press is concerned4. A high potential risk of sanctioning the ideas or even the isolated opinions that offend, shock or disturb a group or even a single person has been identified. At the same time, the Court has confirmed that often the publics right to be informed takes priority over the effect of a statement. 1.2. Violation of Article 10: freedom of opinion Freedom of opinion appears as the classical form of freedom of expression and implies that no one can be sentenced for his opinions, even the possibility of expressing a minority opinion being regarded as an essential component of a democratic society.5 In the following, it is very important to take into consideration the difference between opinions or judgements of value on one hand and factual statements on the other. At the same time, we must also take into account the criteria regarding the matter of public interest.
2

Ibidem, Bladet Tromso and Stensaas vs. Norway, no. 21980/93, 20 May 1999; Dichand and others vs. Austria, no. 29271/95, 26 February 2002 3 Poll made by the International Telecommunications Union, 2012; 4 Lingens v. Austria, no. 9815/82, 8.07.1986 5 Frdric Sudre (2008), p. 526

1.2.1. Factual statement and expressing an opinion Freedom of opinion is presented as a classical form of freedom of expression and it has the role of stating an opinion regarding a certain social fact. This situation must not be confused with the report of an activity. The posted article is about an alleged connection between D.K. and certain obscure individuals involved in drug and human trafficking. The bases of this article are the circulating rumours. As the Court stated before, such critical affirmations on public interest matters must be qualified as value judgements6. The consequence of this clear difference regards the proofs in the case. However, V.As judgements of value do not require to be accompanied by proofs because they are different from material facts. Whats more, demanding probation of such judgements would violate the essence of freedom of expression7. 1.2.2. A matter of public interest A matter of public interest, as the court stated before8, is represented by an issue affecting the life of community that contributes to public discussions. In our case, V.A.s article was published in the context of recent statements made by the coach of the Favonian national football team. At the same time, the publicity contracts that D.K. had signed argued once again that he was a public person and the article was of public interest, as mentioned before. Furthermore, encouraging open discussions on this matter should have been treated as a priority.9 Additionally, the judge must be convinced that every case that requires restriction of the freedom of expression of a journalist (by conviction, imposition of civil damages, etc..) concerns more than the journalist himself, with direct consequences on the press and its role in democracy10.

6 7

Jerusalem v. Austria, no. 26958/95, 27 February 2001. Oberschlick v. Austria, no. 11662/85, 23 May 2001; DeHaes et Gisels v. Belgium, no. 19983/92, 24 February 1997 8 Ligens v. Austria, no. 9815/82, 8 July1986 9 Sunday Times v. United Kingdom, no. 6538/74, 26 April 1979 10 Macovei M., Dgli A., Mihai D., (2009), p. 30

1.3. Violation of article 10: freedom of information Freedom of information represents the second element of freedom of expression and involves not only the freedom of transmitting information, but also the freedom of being freely received by the public and also extracting the data from diversified sources, without any intervention from the public authorities.11 Ordering the measure of deleting the post during the civil proceedings, the authorities have also violated the freedom of information of V.A., which consists of transmitting pieces of information to the Evrylian and Favonian society. 1.4. Proof of good faith and public interest. The factual basis The sample practiced when it comes to journalists is the good faith and the public interest. This means that the information was in the public interest and that the journalist thought, at the time the article was published, that the information was true. The main evidence of good faith that the journalist can make is a reasonable verification of the certain information before broadcasting it. It consists in proving that the journalist has verified the existence of elements, features or circumstances likely to give them enough reasons to make him believe in the truth of the facts disclosed. The simple finding that the facts reported by the journalist are not true is not enough to conclude that he acted in bad faith. The specifics the journalist embraces should be taken into account, mainly in three aspects: a) The journalist does not have the technical, organizational and legal investigation methods that specialized state bodies have at their disposal (like the police or the prosecutors); b.) The journalist does not have at hand the time to investigate, as do state bodies. Information is by its very nature a perishable good. This is because information must appear in the press as close to the occurrence to which it relates, and also before its publication in other newspapers12. As a precedent, the ECtHR has decided that () information is a perishable good

11 12

Brsan, Corneliu, European (2005), p. 740. Macovei M., Dgli A., Mihai D ( 2009), p. 50

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and the delay of its publication, even for a short period of time, enhances the risk of losing its value and the interest towards that idea13. Therefore, if the applicant, V.A., had waited to verify all of the existing elements regarding the information about D.K., there would have been a high risk of losing the value of the shown ideas. Additionally, the matter of the good or bad faith of the journalist can be solved as it follows: The guilt of a journalist can be retained only in the following circumstances: (1) if the injured person proves that the facts described by the journalist are false; the journalist does not have the obligation to make the burden of proof, but the injured person to prove falsity. With direct application on our case, D.K. should have brought proof of the untrue information given about him; (2) If it turns out that the facts described are entirely false; it is not sufficient to prove only partial falsity of those facts, but their full falsity; (3) if the journalist knew, at the time of stating the facts, that they were not true; (4) if there is proof that the journalists aim, in stating the false ideas, was to to fuel a campaign of slander/defamation, and not to inform the public about a matter of public interest. In our case, V.A. had no aim to fuel a campaign of defamation, but to publish a value judgement and to draw the publics attention on a subject of general interest. Additionally, if the victim demonstrates that the journalists unique purpose was defamation, then the journalist can be considered of bad faith and sanctioned, but only proportionately, not excessively14. All these points are valid in our case, taking into consideration the fact that the internal measures applied to the applicant were disproportionate judging in a wrong way that V.A. was of bad faith (the order to pay damages, the deletion of the blog post and the public apology). 1.5. Priority for the freedom of expression D.K. argued that the information given by the journalist in his article caused the cancellation of several publicity contracts and the threat of suspension by the Selsee Football Club, for which he was playing, thus claiming that his reputation was tarnished. In addition to that, we can clearly argue in our present case that the football player was a controversial figure, given the fact that,

13 14

Observer and Guardian vs. U.K., no.13585/88, 26 November 1991 Macovei M., Dgli A., Mihai D., ( 2009), p. 53

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despite his great potential, he had not been considered suited to occupy a position in the Evrylian national team. The reasons for the mentioned lack of desire that he be a part of the national football team were highlighted, as follows: the players relationship with the footbal authorities, his controversial social life and his undisguised interest in lucrative commercial contracts and media visibility. Therefore, the information included in the journalists article did not have such a shocking impact on the viewers, as they were already aware of the players controversial social life. The mentioned aspect also has ramifications on the supposed impact the article had on the football players private and family life, the applicant being accused for triggering the cancellation of D.K.s wedding, the decision to end the engagement being taken by his fiance. However, there is no proof of causation between the invoked prejudices and the effect of the published article. With direct application on our case, the stated idea reflects the fact that by mentioning the connection between the footballer, D.K. and certain obscure individuals involved in drug and human trafficking, the applicant was permitted to bring to the publics attention a disturbing information, type of information which is permitted, especially when the transmitter is the press and the subject is a matter of public interest. 2. The criminal proceedings against the applicant for endorsing hate-speech Evrylian authorities opened an investigation against the applicant under the criminal domestic law, accusing him of allowing hate-speech remarks on his blog. During the criminal proceedings, the national tribunal, at the prosecutors request, granted the order to suppress V.A.s blog, Phrendbook profile and the EvryFav Media forum. Considering that the applicant can not be reasonably held liable for endorsing hate-speech, this measure has flagrantly violated his right to freedom of speech and his right to respect for private and family life. 2.1. The liability of the applicant for endorsing hate-speech The applicant submits that he isnt liable for the commentaries posted on his blog. In examining this claim, four critical aspects should be considered: the disclaimer, the intention, the obligation of monitoring the commentaries and the global role of V.A. in the matter.

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V.A. made clear to users that the comments do not express his opinion and that the authors of the comments were responsible for their content. In this respect, he included on his blog manifesto an explicit disclaimer. It is undisputed that the purpose of the applicant in compiling the story in question was not racist. The comments had been triggered by the possibility of bringing D.K. into the Favonian national team. The applicant allowed to place comments, not with the intention of disseminating racist opinions, but in order to ensure freedom of speech. Withal, V.A. considers that the commentary part of the blog was to be distinguished from the journalistic area and he could not be considered the publisher of the comments, nor did he had any obligation to monitor them, such an overly burdensome obligation being contrary to freedom of expression and information. A significant feature of the present case is that the journalist did not make the objectionable statements himself. He had not played an active role, but had merely stored comments and provided information to the public: readers and commentators. The comments posted on the blog havent been provoked in any way by the deeds of the applicant. In conclusion, V.A. had only played a passive role in hosting the comments and he was found liable for the commentaries written by a third party. In this respect, the national authorities had the obligation to tailor the measure to the content which was deemed illegal and avoid targeting a person that was not de jure or de facto responsible for the illegal publication and has not endorsed its content15. 2.2. Violation of Article 10 V.A. claims that the injunction granted by the national tribunal violated his freedom of expression, which includes freedom of opinion and the freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, and the rights concerning the respect for privacy.16 The applicant further submits that the taken measure creates the risk of selfcensorship of the press and also that it was not necessary in a democratic society.

15 16

Yildrim v. Turkey, no. 3111/10, 18 December 2012. Convention on Cybercrime, Budapest, 23. XI. 2001.

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2.2.1. Freedom of expression Freedom of expression, information and communication should be respected in a digital, as well as in a non-digital environment, and should not be subject to restrictions other than those provided for in Article 10 of the ECHR, simply because communication is carried in a digital form17. In light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the publics access to news and facilitating the dissemination of information generally18. The specified freedom will be protected all the more if it contributes to the discussion of issues that have a legitimate public interest19. These considerations are valid in the present case. The applicants blog, private Phrendbook profile and EvryFev Media forum group were designed to facilitate the transmission and exchange of information and thus constitute means of exercising freedom of expression. Taking into consideration that the Internet has now become one of the principal means by which individuals exercise their right to freedom of expression and information, providing as it does, essential tools for participation in activities and discussions concerning political issues and issues of general interest20, the applicant was deprived of the freedom of opinion. The applicant draws attention that provided that the safeguards of Article 10, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms are respected, measures may be taken to enforce the removal of clearly identifiable Internet content or, alternatively, the blockage of access to it, if the competent national authorities have taken a provisional or final decision on its illegality21. In the present case the tribunal did not take any decision regarding the illegality of the Internet content before granting the concerned injunction. The applicant reminds that criminal investigation against him is still pending before the prosecutor`s office.

17 18

Committee of Ministers, Declaration CM(2005)56 final. Times Newspapers Ltd v. the United Kingdom, nos. 3002/03 and 23676/03, 27, 10 March 2009. 19 Bladet Troms and Stensaas v. Norway, no. 21980/93, 20 May 1999. 20 Yildrim v. Turkey, no. 3111/10, 18 December 2012. 21 Committee of Ministers, Declaration of 28 May 2003.

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2.2.2. Freedom of information Freedom of communication involves not only the freedom to impart information, but also the freedom of the reader, the audience, the general public to freely receive information from various sources. For the press, which has a significant presence on the Internet, freedom to impart and receive information, and the guarantees afforded to it are of particular importance. It has a duty to impart information and ideas on matters of public interest. Likewise, the Court has consistently emphasized that Article 10 guarantees not only the right to impart information, but also the right of the public to receive it22. Therefore, a person, especially any journalist can seek and gather information from those willing to provide. The Court observes that the right to freely receive information basically prohibits the Government from restricting a person from receiving information that others wish or may be willing to impart to him23. The Court decided that article 10 regards not only the content of the information, but also the modalities through which these are transmitted and received, as any restriction brought to these constitutes a constraint of the right to receive and to communicate information24. The same reasoning applies to the present case. The order was aimed directly at the digital means of imparting information. A measure of that nature, blocking the access to such a quantity of information was analogous to prior restraint, as it prevented Internet users from accessing the blocked content for an indeterminate period. Such restrictions posed significant dangers and a risk of collateral censorship. Furthermore, the inadmissibility of prohibitions on the future publication of entire newspapers whose content was unknown at the time of the national courts decisions, has been established in rper and Others v. Turkey. The blocking of a website or a platform and the future publication of articles whose content was unknown at the time of the decision is equivalent to the aforementioned prohibition regarding a newspaper. Thus, the rationale regarding prior
22

Observer and Guardian v. the United Kingdom, no. 13585/88, 59 (b), 26 November 1991 and Guerra and Others v. Italy, 116/1996/735/932, 53, 19 February 1998. 23 Soering v. the United Kingdom, no. 14038/88, 52, 07 July 1989. 24 Autronic AG v. Switzerland, no. 12726/87, 47, 50 and 63, 22 May 1990.

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restraints in rper applies to the blocking of websites or platforms and a fortiori to the collateral suppression of legal websites and platforms25. The applicant submits to the Court that the measure in question amounted to interference b y public authority with the applicants right to freedom of expression, of which the freedom to receive and impart information and ideas is an integral part. 2.2.3. The risk of self-censorship of the press While it is admitted that freedom of expression can be restricted, the sanctions can not be disproportionate. The fear of severe sanctions can have a discouraging effect on the freedom of speech26. Prison sentences are often regarded as disproportionate27, but the article 10 is violated even in the case of moderate sanctions such as fines28, even a one French franc penalty was considered excessive29. In our case, the measures taken by national authorities are particularly severe. A special attention has to be paid to the taking down of the forum EvryFavMedia. The forum was more than a means to exchange useful information on specific topics. Taking into consideration the restricted access and the nature of disseminated data, it appears that the forum is a virtual association dedicated to journalists. Hence, suppressing the forum has a self-censorship effect not only on the applicant, but also on the members of the forum and possibly on their readers. The Court constantly held that imposing sanctions to the press is likely to prevent the press from performing its task as purveyor of information30. 2.2.4. The measure was not necessary in a democratic society The freedom of expression is not an absolute right, this means an interference of the state is possible. However, the force of this right can not be questioned, the restrictions are only exceptional31. This position is constantly upheld by the Court in its case-law32.
25 26

Yildrim v. Turkey, no. 3111/10, 18 December 2012. Jean-Franois Renucci ( 2009), p.185. 27 Mazare v. Romania, no. 33348/96,17 December 2004. 28 Paturel v. France, no. 54968/00 , 22 decembrie 2005. 29 Fressoz and Roire v. France, 29183/95, 21 January 1999. 30 Lingens v. Austria, no. 9815/82, 8 July 1986.

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It is not disputed that blocking the applicants personal blog, the applicants private Phrendbook profile and the forum EvryFavMedia is a restriction of the freedom of expression according to Article 10 (2). Such interference is a violation of article 10, unless (1) it is prescribed by law; (2) has a legitimate aim; (3) and is necessary in a democratic society. The complainant submits that the injunction was not necessary in a democratic society. According to the jurisprudence of the Court, the interference is legitimate if it corresponds to a pressing social need and the reasons given by the national authorities to justify it are relevant and sufficient under Article 1033. Thus, in limiting free expression rights, the Government must provide a compelling justification34. Firstly, the national tribunal failed to bring any reasons for granting the injunction. The national courts must indicate with sufficient clarity the grounds on which they base their decisions35. The mentioned obligation also applies to an injunction considering the extent to which it affects the free exercise of the applicants rights. This duty was not accomplished as long as the only argument for granting the order was an unproved accusation of endorsing hatespeech. Secondly, the actions of national tribunals lacked coherence by issuing two different injunctions for the same purpose. In the first instance, the tribunal ordered the blocking of the blog post together with the links referring to it. By doing so, it was implicitly admitted that these measures were sufficient to insure public safety. In granting the second injunction, the tribunal took into account only a technical issue- the impossibility of blocking individual posts, but did not examine the impact of the new measures on the complainants rights. By automatically rewording the injunction, the national court failed to find a balance between the protection of public safety from an alleged danger and the individual rights of V.A.. Beyond what has been stated, the applicant emphasizes that regarding social network page and the forum, the measure was completely incomprehensible as long as the profile and the forum contained only a link referring to the blog, unusable after the blog had been blocked.

31 32

Jean-Franois Renucci ( 2009), p.169. Thorgeirson v. Iceland, no. 13778/88, 25 June 1992. 33 Sunday Times v. the United Kingdom, no. 6538/74, 26 April 1979. 34 Novaya Gazeta And Borodyanskiy v. Russia, no. 14087/08, 28 March 2013. 35 Hadjianastassiou v. Greece, no. 12945/87, 16 December 1992.

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Recently, it was upheld that blocking access to the Internet or parts of the Internet (the private Phrendbook profile and EvryFav Media forum group), for whole populations or segments of the public (a group of Favonian and Evrylian journalist) can never be justified. This does include the interests of justice, public order or national security and indefinite or indeterminate Internet blocking orders, which constitute per se unnecessary interference with freedom of expression.36 2.3. Violation of the right to respect for private and family life (article 8) The right to respect for private life is protected by Article 8 of the ECHR. The conception of the Court regarding the protection of private life is dynamic. It evolved from a narrow definition of private life encompassing the intimacy of the individual to an extensive one37. In the judgment Pretty v. United Kingdom the Court held that the concept of private life is a broad term n ot susceptible to exhaustive definition38. Hence, the notion is clearly wider than the right to privacy and it concerns a sphere in which everyone can freely pursue the development and fulfillment of his personality39. Additionally, the protection of Article 8 extends to individual's physical and social identity, the right to personal development and the right to establish and develop relationships with other human beings and the outside world. 2.3.1. The right to develop relationships with other human beings In Niemietz v. Germany it was decided that private life is not confined to an "inner circle" of the individual. The private life comprises also the right to establish and develop relationships with other human beings. In this case, the complainants right to establish relationships was violated in three ways: the blocking of his entire blog in Evrylia, the deletion of the privates Phrendbook profile and of the EvryFav Media forum. A blog is considered the personal space of the author, thus it is a part of its private life. V.A. posted on the blog articles and commentaries on a wide range of subjects and the readers were
36 37

Yildrim v. Turkey, no. 3111/10, 18 December 2012; Frdric Sudre, Droit europen et international des droits de lhomme, Presses universitaires de France, 2009, p.457. 38 Pretty v United Kingdom, no. 2346/02, 29 April 2002. 39 Ursula Kilkelly, The right to respect for private and family life, Human rights handbooks, No. 1, 2003, p. 11.

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able to comment freely the posts. Via this exchange of ideas the complainant established relationships in the virtual space. Obstructing the access of Evrylians to his blog V.A. suffered a disproportionate interference in his private life. Furthermore, V.A. maintained particularly close connections via the Phrendbook profile. A social network account by definition is aimed at enabling the communication between individuals. Considering the nature of the audience (family and friends) the breach of the Article 8 is even more obvious in this case. Also, the applicant developed professional networks with fellow journalists on the Phrendbook forum. In Niemitz v. Germany, the Court decided that professional relationships are protected as a part of the private life since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world40. 2.3.2. The right to reputation The right to reputation is one of the rights protected by Article 8 of the Convention, as an element of the right to respect for private and family life41. The Court held that a persons reputation forms a part of the personal identity and psychological integrity and therefore falls within the scope of his or her private life42. V.A. is a highly appreciated journalist in the Evrylian and Favonian media. His views on matters of public interest are often cited in the press. He is known to the Evrylian audience mostly due to his interventions at the FTVN channel and the blog. Thus, the blog constitutes a key factor in maintaining his notoriety among Evrylian public. Hence, the closing of the blog in Evrylia violated the complainants right to reputation. 2.3.3. The interference was not justified It is established that there has been interference in the private life of V.A. In order to be considerate legitimate the interference has to fulfill the criteria listed in Article 8 paragraph 2. Hence, it must be prescribed by law, it must pursue one of the legitimate aims mentioned in the
40 41

Niemietz v. Germany, no. 13710/88, 16 December 1992. Radio France v. France, no. 53984/00 , 30 March 2004. 42 Pfeifer v. Austria, no. 12556/03, 15 November 2007.

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second paragraph and it must be necessary in a democratic society or proportionate to the pursuit of that aim43. It is not disputed that the interference was prescribed by the Evrylian criminal law. The aim pursued was the protection of public order against the manifestations of hatred and violence based on discriminatory criteria, thus this aim falls into the scope of paragraph 2. Regarding the last condition, the complainant submits that the measure was not necessary in a democratic society. In examining this criterion, the Court clearly stated that the State had only some reasons for taking the measures44, thus not being sufficient. One of the key issues in analyzing the proportionality of the interference is whether the national authorities could have achieved the same goal by taking a less restrictive measure towards V.A. The tribunal admitted that a less restrictive measure was sufficient by granting the first injunction. The next order was granted without any further research and relying only on the opinion of the ETD. The tribunal had the positive obligation to consider alternative measures by asking the support of other authorities or the independent experts. By adopting this conduct, the interference of the state can not be considered as being dictated by a pressing social need. PART C: Remedies Taking into consideration all the facts stated above, we consider that Evrylia has breached the obligations resulting from the Convention toward V.A.. According to Article 13, the State must provide an effective remedy. In case of violation of the Convention, according to Article 41, the Court shall, if necessary, afford just the satisfaction to the injured party. It should take into account the prejudice suffered by V.A. due to the taken measures. An equitable payment for nonpecuniary damages should also be provided. At the same time, if a violation is found, full costs and expenses should be reimbursed to the applicant.

43 44

Ursula Kilkelly, (2003), p.23. Handyside v. the United Kingdom, no. 5493/72, 7 December 1976.

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