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 Respondent

2

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-lack of a significant disadvantage ................................................................. 6

PART B: CIVIL PROCEEDINGS .............................................................................................. 7

1. The alleged violation of Art. 10........................................................................................... 7

1.1. The interference was prescribed by law ....................................................................... 8

1.2. The interference pursued a legitimate aim ................................................................... 8

1.3. The interference was necessary in a democratic society ............................................. 8

1.3.1. Contribution to a debate of general interest ......................................................... 9

1.3.2. The degree of popularity and the reputation of the person concerned ................. 9

1.3.3. The prior conduct of the person ......................................................................... 10

1.3.4. Content, form and consequences of the publication ........................................... 10

1.3.5. Journalist’s ethics. Obligation to verify the sources ........................................... 11

1.3.6. The proportionality of the sanctions imposed .................................................... 13

PART C: CRIMINAL PROCEEDINGS................................................................................... 13

1. Liability of the applicant for the commentaries published on his blog ............................. 13

2. Alleged violation of Article 10 .......................................................................................... 14

2.1. The measure was prescribed by law........................................................................... 15

2.2 The injunction had an legitimate aim .......................................................................... 15

2.3. The injunction was necessary in a democratic society............................................... 16

2.3.1. The commentaries on the applicant’s blog endorsed hate-speech ..................... 16

2.3.2. The urgency of the measure ............................................................................... 18

2.3.3 The absence of alternative means ........................................................................ 18

3. Alleged violation of Article 8 ............................................................................................ 19

3.1 Right to reputation ...................................................................................................... 19

3.2. Right to develop relationships with other human beings ........................................... 20

3

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. Resolution of the Parliamentary Assembly;

III. Convention on Cybercrime, Budapest, 23 November 2001;

IV. Committee of Ministers, Declaration on human rights and the rule of law in the

Information Society CM(2005)56 final of 13 May 2005;

2. Cases

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

nos. 11182/03 and 11319/03, 26 April 2007;

Delfi AS v. Estonia, no. 64569/09, 10 October 2013;

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

Egeland and Hanseid v. Norway, no. 34438/04, 16 April 2009.

Féret v. Belgium, no. 15615/07, 16 July 2009;

Gurgenidze v. Georgia, no. 71678/01, 17 October 2006;

Hachette Filipacchi Associés (ICI PARIS) v. France, no. 12268/03, 23 July 2009;

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

Jersild v. Denmark, no. 15890/89, 23 September 1994;

K.U. v. Finland, no. 2872/02, 2 December 2008;

Karhuvaara and Iltalehti v. Finland, no. 53678/00, 16 November 2004;

Leempoel & S.A. Ciné Revue v. Belgium, no. 64772/01, 9 November 2006;

Leroy v. France, no. 36109/03, 2 October 2008.

Lindon, Otchakovsky-Laurens and July v. France, nos. 21279/02 and 36448/02, 22

October 2007;

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

Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, 22 February 2007;

Panev v Bulgaria, no. 35125/97, 3 December 1997;

Pedersen and Baadsgaard v. Denmark, no. 49017/99, 27 June 2002;

4

Reklos and Davourlis v. Greece, no.1234/05, 15 January 2009;

Sapan v. Turkey, no. 44102/04, 8 June 2010,

Standard Verlags GmbH v. Austria, no. 21277/05, 4 June 2009;

Surek v. Turkey, no. 26682/95, 8 July 1999;

Tammer v. Estonia, no. 41205/98, 6 February 2001;

Thoma v. Luxembourg, no. 38432/97, 29 March 2001;

Von Hannover v. Germany, nos. 40660/08 and 60641/08, 7 February 2012.

Von Hannover v. Germany, no. 59320/00, 24 June 2004;

White v. Sweden, no. 42435/02, 19 September 2006;

Wirtschafts-Trend Zeitschriften-Verlagsgesellschaft m.b.H. v. Austria, nos. 66298/01

and 15653/02, 13 December 2005;

Yildrim v. Turkey, no. 3111/10, 18 December 2012.

3. Secondary sources

1. Anne Weber, Manual on Hate-speech, Council of Europe/European Court of Human

Rights;

2. Félix Tréguer, Internet dans la jurisprudence de la Cour européenne des droits de

l’homme, http://rdlf.upmf-grenoble.fr/?p=3918;

3. Ursula Kilkelly, A guide to the implementation of Article 8 of the European

Convention on Human Rights;

4. Research Report, Positive obligations on member States under Article 10 to protect

journalists and prevent impunity, Council of Europe/European Court of Human

Rights, December 2011;

5. Research Report, Internet: case-law of the European Court of Human Rights, Council

of Europe/European Court of Human Rights, 2011.

II. LIST OF ABBREVIATIONS

1. ECHR - European Convention of Human Rights

2. ECtHR - European Court of Human Rights

3. Victor Adam - V.A.

4. David K. – D.K.

5. Evrylian Telecommunications Directorate – ETD

5

III. SUMMARY

In Evrylia the Kroppa minority is integrated, whereas in Favonia a wide spread anti-Kroppa

sentiment constantly arises.

On 20 March 2010 the applicant posted on his blog an article about an alleged connection

between D.K. and certain obscure individuals involved in drug and human trafficking.

Several comments were added to the blog post by readers, making clear reference to the fact

that D.K. is a Kroppa. These contributors expressed hatred towards Kroppa minority.

Following these comments, members of the Kroppa community in Evrylia initiated a series

of protests. During the protests violent clashes with groups of Favonian residents in Evrylia

were reported. There was also a cancellation of a scheduled football match between the

Evrylian and the Favonian teams on grounds of stirring tension and high risk of violence

between the supporters.

The applicant did not delete any of the impugned posts appearing on his blog. On the

contrary, he posted a link to the relevant thread on his private profile “wall” and also on the

journalists’ forum group.

D.K. brought civil proceedings against the applicant before the Evrylian courts for

defamation and on 20 September 2012 the Evrylopol tribunal allowed D.K.’s claim and

ordered the applicant to pay damages, to delete the blog post and to post a public apology.

As a result of the appellate court decision to dismiss the applicant`s appeal, V.A. refused to

delete the post, but he did publish an attached apology statement.

On 20 September 2010, the Evrylian Prosecutor General’s department opened an

investigation against V.A. under the legislation on hate-speech and the protection of national

minorities for having allowed hate-speech 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.

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IV. LEGAL PLEADING

PART A: ADMISSIBILITY OF CLAIM

1. Scope within Art. 1 of the Convention

We can not argue the fact that Evrylia is a contracting party to the ECHR and its associated

protocols. As a result, the Evrylian Government has the obligation to respect the rights and

freedoms protected by the Convention. However, a second responsibility of great significance

arises, as to intervene when a violation of the rights and freedoms of an individual is committed.

In our case, V.A. has infringed D.K.’s reputation and has also trampled on his right to private

life.

2. Applicant Status

The claim is submitted by the applicant’s lawyer, thus being in a representative position, in

accordance to the Art. 45. It is not disputed that the individual application satisfies the conditions

mentioned in Art. 35: (1) All domestic remedies have been exhausted, according to the generally

recognized 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) The

applicant is known by name; (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; (4) It is compatible with the provisions of the

Convention and the Protocols.

Nonetheless, regarding the compatibility condition, we can see how the alleged breach of Article

10 of the Convention, which guarantees the freedom of expression, can not be conceived without

the second paragraph, which allows the use of measures if the reputation or rights of others are

violated.

3. Victim status-lack of a significant disadvantage

V. A. claims to have been a victim in the extent that he has suffered a violation of rights and

freedoms protected by the Convention. The personal interest to act justifies the existing

application, seeing as internal measures (taking down of his entire BBligg page and private

7

Phrendbook profile, including his forum group) have been taken. However, we consider that

V.A. has not suffered a significant disadvantage, as a victim of the blocking procedure, as Art.

35 (b) requires. As an exception, even though a significant disadvantage has not been impaired,

the second part of the same Article allows examination in case of “respect for human rights as

defined in the Convention and the Protocols (…) on the merits and provided that no case may be

rejected on this ground which has not been duly considered by a domestic tribunal”.

Seeing as the domestic tribunal in Evrylia has “duly considered” the case, V. A. can not benefit

of the mentioned exception. Therefore, the lack of a significant disadvantage can render the

journalist’s claim as inadmissible, under Art. 35.

All in all, by being forced to respect the final decision, complying with the order (payment of the

fine, deletion of the post and the public apology), V.A. has simply beared the legal

consequences generated by the posted article.

PART B: CIVIL PROCEEDINGS

1. The alleged violation of Art. 10

It is uncontested that there was interference in the right of freedom of expression of the

applicant. However, the Government states that Article 10 paragraph 2 allows such a restriction,

indicating the proper conditions: “The exercise of these freedoms, since it carries with it duties

and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society (…) for the protection of the

reputation or the rights of others’’.

Under the same Article of the Convention, the Contracting States have a certain margin of

appreciation in assessing whether and to what extent an interference with the freedom of

expression protected by this provision is necessary1.

Our case concerns the reputation of an individual, D.K., who had suffered an impairment

caused by the article posted by V.A. on his blog. Taking into consideration that the facts

1 Tammer v. Estonia, no. 41205/98, 6 February 2001 and Pedersen and Baadsgaard v. Denmark, no. 49017/99, 27

June 2002.

8

described in the blog post had tarnished the football player’s reputation, linking him to drugs and

prostitution, V.A. had been found responsible for a number of negative consequences in D.K.’s

professional and private life.

1.1. The interference was prescribed by law

As stated, the Government does not deny that the measures applied have obstructed V.A’s

freedom of expression. However, it certainly submits that the interference was prescribed by law,

the journalist’s conviction having been based on the Evrylian civil law.

1.2. The interference pursued a legitimate aim

We further find that the interference pursued one of the legitimate aims set out in paragraph 2 of

Article 10: the protection of “the reputation or rights of others”, namely of D.K.

1.3. The interference was necessary in a democratic society

Having highlighted the existing interference in the right of freedom of speech and having based

the certain impedance on legal grounds, we can tie these aspects together with the necessity of

their existence in a democratic society. In Sunday Times v. U.K., the need was duly noted: “It

must now be decided whether the "interference" complained of corresponded to a "pressing

social need".

In examining the condition of necessity in cases of conflict between the freedom of speech and

the rights of others the Court imposed a number of criteria which should be considered2:

contribution to a debate of general interest (1.3.1.); the degree of popularity and the reputation of

the person concerned (1.3.2.); the prior conduct of the person, especially regarding the

collaboration with the media the consequences of the publication (1.3.3.); the content, form and

the consequences of the publication (1.3.4.). In such cases a special attention is given to the

journalist’s ethics, including the obligation to verify information (1.3.5.). Finally, an examination

of the proportionality of the sanctions imposed (1.3.6.) is also required.

2 Von Hannover v. Germany, no. 59320/00, 24 June 2004.

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1.3.1. Contribution to a debate of general interest

Although the Court has recognized the existence of such an interest where it concerned sporting

issues or performing artists3, it does not apply to our case. Considering the entertaining nature of

the event D.K. attended, a party organized in an exclusive club, the applicant can not claim that

the event generated public interest.

Following the Von Hannover judgment, we should take note of the changes made. The Court

stated, inter alia, that in future importance had to be attached to the question whether the certain

report contributed to a factual debate and whether its contents went beyond a mere desire to

satisfy public curiosity. It observed that the greater the information value for the public, the

more the interest of a person in being protected against its publication had to yield, and vice

versa. Whilst pointing out that the freedom of expression also included the entertainment press, it

stated that the reader’s interest in being entertained generally carried less weight than the interest

in protecting the private sphere.

1.3.2. The degree of popularity and the reputation of the person concerned

The role or function of the person concerned and the nature of the activities that are the subject

of the article constitute another important criterion, related to the preceding one. In that

connection a distinction has to be made between private individuals and persons acting in a

public context, as political figures or public figures. A fundamental distinction needs to be made

between reporting facts capable of contributing to a debate in a democratic society, relating to

politicians in the exercise of their official functions for example, and reporting details of the

private life of an individual who does not exercise such functions4.

While in the former case the press exercises its role of “public watchdog” in a democracy by

imparting information and ideas on matters of public interest, that role appears less important in

the latter case. Despite D.K. being well-known to the public, the published afrticle has the sole

3 Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, 22 February 2007, Colaço Mestre and SIC –

Sociedade Independente de Comunicação, S.A. v. Portugal, nos. 11182/03 and 11319/03, 26 April 2007 and Sapan

v. Turkey, no. 44102/04, 8 June 2010. 4 Von Hannover v. Germany, no. 59320/00, 24 June 2004, Standard Verlags GmbH v. Austria, no. 21277/05, 4

June 2009;

10

aim of satisfying public curiosity5. Therefore, in this case, freedom of expression calls for a

narrower interpretation6, due to the fact that the information presented in the article did not

offer a relevant fact, in which D.K. was involved, like a football related issue, for example.

Regarding this matter, we consider that D.K.’s image as a football player had suffered after the

posting of the article on the journalist’s blog and that it was not tarnished before, as the

complainant argued. Valid arguments contain the desire of the Favonian national team’s coach to

obtain Favonian citizenship for the football player, so that he could play for the country. Also,

the commercial contracts he had signed are striking reasons to qualify the football player’s

reputation as an unblemished one. As a third argument, the planned wedding seemed to create a

harmonious balance between D.K.’s private life and his career, both being afterwards disrupted

by the defamatory article.

1.3.3. The prior conduct of the person

The conduct of the person concerned prior to publication of the article or the fact that related

information has already appeared in an earlier publication are also factors to be taken into

consideration7. However, the mere fact of having cooperated with the press on previous

occasions can not serve as an argument for depriving the party concerned of all protection

against publication of the Article at issue8. With direct application on our case, the assumptions

placing D.K. in the middle of human trafficking and prostitution have firstly and solely

appeared in V.A.’s blog post, thus observing the inexistence of such previously stated rumours.

1.3.4. Content, form and consequences of the publication

The way the article is published and the manner in which the person concerned is represented in

a certain article may also be factors to be taken into consideration9.The extent to which the

article has been disseminated may also be an important factor, depending on whether the blog

5 Resolution of the Parliamentary Assembly, § 71, point 8 and Von Hannover v. Germany, no. 59320/00, 24 June

2004. 6 Hachette Filipacchi Associés (ICI PARIS) v. France, no. 12268/03, § 53, 23 July 2009.

7 Sapan v. Turkey, no. 44102/04, 8 June 2010, Hachette Filipacchi Associés (ICI PARIS) v. France, no. 12268/03, §

53, 23 July 2009. 8 Egeland and Hanseid v. Norway, no. 34438/04, 16 April 2009.

9 Wirtschafts-Trend Zeitschriften-Verlagsgesellschaft m.b.H. v. Austria, nos. 66298/01 and 15653/02, 13 December

2005 and Reklos and Davourlis v. Greece, no.1234/05, 15 January 2009.

11

is a national or local one, and has a large or a limited circulation10

. In the present case, V.A.’s

personal blog had far-reaching coverage, being widely followed by many readers in both Evrylia

and Favonia.

It is undisputed that the article posted by the journalist was defamatory and that it had negative

effects on the football player’s private life and career. Furthermore, the rumours concerning links

with drug trafficking and prostitution had resulted in the cancellation of several publicity

contracts and also in the threat of suspension by Selsee Football Club for whom he played.

Additionally, as a negative effect in his private life, D.K.’s fiancée cancelled their engagement

and left him. Taking into consideration that the right to private life is guaranteed by Article 8 of

the Convention and Evrylia is a Contracting State, the protection must be enabled. Furthermore,

the Act has to be interpreted narrowly to ensure that the State complies with its positive

obligation under the Convention to protect private life and the right to control the use of one’s

image11

.

1.3.5. Journalist’s ethics. Obligation to verify the sources

Due to the fact that V.A.’s statements contained pure facts, the punishment is permissible in case

the attribution of facts is devoid of any factual basis. The obligation of verifying the journalistic

sources before publishing the article is a main element of the investigation. Therefore, it is

necessary to examine whether the research done by the applicant before the publication of the

statement of fact complied with the ordinary journalistic obligation to verify a factual

allegation.

With relevant significance, in the case of Panev v. Bulgaria12

(declared inadmissible), the

journalist published an article about killing those who opposed the forced instilling of

communism, indicating the name of P. between those involved "in arrests, torture and killings."

As a result, the journalist was fined for defamation. The Court, noting that the journalist did not

explain in any way the information obtained regarding Mr. P., argued that the journalist brought

10

Karhuvaara and Iltalehti v. Finland, no. 53678/00, 16 November 2004 and Gurgenidze v. Georgia, no. 71678/01,

17 October 2006. 11

Von Hannover v. Germany, no. 59320/00, 24 June 2004. 12

Panev v. Bulgaria, no. 35125/97, 3 december 1997.

12

a blunt personal accusation without taking a prior research and with no reasonable factual

basis.

Furthermore, it was stated that it did „not appear that what was said in the article about Mr P.

could be considered a journalistic exaggeration protected by the right to freedom of expression.

It was not a value-judgment, but a plain factual allegation.”

Regarding our case, the obligation the journalist had, as to verify the sources of the information

about to be published, applies a fortiori due to the serious accusations against the football

player, D.K., regarding the involvement in human-trafficking and drugs. A critical aspect in

the matter is to be duly noted, on the grounds that, by having proved the accuracy of the stated

facts about the football player, it would have triggered criminal charges against D.K., with

severe consequences on his life.

Additionally, the Court’s case-law is clear on the point that the more serious the allegation is,

the more solid the factual basis should be13

. Having stated that the applicant’s allegation was,

in fact, of a grave, serious matter (see, mutatis mutandis, Thoma v. Luxembourg14

), we can

conclude that it required substantial justification, especially seeing that it was made on a public

blog, widely followed in both Evrylia and Favonia. We can, therefore, observe the lack of such

justification on behalf of V.A.

Also, the Court stated that special grounds are required before the media can be dispensed from

their ordinary obligation to verify factual statements that are defamatory of private individuals.

Whether such grounds exist depends in particular on the nature and degree of the defamation in

question and the extent to which the media can reasonably regard their sources as reliable with

respect to the allegations15

. In our case, taking into consideration the fact that no special grounds

of this kind have been mentioned, V. A. can not be dispensed from the obligation to verify the

factual statements made, especially if we take into account the gravity of the assumptions.

13

Pedersen and Baadsgaard v. Denmark, no. 49017/99, § 68-70, 27 June 2002. 14

Thoma v. Luxembourg, no. 38432/97, § 63 and 64, 29 March 2001. 15

McVicar v. the United Kingdom, no. 46311/99, § 87, 7 May 2002, Pedersen and Baadsgaard v. Denmark, no.

49017/99, §§ 68-70 and 76, 27 June 2002.

13

All in all, V.A. did not comply with the obligation to verify the sources of the mentioned facts

in his article, thus the ethical side of the journalist being put at doubt, generating a permissible

punishment.

1.3.6. The proportionality of the sanctions imposed

Furthermore, we consider that the measures taken against V.A. satisfied the condition of

proportionality, as the law requires. By being bound to (1) delete the blog post related to D.K.;

(2) post a public apology; (3) pay a certain amount in damages, legal restrictions had been made.

As stated before, the need for any restrictions must be established convincingly by the

Contracting States. We can conclude that regarding the present case the national authorities have

applied standards which were in conformity with the principles embodied in Article 10 and,

moreover, that they based themselves on an acceptable assessment of the relevant facts16

.

In conclusion, the interest in protecting the private sphere of D.K.’s life is significantly more

valuable than the mere entertainment of the blog visitors. Considering all the arguments

previously mentioned, the protection of the football player’s private life should definitely exceed

V.A.’s right to freedom of expression.

PART C: CRIMINAL PROCEEDINGS

In the proceedings before the Court, V.A. argued that he was not liable for the commentaries

posted on his blog and claimed that the order granted by the national tribunal violated his right to

freedom of speech and his right to respect for private life.

1. Liability of the applicant for the commentaries published on his blog

Following the applicant's claims, according to which he is not responsible for messages posted

by readers of the blog, the Government submits, as detailed in the following, that the applicant's

actions attract his liability for the comments posted by blog readers and visitors.

The disclaimer did not preclude the applicant’s liability. He was vicariously subject to the

“duties and responsibilities” which the review’s editorial and journalistic staff undertake in the

16

Jersild v. Denmark, no. 15890/89, § 31, 23 September 1994.

14

collection and dissemination of information to the public and which assume an even greater

importance in situations of conflict and tension17

. The Government notes that it was the

applicant’s choice to allow comments by non-registered users, and that by doing so he must be

considered to have assumed a certain responsibility for these comments18

.

Furthermore, the disclaimer reveals that V.A. was actually aware of possible negative

consequences of some commentaries. The fact that the applicant did not write the comments

himself did not imply that he had no control over the comment environment. At the same time,

the spread of the Internet and the possibility – or for some purposes the danger – that information

once made public will remain public and circulate forever, calls for caution19

.

Relevant to this case is the Convention on Cybercrime (Budapest, 23 November 2001), which

provides in Article 1 the definition of a service provider. The article states as follows: “service

provider means any public or private entity that provides to users of its service the ability to

communicate by means of a computer system and any other entity that processes or stores

computer data on behalf of such communication service or users of such service”.

In this regard, the Government reminds that the Court made a clear distinction between the

liability of a service provider and the liability of a content provider20

. A service provider has

neither the knowledge nor the control over the information which is transmitted or stored. By

contrast, a content provider administrates the content of the information that is being stored. In

our case, V.A., in his quality of blogger, is clearly a content provider, who had the capacity to

allow, to delete and to monitor the comment environment.

2. Alleged violation of Article 10

It is not disputed that there was interference in the freedom of expression of the applicant. The

Government claims that the interference was justified under the provisions of the second

paragraph of Article 10.

17

Surek v. Turkey, no. 26682/95, § 63, 8 July 1999. 18

Delfi AS v. Estonia, no. 64569/09, 10 October 2013. 19

Delfi AS v. Estonia, no. 64569/09, § 91, 10 October 2013. 20

Delfi AS v. Estonia, no. 64569/09, § 91, 10 October 2013.

15

Although freedom of expression and confidentiality of communications are primary

considerations and users of telecommunications and Internet services must have a guarantee that

their own privacy and freedom of expression will be respected, such guarantee can not be

absolute and must yield on occasion to other legitimate imperatives, such as the prevention of

disorder or crime or the protection of the rights and freedoms of others21

.

In granting the injunction the domestic authorities took into account the obligation of member

states to combat illegal content, including hate-speech in online environment22

.Also, the

Government points out the recent judgment in the Delfi As v. Estonia, in which the Court stated

that sanctions for defamatory comments were a justified measure.

In view of the above considerations the respondent submits that the reasons adduced by the

national authorities for taking such measures are “relevant and sufficient’’. In order to reach this

conclusion, an examination of the traditional criteria imposed by the Court in similar cases is

required.

2.1. The measure was prescribed by law

The possibility of granting injunctions in criminal proceedings is prescribed by the Evrylian law.

In this case, the legal basis of blocking the complainant’s blog, Phrendbook profile and forum is

the legislation on hate-speech and protection of national minorities.

2.2 The injunction had an legitimate aim

The respondent submits that the injunction has a legitimate aim - the protection of public safety

from the expression of hatred and hostility towards national minorities. This purpose is expressly

indicated in the paragraph 2 of Article 10. In Féret v. Belgium the Court considered that the

protection of public safety and the rights of others is a legitimate aim. Thus, it should prevail in

cases where racial discrimination speech risks inciting the public to reactions irreconcilable with

a peaceful social climate23

.

21

K.U. v. Finland, no. 2872/02, §49, 2 December 2008. 22

Committee of Ministers, Declaration CM(2005)56. 23

Féret v. Belgium, no. 15615/07, § 77-78, 16 July 2009.

16

2.3. The injunction was necessary in a democratic society

In examining the necessity of the interference in freedom of expression the Court constantly

upheld that Contracting States have a certain margin of appreciation in assessing whether such a

need exists. Hence, the Government submits that the injunction was imposed by a “pressing

social need”. In achieving this conclusion the respondent takes into consideration several

aspects: the commentaries on the applicant’s blog endorsed hate-speech (2.3.1.); the urgency of

the measure (2.3.2.); the absence of alternative means (2.3.3.).

2.3.1. The commentaries on the applicant’s blog endorsed hate-speech

Protection against hate-speech is granted by several international instruments which the State of

Evrylia is obliged to respect in order to fulfill its international obligations as a member of

Council of Europe. These instruments are European Social Charter, Framework Convention for

the protection of national minorities and the Additional Protocol to the Convention on

cybercrime24

. This last Protocol has a particular importance in our case as it deals with hate-

speech acts disseminated via computer systems.

A comprehensive definition of the notion is given in the Recommendation 97(20) on hate-speech

of the Council of Europe’s Committee of Ministers. According to it, hate-speech covers all forms

of expression which spread hatred based on intolerance. Hence, the respondent claims that the

commentaries posted on V.A.’s blog can be qualified as hate-speech in the sense of the

Recommendation.

The first argument is the form of expression chosen by the commentators. The words employed

are a criterion often used by the Court in its analysis25

. The commentaries are extremely

vehement, being written with the deliberated purpose of inciting Favonian nationals to engage in

violent activities against Kroppas: violent protests (“bloody flash-mob”), slaughter (“A good

Kroppa is a dead Kroppa”, “mincemeat”) and civil war (“true Favonians shall bloody fight all

Kroppas”). Even the nicknames of the readers spread sentiments of hostility and hatred against

Kroppa minority: “Ban_the_Kroppas”, “Kroppabonecrusher”). The comments had resorted to

24

Anne Weber, Manual on Hate-speech, p.7. 25

Surek v. Turkey, no. 26682/95, 8 July 1999.

17

offensive and intemperate language and had gone beyond a generally acceptable degree of

exaggeration or provocation; they had not stimulated any reasonable public discussion.

The Court frequently reiterates that the mere fact that “information” or “ideas” offend, shock or

disturb does not suffice to justify the interference. But the Government reminds that in V.A.’s

case as in Surek v. Turkey the issue is not simply disturbing information, but the hate-speech and

the glorification of violence26

.

A second argument is the context27

in which the commentaries appeared. In Peta Deutschland v.

Germany the Court considered that “the facts of a case can not be detached from the historical

and social context in which the expression of opinion takes place”. The applicant decided not to

delete commentaries clearly inciting to hatred against Kroppa minority in a country where the

anti-Kroppa sentiment had a secular tradition. Considering the wide experience as a journalist,

V.A. could have foreseen a clash between Kroppas and Favonians. He could have realized that

there was a higher-than-average risk that the negative comments could go beyond the boundaries

of acceptable criticism and reach the level of gratuitous insult and hate-speech.

Furthermore, the Government considers that the aim of the applicant should be taken into

account. The critical question is whether the applicant intended to disseminate racist ideas and

opinions or whether he was trying to inform the public on a matter of public interest28

. It has to

be made a clear distinction between the purpose V.A. had when posting the article and the

purpose he had when deciding not to suppress the violent commentaries. Herein we refer only to

the second one. The commentaries didn’t contain any piece of information which could

contribute in a positive manner to a debate of public interest. Thus, keeping aggressive

commentaries with possibly dreadful consequences can not be considered a means by which the

press accomplishes its role of public watchdog. Hence, the sole goal of V.A. was to disperse

hate-speech.

Another aspect to consider is the method of dissemination of the information. In the Court’s

opinion the reprehensible nature of a message seems to be aggravated by its publication online as

26

Surek v. Turkey, no. 26682/95, 8 July 1999. 27

Leroy v. France, no. 36109/03, 2 October 2008. 28

Surek v. Turkey, no. 26682/95, 8 July 1999.

18

the Internet allows a wider publicity of the information and asynchronous communication29

. In

the judgment Editorial Board of Pravoye Delo and Shtekel v. Ukraine the Court made a

distinction between the Internet and the printed media in terms of transmitting and storing

capacity. It was emphasized the higher risks of prejudice in case of the Internet: “The risk of

harm posed by content and communications on the Internet to the exercise and enjoyment of

human rights and freedoms [...] is certainly higher than that posed by the press”. The fact that the

commentaries spread so easily via Internet is proved by the organization of protests by the

members of Kroppa communities.

2.3.2. The urgency of the measure

The Court recognized the possibility of domestic tribunals to grant injunctions in criminal and

civil proceedings. In Peta Deutschland v. Germany the Court recalled that “the domestic

authorities have a variety of tools at their disposal allowing them to strike a fair balance between

the various interests at stake”. The Government submits that in the applicant’s case one of the

interests at stake was to prevent in the shortest delay an imminent threat to public safety.

Thus, in examining the necessity, it should be taken into account the urgent nature of the

measure. The degeneration of protests into a violent confrontation between the members of

Kroppa community and Favonian nationals, as well as the cancellation of the football match lead

the national tribunal to the conclusion that following the blog commentaries the brutalities could

spread to an uncertain extent. Any delay in mitigating the effects of the hate-speech could have

endangered the public order in an unpredictable way.

2.3.3 The absence of alternative means

Having in regard the wide range of possibilities from more sophisticated blocking orders aimed

at IP addresses, port numbers, URLs or content data to less sophisticated ones, like blocking

certain domain names on the corresponding servers or specific entries on the hit list of search

engines, the Government considers that the national court chose the most adequate measure

from the technical possibilities available.

29

Félix Tréguer, Internet dans la jurisprudence de la Cour européenne des droits de l’homme, http://rdlf.upmf-

grenoble.fr/?p=3918 .

19

The blocking measure was taken because of the inability to delete only individual posts. The

restriction extended to the profile and to the journalistic forum as they provided hyperlinks to the

blog. Thus, suppressing only the blog was not enough to stop the spreading of hate-speech.

The Court took the blocking measure as a result of the expertise offered by ETD, a national

communication specialist with advanced knowledge in the internet communication technologies

and also in ensuring safety in online environment. ETD has been actively promoting the

harmonious development and efficient operation of technical facilities, as well as the efficiency,

usefulness and availability to the public of telecommunication services.

In the Surek v. Turkey judgment the Court emphasized the wider margin of appreciation which

the national authorities enjoy in examining the necessity for an interference with freedom of

expression in cases of hate-speech. The Court recognizes the “role of domestic authorities in

adopting, in their capacity as guarantors of public order, measures, even of a criminal-law nature,

intended to react appropriately and without excess” to remarks inciting to violence against a

sector of a population, as it is in V.A.’s case. Considering all the above-stated reasons, the

injunction was proportionate to the aim pursued and thus, necessary in a democratic society to

sanction the forms of expression which spread, incite, promote or justify hatred based on

intolerance.

3. Alleged violation of Article 8

3.1 Right to reputation

The respondent claims that there was no violation of the V.A.’s right to reputation. It is

unchallenged that the right to reputation is protected under Article 8.

According to the case-law of the Court, it is for the applicant to establish the fact of

interference30

. V.A. tried to sustain his claim by simply alleging that the blog “constituted a key

factor in maintaining his notoriety among Evrylian public.” While it is certain that the

complainant is known to the Evrylian public as a highly appreciated journalist, he did not prove

any of the constituent elements of a breach. To claim a violation, V.A. should have proved two

30

Ursula Kilkelly, A guide to the implementation of Article 8 of the European Convention on Human Rights , p.23.

20

aspects: the fact that his reputation among Evrylian public was affected and a direct connection

between this consequence and the blog’s deletion. The mere fact that the blog was one of the

means by which V.A. informed the Evrylian public on newsworthy subjects, doesn’t constitute

per se a sufficient proof. Therefore, there was no interference into V.A.’s right to reputation.

3.2. Right to develop relationships with other human beings

The alleged breach of this right imposes a nuanced analysis of the three aspects invoked by the

applicant: the suppression of the blog in Evrylia, the deletion of the Phrendbook profile and the

removal of the EvryFav Media forum.

For the first aspect, the Government submits that there was no breach of Article 8. V.A. didn’t

prove with sufficient clarity that the blog had a contribution in establishing relationships with the

readers. While it is true that V.A. had control over the commentaries posted on his blog, it should

be noted that the applicant never replied to the commentaries of the readers. Thus, it is difficult

to claim that by the mere fact that V.A. published articles on his blog and the readers had the

possibility to comment on it, V.A. developed relationships falling into the scope of Article 8. As

mentioned above, the complainant has the burden to prove the interference. For this claim, the

applicant failed to give adequate reasons.

Regarding the other claims, the respondent sustains that there was a justified interference.

Considering that the social network profile and the forum had a more restricted audience, it is not

contested that via these means the applicant developed relationships with other human beings of

an intimate or professional nature. But the Government submits that this interference in his

private life was legitimate under the second paragraph of Article 8 for the protection of public

safety. Therefore, the Government reiterates all the reasons stated in the previous section (section

2. Alleged violation of Article 10).