Supervised by: Athanasios Peftinas, LLB (DUTh), LLM (DUTh), MSc (UOM, AU), MJur (Oxon).
Athanasios is a DPhil in Law Candidate at University of Oxford. He graduated 1st in cohort in his bachelor degree and holds three masters. He founded the students’ law review “Ypagogi” as an undergraduate student in 2015, consequently working as editor-in-chief, publisher and director. He participated and acted as a research supervisor in the Research Institute for Public International Law and International Relations “Krateros Ioannou” and as a Coordinator in the Research Institute for Forensic Sciences of Democritus University of Thrace. He is a qualified lawyer in Greece and practised law for two years. His research interests focus on Constitutional Law and Legal Theory.

Abstract 

The present article discusses the protection of political criticism under the prism of the case law of the European Court of Human Rights (ECtHR). It explains the legal framework for the protection of the freedom of expression under the European Convention of Human Rights (ECHR) and how it has evolved in judicial practice. It places emphasis on how criticism, and especially harsh criticism, is protected, and how that protection differs by the status of the person being criticised, such as politicians, as well as by the status of the critic. It concludes with a critical assessment of the ECtHR’s case law and the extent to which it has managed to adequately protect the freedom of expression.

Introduction: The ECHR and the protection of the freedom of expression

The ECHR, or European Convention on Human Rights, outlines the fundamental human rights protections that European citizens should receive. It was adopted by the Council of Europe in 1950 and has since become one of the most significant international treaties concerning human rights. The Convention aims to provide robust protections for its citizens, seeking to safeguard them from torture, slavery, and discrimination – grave violations that have marred human history. Additionally, the Convention upholds several other crucial rights, including the right to marry, freedom of religion, privacy, and, as this article will delve into, freedom of expression. Most of Europe, as well as all the members of the European Union, are parties to the Convention, reaffirming their commitment to upholding these essential rights (1).

According to Article 10 of the ECHR, everyone has the right to freedom of expression. This refers to the ability of an individual to hold and express beliefs, opinions, and information without government obstruction or interference (2). This article protects the right to protest and voice one’s opinion, including those who criticise the government. However, while this freedom is protected, it is also acknowledged that certain restrictions on this right are crucial in a democratic society. These restrictions should always be in the best interest of society, ensuring security and the protection of the public. They also aim to prevent hate speech and crime (3). Some of the permissible limitations on freedom of expression include measures taken to protect the reputation of individuals from false accusations and defamation. Preventing violence and crime is another justifiable reason for restricting this right, as expressions that incite hatred or violence can pose a threat to societal harmony. Moreover, the Convention acknowledges that, in exceptional cases, limitations on freedom of expression may be necessary to protect national security and safeguard sensitive national secrets. However, such restrictions must be proportionate, necessary, and prescribed by law to prevent potential abuses (4).

In this article, we will outline the protection of the freedom of expression particularly in cases of political criticism. We will analyse how criticism is approached by the ECtHR (European Court of Human Rights) and the different standards of protection enjoyed by different individuals. Lastly, we will assess the case law of the ECtHR and note areas where political criticism has not been adequately protected.

Criticism as a freedom

a. Concept of criticism

Criticism is the act of expressing disapproval of something or someone (5). The types of criticism, from scholarly criticisms to literary criticisms, vary greatly; however, the common denominator among all of them is that they not only point out faults but also evaluate and attempt to understand the meaning behind concepts and works. These days, criticisms are readily available as anyone can write and publish them online, and at times, the line between criticism and personal opinion can become blurred.

Where criticism can be considered unconstructive and bordering on harassment is when one is unable to respond or interact with the aforementioned criticism, and the criticism is not aimed at understanding or causing change but merely stating one’s personal opinion in a way that can be offensive to other parties involved (6). The ECHR mentions harassment in its article on discrimination, indicating a degree of malintent (7). While there is no single clear definition of criticism, the Italian Supreme Court states that “a worker’s criticism (of their employer or colleagues) must represent facts corresponding to the truth. This criticism must be expressed in a measured way, even if the criticism is objectively offensive and subjectively unwelcome to the person to whom they refer.” (8)

Furthermore, a critic of the government in the US would be protected from judicial scrutiny because their good faith or malice is not open to judicial questioning, unlike the motives of public officials (9).

Criticism does require some degree of publicity. If one does not have an audience, the criticism itself would be rendered useless, and societal progress would be far more limited. However, the audiences do not necessarily have to be large for criticism to be effective. Article 10 of the ECHR states that comments made in private correspondence also fall under the protection of the Article, as seen in Herbai v Hungary, and attributes crucial importance to it, accepting a lenient burden on applicants to determine the accuracy of the allegations made. Furthermore, it states that there is a wider margin of appreciation in cases concerning conviction for defamation, as seen in Wrona v Poland (10).

b. Forms of criticism

i. Written word and press

Throughout recent history, many have relied on the media, especially the written word, for political information. The freedom to disseminate this information has been a responsibility of journalists worldwide, enabling citizens to form their own political opinions. Journalism is trusted by many due to its promise to adhere to ethical standards. The Society of Professional Journalists has a code of ethics that journalists must follow, which emphasises reporting only the truth, minimising harm caused by journalism, acting independently, and being held responsible for their actions (11). These principles ensure that journalists serve the public interest, thereby enhancing their credibility when reporting on political subjects. The press plays a vital role in political criticism as it allows people to express opinions and facts.

ii. Social media

Amid the various forms of criticism aimed at politicians, sharing through social media blogs and digital platforms has become an increasingly popular method for the public to express their disapproval towards individual representatives, thanks to its easy accessibility and widespread reach. To put this scale into perspective, a study conducted by the BBC Shared Data unit in 2022 revealed that three million tweets alone were directed towards Members of Parliament within a six-week period in the UK. Among these, 130,000 contained “toxic” criticism and abusive remarks aimed at the targeted politicians, with threats and degrading comments being the most common forms of expression (12).

This trend treads on an ambiguous line, balancing an individual’s right to exercise freedom of expression with the potential violation of another’s right to privacy or personal dignity. The ECHR recognises social media as an important tool that enables individuals to publicly exercise their freedom of speech by publishing critical media and gaining access to political information. However, as mentioned previously, social media and online platforms also possess the capability of promoting and spreading hate speech, degrading commentary, and false information directed at individuals or political parties.

In instances such as the case of Magyar Helsinki Bizottság v Hungary, the court stated that public figures and popular bloggers assume the role of “online public watchdogs,” similar to their offline counterparts tasked with regulating and facilitating information dissemination to the public (13). Accordingly, “online public watchdogs” are granted the same rights and levels of protection against unlawful prosecution or invasion of privacy (Article 8). They also possess the ability to investigate governmental activities, just like their offline counterparts.

Overall, while social media platforms empower individuals to voice their opinions and engage in political discussions, it is essential to strike a balance that respects the right to freedom of expression while ensuring that such platforms are not misused to spread hate or harm others.

iii. Art (music, drawings, theatre and videos)

Politics and art have been intertwined for many years, with art often serving as a medium to criticise politics. Through political cartoons, music, and other forms of art, people have used creative expression to draw attention to political events and figures they disagree with. Political criticism created through art, especially in physical art and cartoons, holds significant importance due to its permanence and its ability to influence future generations. However, governments have, at times, suppressed criticism of certain types of art. For instance, during World War II, many pieces of art reflected support for fascism and Nazi propaganda. Art movements promoting these oppressive ideologies, such as futurism, were encouraged, while criticism was stifled. The themes of futurism were in line with those of fascism, raising questions about the acceptance or critique of political criticism in art (14).

Though not explicitly stated, Article 10 of the ECHR also acknowledges the freedom of artistic expression under the statement of “impart[ing] information and ideas.” Artistic criticism encompasses various forms, such as visual art, performing arts (including live theatre and films), and cartoons, utilising symbolism, caricature, and satire. Allowing artists to express their ideas and criticism within cultural, social, and political contexts through artwork is essential for a democratic society (15). However, compared to verbal or written expression, criticism through artistic freedom has not been as widely acknowledged in the past, leading to limited legal rights and lower levels of protection in early case law (16).

In the case of Lindon v France, Lindon, an author, wrote a book in which the villain had the same name as an actual politician. The book aimed to criticise the politician, raising questions about whether the criticism was too harsh and whether it violated freedom of speech. Including the politician in the book ensured that it would not be fictional, resulting in bias and criticism. However, it was found that the criticism in the book was not protected by freedom of speech, even though it took the form of art, as it worsened the politician’s reputation, making the Article 10 protection inapplicable in this instance (17).

c. Ways to infringe criticism

There are various ways in which the freedom of expression, particularly in cases of political criticism, can be infringed. These range from criminal prosecution and censorship to the so-called “chilling effect” and a newer and more subtle form known as SLAPPs.

In certain cases, criminal prosecution of criticism is necessary, such as in instances of hate speech and fake news, for the well-being of society as a whole (as often criminal prosecution occurs to protect the rights of the press). However, in other cases, criminally prosecuting journalists who criticise the state and its institutions may constitute an infringement upon their right to freedom of expression, as criticism is an essential component of democracy. Criminal prosecution of journalists can lead to imprisonment. In the case of Ahmet Hüsrev Altan v Turkey, the applicant was detained without reasonable suspicion, rendering the interference with his right to freedom of expression legally unjustified (18). Such sanctions can create a chilling effect within journalism and have a detrimental impact on society, as well as limiting investigative journalism. Therefore, it can be concluded that baseless criminal prosecution of the press can create a chilling effect and subsequently have a negative impact on society as a whole.

One way in which freedom of expression through criticism can be infringed is through censorship. The ECtHR has described censorship as “an order suspending the publication and distribution of newspapers, which it considered unjustified even for a short period,” and states that the censorship aspect of interference should not discourage the press from expressing criticisms (an example of this includes conviction prior to publication) (19). Censorship limits freedom of expression, specifically in the press, as it can at times hinder their role as a “watchdog.” An example of this was seen in Axel Springer SE and RTL Television GmbH v Germany, where the identity of a minor who murdered his parents was obscured from the public (20). The judge acknowledged that only permitting disguised pictures of the child impaired the public’s ability to be informed but argued that it was necessary to protect the personal rights of the child. Therefore, other rights may also play a role in censorship and the subsequent infringement on freedom of expression.

Another infringement on freedom of expression can occur through the “chilling effect,” a notion that extends beyond the case and may have a negative effect on the press or an applicant’s future, reserved for cases where something “genuine” is at stake (21). The “chilling effect” can be described as “the practical consequences of state action for the conduct of the individual.” (22) An example of this in the UK is Mosley v The United Kingdom, where the applicant sued the publisher for breach of confidence and invasion of privacy, claiming damages. The court observed that public interest would increase the chilling effect of any pre-notification duties and that in light of the potential chilling effect on freedom of expression (and the wide margin of appreciation given to individuals), states do not have an obligation to impose a pre-notification requirement (23). Therefore, factors such as public interest can also influence the “chilling effect” and hinder freedom of expression, as noted by the court.

Finally, another way in which the freedom of expression can be infringed upon is through SLAPP lawsuits. A SLAPP lawsuit is a lawsuit filed in bad faith against an individual, typically one with less access to legal resources or funds, designed to silence someone who has said something that the complainant dislikes, but is not illegal. A SLAPP lawsuit uses the threat of an expensive legal battle to pressure the target into retracting the statement made. SLAPP lawsuits are most often filed by large companies and wealthy individuals, as they have the financial means to sustain a long legal battle. This infringes upon the right to freedom of expression, as the financial penalty for making any comment a SLAPP-abusing company or individual dislikes prevents people from making negative comments about those entities.

Politicians

Political criticism cannot be adequately understood without making it clear who the politicians being criticised are and what their special status is according to the ECHR. The term “politician,” as defined by the Merriam-Webster dictionary, refers to individuals professionally engaged in party politics (24). The Cambridge dictionary defines a politician as a member of the government or a law-making organisation (25). For the purposes of this paper, a “politician” is defined as an elected individual who holds public office or as an individual who creates or changes laws and legislation.

The protection of politicians is parallel to that enjoyed by public figures in general. Public figures are people who have been given authority by the government and people who are famous (often written about in magazines or seen on TV) (40). As was held in Kuliś v Poland (41), the levels of acceptable criticism for those who willingly expose themselves to the public (and therefore public criticism) must have a higher tolerance for said criticisms (39).

Some cases have established that politicians are subject to a greater level of criticism and examination than a private individual not involved in politics or who is not a public figure. The case of Lingens v Austria is a good example of this. In this case, the then Chancellor of Austria alleged that the comments made in a news article that heavily criticised his deals with an Austrian party leader who was a former member of the Nazi SS were defamatory in nature. The prosecution argued that the statements made in the article were defaming the Chancellor as a private citizen rather than in his capacity as a politician. The defence argued that all comments made about the Chancellor were exclusively about him as a politician. The judgment stated that while some comments made about the chancellor were in regard to his role as a politician, other comments were made regarding him as a private citizen. This ruling clearly establishes the fact that politicians are subject to more scrutiny and criticism than private citizens (27). The same pattern is also observed in domestic law. In the UK, Members of Parliament receive special protections for their freedom of speech or expression. This special protection is referred to as “parliamentary privilege,” which shields Members of Parliament from defamation and slander lawsuits for things they say during parliamentary sessions (28).

Who is criticising?

a. Journalists

In the modern day, the role of journalism has become inseparable from politics and the justice system, acting as an essential outlet for political information and criticism. Journalists fulfil the role of “public watchdogs,” responsible for publishing and publicising information to the public, which may include self-conducted investigative content or research to report political wrongdoing. Hence, the term “watchdog” has been coined to describe the role of monitoring or “watching” over government activity. Due to the high risk that this role bears, journalists are entitled to protection by the ECHR under the condition that they carry out their duties responsibly as journalists, abiding by the law and adhering to the concept of “responsible journalism.”

The role of the “public watchdog” that journalists have is essential to a fair and democratic society. As the ECHR states, their use of freedom of expression is the “essence of democracy” itself, allowing for “diverse political programs to be proposed and debated” and questioning the actions of the state. The responsibility of distributing and reporting impartial political information upholds the public’s right to information, as stated in Article 10 of the ECHR (26). Furthermore, this ensures that the public is well-informed, enabling fair elections and invoking discussions on representatives for individuals to make an informed choice in electing suitable political candidates.

The power of investigation and research granted to journalists and researchers allows public watchdogs to uncover government wrongdoings to be published to the public, particularly during crucial times such as national or local elections. In the case of Długołęcki v Poland, the applicant – a newsletter journalist – was charged by the Polish court with defamation and malicious insult for publishing a critical article on a water rights scandal involving a politician who was running for council. The Polish court claimed that the journalist’s intention was to deliberately undermine the public’s confidence in the politician the day before the elections, and he was required to pay a hefty fine as a penalty. When challenged before the ECtHR, the decision made by the Polish court was overruled. The ECtHR believed that there was a violation of Article 10 and claimed that the journalist’s actions were part of his duty as a public watchdog, and the degree of exaggeration within his criticism was not considered unlawful (29). Additionally, the court stated that the government failed to take into consideration the importance of free debate that complements free elections in a democratic society. This judgement demonstrated that ensuring the rights and protection of public watchdogs is crucial for their functions, seeking transparency between the public and state officials in the democratic process.

This aims to protect journalists from being arbitrarily seized, searched, or unlawfully prosecuted. In the case of Cojocaru v Romania, the applicant – a journalist and chief editor of a local newspaper – was convicted of criminal defamation by the Romanian court for an article  criticising and advocating for the resignation of the Mayor. When the case was brought to the ECtHR, it was ruled that the criminal conviction of the applicant was in violation of Article 10 of the ECHR. The Court justified that the interference by the Romanian government was not “necessary in a democratic society” (as stated by the second provision of Article 10) as the applicant proved his intentions were not to defame and provided sufficient grounds for his criticisms (30).

b. Other politicians

Political criticism is indeed a vital aspect of a functioning democracy, and it is common for politicians to be criticised by their peers and the public alike. The criticism of politicians is of great significance due to the substantial power they hold as representatives of the public. Their role in governance and decision-making means they are held to a higher standard than private citizens. In the United States, social media has become a prominent tool for politicians to express critiques of their opponents. A study conducted by the University of Cambridge found that social media posts where politicians criticise their rival politicians tend to be more popular than those complementing their own political party. This indicates that politicians receive more online attention when engaging in criticism of their political opponents. Overall, political criticism plays a crucial role in holding politicians accountable and fostering a healthy democratic discourse. It allows for public scrutiny of those in power and facilitates the exchange of ideas, which is essential for an informed and engaged citizenry (31).

c. Private individuals

As democracy is defined, private citizens make up the vast majority of the public audience, possessing the power to elect political representatives and voice their political opinions and criticism through exercising their right to expression. Like journalists, they are also entitled and encouraged to exercise their freedom of speech, which includes various forms discussed previously, such as social media, music, and art, as part of the political discussion necessary for a democratic system. The significant difference between the two lies in the aspects of legal protection and responsibility that their criticism carries. Unlike “public watchdogs,” private citizens do not bear the duty to present impartial information or the obligation to uncover governmental wrongdoing or base their opinion on lawful investigation.

Despite not receiving the additional legal protection that journalists and researchers have, private citizens are still protected by Article 10 when it comes to arbitrary authoritative interference against criticism. The ECHR enforces the “three-part criteria” when determining the liability of an “unlawful” use of criticism for all individuals, among which the “lawfulness of interference” comes first in the three. The court states that unless foreseeably prescribed by law (which includes the imposed measure being written in domestic law with reason), authorities will have violated Article 10. This provides basic protection for private citizens to freely publish lawful criticism without the fear of arbitrary authoritative interference.

d. Researchers

Universities and other research institutions often have the ability to criticise politicians with fewer restrictions. While this increased freedom may result in more potential damage to a politician’s reputation, it is part of the academic privilege granted to universities. In the case Sorguç v Turkey, a professor critiqued “the way the examinations for assistant professors were being administered” through a paper he authored, wherein he mentioned an “unqualified” assistant professor without disclosing his name (32). This action damaged the reputation of the assistant professor, leading to the professor being required to compensate him. While freedom of speech is considered more lenient in academic settings, the court ruled that the reputation of the assistant professor was protected over the professor’s right to freedom of speech.

Concluding remarks: An assessment of the protection of political criticism

The ECtHR protects the right to freedom of expression, and thus the right to criticise the government. An example of a case involving political criticism protected by the ECHR was Savenko (Limonov) v Russia (33). Savenko had criticised the Russian government and had subsequently been accused of defamation and was ordered to pay a large sum. The ECtHR found the Russian government guilty of violating Article 10 of the ECHR as “they categorised political criticism as defamation without having due regard to the circumstances of the case” and due to the large sum being requested (34). This case allowed the ECtHR to systemise its previous jurisprudence and highlight four key aspects in the balancing test required by Article 10. The large sum of money was highlighted as requiring scrutiny due to the possible “chilling effect” it may have. Furthermore, the fact that Savenko was himself a politician allowed for a higher level of protection when expressing political criticisms, as well as his comments being made on the radio (allowing for inaccuracies when transcribed and further debate due to it being oral). His criticism was also aimed at a politician, and public officials have higher levels of acceptable criticism than private individuals. Finally, there was a strong factual basis to Savenko’s response. Krasulya v Russia is similar, as a journalist was criminally prosecuted for criticising their mayor and was initially found guilty of defamation (35). However, the Regional Court had not addressed the applicability of Article 10 in the case, and the Strasbourg Court found that there had been a violation of the Article.

In certain situations, freedom of speech is not protected by Article 10. In the case Sorguç v Turkey, the assistant professor was protected over the professor’s right to freedom of speech. This is because the Court had decided that the damage done to the assistant professor’s reputation was more important than the professor’s freedom of expression. In cases like these, reputation takes priority over the right to freedom of speech.

Conversely, people who take on the role of “public watchdogs” such as journalists are – in most given circumstances – lawfully exempted from the factor of reputation when deemed necessary for the political understanding of the public audience. As mentioned previously, the case of Cojocaru v Romania is a prime example of this, as the ECtHR ruled in favour of the journalist who was charged with defaming a politician before elections in an article by revealing a scandal he was involved in. However, the ECtHR claimed that this article and the journalist’s usage of speech was necessary in a democratic society while condemning the domestic court for interfering with the journalist’s responsibility as a public watchdog.

In international courts such as the ECtHR, it would appear that the press is fairly protected under Article 10. However, in domestic courts, this does not seem to be the case as the cases that are often presented to the ECtHR are ones where the Article has been violated in domestic jurisprudence. An example of this is the aforementioned Savenko (Limonov) v Russia, where a journalist was criminally prosecuted for criticising the government without explicitly naming the government official. The ECtHR found that this was an infringement of his freedom of expression, and disagreed with the domestic jurisprudence. This example demonstrates how freedom of the press is protected by the ECtHR despite what domestic courts may rule, and that the ECtHR is arguably more objective than domestic courts when evaluating factors surrounding freedom of expression against public persons’ and politicians’ right to protection.

Those who are less protected by Article 10 are those who make criticisms so severe that the reputation of others is heavily damaged. In the case of Lindon v France, the author was not protected by Article 10. Although some may consider the book a form of artistic freedom, it came at the price of defaming the politician. Cases like this help clarify the restrictions on freedom of speech, and what kinds of criticism are protected and not. When defamation occurs, as in this case, artistic freedom does not apply.

A case that explores the possibility of the “chilling effect” in the ECtHR’s endeavour to protect the right to freedom of expression is the case of Paraskevopoulos v Greece (an example of how the ECtHR protected the right of the press to freedom of expression, specifically the freedom to criticise the government). Here, the ECtHR contradicted the domestic jurisprudence which had sentenced Paraskevopoulos to a criminal conviction and a two-month suspended sentence for insulting the head of the local council. The article in question had merely alluded to a person who was abusing their political power, without stating the person’s name, and was still brought before the court for slanderous defamation via the press (later changed to insult via the press). The Court of Appeal found Paraskevopoulos guilty as they expressed that the article “solely and exclusively” spoke of and identified the local councillor, whilst also acknowledging that what Paraskevopoulos had reported was truthful, but the facts were presented with value judgements that the court deemed insulting (36). The ECtHR established that the conviction amounted to “interference by public authority” in regards to Paraskevopoulos’ freedom of expression and noted that value judgements are not susceptible to proof (37). The ECtHR agreed with the domestic courts regarding the contribution to a debate of general interest and that some of the language used in the article may be considered provocative, but not insulting. The ECtHR found that local courts did not properly weigh Article 10 against the councillor’s right to respect private life. It was also found that the two-month sentence was disproportionate and would have a “chilling effect” on the public. This demonstrates the thorough and impartial evaluations conducted by the ECtHR and how they protect the right to freedom of expression even when contradicting domestic courts. This has occurred in multiple other cases and the ECtHR often takes the “chilling effect” into consideration when evaluating cases concerning Article 10, therefore demonstrating how thorough the protection of the right to freedom of expression is in the ECtHR.

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