Despite the contentions of the various interests groups about UK libel law ( such as Index On Censorship – see below), the European Court of Human Rights has only found that the UK has been in breach of Article 10 on one occasion in recent years (in the Financial Times “sources” case).
Instead the Court has been struggling to deal with complaints from former Eastern European/Eastern bloc countries, as the brief review below demonstrates.
In Manole v Moldova[i] a violation of the state’s positive obligations under Article 10 was fond because domestic law did not provide any guarantee of political balance in the composition of the senior management and supervisory body of the state radio and television station. The Court held that Article 10 placed a duty on the State to ensure, first, that the public has access through television and radio to impartial and accurate information and a range of opinion and comment, reflecting inter alia the diversity of political outlook within the country and, secondly, that journalists and other professionals working in the audiovisual media are not prevented from imparting this information and comment.[ii]
In Europapress Holding DOO v Croatia[iii] the applicant newspaper had been ordered to pay damages in defamation to a politician who it had accused of making an inappropriate joke by pointing a handgun at a journalist and saying “I will kill you now”. The Court dismissed the application, agreeing with the assessment of the domestic court that the newspaper had taken insufficient steps to verify the published statements.
The Court of Human Rights has found a number of violations of Article 10 in cases in which the domestic courts have failed properly to investigate the truth of the allegations made or have imposed excessive penalties. For example, in Marchenko v Ukraine[iv] the Court accepted that a conviction for defamation was necessary where he had organised picketing accusing a public official of misappropriating funds and property. However, imposition of a suspended prison sentence of 1 year was disproportionate and a violation of Article 10. [v]
In Porubova v Russia[vi] the applicant had published an article concerning a homosexual relationship between the head of the regional government and a young man employed in the region’s office in Moscow. There were also allegations of embezzlement. The articles concerned professional politicians and contributed to a debate on an issue of public concern and in the circumstances the conviction of the applicant for criminal insult and a sentence of one and half year’s correctional work was a violation of Article 10.
Although Article 10 includes a right to “receive information”, the Court has held on number of occasions that this does not include a right of freedom of information.[vii] However, recent case law suggests that a different approach may be developing. In the Hungarian Civil Liberties Union case[viii] the Court commented that it had “recently advanced towards a broader interpretation of the notion of “freedom to receive information” … and thereby towards the recognition of a right of access to information”
In that case, the Court found a violation of Article 10 when the domestic courts had refused access to a complaint which sought constitutional scrutiny of certain amendments to the Criminal Code. It concluded that obstacles to hinder access to information of public interest might discourage the media and other public interest organisations from pursuing their vital role as “public watchdogs”.[ix]
The only new findings of violation of Article 10 in a United Kingdom case was in Financial Times v United Kingdom (Judgment of 15 December 2009) in which it was held that the order for source disclosure in the Interbrew case was a violation of Article 10. The case is discussed on the UKSC Blog here.
In a number of other cases fundamental challenges to English libel law have failed. In Times Newspapers v United Kingdom[x] the applicant complained that the rule that each time material was downloaded from the internet there was a new publication was a violation of Article 10. The application was dismissed. The Court held that responsible journalists had a duty to ensure accuracy of historical information and a requirement to publish an appropriate qualification to an article contained in an internet archive was not a disproportionate interference.
In Wall Street Journal v United Kingdom[xi] the applicant the American newspaper the Wall Street Journal complained, inter alia, that the common law presumption of falsity in libel actions was incompatible with Article 10. The Court noted that it had previously accepted that this presumption was consistent with Article 10 and that its use aimed to protect the right to reputation guaranteed by Article 8. Furthermore, bearing in mind the fact that the applicant’s “responsible journalism” defence had succeeded they could not claim to be victims. As a result, the complaint was inadmissible.
[i] Judgment of 17 September 2009.
[ii] Ibid, para 100.
[iii] Judgment of 22 October 2009.
[iv] Judgment of 19 February 2009.
[v] See also Bodrožić v Serbia Judgment of 23 June 2009; Bodrožić and Vujin v. Serbia Judgment of 23 June 2009 and Romanenko v Russia, Judgment of 8 October 2009
[vi] Judgment of 8 October 2009.
[vii] See Leander v Sweden (1987) 9 EHRR 433 para 74;
[viii] Társaság a Szabadságjogokért v. Hungary, Judgment of 14 April 2009, para 35; see also Kenedi v Hungary Judgment of 26 May 2009..
[ix] Ibid, para 38.
[x]  EMLR 14.
[xi] (2009) 48 EHRR SE 19.