Art 10 – cearta.ie

Amid all the discussion regarding the A., B. and C. v. Ireland judgment, it is interesting to note that last week, in one of its first freedom of expression judgments of 2011, the European Court of Human Rights was called upon to consider an interesting issue surrounding abortion, namely the conviction for defamation of an anti-abortion activist for comparing abortion to the Holocaust.

The applicants in Hoffer v. Germany were anti-abortion activists who had handed out pamphlets outside a medical clinic in Nuremburg.

via strasbourgobservers.com

This post on the Strasbourg Observers blog was written by Rónán Ó Fathaigh, a researcher working on a Ghent University Special Research Fund project entitled “Legal analysis and explorative research of the chilling effect on freedom of expression and information”.

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Costs Regime in Peril after Strasbourg Court Ruling « UK Human Rights Blog

19 January, 2011

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The only remaining question is the extent to which this judgment goes beyond publication cases. The Strasbourg Court has said that 100% uplift is chilling in defamation cases, and indeed the defamation problem is compound, involving, in some cases, evidence of astonishing complexity, and “luxury” parties – big media conglomerates versus celebrity claimants. But there is no particularly strong reason in principle why this ruling should be so limited. It is open to any unsuccessful litigant in a non-media case to make a case for transposition of this Article 10 solution/change by analogy; after all, the Jackson proposals – without which this aspect of the Campbell case may never have seen the light of day – apply to a very wide collection of cases.

So once it becomes generally accepted that it is unjust to submit media defendants to a costs regime which forces them to settle rather than defend their rights to free expression, it will follow as naturally as night follows day that non-media defendants who have other recognised interests to protect should not be obliged to pay up simply because they have no reasonable prospect of recovering their reasonable and proportionate costs if they manage to beat off an attack.

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Invasion of privacy and conditional free arrangements in the ECHR

18 January, 2011

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In MGN v UK 39401/04 (18 January 2011) the Fourth Section of the European Court of Human Rights today held that the finding by the House of Lords in Campbell v MGN [2004] AC 457, [2004] UKHL 22 (6 May 2004) that MGN had invaded Naomi Campbell’s did not violate Article 10 of the Convention. However, the ECHR went to hold that the conditional fee arrangement (CFA) which increased the costs recoverable by Campbell from MGN (and approved by the House of Lords in Campbell v MGN [2005] UKHL 61 (20 October 2005) was contrary to Article 10. Some relevant extracts from the judgment:

II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION CONCERNING RECOVERABLE SUCCESS FEES

157. The parties devoted extensive submissions to the precise nature of this complaint. The Court considers that the applicant’s core complaint concerned the recoverability against it, over and above the base costs, of success fees which had been agreed between Ms Campbell and her legal representatives as part of a CFA. …

198. The Court will examine whether success fees recoverable against unsuccessful defendants are “necessary in a democratic society” to achieve [the legitimate aim of the protection of the rights of others within the meaning of Article 10(2)].

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Contradictions in Defamation Cases « Strasbourg Observers

6 January, 2011

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Contradictions in Defamation Cases

January 6, 2011

by Stijn Smet

Before its holiday break, the European Court of Human Rights released two judgments in defamation cases, Novaya Gazeta V Voronezhe v. Russia and Sofranschi v. Moldova. Both cases concern allegations of abuse and irregularities. While both judgments contain good elements, in my opinion they also reveal faulty reasoning on the part of the Court. Most interestingly, the judgments contradict each other on some crucial points. Thus one judgment provides alternatives to the shortcomings of the other.