Thursday, 31 January 2013

Eweida and Others Judgment Part II - The Religion Cases

As announced earlier, here is the second part of comments on the Eweida and others v the United Kingdom Judgment. This second guest post will focus on the two cases within the judgment which are most closely tied to freedom of religion. I am very happy to welcome this post by my former colleague Hana van Ooijen who defended her PhD prepared at SIM here at Utrecht University last year. Her book, Religious Symbols in Public Functions: Unveiling State Neutrality is a detailed and nuanced overview and analysis of the broader issues at stake. Thank you, Hana!

Two cross cases 
Hana van Ooijen

If Britain were to be stereotyped in religious symbols debates, it could be called inclusive. A place where judges can wear turbans in court, where headscarf-wearing police officers can patrol the streets and where niqab bans are looked at with disdain. To dismiss this stereotype with a cliché: reality appears to be slightly more obstinate. And so it is that also against the United Kingdom complaints concerning religious symbols have made their way to the European Court of Human Rights. The judgement of 15 January 2013 in no less than four joined cases meant another occasion following the widely discussed 2011 Lautsi case to step into the Court's labyrinth of thought. In focusing on the two cross cases Eweida and Chaplin, this comment elaborates on three reasons why the cases can be considered remarkable. These reasons have to do with the type of symbol involved, the test applied by the Court and the different outcome in both cases.

Christian cross
To begin with, it is the first time that the Court addresses the question of an applicant wearing a cross. Thus far, the ECHR case law included quite a number of cases on headcoverings (i.e. the headscarf or items allegedly replacing the headscarf, cf. the multiple cases against France in 2008, e.g. Gamaleddyn) and turbans (e.g. Shingara Mann Singh v. France, also in 2008). In 2011, the previously mentioned Lautsi affair added a case involving a crucifix on the wall of a public school. It may be asked in the first place whether the specificity of the religious symbol at issue is of any relevance for the outcome. After all, states and courts should be wary of entering into theological debates, a point which is alluded to in the present judgement by some intervening parties (§ 76) and by Eweida herself (§ 64). While this is true, in previous cases such as in the Şahin and Dahlab cases, the Court has not shied away from including statements touching on such debates (e.g. in Dahlab: "[the headscarf] appears to be imposed by a precept which is laid down in the Koran and … is hard to square with gender equality …") In the Lautsi case, the Court appeared to take a step back from interpreting religious symbols in bypassing the Government's contentions on the character of the crucifix by qualifying the crucifix as a Christian symbol (Lautsi, Grand Chamber, § 66). In the present judgement, the Court pursues this line of reasoning by similarly accepting that the crosses worn by the applicants qualify as religious symbols under Article 9 (§ 89). In so doing, the Court also leaves aside the domestic judgments that have struggled with the religious status of the symbol (although this struggle should be seen from the non-discrimination perspective in which the question of particular disadvantage is at play, e.g. § 14-15). Having thus determined the symbol at issue to fall within the ambit of Article 9, the Court moves to assessing whether the domestic measure constituted an interference with Article 9. This assessment makes for a second reason why the judgement can be called remarkable and is discussed in the next section. Before this discussion, a brief observation can be made as to the significance of the symbol in question on the domestic level. In Britain, the disputes have sparked vehement national public debates on the position of Christians. In these debates, it has been suggested that Christians are being disadvantaged in comparison to other religious groups (the Equality and Human Rights Commission speaks of the 'Christian marginalisation narrative', Research Report 84, p. 112). This point can be derived from the cases as well. For instance, the facts point to the accommodation which British Airways provided for Muslims and Sikhs by allowing them to wear headcoverings (§ 11). Additionally, the contention can also be inferred from the number of interveners who represent the divergent positions in the debate (§ 76 ff.).

Proportionality test
The Court itself notes that it departs from previous case law (§ 83). Contrary to previous cases where professional duties appeared to be at odds with religious duties, the Court does not follow its 'particular regime' line of reasoning (while carrying several labels, this line of reasoning builds on two thoughts: that an applicant needs to accept that particular jobs or environments entail inherent limitations on his freedom of religion and that the ultimate safeguard of one's freedom of religion is the freedom to resign). Stated briefly, in earlier cases, the Court (and the Commission) established no interference to have taken place in such cases and thus rendered those cases outside the scope of Article 9. The downside of this line of case law was that it was not always transparent why a particular claim was deemed outside the scope of Article 9. Moreover, it significantly left leeway to the state to play the 'particular regime' card. It now seems as if the Court moves away from the particular regime approach towards an approach which puts more emphasis on a proportionality test. If this is true, this change is to be applauded, as is also done by the Strasbourg Observers. For future cases, it remains to be seen whether the Court actually intends to shift its approach. The Court might also apply a distinction between cases where applicants face a sanction as a result of exercising their religion and cases where they can guarantee their freedom of religion by resign (cf. § 83). Leaving aside this ambiguity, in the present cases the Court pays more attention to a proportionality test. Accordingly, it reiterates some factors such as the applicants' conduct, the extent to which the regulation has given rise to problems and the attitude of the employer in seeking a solution. One may wonder, though, whether these factors have actually contributed to the outcome. As is also discussed in the next section, it is not entirely clear how the factors have influenced the final outcome. Especially in Chaplin, the Court seems to leave aside these factors and to focus on whether the state has struck a fair balance between the interests involved. The interest of health and safety seems to trump any questions on for instance the facts that changing the uniform caused a problem to arise for the applicant and that it took another two years after the change of the uniform that the applicant was directly addressed.

Different outcome
The outcome in each case can be resumed simply by the findings of a violation in Eweida and not a violation in Chaplin. The particular factors involved are mentioned, but in the end, the one crucial difference between the two cases seems to lie in the ground for limitation. In the Eweida case, the main interest of British Airways to impose limitations in the uniform code is safeguarding the corporate image (which is remarkable in itself, as there was so little attention for the rights and freedoms of others, or perhaps even safety for that matter). In the Chaplin case, the state pursued the aims of health and safety (and it may be noted that not a word on neutrality is uttered). The individual applicant's interest in each case was to manifest her religion. This interest outweighs safeguarding a corporate image, but not guaranteeing health and safety. While this outcome seems to make perfect sense, it seems to neglect a little the other factors at play.

Another question concerns the sector of work in both cases. Eweida worked as a check-in staff member of British Airways, which nowadays can be called a private company. By contrast, Chaplin worked with the National Health Services, and can as such be considered a public sector employee. Accordingly, theoretically speaking, the duties of the state in both cases differed. Whereas the state can be said to incur the direct obligation to comply with Article 9 in the Chaplin case, it is bound through the positive obligation concept in the Eweida case. That said, the Court emphasises that in both cases, the state should strike a fair balance (§ 84). It is surprising that the upshot seems to be that the state incurs a heavier burden to comply with its obligations under the Convention regarding a private company than regarding its public services. This is compounded by the fact that the question in Eweida was not so much whether the company acted in accordance with the Convention by banning the cross. After all, British Airways had already modified its policies so as to include the cross in the uniform. The remaining point at issue concerned the refusal of the company to pay damages for the four months in which Eweida had not worked. Exactly regarding this point, the particular factors give reason to at least question whether British Airways had violated the Convention. The dress code did not raise any problems before. Accordingly, it can be asked whether it is unreasonable for a company to have at least a short period of time to adapt its policies to novel claims of accommodation, especially when the company offers an alternative position for that period.  By contrast, the Chaplin case concerned the principled question whether National Health Services could ban the cross in light of the Convention. While acknowledging the importance of health and safety, it can nonetheless be wondered why the Court does not tie in more closely the factors which it mentions earlier. Both parties seem to have made efforts to reach a reasonable compromise, but it can be questioned whether NHS sufficiently worked endeavoured to accommodate the applicant's claim.

Admittedly, it is easier to make critical remarks on the extensive judgement of the Court than to write this judgement. Some aspects of the judgement make way for richer lines of reasoning, such as the lack of theological interpretation of the cross, and the emphasis on a proportionality test. It will be interesting to see how particular factors can be tied more closely into the outcome of this test.

Friday, 25 January 2013

Opening Judicial Year Strasbourg

Today is the formal opening of the judicial year at the European court of Human Rights. At this occasion a seminar on “Implementing the European Convention on Human Rights in times of economic crisis” is held.Yesterday, the president of the Court, currently Dean Spielmann, held his annual press conference. The most important result of all the efficiency measures introduced by the Court, including the single-judge procedure made possible by Protocol 14, led to a remarkable result. For the first time in the Court's existence the number of pending cases is on the decrease, falling from 150,000 at the start of 2012 to 128,000 currently (16% decrease). Will the caseload crisis then finally be over? We can only hope so. The Court now estimates that the backlog of cases can be tamed in two or three years. This is the chart on the Court's website that illustrates this reversal of a very long trend:

A provisional version of the Court's annual report and an analysis of statistics (including information on the number of cases per country) can be found on the Court's homepage. Russia, Turkey, Romania, Ukraine and Bulgaria. Compared to the 'top-5' of last year, the difference is that Greece no longer features (now placed number 7 with 52 judgments in which one or more violations were found) and that Bulgaria has entered the top 5.

As a small and last point of note, in the Annual Report, the president of the Court kindly refers to the blogosphere:

In addition, over the past few years a certain number of blogs have appeared online concerning the Convention and the Court’s case-law. They shed new and often valuable light on the way in which our case-law is perceived by others, contributing very effectively to its dissemination. We read them with the greatest interest and I commend these initiatives.

Tuesday, 22 January 2013

Copyright vs Freedom of Expression Judgment

Earlier this month, the Court issued an important judgment, Ashby Donald and others v France (judgment in French), on the tensions between copyright law and the freedom of expression. It is my great pleasure to put online a guest post about this judgment by professor Dirk Voorhoof of Ghent University and Inger Høedt-Rasmussen of Copenhagen Business School. Thanks to both!
Copyright vs. freedom of expression
ECtHR (5th section), 10 January 2013, case of Ashby Donald and others v. France, Appl. nr. 36769/08
By Dirk Voorhoof, Ghent University and Inger Høedt-Rasmussen, Copenhagen Business School

For the first time in a judgment on the merits, the European Court of Human Rights has clarified that a conviction based on copyright law for illegally reproducing or publicly communicating copyright protected material can be regarded as an interference with the right of freedom of expression and information under Article 10 of the European Convention. Such interference must be in accordance with the three conditions enshrined in the second paragraph of Article 10 of the Convention. This means that a conviction or any other judicial decision based on copyright law, restricting a person’s or an organisation’s freedom of expression, must be pertinently motivated as being necessary in a democratic society, apart from being prescribed by law and pursuing a legitimate aim.

It is, in other words, no longer sufficient to justify a sanction or any other judicial order restricting one’s artistic or journalistic freedom of expression on the basis that a copyright law provision has been infringed. Neither is it sufficient to consider that the unauthorised use, reproduction or public communication of a work cannot rely on one of the narrowly interpreted exceptions in the copyright law itself, including the application of the so-called three-step test (art. 5.5 EU Directive 2001/29 of 22 May 2001). The European Court’s judgment of 10 January 2013 in the case of Ashby Donald and others v. France unambiguously declares Article 10 of the Convention applicable in copyright cases interfering with the right of freedom of expression and information of others, adding an external human rights perspective to the justification of copyright enforcement. Due to the important wide margin of appreciation available to the national authorities in this particular case, the impact of Article 10 however is very modest and minimal.

Pictures published on the Internet, infringing copyright

In this case, the  applicants were  Robert  Ashby  Donald,  Marcio  Madeira  Moraes  and  Olivier  Claisse,  respectively an American, a Brazilian and a French national  living in  New-York,  Paris  and  Le  Perreux-sur-Marne.  All three are fashion photographers. The case concerned their conviction in France for copyright infringement following the  publication of pictures  on  the  Internet  site  Viewfinder of  a  fashion  company  run  by  Mr.  Donald  and  Mr. Moraes. The photos were taken by Mr. Claisse at fashion shows in Paris in 2003 and published without the permission of the fashion houses. The three fashion photographers were ordered by the Court of Appeal of Paris to pay fines between 3.000 and 8.000 euro and an award of damages to the French design clothing Federation and five fashion houses, all together amounting to 255.000 euro. Donald, Moraes and Claisse were also ordered to pay for the publication of the judgment of the Paris Court of Appeal in three professional newspapers or magazines. In its judgment of 5 February 2008 the Supreme Court (Court de Cassation) dismissed the applicants’ argumentation based on Article 10 of the Convention and on Article 122-9° of the French Copyright Act (Code de la Propriété Intellectuele). The Supreme Court was of the opinion that the Court of Appeal had sufficiently justified its decision. Accordingly, the applicants could not rely on an exception in French copyright law, allowing the reproduction, representation or public communication of works exclusively for news reporting and information purposes.
In Strasbourg the applicants complained in particular of a breach of their rights under Article 10 (freedom of expression and information) of the European Convention. The European Court declared the application admissible and not manifestly ill-founded (§ 25), but concluded on the merits of the case that the conviction of the applicants because of breach of the French Copyright Act did not amount to a violation of Article 10 of the Convention by the French authorities. The Court was indeed of the opinion that the conviction for breach of copyright and the award of damages was to be considered as an interference with their rights protected by Article 10 of the Convention. However, this interference was prescribed by law, pursued the legitimate aim of protecting the rights of others and was to be considered necessary in a democratic society.

The Court explicitly recognises the applicability of Article 10 in this case : “La Cour rappelle que l’article 10 de la Convention a vocation à s’appliquer à la communication au moyen de l’Internet (..), quel que soit le type de message qu’il s’agit de véhiculer (..), et même lorsque l’objectif poursuivi est de nature lucrative (..). Elle rappelle aussi que la liberté d’expression comprend la publication de photographies (..). Elle en déduit que la publication des photographies litigieuses sur un site Internet dédié à la mode et proposant au public des images de défilés à la consultation libre ou payante et à la vente relève de l’exercice du droit à la liberté d’expression, et que la condamnation des requérants pour ces faits s’analyse en une ingérence dans celui-ci” (§ 34). The Court hereby confirms its approach that while freedom of expression is subject to exceptions, these exceptions must be construed strictly, and the need for any restrictions must be established convincingly : “La liberté d’expression (..) telle que la consacre l’article 10, (..) est assortie d’exceptions qui appellent toutefois une interprétation étroite, et le besoin de la restreindre doit se trouver établi de manière convaincante (§ 38).

A particular wide margin of appreciation

The Court is of the opinion that in this case a wide margin of appreciation is to be given to the domestic authorities, as the publication of the pictures of models at a fashion show and the fashion clothing shown on the catwalk in Paris was not related to an issue of general interest for society and concerned rather a kind of “commercial speech”. As the Court points out:  “En l’espèce, les photographies litigieuses ont été publiées sur un site Internet appartenant à une société gérée par les deux premiers requérants, dans le but notamment de les vendre ou d’y donner accès contre rémunération. La démarche des requérants était donc avant tout commerciale. De plus, si l’on ne peut nier l’attrait du public pour la mode en général et les défilés de haute couture en particulier, on ne saurait dire que les requérants ont pris part à un débat d’intérêt général alors qu’ils se sont bornés à rendre des photographies de défilés de mode accessibles au public” (§ 39).

The member states are furthermore in a position to balance conflicting rights and interests, such as the right of freedom of expression under Article 10 of the Convention with the right of property as protected by Article 1 of the First Protocol to the Convention. The Court, referring to its 2007 Grand Chamber judgment in  Anheuser-Busch Inc. v. Portugal, reiterates that “l’ingérence dans le droit à la liberté d’expression des requérants visait à la protection des droits d’auteur des créateurs de mode. Dès lors que l’article 1 du Protocole no 1 s’applique à la propriété intellectuelle (..), elle visait ainsi à la protection de droits garantis par la Convention ou ses Protocoles” (§ 40).

Two crucial elements in this case justify that the national authorities enjoy a particularly wide margin of appreciation. The European Court refers to “une marge d’appréciation particulièrement importante” (§ 41). These elements are the “commercial speech”-character of the publication of the pictures on the website and the balancing exercise the Court needs to undertake regarding the conflicting rights guaranteed by Article 10 of the Convention and the right of property as protected by Article 1 of the First Protocol to the Convention.

The European Court consequently refers to the Paris Court of Appeal’s finding that the applicants had reproduced and represented the pictures without authorisation by the copyright holders, hence infringing the rights of intellectual property of others. The European Court refers to the reasoning by the Paris Court que les requérants avaient, en connaissance de cause, diffusé les photographies litigeuses sans l’autorisation des titulaires des droits d’auteurs, qu’ils ne pouvaient se dégager de leur responsabilité en se prévalant du fait que le système de l’engagement de presse était inadapté ou mal respecté, et qu’ils s’étaient donc rendus coupables du délit de contrefaçon. Elle ne voit pas de raison de considérer que le juge interne a excédé sa marge d’appréciation en faisant par ces motifs prévaloir le droit au respect des biens des créateurs de mode sur le droit à la liberté d’expression des requérants (§ 42).

Finally the European Court does not consider the fines and the substantial award of damages as disproportionate to the legitimate aim pursued, arguing that the applicants gave no evidence that these sanctions had financially strangledthem : La Cour observe toutefois avec le Gouvernement que, si les requérants affirment avoir été « étranglés financièrement », ils ne produisent aucun élément relatif aux conséquences de ces condamnations sur leur situation financière ». The Court accepts the reasoning of the domestic courts and their calculation of the damages, with respect for the guarantees of a fair trial not being under dispute in this matter. The Court  relève en outre que le juge interne a fixé ces montants à l’issue d’une procédure contradictoire dont l’équité n’est pas en cause et a dûment motivé sa décision, précisant en particulier les circonstances qui, selon son appréciation, les justifiaient (§ 43).

In these circumstances and taking into account the particular important margin of appreciation of the national authorities, the Court concludes unanimously that there is no violation of Article 10 of the Convention.

Relying on Article 7 (no punishment without law), the applicants also alleged that, in refusing to apply an exception to copyright law provided for under an Article of the French Intellectual Property Code, the Court of Cassation failed to apply the principle that the criminal law must be strictly interpreted. The European Court however dismissed this part of the application as manifestly ill-founded.


The judgment of the European Court of 10 January 2013 is interesting for several reasons.

1.Emerging internet cases.

First of all, the judgment illustrates that cases of (alleged) breaches of fundamental rights and freedoms, enshrined in the European Convention and its Protocols, situated in the digital, online world have started to find their way to the European Court of Human Rights. During the past few years and months the European Court has delivered several judgments in “internet”-cases related to freedom of expression and information, such as in Times Newspapers Ltd. v. United Kingdom (ECtHR 10 March 2009), Editorial Board of Pravoye Delo and Shtekel v. Ukraine (5 May 2011) and in its Grand Chamber judgment in Mouvement Raëlien Suisse v. Switzerland (13 July 2012).

In Szima v. Hungary the case concerned a sanction of the person who had editorial control over a police trade union’s website. She was also the author of a series of blogs and articles that were considered as instigation to insubordination by the Hungarian authorities. The European Court accepted that there was a sufficient “pressing social need” to interfere with the applicant’s freedom of expression (ECtHR 9 October 2012).

In Peta Deutschland v. Germany a civil injunction preventing the applicant association inter alia from publishing seven specified posters via the internet, comparing the atrocities of the genocide of the Nazi-regime with animal suffering and hence banalising and instrumentalising the holocaust, was not considered as a violation of Article 10 (ECtHR 8 November 2012).

In a judgment of 18 December 2012, the European Court came to the conclusion that the decision taken and upheld by the Turkish authorities to block internet access to Google Sites amounted to a violation of Article 10. The decision to block Google Sites had been taken to prevent further access to one particular website hosted by Google which included content deemed offensive to the memory of Mustafa Kemal Atatürk, the founder of the Turkish Republic. With its judgment in Ahmet Yildirim v. Turkey the European Court of Human Rights has reinforced the right of individuals to access the internet, as in its ruling against the wholesale blocking of online content, it asserted that the internet has now become one of the principal means of exercising the right to freedom of expression and information (ECtHR 18 December 2012).

Due to this emerging case law related to internet and other new forms of technology, including rights and freedoms guaranteed by the Convention, the European Court has recently updated its fact sheet on the European Court’s case law on New Technologies.

The judgment of 10 January 2013 in Ashby Donald and others v. France, concerning a copyright infringement following the publication of pictures on  an  Internet  site, is the first and will certainly not be the last case before the European Court in 2013 which is internet-related.

2.Money or message driven?

Secondly the Court’s judgment is a clear illustration of the difference between, on the one hand, expression and content contributing to an issue of public debate or a debate of general interest for society, and on the other hand, “commercial speech”. Speech, messages, pictures and content which are merely money driven do not enjoy the added value of the protection guaranteed by Article 10 of the Convention. In the Court’s view, the margin of appreciation in such circumstances is a very wide one, even in a case where the interference by the authorities takes the form of a criminal conviction or a very high award of damages, both ‘sanctions’ with a risk of having a chilling effect.

This approach was also recently confirmed in Mouvement Raëlien Suisse v. Switzerland, in which the Court stated : “Whilst there is little scope under Article 10 § 2 of the Convention for restrictions on political speech (..), a wider margin of appreciation is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion (..). Similarly, States have a broad margin of appreciation in the regulation of speech in commercial matters or advertising” (§ 61, also referring to ECtHR 20 November 1989, Markt intern Verlag GmbH and Klaus Beermann v. Germany and ECtHR 24 February 1994, Casado Coca v. Spain).

This aspect is also emphasised in the case Ashby Donald and others v. France. Hence no doubt in this case :La démarche des requérants était donc avant tout commerciale”. There is indeed no indication that the applicants were involved in a debate of general interest (see e.g. Barthold v. Germany, Hertel v. Switzerland, Stambuk v. Germany, Vereinigung Gegen Tierfabriken Schweiz VGT v. Switzerland and Peta Deutschland v. Germany). The three fashion photographers only made the catwalk pictures of Paris fashion shows accessible to the public.

It would undoubtedly have been different if the pictures posted on the Internet had contributed to a public debate e.g. on women’s rights in the world of fashion, or on public health issues related to anorexia and young girls being tempted to look like models in the glossy fashion magazines. In this case the photos were solely used in a commercial setting, while the pictures contained no further message than reproducing the images of the Paris fashion shows. It is not because the website or the media platform is part of a commercial company, that the invoked freedom of expression will receive a lower degree of protection from the scope of Article 10 of the Convention. What essentially matters is whether the publication, the article, the expression or the pictures contribute to a debate of general interest, a notion which is broadly interpreted by the European Court of Human Rights : “what constitutes a subject of general interest will depend on the circumstances of the case” (ECtHR (Grand Chamber) 7 February 2012, Axel Springer Verlag AG v. Germany, § 90. See also D. VOORHOOF, “Freedom of Expression under the European Human Rights System”, Inter-American and European Human Rights Journal / Revista Interamericana y Europa de Derechos Humanos 2009/1-2, 3-49).

If the publication or the public communication of the litigious pictures had contributed to such a debate of general interest, and if the publication of the pictures had been justified in this context (ECtHR 18 January 2011, MGN Limited v. United Kingdom and ECtHR (Grand Chamber) 7 February 2012, Von Hannover nr. 2 v. Germany), a more strict scrutiny by the European Court from the perspective of Article 10 would have been necessary, and at the same time reducing the margin of appreciation available to the national authorities.

3.Copyright law enforcement must be in accordance with Article 10 of the Convention

Another reason why the European Court accepts a wide margin of appreciation in Ashby Donald and other v. France is because it has to balance two conflicting fundamental rights enshrined in the Convention and its Protocols. In such a context the Court is required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention and its Protocols. In this case the Court had to balance on the one hand, freedom of expression protected by Article 10 and, on the other, the right to property enshrined in Article 1 of the First Protocol. Especially since its Grand Chamber judgment in Anheuser-Busch Incl. v. Portugal in a trademark dispute, there can be no doubt that “Article 1 of Protocol No. 1 is applicable to intellectual property as such” (ECtHR (Grand Chamber) 11 January 2007, § 72). Indeed, in Melnychuk v. Ukraine, which concerned an alleged violation of the applicant’s copyright, the Court had earlier decided that Article 1 of the First Protocol was applicable to intellectual property (ECtHR (decision) 7 July 2005, Melnychuk v. Ukraine).

Where the balancing exercise between two Convention rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, it requires strong reasons for the European Court to substitute its view for that of the domestic courts (ECtHR (Grand Chamber) 7 February 2012, Axel Springer Verlag AG v. Germany, § 88). However, the circumstance itself of the balancing of conflicting rights does not exclude a thorough analysis by the Court of the findings and reasoning by the national courts, as is demonstrated in the Court’s Grand Chamber judgments of 7 February 2012 in the cases of Axel Springer Verlag AG v. Germany and Von Hannover nr. 2 v. Germany.

The European Court of Justice in some recent judgments has also confirmed this approach when it had to balance the enforcement of copyright on the internet with other rights. The EU Court of Justice in Scarlet v. Sabam (24 November 2011) has reiterated that “the protection of the right to intellectual property is indeed enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). There is, however, nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected” (§ 43).

According to the CJEU “the protection of the fundamental right to property, which includes the rights linked to intellectual property, must be balanced against the protection of other fundamental rights”,  including the right of freedom of expression and information guaranteed by Article 10 of the Convention (CJEU 24 November 2011, C-70/10, Scarlet Extended NV v. Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM); CJEU 16 February 2012, C‑360/10, Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v. Netlog NV. See also CJEU (GC) 16 December 2008, C-73/07, Tietosuojavaltuutettu / Satakunnan Markkinapörssi Oy, Satamedia Oy).

The CJEU clarified that in the context of measures adopted to protect copyright holders, national authorities and courts must strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures” (CJEU 24 November 2011, C-70/10, § 45). From this perspective, the CJEU considered that an injunction to install an internet filtering system as a measure of enforcement of copyright “could potentially undermine freedom of information”, since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications (compare with ECtHR 18 December 2012, Ahmet Yildirim v. Turkey).

In the case of Ashby Donald and others v. France the European Court of Human Rights did not need to undertake itself such a balancing exercise, as it found that the French judicial authorities have done this exercise in a proper way. As the Court stated, it saw no reason to disagree with the findings by the French courts : Elle ne voit pas de raison de considérer que le juge interne a excédé sa marge d’appréciation en faisant par ces motifs prévaloir le droit au respect des biens des créateurs de mode sur le droit à la liberté d’expression des requérants” (§ 42). The Court followed the same reasoning regarding the proportionality of the fine and the award of damages the applicants are ordered to pay (§ 43).

The deferential approach by the European Court, due to the appropriate way the French courts have handled the case and especially due to the fact that it ‘only’ concerned an interference in the context  of commercial speech does not exclude at all that in other cases the European Court may scrutinize in a more strict way the balancing of a conflict between the right of freedom of expression and copyright. That will especially be the case in matters that concern prior restraint, such as the blocking of internet sites, artistic freedom of expression, political speech, use of official documents, reproduction and public communication of works for educational or scientific purposes or NGOs participating in debate on matters of public concern such as health and environmental issues. Similarly, in cases where journalists and media are exercising their public watchdog function in a democracy, in cases of parody, caricatures or other forms of transformative use and when sanctions risk to have a chilling effect on the freedom of expression and information in a democracy. In such cases interferences with the right of freedom of expression and information, based on copyright law, will indeed need to undergo a more careful balancing test between Article 10 and Article 1 of the First Protocol.

Some national courts, within their margin of appreciation, already have referred to or have applied Article 10 in cases where the enforcement of copyright law otherwise could lead to a violation of the right of freedom of expression and information guaranteed by Article 10 of the Convention (see e.g. Cass. Fr. 19 October 2006 Camel/Japan Tobacco v. CNMRT; Rb. Amsterdam, 22 December 2006, Staat der Nederlanden v. Greenpeace and Rb. ‘s-Gravenhage (Summary Proceeding) 4 May 2011, Louis Vuitton v. Nadia Plesner).

Although the European Court did not find a violation of Article 10 in the case of Ashby Donald and others v. France, the judgment in this case has definitely confirmed that copyright enforcement, restrictions on the use of copyright protected works and sanctions based on copyright law ultimately can be regarded as interferences with the right of freedom of expression and information. This requires inevitably a balancing test between the rights involved. In terms of predictability of the outcome of such a balancing test, a clear set of criteria need to be developed, like  the Grand Chamber did in Axel Springer Verlag AG v. Germany, balancing the Articles 8 and 10 of the Convention (see  §§ 89-109). As long as it is unclear which criteria should be used in this balancing exercise and how they should be applied, legal advisors and counsels, whose predictability is founded in legal sources, might be troubled when the balancing test arguments can be derived from an extensive and unpredictable sample of legal, financial, commercial, ethical, technical or factual elements or justifications. Unfortunately the facts and circumstances in the case of Ashby Donald and others v. France did not give a real opportunity to the European Court to give preliminary assistance in this matter. This leaves, however, an uncertain future for the application of Article 10 in matters of copyright enforcement interfering with the right of freedom of expression and information.

References (in chronological order):

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