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 (5^th 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 n^o 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 strangled” them : “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.

Comment

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):

P.B. HUGENHOLTZ, “Copyright and Freedom of Expression in Europe”, in R.C. DREYFUS, D.L. ZIMMERMAN en H. FIRST (eds.), Expanding the Boundaries of Intellectual Property, Oxford, Oxford University Press, 2001, 343-363.

D. VOORHOOF, “Freedom of Expression, Parody, Copyright and Trademarks”, in X., Proceedings of the ALAI Congress June 13-17, 2001 on Adjuncts and Alternatives to Copyright, Columbia University, School of Law, New York, ALAI-USA, 2002, 636-649.

C. GEIGER, Droit d’auteur et droit du public à l’information. Approche de droit comparé, Parijs, Litec, 2004.

C. GEIGER, “Pour une plus grande flexibilité dans le maniement des exceptions au droit d’auteur”, Auteurs & Media 2004, 213-222.

P. TORREMANS (ed.), Copyright and Human Rights. Freedom of Expression – Intellectual Property – Privacy, The Hague/London/New-York, Kluwer Law International, Information Law Series, 2004.

M. DE COCK BUNNING, “Auteursrecht en informatievrijheid : over de beperkte toepassing van artikel 10 EVRM”, Mediaforum 2005/4, 157-165.

A. LUCAS, “Droit d’auteur, liberté d’expression et droit du public à l’information”, Auteurs & Media 2005, 13-23.

M. ROSENMEIER (ed.), Art and Law. The Copyright Debate, København, Djøf, Jurist- og Økonomforbundet, 2005.

A. STROWEL and F. TULKENS, “Freedom of Expression and Copyright under Civil Law : Of Balance, Adaptation, and Access”, in J. GRIFFITHS and U. SUTHERSANEN (eds.), Copyright and Free Speech. Comparative and international analyses, Oxford, Oxford University Press, 2005, 287-313.

D. VOORHOOF, “La liberté d’expression est-elle un argument légitime en faveur du non-respect de droit d’auteur? La parodie en tant que métaphore”, in  A. STROWEL en F. TULKENS (eds.), Droit d’auteur et liberté d’expression, Brussel, Larcier, 2006, 39-69.

I. HØEDT-RASMUSSEN and D. VOORHOOF, ”Dansk kunstner vinder sag om surrealismens graenser”, Nordiskt Immateriellt Rättsskydd (NIR, Nordic Intellectual Property Law Review) 2008/2, 166-169.

D. VOORHOOF, “Parodie, kunstexpressievrijheid en auteursrecht”, noot onder Brussel 14 juni 2007, Auteurs & Media 2008, 27-36.

S. FEYEN, “Auteursrecht en vrije meningsuiting. Een verhouding uit balans?”, Auteurs & Media 2009, 584-607.

W. SAKULIN, Trademark Protection and Freedom of Expression: An inquiry into the Conflict between Trademark Rights and Freedom of Expression under European Law, Alphen aan den Rijn, Kluwer Law International, 2010. 

Eweida and Others Judgment Part I - The Sexual Orientation Cases

Last week the European Court of Human Rights issued its keenly awaited judgment in Eweida and Others v the United Kingdom, a collection of four different cases which relate to diversity issues. Two of them are more specifically about sexual orientation and two others more about religion as such. In the coming weeks I will post here two guest blog posts by experts on the respective issues. Today is the first part and I am particularly delighted to welcome a guest post by sexual orientation law expert Paul Johnson of the University of York:

Eweida and Others v the United Kingdom

Paul Johnson

For those interested in and concerned about the protection and development of human rights in respect of sexual orientation, the judgment of the European Court of Human Rights (ECtHR) on Tuesday 15th January 2013 in Eweida and Others v the United Kingdom should be seen as significant. The judgment, by the Fourth Section of the Court, responds to four complaints brought under the European Convention on Human Rights (ECHR) that were co-joined because of the similar issues they raise. Two of the complaints concern restrictions placed by employers on the personal display of religious symbols (crucifixes) by individuals in the workplace. The other two complaints, which I will focus on here, relate to claims of discrimination in and dismissal from employment because of the applicants’ refusal to provide services to homosexuals. In all cases the applicants claimed that their right to ‘freedom of thought, conscience or religion’, guaranteed by Article 9 of the ECHR, as well as their right to non-discrimination, guaranteed by Article 14 of the ECHR, had been violated.

In respect of the complaints relating to sexual orientation, the ECtHR found no violation of either the applicants' Article 9 or 14 rights. Whilst this decision should be welcomed, because it upholds the United Kingdom's legislation relating to sexual orientation equality in the provision of goods and services, the substance of the judgment may also be seen as problematic. Lacking any consideration of proportionality in respect of the substantive issues involved, the judgment provides no clear vision about how best to achieve a balance between the often competing interests of religion and sexual orientation in contemporary European societies. Rather, in relying on the doctrine of ‘margin of appreciation’, the ECtHR’s judgment is empty of moral reasoning or insight.

The two sexual orientation related complaints: Ladele and McFarlane

Both of the complaints relating to sexual orientation were brought by Christians.

The first was made by Ms Lillian Ladele about her treatment whilst in employment as a registrar of births, deaths and marriages in the London Borough of Islington. Whilst in post, and as a consequence of the Civil Partnership Act 2004, Ms Ladele was asked to perform duties in the registration of civil partnerships between same-sex couples. Ms Ladele’s refusal to carry out these duties because of a religious objection to same-sex partnerships, and her employer’s insistence that she do so, resulted in a disciplinary hearing against her and a threat of dismissal. Ms Ladele made a successful application to the domestic Employment Tribunal, complaining of direct and indirect discrimination on grounds of religion or belief and harassment, but this was subsequently reversed by the Employment Appeal Tribunal which held that her treatment had been a proportionate means of achieving the legitimate aim of offering a non-discriminatory service. Ms Ladele appealed to the Court of Appeal which, citing the Equality Act (Sexual Orientation) Regulations 2007 (which, in force at the time of the appeal, prohibited discrimination on the grounds of sexual orientation in the provision of goods, services and facilities), held that a desire to have religious views respected should not be allowed '...to override Islington’s concern to ensure that all its registrars manifest equal respect for the homosexual community as for the heterosexual community.' In her complaint to the ECtHR, Ms Ladele relied upon Article 14 taken in conjunction with Article 9 to claim that she had been discriminated against on the grounds of religion, that her employer could have accommodated her religious beliefs, and that using dismissal as a means to meet the legitimate aim of non-discrimination was disproportionate.

The second complaint relating to sexual orientation was brought by Mr Gary McFarlane. Mr McFarlane was employed by Relate (a sex therapy and counselling service) as a counsellor from 2003 until 2008. During his time at Relate, Mr McFarlane had expressed concerns that his Christian view of homosexuality as inherently sinful was at odds with his duty to provide counselling services to same-sex couples. After a protracted series of formal communications, Mr. McFarlane was dismissed by Relate for gross misconduct on the basis that he would not comply with the organization's non-discrimination policy. Mr McFarlane lodged a claim with the Employment Tribunal, claiming direct and indirect discrimination, unfair dismissal, and wrongful dismissal. The Tribunal found that Mr McFarlane had not suffered either direct or indirect discrimination because he had not been dismissed because of his faith but, rather, because he would not comply with the organization's policies. Mr McFarlane made unsuccessful appeals to the Employment Appeal Tribunal and the Court of Appeal. In his application to the ECtHR, Mr McFarlane complained under Article 9 of the ECHR taken alone and in conjunction with Article 14. He claimed that his adherence to Judeo-Christian sexual morality should be protected by Article 9, that his employers could have used less restrictive means to achieve their aim of non-discrimination by referring homosexual clients to other counsellors, and that his dismissal from employment and damage to professional reputation was therefore disproportionate.

ECtHR judgment

In respect of the application by Ms Ladele, the ECtHR applied its four established ‘tests’ in respect of Article 14 complaints. First, in considering whether Article 14 was applicable, the ECtHR decided that the applicant’s objection to participating in same-sex civil partnership registrations was directly motivated by her religious beliefs and, because this fell with the ambit of Article 9, Article 14 was applicable. Second, the ECtHR considered whether Ms Ladele was in an analogous situation with another group of persons receiving more favourable treatment and concluded that a relevant comparator was registrars with no religious objection to same-sex partnerships. Third, the ECtHR examined whether the applicant’s treatment pursued a legitimate aim and concluded that the aim of ensuring equality based on sexual orientation was legitimate. Finally, the ECtHR then approached the crucial question of proportionality. In respect of proportionality the ECtHR noted:

The Court takes into account that the consequences for the applicant were serious: given the strength of her religious conviction, she considered that she had no choice but to face disciplinary action rather than be designated a civil partnership registrar and, ultimately, she lost her job. Furthermore, it cannot be said that, when she entered into her contract of employment, the applicant specifically waived her right to manifest her religious belief by objecting to participating in the creation of civil partnerships, since this requirement was introduced by her employer at a later date. On the other hand, however, the local authority’s policy aimed to secure the rights of others which are also protected under the Convention.

Having set out the issues, the ECtHR then provided no analysis of proportionality but, rather, defaulted to its margin of appreciation doctrine, stating:

The Court generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights […] In all the circumstances, the Court does not consider that the national authorities, that is the local authority employer which brought the disciplinary proceedings and also the domestic courts which rejected the applicant’s discrimination claim, exceeded the margin of appreciation available to them.

 Because of this, the ECtHR held, by five votes to two, that Ms Ladele had suffered no violation of her rights under Article 14 taken in conjunction with Article 9.

In respect of Mr McFarlane’s complaint, the ECtHR took a similar approach. The ECtHR stated that it accepted that Mr McFarlane’s objection to providing services to same-sex couples was directly motivated by his Christian beliefs and that a contracting state has a positive obligation under Article 9 to secure those beliefs. The question, therefore, was whether a fair balance had been struck between the applicant’s and the organization's competing interests. In approaching the issue of proportionality, the ECtHR stated that 'the most important factor to be taken into account is that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination' and, because of this, '[t]he State authorities therefore benefitted from a wide margin of appreciation in deciding where to strike the balance between Mr McFarlane’s right to manifest his religious belief and the employer’s interest in securing the rights of others'. Because of this, the ECtHR held unanimously that the state had not exceeded its margin of appreciation and Mr McFarlane’s complaint did not give rise to a violation of Article 9, taken alone or in conjunction with Article 14.

A lack of moral reasoning

Whilst the judgment in respect of Ms Ladele and Mr McFarlane may be welcomed by some (including myself), its complete lack of reasoning in respect of proportionality and its reliance on the margin of appreciation doctrine makes it problematic. It is problematic because the ECtHR can (and regular does) take the same approach in order to reject claims from sexual minorities about violations of ECHR rights. For this reason, although the margin of appreciation is one of the key methods used by the ECtHR in its review of complaints, its use in these circumstances should be questioned. The margin of appreciation doctrine is used by the ECtHR in Eweida in two ways: first, to determine the extent of the ECtHR’s authority to intervene as a court which operates under the principle of subsidiarity (‘The Court generally allows the national authorities a wide margin of appreciation’); and, second, as an interpretative device in respect of the substantive issues involved (‘all the circumstances’). The use of the margin of appreciation in both of these ways has long attracted considerable and sustained criticism. Singh, for example, has argued that it is ‘a conclusory label which only serves to obscure the true basis on which [the ECtHR] decides whether or not intervention in a particular case is justifiable’. Or, as Lord Lester of Herne Hill more prosaically puts it, the ‘concept of the margin of appreciation has become as slippery and elusive as an eel’ and is used ‘as a substitute for coherent legal analysis of the issues at stake’. As Lord Lester also argues: ‘The problem with the Court’s invocation of the margin of appreciation is that it removes the need for the Court to discern and explain the criteria appropriate to particular problems.’

What Lord Lester sees as a ‘problem’ for jurisprudence – a problem that has led scholars to attempt to catalogue the various ways in which the margin of appreciation has been applied and the hierarchy of rights that it has produced – is actually what makes it most useful to the ECtHR in cases like Eweida. It is useful because it provides a highly malleable device through which the ECtHR can mandate its judgments and, at the same time, obscure its moral reasoning. In ‘applying’ the margin of appreciation, the ECtHR appears to draw upon a precision instrument that enables it to calculate the ‘width’ of the margin available to a state and reach a judgment. However, although the margin available to a state appears to determine the outcome of a judgment, the judgment ultimately remains an expression of the ECtHR’s moral orientation to ECHR rights. This was true in respect of complaints brought under the ECHR by homosexuals between 1955 and 1980 when applicants were routinely told that the criminalization of male homosexual acts in private was within the margin of appreciation available to contracting states and were given little or no reasons about the proportionality of such criminalization. It was wrong then for the Strasbourg organs to not outline the moral reasoning that underpinned its decisions in respect of complaints brought by homosexuals, and it is inadequate now to do the same in respect of these present complaints about religious freedom. A detailed consideration of proportionality is a mechanism that makes transparent a moral consideration of rights; the margin of appreciation is a way to avoid it.

In a partly dissenting opinion, judges Vučinić and De Gaetno do provide a full account of their reasoning as to why they disagree with the majority judgment in respect of Ms Ladele's complaint. These judges argue that Ms Ladele has suffered a violation of her Article 9 rights because her attitude towards homosexuality is, although underpinned by religious belief, a matter of freedom of conscience. They engage in a fulsome discussion of the need to protect freedom of conscience because it 'has in the past all too often been paid for in acts of heroism, whether at the hands of the Spanish Inquisition or of a Nazi firing squad'. What is important about this dissenting opinion is that, in outlining their reasoning, these judges make their moral commitments explicit. Although they engage in no formal analysis of proportionality, their understanding of how rights should be balanced is made explicit through their claim that: 'a combination of back-stabbing by her colleagues and the blinkered political correctness of the Borough of Islington (which clearly favoured “gay rights” over fundamental human rights) eventually led to [Ms Ladele's] dismissal'. The documented reasoning of these dissenting judges in respect of the substantive issues and human rights involved in the complaint produces the conclusion that a conscientious objection to homosexuality is a 'fundamental human right' which has greater value than 'gay rights'. However lamentable this might be and whatever questions it might raise - such as, would a conscientious objection, founded in religious belief, to marrying people of different ethnicities be worthy of greater protection than ensuring non-discrimination on the grounds of race? - we can, at least, see the moral reasoning of these judges.

In the majority judgment, by contrast, the reliance on the margin of appreciation renders opaque the moral reasoning in respect of the substantive issues involved. In failing to engage in an analysis of proportionality, the ECtHR provides no insight into how European states, with vastly different legal approaches to matter relating to religion and sexual orientation, should interpret the ECHR in order to balance the frequently competing interests of those who claim rights on the basis of religion and sexuality. The ECtHR has not, therefore, provided an interpretation of the ECHR that gives practical guidance to contracting states on how best to achieve proportionality in this area. Furthermore, the ECtHR has not explained to Europeans why their religious beliefs about sexual orientation may not be protected by the ECHR when contracting states pursue the aim of protecting sexual minorities from sexual discrimination. Whilst I wholly welcome the outcome, I find the judgment completely lacking in the moral reasoning that is required to underpin and legitimate the ECHR in contemporary European societies - societies that are now so often riven by conflict about religious and sexual orientation rights.

Many thanks to Paul! Other comments about this judgment have appeared on the UK Human Rights Blog and on Strasbourg Observers.

Updates on New ECHR Protocols

It's been some time now since I last wrote on the reform process of the Court and the two new protocols to the Convention (15 and 16) - see here and here. The Steering Committee for Human Rights (CDDH) met at the end of November and formally adopted draft Protocol 15 (on additions to the Convention's preamble and changes to the admissibility conditions) together with an explanatory report. The Steering Committee also adopted, provisionally, draft Protocol 16 (on advisory opinions by the Court to national judges) to which the Committee of Experts on the Reform of the Court was tasked to complete a draft explanatory report. In March final adoption of both Protocol 16 and the explanatory report are scheduled on the agenda of the Steering Committee.

Yesterday, the Committee of Ministers had Protocol 15 and the explanatory report on its agenda. It decided to transmit the draft Protocol to the European Court and to the Parliamentary Assembly to get their opinions on it. This may mean that the state delegates now agree on the text.

Relevant documents of the Steering Committee, including all the ones mentioned above, can be found here.

New ECHR Publications

The new year brings us a whole basket of new ECHR-related publications, partly collected by our own SIM documentation team with their very helpful monthly online contents on human rights (find the most recent December overview here).

* L. Hodson, 'Ties that bind: towards a child-centred approach to lesbian, gay, bi-sexual and transgender families under the ECHR', International journal of children's rights, vol. 20, no. 4 (2012) pp. 501-522.

* B. Miltner, 'Revisiting extraterritoriality after Al-Skeini: the ECHR and its lessons', Michigan Journal of International Law, vol. 33, no. 4 (2011/2012) pp. 693-748.

* Kristin Henrard, 'A Critical Analysis of the Margin of Appreciation Doctrine of the ECtHR, with Special Attention to Rights of a Traditional Way of Life and a Healthy Environment: A Call for an Alternative Model of International Supervision', The Yearbook of Polar Law, vol. IV (2012) pp. 365-413.

* E. Defeis, 'The Treaty of Lisbon and accession of the European Union to the European Convention on Human Rights', ILSA journal of international and comparative law, vol. 18, no. 2 (2011/12) pp. 387-394.

Ironies of (In)justice in Ukraine and Strasbourg

My two previous blog posts are connected in a very surprising way. I reported last week on the judgment in Volkov v Ukraine, about a judge who had been removed from office in violation of the ECHR. The Court concluded that the right to a fair trial (Article 6) had been violated on four counts as well as the right to respect for private life (Article 8). For the first time in its history it indicated, under Article 46 ECHR, that there was no other way to remedy the violations than for Ukraine to reinstate the applicant, a Supreme Court judge, in his post. Other, similarly rare, indications of precise remedies have in the past included indications to release people from detention or to implement restitution of property. The judgment also explicitly points out that the issue is part of a wider, structural problem of a very worrying kind (para. 199):

The Court notes that the present case discloses serious systemic problems as regards the functioning of the Ukrainian judiciary. In particular, the violations found in the case suggest that the system of judicial discipline in Ukraine has not been organised in a proper way, as it does not ensure the sufficient separation of the judiciary from other branches of State power. Moreover, it does not provide appropriate guarantees against abuse and misuse of disciplinary measures to the detriment of judicial independence, the latter being one of the most important values underpinning the effective functioning of democracies.

What is truly notable is that one of the persons that in the Court's view may have been instrumental in the violation of fair trial rights, S.K., is actually the very same person that presents himself as a guardian of human rights at the Parliamentary Assembly of the Council of Europe. A few easy google searches indeed reveal that S.K. is no other than Serhii Kivalov, the rapporteur in the Parliamentary Assembly on the Council of Europe on structural problems in ECHR state parties. Notably, in the report Ukraine is singled out as one of the countries with structural problems in this respect. In addition, the report emphasizes the role the Parliamentary Assembly should play in helping to improve the implementation of judgments.

In the Volkov judgment, the Court indicates that S.K. (Serhii Kivalov) was both a chairman of the parliamentary committee on the judiciary and a member of the High Council of Justice, two of the institutions that played key roles in the dismissal of judge Volkov contrary to the ECHR. The Court mentions an "appearance of personal bias" (para. 117) on the part of certain members of the High Council of Justice and also suggests that Kivalov "might not have acted impartially" in his role as chairman of the parliamentary committee (para. 119). In addition, Kivalov was one of the three members of that committee that "applied to the High Council of Justice seeking the initiation of preliminary enquiries into possible misconduct by the applicant" and thus got the ball rolling in the first place.

PACE is due to discuss his report next week, according to its agenda. Irrespective of the quality of the report, which seems of similar quality of earlier reports, PACE may want to discuss the potentially murky credentials of its rapporteur in the matter. After it all, it is rather curious, to say the least, that one of the persons that may be at the source of human rights violations, as established by the European Court, is asked to review human rights problems and progress of ECHR state parties in PACE, one of the Court's sister institutions within the Council of Europe. Or would there be a trend of having experts by experience?

Court Orders Reinstatement of Ukrainan Supreme Court Judge

Yesterday, the Court issued its judgment in the case of Oleksandr Volkov v Ukraine, a politically very sensitive case about the dismissal of the applicant as Supreme Court judge. The facts of the case would not be out of place in a book by Kafka. The Court found a number of violations, but the most remarkable is that - and this is very rare - it indicated very specifically how the violation should be remedied: Mr Volkov should be reinstated in his post as judge as soon as possible. Here is the press release about the case from the European Human Rights Advocacy Centre headed by professor Philip Leach who represented the applicant in the case in Strasbourg:

Today, in the case of Volkov v Ukraine (No. 21722/11), the European Court of Human Rights found Ukraine to have violated the rights of Oleksandr Volkov, who was dismissed from his post as a Supreme Court judge in May 2010 due to an alleged “breach of oath”. The Court found violations of the right to a fair trial and respect for private life and ordered Ukraine to reinstate him immediately as a Supreme Court judge, the first time the Court has made such an order. Mr Volkov was represented by the European Human Rights Advocacy Centre (EHRAC) based at Middlesex University.


Mr Volkov was appointed as a Supreme Court judge in 2003. In 2008, proceedings were brought against him before the High Council of Justice for alleged professional misconduct, and he was consequently dismissed by the plenary parliament from his post in 2010 for “breach of oath”. Mr Volkov appealed unsuccessfully to the Higher Administrative Court against his dismissal.

In its judgment, the Court found four separate violations of the right to a fair hearing (Article 6(1)). Firstly, the bodies which considered Mr Volkov’s case were not independent and impartial. There were ‘structural deficiencies’ in the proceedings before the High Council of Justice, a number of whose members were also found to be personally biased. The hearing of the case by Parliament “only served to contribute to the politicisation of the procedure and to aggravate the inconsistency of the procedure with the principle of the separation of powers”. These defects were not considered to have been remedied during the review of the case by the Higher Administrative Court. Secondly, the principle of legal certainty was breached because there was no limitation period relating to the proceedings against Mr Volkov. Thirdly, the principle of legal certainty was also violated because, during the plenary meeting of Parliament, “the MPs present deliberately and unlawfully cast multiple votes belonging to their absent peers”, which violated the Ukrainian Constitution and other legislation. Fourthly, the chamber of the Higher Administrative Court was not considered to be a ‘tribunal established by law’ because its president had continued to perform the duties of president after the expiry of the relevant statutory time limit.

The Court also found a violation of Article 8 of the Convention because Mr Volkov’s dismissal from the post of judge did not comply with the domestic law and also because the law was arbitrary.

The Court ordered the Ukrainian authorities to reinstate Mr Volkov in the post of Supreme Court judge “at the earliest possible date”.

Significantly, the Court found “serious systemic problems as regards the functioning of the Ukrainian judiciary” and ordered Ukraine to carry out reform of the system of judicial discipline, including legislative reform.

Prof. Philip Leach commented: “We are delighted by this decision. Mr Volkov was the victim of endemic political corruption, which this judgment confirms is prevalent in Ukraine. It is significant that the European Court has, for the first time, ordered the reinstatement of someone who was unfairly dismissed. This judgment confirms that the Ukrainian legal system is in urgent need of fundamental reform.”

New Report on Structural Problems in ECHR State Parties

I wish all my readers a very good 2013! To start of this blogging year right away, I would like to draw your attention to a new report by rapporteur Serhii Kivalov, of the Parliamentary Assembly of the Council of Europe (PACE), entitled 'Ensuring the viability of the Strasbourg Court: structural deficiencies in States Parties'. This is the report's summary:

States Parties bear the “primary responsibility” for ensuring the European Convention on Human Rights is applied effectively at national level, alongside the European Court of Human Rights and the Committee of Ministers.

The Committee on Legal Affairs and Human Rights deplores the fact that the Court is “still overloaded with a large number of repetitive cases revealing widespread dysfunctions in national legal orders”. It lists nine States (Bulgaria, Greece, Italy, the Republic of Moldova, Poland, Romania, the Russian Federation, Turkey and Ukraine) which continue to have “major structural problems” – adding that countries with a high proportion of complaints in relation to their population should also face scrutiny.

The committee calls on States Parties to the Convention to create strategies and action plans to deal with their structural problems, and amend their laws in line with the Court’s case law. States Parties should also consider establishing a national body responsible solely for the execution of the Court’s judgments. Moreover, national parliaments should be actively involved in the implementation of these judgments, and in particular of those revealing structural deficiencies.

The Council of Europe governments are also called on to “increase pressure and take firmer measures” in cases of dilatory and continuous non-compliance with the Court’s judgments.

As well as giving a precise overview of issues in the most problematic countries, the report also lists a number of possible ideas to improve the situation.