The electoral commission, disinformation and freedom of expression

2021 ◽  
Vol 71 (4) ◽  
pp. 675-681
Author(s):  
Ethan Shattock

This commentary examines how the prospective electoral commission could play a role in combatting disinformation in the run-up to Irish elections. While legislative debates have pointed to the potential role of the commission in protecting elections from anti-democratic actors who disseminate false electoral claims, no clear mandate has detailed how this could manifest. This ambiguity is exacerbated by Ireland’s electoral statutory framework, which has struggled to adapt to the challenging digital realities of contemporary electoral engagement. While the emergence of disinformation and related digital exigencies represents a potential for regulatory scrutiny, this must be considered alongside Article 10 of the European Convention on Human Rights (ECHR) and Article 40.6.1 of the Irish Constitution, both of which protect the right to freedom of expression. In positing how the new commission could counter electoral disinformation, a natural starting point is to probe how such functions are shaped and limited by this fundamental right. Moreover, the reluctance of the Irish judiciary and the European Court of Human Rights (ECtHR) to accept regulatory interference with political expression means that restrictions on the dissemination of information in the run-up to elections must be treated with delicacy when shaping the commission’s potential functions in this critical area.

2020 ◽  
Vol 31 (4) ◽  
pp. 473-512
Author(s):  
Stuart Macdonald ◽  
Nuria Lorenzo-Dus

AbstractArticle 5 of the Council of Europe Convention on the Prevention of Terrorism requires member states to criminalise ‘public provocation to commit a terrorist offence’. In the U.K., the realisation of this obligation is found in the ‘Encouragement of terrorism’ offence contained in section 1 of the Terrorism Act 2006. As well as fulfilling the U.K.’s treaty obligation, this offence was intended to stop the spread of violent extremist ideology. Although the compatibility of this offence with the right to freedom of expression enshrined in Article 10 of the European Convention on Human Rights has been queried, both the domestic courts and the European Court of Human Rights have held that it complies with Article 10’s demands. So, instead of taking Article 10 as its starting point, this article draws instead on work from the field of linguistics: namely, speech act theory (SAT). By using insights from SAT, and by examining some of the linguistic strategies that may be used to encourage acts of terrorism, the article seeks to advance the legal understanding of the concept of encouragement. In particular, the article draws out two features of encouragement that have important implications for the appropriate boundaries of the encouragement of terrorism offence -encouragement is intentional and it is performative - and argues that, as currently drafted, the offence does not reflect the nature of encouragement as an intentional activity. The article concludes by drawing out from its analysis a series of proposed amendments that together address the rights-based concerns about the offence whilst maintaining its effectiveness as a counterterrorism tool.


Author(s):  
Guido Raimondi

This article comments on four important judgments given by the European Court of Human Rights in 2016. Al-Dulimi v. Switzerland addresses the issue of how, in the context of sanctions regimes created by the UN Security Council, European states should reconcile their obligations under the UN Charter with their obligations under the European Convention on Human Rights to respect the fundamentals of European public order. Baka v. Hungary concerns the separation of powers and judicial independence, in particular the need for procedural safeguards to protect judges against unjustified removal from office and to protect their legitimate exercise of freedom of expression. Magyar Helsinki Bizottság v. Hungary is a judgment on the interpretation of the Convention, featuring a review of the “living instrument” approach. Avotiņš v. Latvia addresses the principle of mutual trust within the EU legal order and the right to a fair trial under Article 6 of the Convention.


Author(s):  
Bernadette Rainey

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on freedom of religion and freedom of expression, which are classified as qualified rights, and examines Article 9 of the European Convention on Human Rights (ECHR), which explains the right to hold or not hold a belief as well as the right to manifest a belief. It also considers how the European Court of Human Rights (ECtHR) decides if there has been manifestation of belief, interpretation of Article 10 with respect to views that shock and disturb and some forms of hate speech, and state restriction of expression. The chapter concludes with a discussion of freedom of religion and expression in the UK.


2019 ◽  
Vol 52 (1-2) ◽  
pp. 1-8
Author(s):  
Jurij Toplak ◽  
Boštjan Brezovnik

European Court of Human Rights ruled in 2016 that the European Convention on Human Rights includes a right to access information held by public authorities. While according to international documents the procedures for accessing information should be ‘rapid’, the courts have yet to rule on what ‘rapid’ means and when the procedures are so long that they violate rights of those asking for information. This article analyses the length of proceedings in access to information cases in Slovenia and Croatia. It shows that these two countries do not have a system of effective protection of rights because the authorities can easily delay disclosure of information for several years. It argues that lengthy procedures violate the right to access the information and the freedom of expression. It then presents solutions for improving access to information procedures in order for them to become ‘rapid’


2020 ◽  
Vol 54 (3) ◽  
pp. 1023-1042
Author(s):  
Ljiljana Mijović

Internet as a means of communication, whatever the type of information it might be used for, falls within the exercise of the right to freedom of expression, as guaranteed by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. As established in the European Court's case law, freedom of expression constitutes one of the essentials of a democratic society, therefore limitations on that freedom foreseen in Article 10 § 2 of the Convention are to be interpreted strictly. In order to ensure effective protection of one's freedom of expression on the Internet, States bear a positive obligation to create an appropriate regulatory framework, balancing the right to freedom of expression on one and the limitations prescribed in Article 10 § 2, on the other hand. Special attention in doing so is to be paid to the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of other human rights and freedoms guaranteed by the European Convention, particularly the right to respect for private life. While it is the fact that the electronic network, serving billions of users worldwide, will never be subject to the same regulations and control, because of the national authorities' margin of appreciation, the European Court established commonly applicable general principles regarding the Internet as a media of exercising right to freedom of expression.


Author(s):  
Mariia Lukan

The European Court of Human Rights (ECHR) has consistently recognized corporationsas entities falling within the scope of protection of the European Convention on Human Rights.The ECHR’s perception of corporations as “beneficiaries” of human rights is subject to criticism forconceptual incompatibility (human rights can only apply to people) and accusations that as long ascompanies refuse to commit to human rights, they should not be able to benefit from their protection).There is a discussion in the scientific literature about the philosophical and legal rationale forgranting corporations human rights. It is clear that human rights are for man. Therefore, they needa philosophical understanding and theoretical substantiation of the issue of extrapolation of humanrights protection to corporations; because corporations have a certain impact on the economic andsocial life of people, people in this context are the weaker sides. What are the consequences?This article will consider the European Court of Human Rights’ approaches to protecting corporationsfor freedom of expression and advertising under Article 10 of the Convention on Human Rights.The main principles of protection of freedom of corporate expression and advertising are: 1) thecorporation has the right not only to protect freedom of expression and advertising, which appliesnot only to “information” or “ideas” that are favorably (positively) perceived by society, but alsothose that are considered offensive or shocking. Such are the demands of pluralism, tolerance andbroad-mindedness, without which there is no “democratic society;” 2) the protection of freedomof expression of corporations is subject to exceptions, which, however, must be interpreted strictly,and the need for any restrictions must be sufficiently convincing; 3) exceptions to the protectionof freedom of expression presuppose the existence of an “urgent social need” which determineswhether a “restriction” is compatible with freedom of expression, which is protected by Article 10 ofthe ECHR; 4) The task of the European Court of Human Rights in the administration of justice is todetermine whether the restrictions were “proportionate to the legitimate aim pursued” and whetherthe grounds given by the national authorities to justify them were “relevant and sufficient.” In doingso, the Court must satisfy itself that the domestic authorities applied standards which complied withthe principles enshrined in Article 10 of the Convention and, in addition, relied on an acceptableassessment of the relevant facts.According to the author, the criteria developed by the ECHR for assessing the protection of theright to freedom of corporate commercial expression and advertising are fair and effective. Given thefact that the European Convention on Human Rights is a living mechanism that should be interpretedin the “light” of modern conditions, the emergence of new improved approaches to determiningthe extent and existence of violations in this area should not be ruled out. It is true that in today’smarketplace, corporations have the right to defend their rights, including freedom of expression andadvertising, and to protect themselves, for example, from unfair competition, when a corporationis “attacked” by unfair accusations or baseless accusations that damage its business reputation. Inaddition, corporations must also respect and respect human rights. According to the author, thecreation of a truly effective mechanism for monitoring the observance of human rights by corporations can balance the weights of “opponents” and “supporters” of recognizing the right of corporations toprotection by referring to the principles of the European Convention on Human Rights.


2016 ◽  
Vol 17 (3) ◽  
pp. 451-485 ◽  
Author(s):  
Sabrina Ragone ◽  
Valentina Volpe

This Article analyses, through the lens of comparative law, theOliari and others v. Italyjudgment, which was issued by the European Court of Human Rights (ECtHR) in July 2015. TheOliaricase is important for being the first judgment in which the ECtHR established the granting of legal “recognition and protection” to same-sex couples as a positive obligation for the Member States of the Council of Europe on the basis of Article 8 of the European Convention on Human Rights. In order to understand the role of judicial bodies in the progressive protection of homosexual rights, this Article combines an analysis of European case law with the national perspective. As it concerns the supranational facet, the authors illustrateOliari's reasoning and situate the case in the jurisprudence of the ECtHR. Elements of both continuity and innovation emerge from the analysis, as well as a relevant dimension of judicial dialogue supporting the incremental recognition of gay rights in Europe. As it concerns the national facet, this specific case was initially dealt with at the domestic level and was the object of judgment 138/2010 by the Italian Constitutional Court. The judgment is critically put into perspective through the examination of the jurisprudence of other European Constitutional Courts (France, Portugal and Spain) that were called on to decide similar cases in the same period. Therefore, the Article offers a comparative analysis of theOliarijudgment clarifying its relevance and speculating on the potential value of this case for the future recognition of the right to a “gay” family life in Europe.


2019 ◽  
Vol 1 (2) ◽  
pp. 58-83
Author(s):  
Janusz Roszkiewicz

This article concerns the right to the protection of religious feelings as a value which justifies a restriction of freedom of expression. The right to the protection of religious feelings can be protected by three methods: civil, penal and administrative. The issue is discussed from the point of view of the Constitution of the Republic of Poland and the European Convention on Human Rights, with particular emphasis on the case-law of the Polish Constitutional Court and the European Court of Human Rights in Strasbourg.


Author(s):  
Bernadette Rainey ◽  
Pamela McCormick ◽  
Clare Ovey

Seventy years after the founding of the European Court of Human Rights it has dispensed more than 22,000 judgments and affects the lives of over 800 million people. The eighth edition of Jacobs, White & Ovey: The European Convention on Human Rights provides an analysis of this area of the law. Examining each of the Convention rights in turn, this book lays out the key principles. Updated with all the significant developments of the previous three years, it offers a synthesis of commentary and carefully selected case-law, focusing on the European Convention itself rather than its implementation in any one Member State. Part 1 of the book looks at institutions and procedures, including the context, enforcement, and scope of the Convention. Part 2 examines each of the Convention rights including the right to a remedy, right to life, prohibition of torture, protection from slavery and forced labour, and respect for family and private life. Part 2 also examines the freedom of thought, conscience, and religion; the freedom of expression; and the freedom of assembly and association. The rights to education and elections are considered towards the end of Part 2, as are the freedoms of movement and from discrimination. Part 3 reflects on the achievements and criticisms of the Court and examines the prospects and challenges facing the Court in the present political climate and in the future.


Author(s):  
Bernadette Rainey

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter first explains the background and rationale for the formation of the European Convention on Human Rights (ECHR), tracing its roots to the Council of Europe that was formed in 1949 and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) established a year later. It then looks at the different kinds of human rights embedded in the ECHR, including the right to life, right to a fair trial, freedom of expression, right to property, and right to free elections. The chapter also provides an overview of the European Court of Human Rights (ECtHR), along with the major changes made to its complaints system and how it interprets the Convention rights. Finally, it considers the ECtHR’s use of proportionality and margin of appreciation doctrines to find the balance between the rights of the individual and the community when deciding upon qualified rights.


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