The European Court of Human Rights (ECtHR) has delivered a judgment in which if found, apart from a violation of Article 1 of the First Protocol to the European Convention on Human Rights (ECHR), a breach of the applicant’s right to freedom of expression under Article 10 ECHR, due to the seizure of a server and the limitation of the functionality of a website. In this case the applicant complained of the seizure and retention by the Bulgarian prosecution authorities of his computer server, in the context of criminal proceedings for a copyright infringement against third parties. The retention of the server and the information contained in it also led to a limited functionality for a significant period of time of a website run by the applicant and hosted on that server

Voorhoof, Dirk

English

Ghent University Academic Bibliography

ECtHR: Pendov v. BulgariaIRIS 2020-5:1/28Dirk VoorhoofHuman Rights Centre, Ghent University and Legal Human AcademyThe European Court of Human Rights (ECtHR) has delivered a judgment in which it found, apart from a violation of Article 1 of the First Protocol to the European Convention on Human Rights (ECHR), a breach of the applicant’s right to freedom of expression under Article 10 ECHR, due to the seizure of a server and the limitation of the functionality of a website. In this case, the applicant complained of the seizure and retention by the Bulgarian prosecution authorities of his computer server, in the context of criminal proceedings for a copyright infringement against third parties. The retention of the server and the information contained in it also led to the limited functionality for a significant period of time of a website run by the applicant and hosted on that server.In 2010, a publishing house complained to the police that a book published by it had been made available on the Internet, in breach of copyright. It concerned, allegedly, an offence under Article 172a of the Bulgarian Criminal Code, which considers the unauthorised copying and distribution of an object of copyright as a criminal act, punishable by up to five years of imprisonment and a fine. The ensuing investigation showed that the site which had uploaded the book was partially hosted on a server owned by Mr Pendov. Pendov’s server also hosted a number of other websites, including one dedicated to Japanese anime culture, owned and administered by Pendov himself. During a search of the premises where Pendov’s server was being kept, the police officers seized and removed the server, in Pendov's absence. About a month later, Pendov started submitting requests for the return of his server. He pointed out that the information necessary for the criminal investigation of the third parties involved in the alleged breach of copyright could be copied and that the server could be returned to him. He explained that the server also hosted several other sites, including his own, and that the closure of his site had ‘discredited’ him in the eyes of the users and his colleagues. Pendov also argued that the unavailability of his site had caused him significant damage, including of a financial nature. He considered it unjust that he had had to suffer such harsh consequences, seeing that there had been no complaints of copyright infringement with regard to his own site. It took nearly eight months before Pendov’s server was returned following a decision of the Sofia district public prosecutor. Pendov lodged an application with the ECtHR complaining about a violation of his property right under Article 1 of the First Protocol of the ECHR and of a violation of his right to freedom of expression under Article 10 ECHR, because of the seizure and retention of his server and the effects of the seizure and retention on the functioning of his website.The ECtHR first reiterated that "in the light of its accessibility and its capacity to IRIS Merlin© European Audiovisual Observatory (Council of Europe) 2019 Page 1store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general" (see also Ahmet Yildirim v. Turkey in IRIS 2013-2/1). It observed, next, that Pendov’s website dedicated to Japanese anime culture constituted a means of exercising his freedom of expression and that the retention of the server had impeded his freedom of expression until it was eventually returned to him. The ECtHR found that there was indeed an interference by a public authority with Pendov’s right to freedom of expression. This interference consisted of the retention of his server and the information contained on it by the prosecution authorities, and this led to the initial unavailability of Pendov’s website, followed by the site’s heavily limited functionality for a period of several months. As the interference was prescribed by law and pursued the legitimate aims of prevention of disorder and crime and protection of the rights of others, the salient question was whether this interference could be justified as necessary in a democratic society, and in particular whether the measures taken against Pendov’s server were proportionate. In analysing that question, the ECtHR took into account the length of retention of Pendov’s server, whether it was necessary, its consequences for Pendov, as well as the conduct of the relevant authorities. The ECtHR observed that it was not contested that a website suspected of breaching copyright had been partially hosted on Pendov’s server, but at no point in time had the domestic authorities suggested that he bore any responsibility for the alleged copyright violations. The ECtHR pointed out that the retention of Pendov’s server in the criminal proceedings proved to be unnecessary for the purposes of the investigation and that for some period of time the prosecution authorities made no effort to remedy the effects of their actions on Pendov’s freedom of expression, despite having been informed of those effects on many occasions. The ECtHR considered that the fact that Penkov was neither a journalist nor a whistleblower or political activist, and that he did not enjoy the high level of protection attributed to political speech, were not sufficient reasons to tip the balance in favour of the domestic authorities. As the seizure and retention of Pendov’s server was not a measure proportionate to the legitimate aims pursued, it was not "necessary in a democratic society" as required under Article 10, paragraph 2 ECHR. Accordingly, the ECtHR comes to the conclusion that Article 10 ECHR has been violated by the Bulgarian authorities. The ECtHR also found a breach of Pendov’s property right under Article 1 of the First Protocol of the ECHR.ECtHR, Fifth section, Pendov v. Bulgaria, Application no. 44229/11, 26 March 2020http://hudoc.echr.coe.int/eng?i=001-201890IRIS Merlin© European Audiovisual Observatory (Council of Europe) 2019 Page 2IRIS Merlin© European Audiovisual Observatory (Council of Europe) 2019 Page 3

European Court of Human Rights : Pendov v. Bulgaria

The European Court of Human Rights (ECtHR) found a violation of the right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR), on account of the administrative offence proceedings and the resulting sanctions for disseminating on social media and on the packaging of condoms images deemed by the domestic courts in Georgia to be unethical advertising. The ECtHR found no demonstration of the existence of a pressing social need to interfere with the advertising and it considered the prioritisation of views on ethics of the members of the Georgian Orthodox Church unacceptable in the balancing of various values protected under the ECHR and the Constitution of Georgia

European Court of Human Rights : Gachechiladze v. Georgia

The European Court of Human Rights (ECtHR), delivered an interesting judgment in the case of Tölle v. Croatia about insulting allegations of domestic violence. In a newspaper article a father accused an association to be responsible for his child’s abduction by the mother. The president of this association providing support for women victims of violence replied in a radio-interview that her organisation was not involved in the daughter’s abduction and that the man had violently abused his wife. That was also the reason why mother and daughter had fled the country. The association’s president was subsequently convicted for the criminal offence of insult. The ECtHR found that this criminal conviction amounted to a violation of the association’s president’s freedom of expression under Article 10 of the European Convention on Human Rights (ECHR): the criminal conviction for insult was a sort of censorship, discouraging the promotion for support of victims of domestic violence

European Court of Human Rights: Tölle v. CroatiaIRIS 2021-2:1/23Dirk VoorhoofHuman Rights Centre, Ghent University and Legal Human AcademyThe European Court of Human Rights (ECtHR) delivered an interesting judgment in the case of Tölle v. Croatia regarding insulting allegations of domestic violence. In a newspaper article a father accused an association of being responsible for his child’s abduction by its mother. The president of this association, which provides support for women who are victims of violence, replied in a radio interview that her organisation was not involved in his daughter’s abduction and that the man had violently abused his wife - that was also the reason why mother and daughter had fled the country. The association’s president was subsequently convicted for the criminal offence of insult. The ECtHR found that this criminal conviction amounted to a violation of the president of the association’s freedom of expression under Article 10 of the European Convention on Human Rights (ECHR): the criminal conviction for insult was a sort of censorship which discouraged the promotion of support for victims of domestic violence.The applicant in this case was Ms Neva Tölle, the president of the Zagreb Autonomous Women’s House ("the Association"), an association that supports women who are victims of violence. The Association had intervened in a family dispute between a certain D.O. and his wife C.O. following a request for help from the latter. C.O. and the couple’s underage daughter had stayed for several months at the Association’s refuge for women, and afterwards C.O. had taken the child abroad. A daily newspaper published an interview with D.O. in which he alleged that the Association was responsible for the fact that his daughter had been kidnapped by her mother. On the same day, Ms Tölle explained the circumstances of the Association’s actions in the case and denied its involvement in the kidnapping of the child. She also stated that D.O. had been abusing his wife and that the criticism by D.O. of her association was aimed at﻿ presenting the abuser as the victim and the victim as the abuser.A few weeks later, D.O. brought a private criminal prosecution against Ms Tölle on charges of defamation relating to her allegations that he had abused his wife. Ms Tölle was found guilty of insult; it was held that she had tarnished D.O.’s honour and reputation by alleging that he had abused his wife. The domestic courts were of the opinion that the accusation at issue could not be qualified as defamation, but as insult. By referring to D.O. as an abuser, Ms Tölle had stated a negative opinion of him that was "objectively insulting". Ms Tölle was sanctioned with a judicial admonition and ordered to pay the costs and expenses of the proceedings, as well as the expenses incurred by D.O. and his lawyer. Both an appeal before a second instance court and before the Constitutional Court were dismissed. Ms Zölle complained before the ECtHR that her criminal conviction had violated her right to freedom of expression as guaranteed in Article 10 ECHR.IRIS Merlin© European Audiovisual Observatory (Council of Europe) 2021 Page 1The ECtHR focusses on the question of whether the interference with Ms Tölle’s right to freedom of expression could be considered as "necessary in a democratic society" in conformity with Article 10, section 2 ECHR and the Court’s case law. It noted that the case at hand concerns a conflict between concurrent rights, namely, on the one hand, D.O.’s right to reputation as part of his private life, and, on the other, MS Tölle’s right to freedom of expression. Referring to Axel Springer AG v. Germany (IRIS 2012-3/1) and Couderc and Hachette Filipacchi Associés v. France (IRIS 2016-1/3), the ECtHR evaluates (1) whether the radio interview at issue was about a matter of public interest; (2) how well known D.O. was, and the subject and context of the interview; (3) the prior conduct of D.O.; (4) the content, form and consequences of the radio interview; and (5) the severity of the sanction imposed on Ms Tölle. The ECtHR considers that the central issue discussed in the radio interview was about violence against women and domestic violence, an issue of important public interest and the subject of a social debate, "both at the material time and today." As D.O. had given an interview in a national daily newspaper, he had entered the arena of public debate, and therefore he should have had a higher threshold of tolerance towards any criticism directed at him. Furthermore, D.O. had publicly accused the Association, managed by Ms Tölle, of a serious criminal act in the media. In such circumstances, and bearing in mind that the right of rectification or of reply falls within the scope of Article 10 ECHR, Ms Tölle could not have been expected to remain passive and not defend the Association’s reputation in the same way. The ECtHR finds that, in assessing the nature of the impugned statements, the domestic courts had limited their analysis to the fact that D.O. had never been convicted of domestic violence. The ECtHR reiterates that although a final criminal conviction amounts to incontrovertible proof that a person has committed an offence, it is unreasonable to similarly circumscribe the manner in which allegations about that person’s criminal conduct are proved in the context of a defamation or insult case.The ECtHR also holds that the domestic courts had not embarked on an analysis of whether Ms Tölle had had reasonable grounds to believe that D.O. had actually abused his wife, despite the fact that her association had provided his wife with shelter for several months and that during the criminal proceedings several witnesses had testified that there had been some sort of police intervention and allegations of domestic violence in D.O.’s family. With regard to the nature of the interference with Ms Tölle’s freedom of expression, the ECtHR is of the opinion that the penalty imposed on her was mild, but that it nonetheless consisted of a criminal conviction, and consequently, an entry in Ms Tölle’s criminal record. The ECtHR recognises that the sanction itself did not prevent Ms Tölle from remaining involved in the Association’s activity, but it finds that the criminal conviction nevertheless amounted to a sort of censorship which might have discouraged her from promoting the Association’s statutory aims in the future (see also GRA Stiftung gegen Rassismus und Antisemitismus v. Switzerland , IRIS 2018-6/1). The ECtHR also finds that the criminal conviction strengthened D.O.’s chances of obtaining damages against Ms Tölle in civil proceedings.The ECtHR concludes that the domestic courts had failed to take into account the IRIS Merlin© European Audiovisual Observatory (Council of Europe) 2021 Page 2fact that Ms Tölle had been exercising her right of reply in relation to a serious accusation made against an association of which she was the president. Nor had the domestic courts carried out an adequate proportionality analysis with a view to assessing the overall context in which the impugned expressions had been used and their factual basis. They had thus exceeded the margin of appreciation afforded to them and had failed to strike a reasonable balance of proportionality between the measures restricting Ms Tölle’s right to freedom of expression and the legitimate aim pursued of protecting the reputation or the rights of others. There ha accordingly been a violation of Article 10 ECHR.Judgment by the European Court of Human Rights, First Section (sitting as a Committee), in the case of Tölle v. Croatia, Application No. 41987/13, 10 December 2020http://hudoc.echr.coe.int/eng?i=001-206364IRIS Merlin© European Audiovisual Observatory (Council of Europe) 2021 Page 3IRIS Merlin© European Audiovisual Observatory (Council of Europe) 2021 Page 4

European Court of Human Rights : Tölle v. Croatia

https://biblio.ugent.be/publication/8662076/file/8662077

European Court of Human Rights : Pendov v. Bulgaria

Abstract

Similar works

Full text

Available Versions

Ghent University Academic Bibliography

Ghent University Academic Bibliography

Ghent University Academic Bibliography