RUDN Journal of Law (Dec 2017)
Freedom of Expression in the Case Law of the European Court of Human Rights: Old Approaches and New Tendencies in Interpretation of Article 10 of the ECHR
Abstract
The article is devoted to the analysis of the European Court of Human Rights decisions on Art. 10 of the European Convention of the last decade. This research is dictated by the needs of the judicial practice on freedom of expression as well as by the needs of legal theory to clarify concepts and legal doctrines underlying the process of judicial decision-making. The objective of the research is to analyze the changes in the approaches of the European Court to adjudication of freedom of expression cases and to identify the appearance of new tendencies, which would affect the resolution of disputes in this area in future. The author stresses that the European Court along with the use of the well-established approaches and concepts sometimes deviates from them, especially when it deals with new circumstances and realities. In addition, it continues to create new concepts and elaborate new approaches, which would either broaden the previous understanding of what can be covered by Art. 10, or restrict it. Special attention is paid to the formation of positive obligations of the state under Art. 10, to cases on political speech, hate speech, protection of confidential information, duties of the Internet news portals and to cases which involve Art. 10 in conjunction with other articles of the Convention. The author argues that the case law of the European Court on freedom of expression has been developed in the same way as its practice on other articles of the Convention - while in some cases the Court acted more creative and even constructed new rights under the umbrella of the right to receive information (such as the right of NGOs to have access the state-owned information and the obligation of the state to submit it on their request), in other cases it acted self-restrictively (like in cases, involving protection of personal life of politicians, responsibility of Internet platforms for the content, publication of confidential information by journalists, defamation of politicians in fiction, etc.) The balancing exercise between conflicting rights may be made by the Court differently depending on circumstances of the case and the views of the judges who consider the case, that is why the analysis of the dissenting opinions acquires particular importance for the researchers.
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