Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
Closed Expands Expression
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The European Court of Human Rights (ECtHR) unanimously found a violation of Axel Springer AG’s right to freedom of expression as enshrined in Article 10 of the European Convention on Human Rights (ECHR). Axel Springer AG’s newspaper, Bild, published a passage voicing suspicions that a former politician had vacated his post solely to accept a lucrative position with a German-Russian oil conglomerate. Contrary to the decisions of the German courts, the ECtHR held that Axel Springer AG had not exceeded the limits of its journalistic freedom in publishing the passage.
Axel Springer AG is the publisher of Bild, a daily newspaper with mass circulation in Germany. Bild published a front-page article regarding former German Chancellor Gerhard Schröder’s new position as chairman of the supervisory board of a German-Russian consortium (NEGP), which had contracted to build a pipeline ten days before the former Chancellor lost a special early parliamentary election.
The article quoted the FDP Liberal Democrat Party’s Deputy President, Mr. Thiele, who voiced suspicions that Schröder had organized the early elections solely out of self-interest in order to resign his position as a politician and accept a much more lucrative position with NEGP. The headline of the article appeared on Bild‘s front page as follows: “What does he really earn from the pipeline project? Schröder must reveal his Russian salary.”
Schröder lodged an application to the regional court for an injunction preventing Bild from further publication of the passage containing Thiele’s suspicions that Schröder had arranged the early elections solely out of self-interest. The regional court ordered Bild “not to re-publish the disputed part of the article” because “it did not meet the relevant criteria for reporting suspicions” under domestic law. The appellate court upheld the regional court’s judgment, and Axel Springer AG’s subsequent constitutional appeal was dismissed.
Axel Springer AG then lodged the current application before the ECtHR.
In a unanimous decision, the ECtHR found that the German courts’ injunction violated Axel Springer AG’s right to freedom of expression under Article 10 of the ECHR.
The passage in question, which gave voice to suspicions that the former Chancellor had arranged for early elections solely out of self-interest (to undertake a more lucrative position with the consortium), was a matter of public interest, because the suspicions concerned a high-profile politician and because the subject-matter concerned the political (i.e. public) conduct of that politician. Thus, in accordance with previous ECtHR decisions, Axel Springer AG had a broad right to freedom of expression in reporting on the matter.
The ECtHR noted that the domestic courts had ordered the injunction because the passage in question did not meet the relevant criteria for reporting suspicions under domestic law. However, it could not agree with the domestic courts’ assessment that the passage in question contained factual allegations. Rather, the ECtHR considered Thiele’s statements concerning Schröder’s self-interest to be “more akin to a value judgment than to factual allegations that were susceptible to proof.” Moreover, the statements “were made in a political context of general interest” and may have had a basis in verifiable fact. The passage did not allege criminal conduct, nor did Axel Springer AG deprive Schröder of an opportunity to use his political position to respond.
Furthermore, the statements in question were made by a member of the German Parliament in the context of a public political debate. Bild did not make the statements—it merely quoted Thiele. The ECtHR acknowledged that Bild could not be expected to “verify systematically the merits of every comment made by one politician about another,” and Schröder could still bring a suit against Thiele if the statements were improper. The ECtHR also noted that Bild had attempted to contact Schröder for comment before the article was published, and that Schröder had not demonstrated any pressing social need to justify the injunction.
In light of the foregoing, the ECtHR unanimously found that the injunction violated Axel Springer AG’s right to freedom of expression. Axel Springer AG “had not exceeded the limits of [its] journalistic freedom in publishing the impugned passage,” the passage concerned a matter of public interest and contributed to a political debate, and there was no pressing social need to justify the suppression of the passage. Thus, the German courts’ interference with Axel Springer AG’s Article 10 right to freedom of expression could not be considered “necessary in a democratic society.”
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ECtHR found that the German courts’ interference with Axel Springer AG’s Article 10 right to freedom of expression could not be considered “necessary in a democratic society.” As such, Axel Springer AG was free to publish comments made by a politician that expressed suspicions that another politician had vacated his post, and arranged early elections to do so, solely out of self-interest.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The ECtHR decision puts ECHR States Parties on notice that comments concerning “value judgments” made in the context of a public political debate are not “factual allegations subject to proof.” A newspaper can publish value judgments in the form of comments made by individuals concerning subject-matter that is of public interest.
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