Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The Grand Chamber of the European Court of Human Rights found that Hungary violated Article 10 of the Convention by imposing a fine on a political party for creating an app that allowed users to anonymously share a photograph of their paper referendum ballots. A political party which was critical of the holding of the referendum had developed an app which allowed voters to take and anonymously share pictures of their ballots or, if they were not participating in the referendum, to upload a picture of the activity they were doing instead. The Court stated that the app was a legitimate form of speech and that while the Government may limit the right to freedom of expression, its interference must be prescribed by law, and held that the legal basis for prohibiting the app and fining the party was not precise or sufficiently foreseeable and was therefore not a justifiable limitation of the right. The Court emphasized political parties’ importance to political plurality in democracies and stated that “restrictions on their freedom of expression therefore have to be made the subject of a rigorous supervision” [para. 100].
On September 22, 2015, the European Union interior ministers approved a plan to relocate 120,000 asylum seekers from Italy and Greece to the rest of the European Union. Under the plan, Hungary was set to accept 1, 294 asylum seekers. On February 24, 2016, the Hungarian Government announced that it would hold a referendum on whether to accept the European Union’s plan, with the question: “Do you want the European Union to be entitled to order the mandatory settlement of non-Hungarian citizens in Hungary without Parliament’s consent?” [para. 11]. After approval from the National Assembly and the Constitutional Court, the government announced October 2, 2016 as the date for the referendum.
Many opposition political parties and civil society groups opposed the holding of the referendum as they believed the question “deliberately misrepresented EU policies” and was a form of government propaganda as it “did not provide voters with a real choice between real alternatives and … served no other purpose than to exacerbate the controversy over migration” [para. 14]. Among those groups was the political party, Magyar Kétfarkú Kutya Párt (MKKP), which urged its supporters to participate but to deliberately cast an invalid ballot as a way to reject the referendum and denounce its lack of legitimacy.
The MKKP developed a mobile application (app) called “Cast an invalid ballot” for users to anonymously upload and share photographs of their ballots or a photograph of the activity they were doing instead of voting. The app was developed in such a way that neither MKKP nor the developer would be able to trace the mobile telephones and it did not allow the use of a cellphone’s front camera to avoid “ballot selfies” to guarantee anonymity.
On September 29, 2016, a private individual lodged a complaint with Hungary’s National Election Commission (NEC) about the app. On September 30, 2016, the NEC ruled that the app violated the “principles of fairness of elections, voter secrecy, and the exercise of rights in accordance with their purpose” [para. 21]. The NEC held that as a ballot paper was not a voter’s property they could “neither take them out of the polling booth nor take a photograph of them” [para. 21]. It stressed that the principle of secrecy could not be maintained without voters’ cooperation and ordered MKKP to refrain from any further breaches of electoral law.
The MKKP petitioned the Kúria (Hungarian Supreme Court) for a judicial review of the NEC’s decision. This petition meant that the NEC’s decision was not enforceable by the time the referendum was to be held, and the app was used on election day and 3,894 photos were posted which were available only on the app.
After the referendum, the same individual who filed the first complaint filed a second one with the NEC alleging that the activation of the app during the day of the referendum “infringed the principles of the bona fide exercise of rights and the exercise of rights in accordance with their purpose, and also the principles of fairness and secrecy of elections” [para. 24].
On October 7, 2016, the NEC reiterated its earlier decision, adding to its decision that the use of the app could have “influenced voters and thus constituted unlawful campaigning” [para. 25]. It fined MKKP HUF 832.500 (approximately EUR 2,700).
On October 10, 2016, the Kúria delivered its judgment on the NEC’s decision of September 30, 2016. The Court noted that the MKKP had argued that its advertising of the app was an exercise of the right to freedom of expression and that it called on voters to exercise their own freedom of expression in voting. It commented that the Fundamental Law guarantees the election of National Assembly members in a way that gives effect to “free expression of the will of the people” [para. 26]. The Kúria held that the app did not infringe the secrecy of ballots and did not pose an actual threat to the fairness of the elections or shake public confidence in the election. However, it did hold that the app infringed the limit outlined in article 2(1)(e) of the Act on Electoral Procedure regarding the exercise of rights in accordance with their purpose – that is, “rights are to be exercised by their holders in conformity with their aim and content” – as the app served as an illegitimate way to influence voters during the campaigning for the referendum [para. 26]. The Kúria explained that as the purpose of a ballot paper is to allow voters to “express their opinion on a question put to the vote“, the app calling on voters to photograph and share their ballot was an infringement of the principle [para. 26]. It added that this ruling did not infringe voters’ right to freedom of expression as it did not impact on their ability to cast their vote or share the way they voted in other ways: it simply prevented the sharing of photographs of a ballot paper.
On October 18, 2016, the Kúria ruled on the NEC’s decision of October 7, 2016 and reduced the fine imposed on the MKKP to HUR 100,000 (approximately EUR 310).
After the decision by the Kúria, MKKP filed a constitutional complaint before the Hungarian Constitutional Court in respect of both decisions from the Kúria. On October 24, 2016, the Constitutional Court declared MKKP’s complaint inadmissible as it held that MKKP’s right to freedom of expression was not impacted by the NEC’s decision as only the rights of voters were implicated.
MKKP lodged an application against Hungary with the European Court of Human Rights under Article 34 of the European Convention on Human Rights (the Convention) alleging that its right to freedom of expression under Article 10 of the Convention was violated by the State as the interference caused by the Government was not prescribed by law.
Article 10(1) states “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises”
Subsection (2) addresses permissible limitations of the right, and states that “the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The Fourth Section of the Court confirmed that MKKP’s right to freedom of expression had been violated: “providing a forum for others to express their opinions in the form of posting ballot photographs” was an exercise of the right and so its right was violated by the NEC’s sanction [para. 65]. It also found that it was unnecessary to consider whether the limitation of the right was prescribed by law as there was no legitimate aim for the limitation and so it was in breach of Article 10.
The case was then referred to the Grand Chamber of the European Court of Human Rights.
The Grand Chamber of the Court delivered a majority judgment of sixteen to one. Judge Dedov delivered a dissenting judgment.
The issue before the Court was whether the creation and activation of an app by a political party could be considered as free speech and, if so, whether the restriction imposed was admissible under Article 10(2) of the Convention. The Court had to examine whether the legal basis for the restriction, in particular the principle of “the exercise of rights in accordance with their purpose” could be considered as a sufficiently clear and foreseeable legal norm in accordance with the requisites established in Article 10(2) of the Convention, especially in the context of a referendum or elections.
MKKP stressed that it was a political party and the app “conveyed a political opinion deserving of the protection of Article 10” [para. 67]. It also submitted that the app served an important “watchdog” function as it had been “aimed at monitoring the fairness of the referendum” [para. 68]. MKKP maintained that its app “reinforced democracy as it encouraged others to take part in the voting process” [para. 74]. In addition, MKKP contended that no legally binding provision in the Hungarian legal order prohibited taking photographs of a ballot and so the interference in the right to freedom of expression was not prescribed by law, in violation of Article 10 of the Convention. MKKP accepted that electoral fairness and voter secrecy could be legitimate aims justifying a limitation of the right but referred to the Kúria’s finding that neither secrecy nor fairness was threatened by the app and so argued that the protection of these interests could not be the aim of the limitation of its right. MKKP submitted that “the protection of rights under Article 10 could not be diminished by reference to the right to free elections” and that the interference in its rights was not necessary as voter secrecy is not a right in Hungarian law [para. 71-72].
The Government did not contest the MKKP’s arguments about the existence of an interference with its freedom of expression. Nevertheless, it stood by its position that the app was contrary to Article 2(1)(e) of the Electoral Procedure Act and as a result, the interference had a legal basis which was sufficiently accessible and foreseeable to comply with the Convention’s requirements. It argued that the NEC had developed guidelines that signalled its reading of Article 2(1)(e) and in its interpretation specified that the taking of ballot photographs violates that provision. The Government submitted that it was necessary to prohibit the taking of the photographs to “protect the public interest in ensuring the orderly conduct of the voting procedure” and so constituted a limitation of MKKP’s right to protect the rights of others [para. 78]. It added that there was a “pressing social need” to prevent the removal of ballots from voting stations and that preventing photographs from being taken prevented “vote buying” [para. 81].
The Court found that under Article 10 of the Convention, “the use of photographs in general serves important communication functions, as they impart information directly” [para. 86]. It added that the Court’s jurisprudence confirms that “the right to freedom of expression includes the publication of photographs” and, with reference to Von Hannover v. Germany and Ashby Donald and Others v. France, concluded that “posting of ballot photographs qualifies as the exercise of freedom of expression” [para. 86].
The Court recalled its decisions in Ahmet Yıldırım v. Turkey, Öztürk v. Turkey, Cengiz and Others v. Turkey and Neij and Sunde Kolmisoppi v. Sweden and noted that the right to freedom of expression is not limited to the protection of the content of any information, “but also to the means of dissemination, since any restriction imposed on the latter necessarily interferes with the right to receive and impart information” [para. 87]. In that sense, the Court held that the app allowed voters to voice their opinions and so exercise their freedom of expression and that it was “an expression of the MKKP’s political opinion on the referendum in question” [para. 89].
The Court addressed whether or not the prohibition that restricted the exercise of the right could be considered as “prescribed by law” under the terms of Article 10, and emphasized that this refers to the need for the restriction to have a “legal basis in domestic law” and to “the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects” – as established by the Court in Delfi AS v. Estonia [para. 93]. With reference to the cases of Malone v. the United Kingdom and Olsson v. Sweden (no. 1), the Court added that this requires that the “law be compatible with the rule of law; it thus implies that there must be adequate safeguards in domestic law against arbitrary interferences by public authorities” [para. 93]. The Court added that for a law to be foreseeable a person “must be able to foresee, to a degree that is reasonable in the circumstances, the consequences which any given action may entail” [para. 94]. This does not mean absolute certainty, but instead that if there was any degree of discretion it must have a legitimate aim and the manner of its exercise must be with sufficient clarity and consistency that gives the individual adequate protection against arbitrary interferences. This could be evaluated by examining the practice of those called to interpret and apply the law such as the administration and the courts.
The Court emphasized political parties’ importance to political plurality in democracies and stated that “restrictions on their freedom of expression therefore have to be made the subject of a rigorous supervision” [para. 100]. It explained that this meant that the legal basis on which any restriction of political parties’ expression was relied must have been “foreseeable in its effects to an extent ruling out any arbitrariness in its application” [para. 101]. The Court stated that by the judiciary exercising that strict supervision it “serves to protect democratic political parties from arbitrary interferences by the authorities, but also protects democracy itself, since any restriction on freedom of expression in this context without sufficiently foreseeable regulations can harm open political debate, the legitimacy of the voting process and its results and, ultimately, the confidence of citizens in the integrity of democratic institutions and their commitment to the rule of law” [para. 101].
In the present case, the Court held that the provision in the Hungarian Act on Electoral Procedure that restricted the exercise of the right to freedom of expression, “in accordance with their purpose”, was too vague and gave significant arbitrariness and discretion to the courts and the NEC.
Accordingly, the Court held that the law on the permissibility of photographs of ballot papers was not “formulated with sufficient precision … so as to rule out any arbitrariness and enable the MKKP to regulate its conduct accordingly” and was therefore incompatible with the “prescribed by the law” requirement under Article 10 of the Convention [para. 117].
Judge Dedov accepted that taking a ballot photograph is an innocent expression and so was protected by Article 10 of the Convention, but commented that encouraging voters to cast an invalid ballot is not such an innocent expression. Judge Dedov described the MKKP campaign as “disrespectful in relation to the democratic institution designed for the purpose of decision-making by society” [para. 5]. Judge Dedov considered that the actions of the authorities were foreseeable since this case was not about punishment for a ballot photograph but rather about “disrespect for democratic decision-making process” [para. 10].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court reiterated that the taking of photographs is a protected form of expression and that political parties’ freedom of expression is particularly important in democracies and that, therefore, any restrictions to that must be subject to strict scrutiny.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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