Content Regulation / Censorship, Protection of Sources, Defamation / Reputation
Marena v. Auler
Closed Expands Expression
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The European Court of Human Rights found that the Swiss courts had violated an NGO’s right to freedom of expression when it decided that the NGO had infringed a young politician’s personality rights by describing one of his speeches as “racist.” The NGO (GRA Foundation against Racism and Anti-Semitism) had posted an entry on its website quoting the young politician’s speech about the banning of minarets in a section of the site entitled “Chronology – verbal racism.” Subsequently, the politician successfully filed a claim against the NGO before the domestic courts for the protection of his personality rights. The European Court of Human Rights found that the NGO’s use of the term “verbal racism” was supported by a sufficient factual basis. It also took into account the fact that the politician’s speech related to an intense public debate on whether the building of minarets should be banned in Switzerland. The European Court of Human Rights also noted that the penalty imposed on the NGO might have had a “chilling effect” on its ability to criticize political statements in the future. It concluded that, in this case, the domestic courts had not adequately balanced the right to respect for the politician’s private life against the NGO’s right to freedom of expression.
The GRA Stuftung Rassismus Und Antisemitismus (GRA Foundation against Racism and Anti-Semitism) was a Swiss NGO promoting tolerance and condemning racially motivated discrimination.
In November 2009, a meeting was held by the youth wing of the Swiss People’s Party in the context of a referendum campaign on the banning of the building of minarets. B.K., the President of the local youth wing, was quoted as publicly stating at the meeting that it was time to stop the expansion of Islam, that “the Swiss guiding culture, based on Christianity, cannot allow itself be replaced by other cultures,” and that the prohibition of minarets would be an expression of the preservation of the Swiss identity. [para. 7] After the meeting, the GRA Foundation against Racism and Anti-Semitism published an entry about B.K.’s speech on its website in a section called “Chronology – Verbal Racism.” The entry quoted excerpts from B.K.’s speech.
On November 29, 2009, the minaret ban was approved in a referendum and a constitutional amendment was introduced to implement the ban.
In August 2010, B.K. filed a claim that his personality rights had been violated by the entry on the website. The Kreuzlingen District Court ruled that the publication of the entry had related to a political discussion on a matter of public interest and, therefore, dismissed B.K.’s claim.
On appeal, the Thurgau Cantonal High Court (High Court) reversed the first-instance decision by finding that the classification of B.K.’s words as “verbal racism” amounted to a “mixed value judgment,” which would constitute an infringement of personality rights if it was based on untruths. The High Court found that B.K.’s speech had not been racist, and ordered GRA Foundation against Racism and Anti-Semitism to remove the entry and replace it with the court’s judgment.
The GRA Foundation against Racism and Anti-Semitism appealed the case to the Federal Supreme Court, which subsequently dismissed the appeal in August 2012. The Federal Supreme Court held that the classification of B.K.’s comments as “verbal racism” interfered with his honor. The Federal Supreme Court further stated that such an interference was unlawful unless it was justified by the consent of the injured party, by an overriding public or private interest, or by law. The Federal Supreme Court agreed that the website entry amounted to a “mixed value judgment,” and the “mixed value judgment” was not justified. The Federal Supreme Court also defined the term “racism” as “‘a doctrine’ which states that ‘certain races or nations are superior to others in terms of their cultural capacity’, and, on the other hand, a ‘certain attitude, manner of thinking and acting towards people of (certain) other races or nations.’” [para. 13] It agreed that the term “verbal racism” could mean racial discrimination in the criminal sense. It went on to state that “the mere demonstration of a difference between two individuals or groups does not constitute racism.” [para. 13] With this in mind, the Federal Supreme Court could not find that the impugned comments, as understood by the average listener, could be described as “verbally racist.” Its conclusions were unchanged by the fact that B.K. was engaged in a political debate. The Federal Supreme Court, therefore, agreed that there had been a violation of B.K.’s personality rights.
The GRA Foundation against Racism and Anti-Semitism brought their case to the European Court of Human Rights, relying on Article 10 of the European Convention on Human Rights (the right to freedom of expression). It argued, among other things, that the Federal Supreme Court had been wrong in considering the words “verbal racism” as a “mixed valued judgment” which had required proof of veracity. Furthermore, it argued that classifying B.K.’s speech as an act of “verbal racism” could not be regarded as devoid of any factual basis. The applicant contested the Federal Supreme Court’s view that the labelling of B.K.’s statements as “verbal racism” amounted to an accusation of guilt of having committed the criminal offence of “racial discrimination” under the Swiss Criminal Code. It also argued that, in its role as a “public watchdog,” it deserved the same degree of protection as the press. Finally, it argued that the court proceedings had a “chilling effect” on the organization. The Government, on the other hand, agreed with the findings of the Federal Supreme Court. It also argued, among other things, that the sanction imposed on the NGO was limited in scope.
The European Court of Human Rights (Court) began by noting that it was not disputed between the parties that there had been an interference with the NGO’s right to freedom of expression under Article 10 of the European Convention on Human Rights (Convention).
The Court also accepted that the interference was based on a provision of the Swiss Civil Code (Article 28), which was adequately accessible and its application was foreseeable. In reaching this conclusion, the Court took into account the fact that the provision was brought into force in 1985 and the Federal Supreme Court had developed ample jurisprudence in relation to it. The interference was, therefore, “prescribed by law.” The Court also noted that it was not disputed between the parties that the “legitimate aim” of the interference was “the protection of the reputation or rights of others”.
It was left for the Court to consider whether the national courts had overstepped their margin of appreciation in assessing the necessity of the interference. To assess whether the interference was necessary in a democratic society, the Court had to examine whether the domestic courts had applied the criteria established in its jurisprudence when balancing B.K.’s right to respect for private life under Article 8 of the Convention and his right to freedom of expression under Article 10 of the Convention, against the NGO’s right to freedom of expression under Article 10 of the Convention (see Axel Springer AG v. Germany). Before applying these criteria in the context of the present case, the Court noted that “when an NGO draws attention to matters of public interest, it is exercising a ‘public watchdog’ role of similar importance to that of the press and may be characterized as a social ‘watchdog’ warranting similar protection under the Convention as that afforded to the press.” [para. 57] The Court then went on to apply the following criteria to the case.
Contribution to a debate of public interest
The Court held that the statements were made in the context of an intense public debate on a matter of public interest, namely the popular initiative against the construction of minarets. This debate was discussed by both the national and international media, and later led to a referendum that resulted in a minarets ban being added to the Constitution.
How well-known is the person concerned and the subject of the report
The Court also took account of the fact that B.K. was elected President of a local branch of the youth wing of a major political party in Switzerland. Moreover, his speech was clearly political and was made in the framework of his party’s political campaign. Therefore, the Court had concluded that he had willingly exposed himself to public scrutiny and he had to accept a higher degree of tolerance towards criticism of his statements.
Content, form and consequences of the publication
The Court first noted that the entry on the NGO’s website was mostly a reproduction of B.K.’s speech. The Court took the view that the classification of B.K.’s speech as “verbal racism” constituted a value judgment as it contained the organization’s own comment on B.K.’s statements. The Court went on to note that it was not its task to settle the question of the definition of “racism.” Nonetheless, it found that the classification of B.K.’s speech as “verbal racism,” when it supported an initiative which had already been described by various specialized national and international organizations as discriminatory, xenophobic or racist, could be regarded as having a sufficient factual basis. The Court also disagreed with the finding of the Federal Supreme Court that B.K.’s speech merely demonstrated a difference between Swiss culture and Islam.
Furthermore, the Court pointed out that the NGO had never suggested that B.K.’s statements fell within the scope of the criminal offence of “racial discrimination” under the Swiss Criminal Code. Moreover, the impugned description could not be understood as a gratuitous personal attack on or insult to B.K.. Indeed, the applicant NGO did not refer to his private or family life but, instead, referred to the manner in which his political speech had been perceived.
Severity of the sanction
Finally, as for the severity of the sanction imposed, the Court considered that the order to remove the impugned entry from the NGO’s website and to replace it with the court’s judgment (as well as the requirement to pay court fees and legal costs) may have had a “chilling effect” on the applicant organization’s freedom of expression. This is because it may have discouraged the NGO from “pursuing its statutory aims and criticizing political statements and policies in the future.” [para. 78]
Taking all of the above into account, the Court held that the national courts had overstepped their margin of appreciation and failed to strike a reasonable balance of proportionality between measures restricting the organization’s right to freedom of expression and the legitimate aim pursued. Therefore, the Court concluded that there had been a violation of Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands freedom of expression since the European Court of Human Rights (Court) upheld a NGO’s right to describe a politician’s rhetoric as amounting to “racism.” Without defining what the term “racism” might mean in any given context, the Court recognized that referring to something or someone as “racist” does not necessarily equate to an allegation of a criminal offence having been committed. Instead, the Court noted the context in which the statement was made and observed that the politician’s speech had promoted a campaign that had been widely referred to as being “discriminatory, xenophobic or racist.” Of further note is the Court’s approach to the role of NGOs. In its judgment, the Court recognized the important role that NGOs play as “social watchdogs,” and determined that NGOs should be protected in a similar way to the press when performing this role.
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.
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