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SANCHEZ V. FRANCE: PROTECTION FROM HATE SPEECH OR ONE MORE STEP BY THE ECTHR TOWARD CURBING FREE EXPRESSION ON THE INTERNET?
The article provides commentary on the recent ECtHR judgement Sanchez v. France, which is the third one, after Delfi AS v. Estonia and МТЕ и Index.hu Zrt v. Hungary, where the liability of an Internet site owner for a third party’s comment was the main issue. The ECtHR did not find a violation of Article 10 in the case of French politician Julien Sanchez, who had been convicted for incitement to hatred and violence against the Muslim community in France for failure to promptly delete comments posted by two individuals on the wall of his publicly accessible Facebook account. The judgement was immediately criticized by media lawyers and journalists, who regarded it as one more step toward curbing free expression and an attempt to restrict the use of social media as a platform for exchanging views on matters of public interest. The article discusses the Sanchez case in the context of previous ECtHR practice concerning freedom of expression and hate speech; analyzes differences in the Court’s approaches to defamation cases and hate speech cases in the light of the admissibility of content-based restrictions; draws attention to the blurry line between offending, shocking or disturbing statements, one the one side, and humiliating statements based on religious or ethnic identity, on the other side; and argues that these factors make the search for a balance between free expression and protection from hate speech rather difficult. It concludes that the ECtHR left space for interpretation of its Sanchez judgement, and in the future the Court will have to deal with the questions whether the duty to read all the comments to posts and delete those in conflict with the law may be imposed not only on politicians and commercial media providers, but on all users as well; whether this duty should depend on the number of followers and/or accessibility to the general public rather than solely for approved “friends”; and, finally, what time period should be understood to be “prompt” for deleting the content containing incitement to hatred. There is a risk that the disputed judgement in Sanchez will cause “a chilling effect” causing popular account owners to close their posts to comments or to delete their social media accounts entirely in order to avoid criminal charges, thus depriving the public of the opportunity to communicate with politicians and other public figures on a wide range of important issues. In addition, the authors of the posts, just to be on the safe side, will avoid any potentially troublesome content and will reduce the number of topics they write about. As a result, the most disputed questions will remain outside of public online discussions.
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COVID AND FREE SPEECH: THE IMPACT OF COVID-19 AND ENSUING MEASURES ON FREEDOM OF EXPRESSION IN COUNCIL OF EUROPE MEMBER STATES
In the article Peter Noorlander analyzes the following challenges to implementation of the right to freedom of expression during the COVID-19 pandemic: public disorder and violence against journalists; restrictions on media implemented by permanent legislation; excessive measures to combat disinformation; immense financial pressure on media due to a collapse of advertising and other income; numerous criminal cases against journalists critical of the government; vulnerability of journalistic sources to confidentiality breaches; and more. Actions of Council of Europe member states reveal existing vulnerabilities in legislation and affect the structure of interaction between human and government. Democratic values which are a foundation of all civilized existence must be protected in a situation of rapidly changing reality. Free speech is an indicator of the degree of achievement of these values. It allows expression of critical views about the established structures of the society. By restricting freedom of speech, governments may lose not only the existing achievements of the civilized world but regress to earlier stages of development. The author concludes that the adoption of these restrictions and methods against disinformation is a serious violation of fundamental human rights, particularly freedom of expression. The author finds a solution to the problem in an alternative to a purely imperative regulatory approach, namely, ensuring safety and security of journalists, close cooperation with media associations for long-term support, ensuring that any emergency response measures are based on the requirements of Article 10 of the Convention, public and prompt condemnation of all acts of violence against journalists, сreation of an environment enabling quality journalism, and promotion of media and informational literacy.
The internet and social media have created an opportunity, be it a pretext or a moral urge, to challenge the very legitimacy of free speech as we know and respect it. The challenge to traditional free speech justifications is of crucial importance for our understanding of democracy. The free flow of ideas has the potential to restrict democracy, more than ever. (But the more you protect democracy by restricting “troubling” speech, the less democracy you will have.) The article reviews speech theories in the social media context. Consequentialist and non-consequentialist (deontological) justifications are reviewed they yield different levels of protection and the scope of free speech varies depending on the theory. The decentralized structures of the web enable the activity of enormous masses of speakers and interactive listeners. Compared to the television age this promises a more popular and populist democracy. The discourse is more popular and personal too, with vulgar consequences. Today we face a different, probably more fundamental, challenge coming from the internet and social media, which allow ordinary private communication to reach a large audience, often with the power of images. This new challenge may tempt even the unwilling legislator and the judge to go beyond the axiom that speech is a fundamental individual right. And the rethinking occurs in a world of heightened sensitivity. The heightened sensitivities of those hurt by internet and social media filth or simple unflattering presentations and criticism mobilizes them to build up evidence of the harms of free speech. It is in this speech-hostile environment that a process of regulatory rethinking begins. The article rejects the reintroduction of interferences which were applied in broadcasting in the days of spectrum scarcity. But this does not solve the problem of large-scale offensive speech which is confronted by many people who feel vulnerable and take offense personal and also of widespread vulgar, fake and directly or structurally harmful speech (discriminatory speech. An increasing number of scholars, politicians and internet users see offensive Internet expression as “low value” speech, unworthy of protection. Such devaluing of speech encourages increased censorship and reduces the freedom of valuable speech. A general regulatory power imposed on the service providers or applied directly by the state will affect all opinion formation online, as political opinions are formed in private encounters. Private opinions of citizens do matter in a fundamental way for the political structure of democracy.
IMPACT OF DIGITALIZATION ON INTERNATIONAL HUMAN RIGHTS STANDARDS AND STATES’ OBLIGATIONS TO COMPLY WITH THEM
Digitalization is a process of transformation of common things to a qualitatively new level relevant to current realities, in which technical progress has affected all spheres of human life. It has particularly also changed the approaches to the implementation of human rights and freedoms. In scientific and practical circles there is an essential discussion concerning so-called “digital” human rights. The need to determine the legal nature of “digital” human rights comes to the fore: are they new human rights or should we talk only about the same recognized rights realized online? The authors of this scientific article share the latter point of view, according to which “digital” human rights do not create new rights but are only a different environment for traditional human rights’ application. In the same vein, the question applies to universal and regional human rights mechanisms, which do not speak about the emergence of new rights but about the expansion of the realization of human rights and their transfer to the online space. At the same time, traditional human rights remain essentially unchanged while specific forms of their implementation in the digital environment appear. Digitalization does not create new, qualitatively different obligations for observing “digital” human rights for States and other subjects of international law. Thus one can positively assert the importance of the development of digital technologies which make it possible to globally expand the scope of human rights and freedoms and create an open space via the Internet which allows faster and more accurate access to information, including human rights, and makes it easier and borderless to communicate and express opinions freely. However, this phenomenon also has negative sides, reflected primarily in the increase of monopolies, both State and private, on the Internet and the related violation of the private life of Internet users.
The term “public figure” in legal doctrine, judicial practice, legal normative acts is hard to define. A public figure is often defined by enumerating examples such as politicians, public activists, outstanding athletes, artists, and persons who have a significant impact on the formation of public opinion. In the era of digitalization, when almost everyone has access to the Internet, anyone can “ascend” to the status of a public figure in a short time. In the digital age it is a rare public figure who does not seek to use easily accessible and large-scale information resources (like social networks) to maintain their status. The involvement of any person in the Internet space is great, so that chances of violation of private life increase, and public figures are no exception. Moreover, in the author’s opinion, the latter become most vulnerable to intrusion into their private life, where limits are significantly narrower in comparison with limits of the private life of people who do not play important social roles. At the same time, the mere fact that a person is a public figure does not mean that his right to privacy can be automatically violated. Frequently, freedom of speech and the right to information outweigh the right to private life of a public figure, but the process of evaluating each case should not so much be affected by the status of the person, but rather by the correlation between the rights and the permissible degree of restriction of each of them. However, in order to identify such a correlaion, it is necessary to have an idea of who is a public figure. In this article, the author examines the American doctrine of public figures, German and Russian approaches to the understanding of public figures, as well as the approaches of the European Court of Human Rights. The author proposes abandoning the method of defining the category of “public figure” by listing its various examples, in favor of highlighting the criteria that must be met in order for a person to acquire the legal status of a “public figure”. The list of criteria, in the author’s opinion, can clarify the relationship between private and public spheres and have a positive effect on the legal application of these concepts.
REFORMING DOMESTIC REMEDIES AGAINST HUMAN RIGHTS VIOLATIONS IN THE RUSSIAN FEDERATION: GENERAL AND SPECIFIC ISSUES
The article is an analysis of the dynamics of domestic remedies against human rights violations in the Russian legal system in recent years. The State’s obligation to create effective domestic remedies for the protection of human rights and freedoms is established by the basic international documents on human rights protection and reflects the interaction between national and international levels of such protection. These obligations of the State are an illustration of the subsidiarity principle that lies at the foundation of international mechanisms of human rights protection. Moreover, the effectiveness of domestic remedies is closely linked to the enforcement of international courts’ judgments on the adoption of general measures to get rid of systemic/structural problems, as general measures normally presume the creation of effective national mechanisms to solve them. In the case-law of the ECtHR domestic remedies are divided into preventive and compensatory ones, and it is a combination of both that ensures the necessary level of effectiveness. Besides, there may be general or special remedies, depending on the scope of rights and freedoms whose violations they are called upon to prevent. In the Russian legal system we observe synchronisation of general (judicial) means of human rights protection which must be exhausted before lodging an application with the European Court of Human Rights. If earlier these means varied in accordance with the type of proceedings – from appeal up to supervisory review — currently cassation appeal has been recognised by the ECtHR as an effective remedy in all types of proceedings. As a result, is should be exhausted before applying to Strasbourg. The last example of this kind was in the decision Anikeyev and Ermakova v. Russia on the admissibility of a complaint arising from the new cassation appeal in criminal proceedings. However, the question of supervisory review proceedings in their new format and of the effectiveness of procedures in misdemeanour (administrative) proceedings remain open. As regards specific remedies relating to particular types of human rights and freedoms, the Committee of Ministers of the Council of Europe distinguishes systemic problems that call for the adoption of general measures from improvement of domestic remedies against violations of human rights. To illustrate this in the article, the authors have chosen cases on disappearances in the North Caucasian region and beyond it. The enforcement of ECtHR’s judgments in this type of case is particularly complex as it implies the adoption of a whole set of various measures – both individual and general – the list of which goes well beyond measures of only a legal nature. It produces particular difficulty in enforcing this group of judgments.
DISPUTE SETTLEMENT MECHANISM OF THE WORLD TRADE ORGANIZATION: ITS IMPORTANCE BEYOND THE WTO FRAMEWORK
The Dispute Settlement Mechanism of the World Trade Organization was recognized as one of the most successful mechanisms of settlement of inter-State disputes. Due to recent developments, however, the functioning of the WTO Appellate Body has been suspended, which could give the impression that the WTO dispute settlement mechanism might lose its importance. The present article explores the idea that the importance of the WTO mechanism goes beyond the framework of this organization. In particular, the WTO mechanism has strongly influenced the establishment of dispute settlement mechanisms in regional trade agreements. Another important area influenced by the WTO mechanism is international investment dispute settlement, which is currently undergoing a reform under the UNCITRAL initiative. One can note the influence of the WTO Mechanism on the elements of regional dispute settlement mechanisms, as well as its importance for the reform of international investment arbitration, first of all in the establishment of an appeal mechanism. The article also discusses the meaning of the WTO DSB practice for regional mechanisms and obligations of parties to regional trade agreements to take into account decisions of panels and the Appellate Body. Besides that, there are examples of the use of WTO DSB practice in the context of international investment arbitration: although this approach caused a mixed reaction of specialists, it cannot not be excluded that arbitrators dealing with investment disputes will use WTO practice in the future. Based on the results of research presented in the article, the author comes to the conclusion that, notwithstanding current difficulties, the WTO dispute settlement mechanism remains important, beyond the WTO framework and serves as a guidance for a number of other dispute settlement systems.
PROCEDURE MATTERS: LEGISLATIVE PROCESS IN THE PROCRUSTEAN BED OF THE EUROPEAN COURT OF HUMAN RIGHTS’ CASE-LAW
Recent case law of the European Court of Human Rights shows that the Court has not kept apart from the worldwide trend of the “proceduralization of human rights protection”. The Court has clearly shifted its focus to the quality of the decision-making processes of national authorities. Most striking is the Court’s assessment of the legislative processes of member States of the Council of Europe as manifestations of a new democracy-enhancing approach. If the court reaches a positive conclusion on the basis of such an assessment in a particular case, it becomes an indication of the proper exercise by that national parliament of its responsibility to ensure the Convention’s rights and freedoms and may constitute grounds for granting that State a wide-ranging margin of state discretion (margin of appreciation). This raises the question of whether the European Court of Human Rights, in frequently avoiding giving its own evaluation of legislative limits on rights, continues to properly fulfil its basic role of protecting the Convention’s rights and freedoms. Moreover, such practice is of normative importance – the Court in fact sets European standards for the legislative process thereby jeopardizing its own legitimacy. Despite the serious challenges being faced by the ECtHR, its attention to the legislative process has not diminished. However, we are still not very familiar with the Court’s approach, largely because of the inconsistency and opacity of its case law. In order to broaden the understanding of the Court’s approach to the evaluation of the legislative process and its criteria, the author uses an automated content analysis of the Court’s rulings. This method has allowed analysis of the large mass of cases in order to identify ECtHR rulings in which the international court has resorted to procedural arguments in assessing the conformity with the Convention of a general measure introduced by the legislature. A qualitative study of this qualitative analysis has made it possible to provide a truer measure of broad patterns in the Court’s case law dealing with assessments of national legislative processes and to examine deviations in the relevant practice of the Court.
TRANSITION TO REMOTE DISPUTE RESOLUTION IN INTERNATIONAL ARBITRATION IN THE POST-COVID ERA: TAKING INTO ACCOUNT THE PRACTICE OF FOREIGN COURTS
The COVID-19 pandemic has significantly accelerated the process of the digitalization of justice, and this will continue in the future. However a number of issues arise regarding the transition to online justice, including: prerequisites for remote hearing and specificities of their organization; implementation of principles of immediacy, openness and transparency; assessment of the credibility of testimony in remote hearings. The experience of international arbitration, which was the first to employ information technology in its process, provides us with insight to these issues. The experience accumulated by international arbitration can be used for the successful digitalization of Russian state courts. It should be understood that the use of information technology in the process is not an end in itself. It should be only be used if a comparable result can be achieved – a reasonable and equitable solution, at a lower cost. Three tests can be used for deciding whether to use remote hearings, each proposing a different burden of proof. Proving the need to use remote consideration of the case has three possible results, (1) which initiates remote hearings, (2) which opposes remote hearings, or (3) a “balancing test” whereby the court itself decides on the form of the hearing. The second and third approaches are preferable, as they avoid unjustified exclusion from the advantages of technology. Various arguments can be accepted to satisfy the burden of proof: commitment to the “green pledge” movement or the presence of a severe disease, like with the COVID-19 pandemic. The severity of the arguments is determined by the court dependent upon the degree of technical equipment (sustainability of the Internet connection, reliability on the electronic platforms that transmit video), dominance of certain ideas in society (for example the need to reduce carbon footprint), as well as the circumstances of the particular case. The author concludes that the practice of remote hearings will increase and that this does not detract from the advantages of traditional hearings held in the same space in the direct presence of persons involved in the case. Both formats will take their places in the dispute resolution system and will be used according to the requirements of the particular case.