What Justifies Interference with the Media’s Freedom of Expression? A 1999 European Court of Human Rights Decision May Provide an Answer

The Court held that the limits of permissible criticism were wider with regard to the government than in relation to a private citizen or even a politician

In every democracy, the press plays an eminent role in a seamless transmission of views, irrespective of how controversial such views maybe. In recent times, however, Indian democracy has witnessed untoward responses from the government when contentious views are expressed on issues of contemporary relevance. Can statements strongly disparaging of government policy justify an interference with the media’s freedom of expression? The European Court of Human Rights (“European Court”) answers this question. 

Kamil Tekin Sürek and Yücel Özdemir were the major shareholder and chief editor respectively of a Turkish weekly review. In 1992, the review published an interview with the second-in-command of the Kurdistan Workers’ Party (“the PKK”) along with a joint declaration by four Kurdish organisations. At the time of the interview and the joint declaration, the PKK and the four organisations were designated as terror groups by the Turkish government. Sürek and Özdemir were convicted by the Istanbul National Security Court on the charge of disseminating separatist propaganda or propaganda against the indivisibility of the state. In addition, all printed copies of the relevant issue of the review were seized. The owner was sentenced to a fine, and the editor to a fine and six months imprisonment. They filed an application to the European Court. 

While deciding this matter, the Court had to examine whether the convictions of the applicants were “necessary in a democratic society”. This was and remains a standard to be met under the European Convention on Human Rights before any interference with the freedom of expression is allowed to take place. When assessing the legality of any interference with the freedom, the Court had to “look at the interference in the light of the case as a whole, including the content of the impugned statements and the context in which they were made.” As per this standard, the Court had to examine specific statements in the interview that the Turkish government felt encouraged violence against the state. 

Stressing the importance of media in a democratic society, the Court emphasised that “while the press must not overstep the bounds set … for the protection of vital interests of the State such as national security or territorial integrity against the threat of violence or the prevention of disorder or crime, it is nevertheless incumbent on the press to impart information and ideas on political issues, including divisive ones.” While acknowledging that the objective of the government was legitimate considering the security situation in the country, the Court nonetheless reiterated the role played by the media in relation with “the public’s right to be informed of a different perspective on the situation in south-east Turkey, irrespective of how unpalatable that perspective may be for them.” In this regard, the Court held that the limits of permissible criticism were wider with regard to the government than in relation to a private citizen or even a politician. 

The Court noted: 

[T]he fact that the impugned interviews were given by a leading member of a proscribed organisation cannot in itself justify an interference with the applicants’ right to freedom of expression; equally so the fact that the interviews contained hard-hitting criticism of official policy and communicated a one-sided view of the origin of and responsibility for the disturbances in south-east Turkey.” 

The Court also held that the mere publication of the interview was not in itself enough to justify interference with the freedom of expression, and that security concerns were outweighed by the right of the citizens to be informed. Particularly, “the interviews had a newsworthy content which allowed the public both to have an insight into the psychology of those who are the driving force behind the opposition to official policy in south-east Turkey and to assess the stakes involved in the conflict.” Thus, it found that there was a violation of the applicants’ right to freedom of expression and overturned their convictions. 

There’s much to emulate in 2021 from this decision of the European Court which was delivered in 1999. The mere apprehension that political expression or controversial speech may incite the commission of an offence cannot be the ground for pre-censorship of views. Such pre-censorship reduces the ability of the press to present crucial information and views, and gradually marks the death knell of a thriving democracy. 

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