The right to freedom of expression for journalists and public watchdogs is not absolute and subject to reasonable restrictions

Facts

The author of the communication is a Tyrolean publicist, environmental activist and a mountain farmer. In 2018, he published an article on his website commenting on the State election campaign of the Tyrolean People’s party and its venue which was a premises owned by a limited liability company named Area 47. In his comments, he pointed out that the taxpayers’ money was used to sponsor the campaign at the venue. He also mentioned that Area 47 has a history of hosting concerts by rock bands which subscribed to neo-Nazi ideology. Further, he illustrated the article with the logo of Area 47 by transforming the number “47” into a swastika. Against this, Area 47 and the Tyrolean People’s party brought a civil suit of defamation against the author. The Regional Court of Innsbruck decreed the suit in the favor of the plaintiffs by concluding that the author had overstepped the limits of permissible criticism by using an excessive value judgement. The author’s appeals before the Innsbruck Court of Appeal as well as the Supreme Court were also dismissed. Even the European Court of Human Rights rejected and dismissed the author’s application as inadmissible. The author filed his communication before the Committee alleging the violation of his Right to Freedom of Expression guaranteed under article 19 (2) on the grounds that as a blogger, the author is entitled to the same protection guaranteed to journalists and public watchdogs and that a greater importance is attached to his right to freedom of expression which was wrongly weighed against the plaintiffs’ right to reputation and honor.

Admissibility

The Committee while noting the State Party’s submission on article 5 (2) of the Optional Protocol in light of its reservation, observed that it would not consider any communication from an individual unless it is ascertained that the same case was not being examine by another procedure of international investigation or settlement. However, it observed that the European Court of Human Rights gave limited reasoning. As a result, the Committee was of the view that the examination by the European Court of Human Rights was insufficient with respect to the merits of the case. Accordingly, the Committee concluded that it is not precluded from considering the Communication as per article 5 (2) of the Optional Protocol.

Merits

The Committee while rejecting the author’s claim, observed that the comparison of the plaintiffs with Nazis by the use of swastika and implying their affiliation with Nazism and neo-Nazi band was perceived as a harsh insult as the same is considered offensive and highly inappropriate in most contexts, particularly in the present State Party. It further observed that, the greater standard of tolerance that applied to the company as a legal entity and the party as a political actor was expressly acknowledged and taken into account by the domestic courts. Furthermore, it was also noted that even though journalists and public watchdogs enjoy an extensive right of freedom of expression, it is not without its reasonable restrictions. Finally, the Committee concluded by noting that the courts did not order the removal of the article from the author’s website and that he was not deprived of the right to express his opinions, only the illustration was ordered to be taken down and that the State party provided substantial and pertinent justifications, proving the necessity and proportionality of the particular restriction with the goal of preserving plaintiffs’ rights or reputation.