Free Speech Protection for ‘Public Watchdogs’ in the European Court of Human Rights
For the second Global Justice Academy event of the current academic semester, Dr Dimitrios Kagiaros, Assistant Professor in Public Law and Human Rights at Durham Law School, presented his current research exploring the fundamental principles of freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). In particular, his work scrutinizes the meaning of the term ‘public watchdog’, which is a term applied to certain speakers (eg the press) who carry out the function of keeping the public informed on matters of public interest. The European Court of Human Rights offers such speakers added protection under the Article 10 framework.
Until recently, the courts identified only the press and NGO’s as those who would be eligible for this protected status, but after a 2016 Grand Chamber decision in Magyar Helsinki Bizottság v Hungary the status was further extended to academics, authors of public literature, bloggers and popular social media users. In this case, the claimant was an NGO who was denied official information from the state police and challenged this under Article 10 of the ECHR. Dr Kagiaros explained what this extension of watchdog status means for rights and duties attributed to not only speakers, but also to the public who benefits from access to information and the state in terms of its obligations towards these public watchdogs.
According to the Court’s case law on public watchdogs and the Magyar Helsinki Bizottság ruling, public watchdog status creates a negative obligation on the state to refrain from taking any action which would obstruct the watchdog of carrying out its function. It also includes positive obligations on the state to adopt a specific legal framework to protect public watchdogs and also to release official information to them, under circumstances, following a request . The decision also clarified that Article 10 places duties on public watchdogs to act responsibly when disseminating information which could be in the public interest. Increasingly, these duties are attributed to actors such as bloggers and popular social media users which Kagiaros argues that in today’s social media culture is too broad of a concept to understand who exactly would be eligible for public watchdog protection and also who, as rights-bearers, should be obliged to fulfil certain duties when exercising their right to free speech. Kagiaros says these legal obligations and broadly identified eligible actors must be better specified. To that end, he suggests that rather than limiting the protection offered to public watchdogs to specific groups (eg, academics, journalists, NGOs) the Court should carry out a functional test when presented with a case relating to speakers disseminating information in the public interest.
This research is particularly relevant within today’s social media climate and the frequent use of mobile phones to capture or record instances of everyday state injustice, like police brutality. Social media platforms have become an accessible space for receiving information and imparting information, which means determining who is a mere ‘ordinary speaker’ or a ‘public watchdog’ is becoming more complex. Along with this complexity is the matter of prioritising speech and how and what the courts consider information which is of public concern. Kagiaros emphasises the importance of protecting the act of imparting information which is of public interest as this is a prerequisite for a well-functioning democracy. These considerations become even more urgent in the context of transparency when dealing with matters such as climate change or interference with elections.
Kagiaros’ lecture points to the important role played by certain public and private actors to draw attention to public wrongdoings, particularly of public officials, and the need to protect those who come forward with this information that is important to enable meaningful democratic participation. As explained by the court, Article 10 of the ECHR is the bedrock of democracy. So, in order to protect the person’s right to freedom of speech and the public’s right to receive information, we must ensure an effective free speech legal framework to protect those who impart information of general concern.
This news item was written by Judi Martin. Judi is currently reading the LLM in Human Rights at the University of Edinburgh. She is from Ireland where she completed her BA in History at Trinity College Dublin.