ECtHR: Opportunity to advance free speech protection by the European Court through cases against Germany and Turkey

ARTICLE 19 has recently intervened in two important cases at the European Court of Human Rights which present opportunities to advance the protection of freedom of expression in the digital age.

Freedom of expression and anonymity

ARTICLE 19, with Privacy International, intervened in Patrick and Jonas Breyer vs Germany. The case concerns the application of a German law which imposes a legal obligation on telecommunication providers to store personal details of all their customers, even if such details are not necessary for billing purposes or other contractual reasons.

As a result of this law, two applicants argue that their personal data, as users of pre-paid (“pay as you go”) mobile phone SIM cards, is stored by their respective service provider, and they are therefore not able to communicate anonymously via mobile phone.

We argue that anonymity is one of the essential tools available to individuals to mitigate or avert unlawful interferences with their rights to privacy and free expression. Anonymity has long been a means by which individuals could freely enjoy their right to impart and receive information, free from State control. However, the capacity to communicate anonymously is significantly eroded by the growing demand (and legal requirements) that individuals identify themselves. In the context of modern telecommunications, such requirements raise additional concerns when they are imposed by governments on telecommunication companies, particularly if such imposition is indiscriminate and requires the storing of data that is not necessary for business purposes.

The human rights implications of online anonymity, including the anonymity of subscribers of telecommunication services, are receiving increased attention from international human rights experts, most notably the UN Special Rapporteur on the right to freedom of expression. Similarly, the lawfulness and necessity of imposing blanket, indiscriminate requirements on companies to store personal data of individual subscribers beyond what is necessary for billing purposes has been questioned. 

Hence, ARTICLE 19 argues that the blanket retention of identifying information, under laws like the German law in question, makes anonymity impossible at a foundational level—individuals know that their identities can be linked to their communications at the government’s request.  Individuals are therefore less likely to express controversial ideas that challenge the status quo and effect change. These interferences with individuals’ privacy and freedom of expression considerably restrict the way that we communicate.  Such measures are difficult to justify in a democratic state that is founded on the bedrock of privacy and freedom of expression.

Injunctions against publications

Jointly with Media Legal Defence Initiative, Platform for Independent Journalism, Index on Censorship, Media Law Resource Center and Reporters Committee for Freedom of the Press – ARTICLE 19 also intervened in the case Akdeniz, Altiparmak and Güven vs Turkey. The case concerns a judicial order amounting to an absolute prohibition against everyone (contra mundum) of publication of certain information in certain forms anywhere in the world. The original injunction in Turkey was issued to prevent publication in the print, audio-visual and online media of certain information relating to a Parliamentary investigation into corruption in Turkey. Its purpose was, reportedly, to “prevent damage to the individual rights” of the four ex-ministers as well as to “protect their reputations”. 

The case raises the important issue of how the European Court is to approach the definition of “victim status” when considering injunctions against the world or persons unknown. Such injunctions by their very nature impact on everyone and, as such, represent an interference with all individuals right to freedom of expression.  If not everyone, at least a very wide spectrum of individuals – such as NGOs or academics – are therefore ‘directly affected’ by such an injunction against the world. In the digital age there is likely to be a growth of orders amounting to similar injunctions on publication on the basis of libel, privacy and/or harassment, as it can be more difficult to know who is or will be responsible for disseminating certain information, particularly online.

In the intervention, we argue that injunction contra mundum severely restrict the right to receive and impart information   In such exceptional circumstances, the approach taken by the European Court to the question of who is a “victim” of violations of freedom of expression  must be as wide and as flexible as the particular circumstances of the case dictate in order to ensure the practical and effective fulfilment of human rights. In the exceptional circumstances of injunctions that prohibit the disclosure of information to the world at large, a broad and flexible interpretation as outlined above would not amount to a relaxation on the rule against speculative or abstract applications, but is necessary to allow the European Court to carry out its task of examining potentially serious violations of the European Convention. 

Patrick and Jonas Breyer vs Germany – read the full intervention.

Akdeniz, Altiparmak and Güven vs Turkey – read the full intervention.