Swiss NGO sued for labelling politician's speech "racism" denied freedom of expression, European Court of Human Rights finds

GRA Stiftung gegen Rassismus und Antisemitismus v. Switzerland (application no. 18597/13) [2018] ECHR

Summary

The European Court of Human Rights unanimously held that the prosecution of a Swiss non-governmental organisation which had labelled a Swiss politician's speech as "verbal racism" breached the organisation's right to freedom of expression, as protected by Article 10 of the European Convention of Human Rights. 

Facts

GRA Stiftung gegen Rassismus und Antisemitismus (the applicant), is a Swiss non-governmental organisation (NGO) which promotes tolerance and condemns all types of racially motivated discrimination.

In November 2009, the youth wing of the Swiss People’s Party held a demonstration which concerned the ban of the construction of minarets in Switzerland. Following the demonstration, the applicant posted an entry on its website, quoting a speech given by a young politician, B.K., during the demonstration and describing his words as “verbal racism”. B.K. was quoted stating it was "time to stop the expansion of Islam", that “the Swiss guiding culture, based on Christianity, cannot allow itself to be replaced by other cultures” and that banning minarets would be "an expression of the preservation of national identity".

In August 2010, B.K. filed a claim against the applicant for the protection of his individual personality rights. Ultimately, the Federal Supreme Court concluded that the politician’s speech had not been racist and that classifying the speech as “verbal racism” had been a mixed value judgment which had no factual basis. In particular, the Federal Supreme Court held that for the average reader the statements did not come across as belittling Muslims, but as merely defending Christianity as the Swiss guiding culture. It ordered the impugned article be removed from the applicant’s website and replaced with the court’s judgment. The applicant’s appeal was unsuccessful.

Before the European Court of Human Rights (the Court), the applicant argued that the Federal Supreme Court had been wrong to find that the expression “verbal racism” violated the politician’s honour because it was a mixed value judgement, which could infringe personality rights if based on untruths. It also argued that the domestic courts had violated the applicant's right to freedom of expression. The Court delivered its decision on 9 January 2018.

Article 10

Article 10 of the European Convention on Human Rights (Article 10) provides that:

1. Everyone has the right to freedom of expression. This right shall include freedom to ... impart information and ideas without interference by public authority...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...

Decision

Firstly, the Court noted it was not in dispute that the prosecution against the applicant constituted an interference with its right to freedom of expression. It concluded that such interference had been prescribed by law and pursued a legitimate aim, namely the protection of the reputation and rights of others. Therefore, the Court's decision turned on whether the interference had been "necessary in a democratic society" in order to achieve the aim sought, such that it fell within the ambit of the second limb of Article 10.

This required the Court to examine a number of established criteria including: contribution to a debate of public interest, the degree of notoriety of the person affected, the subject of the news report, and the content, form and consequences of the publication.

a) Contribution to a debate of public interest

The Court first considered the general background of the political debate in which the relevant statements had been made. It was quickly concluded by the Court that the popular initiative against the construction of minarets was a debate of public interest both in Switzerland and internationally.

b) How well-known is the person concerned and the subject of the report

The politician in question was the elected president of the youth wing of a major political party in Switzerland. Despite his young age, the Court firmly held that the politician had willingly exposed himself to public scrutiny by stating his political views and therefore had to show a higher degree of tolerance towards potential criticism of his statements.

c) Content, form and consequences of the publication

It was noted that a distinction must be made between statements of fact and value judgments. The Court stated that to distinguish between a factual allegation and a value judgment it was necessary to take account of the circumstances of the case and the general tone of the remarks, bearing in mind that assertions about matters of public interest might, on that basis, constitute value judgments rather than statements of fact.

The Court concluded that the applicant’s classification of the speech as “verbal racism” constituted a value judgment as it contained the applicant’s own comment on the statements.  However, it could not be said that classifying the speech as “verbal racism” when it supported an initiative which had already been described by various organisations as discriminatory, xenophobic and racist, could be regarded as devoid of any factual basis. The Court stated that the applicant had never suggested the politician's statements fell within the scope of the criminal offence of racial discrimination under the Swiss Criminal Code. In fact, in its arguments before the national authorities and the Court, the applicant organisation had stressed the need to be able to describe an individual’s statement as racist without necessarily implying criminal liability.

The impugned description could therefore not be understood as a gratuitous personal attack on or insult to the politician. The applicant organisation had not referred to his private or family life, but to the manner in which his political speech had been perceived. As a politician expressing his view publicly on a very sensitive topic, the Court reiterated that he must have known that his speech might cause a critical reaction among his political opponents.

d) Severity of the sanction

The Court noted the nature and severity of the sanction imposed are also factors required to assess the proportionality of an interference. It stated that the above sanctions imposed on the applicant, however mild, might have had a “chilling effect” on the exercise of the applicant’s freedom of expression. This is because the sanctions may have discouraged the NGO from pursuing its statutory aims and criticising future political policies.

e) Conclusion

Ultimately, the Court found that the domestic courts had not given due consideration to the above criteria for balancing the right to respect for private life and the right to freedom of expression. They had thus failed to strike a reasonable balance of proportionality between the measures restricting the applicant’s right to freedom of expression and the legitimate aim pursued. Accordingly, the Court held that the prosecution of the applicant violated Article 10.

Commentary

The Court's decision demonstrates that in situations concerning matters of public interest there is limited scope for restrictions on freedom of expression.  

The Court affirmed that the "freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment".  Importantly, the Court also confirmed that it will afford NGOs who act as a social "public watchdog" the same protection as the media.

Closer to home, there is no equivalent broad constitutional or statutory protection of freedom of expression in Australia. Instead, a narrower implied freedom of political communication in the Australian Constitution is relied upon. However, the Court's reasoning and criteria assessed in this decision are likely to provide helpful guidance to Australian courts considering the balance between the media’s right to freedom of expression and an individual’s right to privacy, as well as the qualified privilege defence to defamation.

The full decision can be found here.

Rowan Krasnoff is a lawyer and Linda Nyugen was a seasonal clerk at Ashurst.