COMPARATIVE MEDIA LAW SESSION 9.c Dirk VOORHOOF Ghent University (->contact)

The (indirect) horizonal effect of Article 10 Convention: Fuentes Bobo v. Spain

Freedom of Expression: Horizontal effect  ECourt HR: Fuentes Bobo v. Spain (2000)  Other cases (..)

Fuentes Bobo v. Spain  Freedom of expression of civil servant, employee, criticising the management/employer  In 1993 Fuentes Bobo co-authored an article in the newspaper Diario criticising certain management’s action within the Spanish public broadcasting organisation TVE. Later in two radio programmes Fuentes Bobo made critical remarks about some TVE-managers.  These remarks led to disciplinary proceedings that ended with the applicant’s dismissal in 1994 (approved by Spanish labour court, Supreme Court and Constitutional Court)

Fuentes Bobo v. Spain  Strasbourg Court: The dismissal of the applicant due to certain offensive statements was to be considered as an interference by the Spanish authorities in the applicant’s freedom of expression. The dismissal of the applicant due to certain offensive statements was to be considered as an interference by the Spanish authorities in the applicant’s freedom of expression.

Fuentes Bobo v. Spain  Strasbourg Court: Article 10 of the Convention is also applicable in relations between employer and employee.

Fuentes Bobo v. Spain  Strasbourg Court: The State has positive obligations in certain cases to protect the right of freedom of expression against interference by private persons. The State has positive obligations in certain cases to protect the right of freedom of expression against interference by private persons.

Fuentes Bobo v. Spain  Strasbourg Court: Although the interference was prescribed by law and was legitimate in order to protect the reputation or rights of others, the Court could not agree that the severe penalty imposed on the applicant met a “pressing social need”.

Fuentes Bobo v. Spain  The criticism by F. Bobo had been formulated in the context of a labour dispute within TVE and was to be situated in a public discussion on the failings of public broadcasting in Spain at the material time.

Fuentes Bobo v. Spain  The offensive remarks attributed to the applicant appeared more or less to have been provoked during lively and spontaneous radio-shows in which he participated.

Fuentes Bobo v. Spain  As no other legal action was undertaken against the applicant because of the “offensive” statements and because of the very severe character of the disciplinary sanction the Court finally came to the conclusion that the dismissal of Fuentes Bobo was to be considered as a violation of Article 10 of the Convention.

Fuentes Bobo v. Spain No direct interference by public authority, but Spain found in breach with Article 10 of the Convention: indirect HORIZONTAL EFFECT Other examples: role of the state to take positive action?

Other cases horizontal effect? - Özgür Gündem v. Turkey, 16 March 2000 Violation Art. 10 Violent attacks against newspaper and journalists Although the essential object of many provisions of the Convention is to protect the individual against arbitrary interference by public authorities, there may be positive obligations inherent in an effective respect of the rights concerned. The Court stated that genuine, effective exercise of the freedom of expression “does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals”.

Other cases horizontal effect? - VGT Verein gegen Tierfabriken v. Switzerland 28 June 2001 Refusal of advertising on TV (critising meat industries) “Apart from the State has to abstain from intervention in the Convention guarantees, there may be positive obligations inherent in such guarantees” - De Diego Nafria v. Spain, 14 March 2002, dismissal of civil servant criticizing hierarchy (in casu no violation of Article 10) (in casu no violation of Article 10) - Appleby and Others v. UK, 6 May 2003, refusal of distribution of leaflets in shopping centre (in casu no violation of Article 10) (in casu no violation of Article 10) “Effective exercise of the freedom of expression does not only depend merely on the state’s duty not to interfere, but may require positive measures” “Effective exercise of the freedom of expression does not only depend merely on the state’s duty not to interfere, but may require positive measures”

Implicatons of horizontal effect? - State in certain circumstances must take positive action (also art. 8, art. 11) - Private persons/organisations otherwise can restrict freedom of expression of others - Less clear/less enforcable than abstention right - Future? Regulation preserving pluralism in media-sector, restricting monopolies/oligopolies or excessive concentrations in print/media-crossownership - Self- en co-regulation