Should the ECtHR Invoke Article 17 for Disinformation Cases?

Increasingly, legal debates surrounding disinformation in Europe have questioned how this problem can be tackled while preserving fundamental rights to freedom of expression. Under Article 10 of the European Convention of Human Rights (ECHR), freedom of expression is protected. Throughout the extensive Article 10 jurisprudence in the European Court of Human Rights (ECtHR), it has been well established that legal interferences with political debate are among the most challenging for domestic legal authorities to justify (Sunday Times v. The United Kingdom, 1979; Lingens v. Austria, 1986). In this connection, there are growing concerns about how disinformation can be curtailed while protecting Article 10. However, less attention has been paid to whether Article 10 should even be applied at all. In tackling certain hate speech, the ECtHR has often refused admissibility of Article 10 applications on the grounds that Article 10 is not meant to protect certain categories of expression, and has instead applied an “abuse clause” under Article 17 (Hannie and Voorhoof, 2011). As reasoned by the Strasbourg Court in such cases, freedom of expression must not be used to undermine the rights of others by disseminating harmful information and ideas. Accordingly, an important question arises- should the Court invoke its “abuse clause” under Article 17 for cases concerning disinformation?

Disinformation: Nothing new for the ECtHR

The contemporary manifestation of disinformation is a new variant of a longstanding problem for democracy in Europe. The dissemination of political propaganda, fabricated statements, and dubious claims is nothing new, and can be traced back to the evolution of the printing press. However, the speed and efficiency of targeted lies have led to increased legal scrutiny of lies spread by anti-democratic actors online. As these debates continue, an assessment of the ECtHR’s case law is both timely and relevant. The ECtHR has an extensive track record of examining lies and measuring legal interferences with falsities against fundamental rights. Through this case law, the Court has made important distinctions that can inform policy makers in this critical area. For example, it can be said with certainty that the innocent sharing of false information should not be met with criminal sanctions. Through its distinction between facts and value judgements, the Court has pointed out that opinions are less “susceptible of proof,” and must therefore be protected more robustly than false assertions of fact (Lingens vs Austria, 1986). This is relevant when assessing false information online in the current context. Misinformation, unlike disinformation, is shared without the person knowing that the information is false. Accordingly, people who mistakenly share this type of false information should not be sanctioned. In addition, the Court has clarified that political satire, even if using false or exaggerated information, has a special place in democracy and should be tolerated. Notwithstanding these important distinctions, a less certain question revolves around whether the ECtHR should take the bold step of not even considering disinformation under the purview of freedom of expression.

What is the Abuse Clause under Article 17?

While the ECtHR has generally scrutinised offensive and vulgar speech under Article 10, certain types of harmful expression have been categorically excluded from scrutiny under Article 10. This has arisen where people who have disseminated hateful, racist, and discriminatory ideas have made applications on foot of alleged Article 10 violations. In such instances, the Court has often invoked Article 17 of the Convention, which reads:

“Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

As Article 17 prohibits citizens from abusing the rights of others, the Court has often used this this provision when faced with applicants who argue that their right to freedom of expression has been violated. In such cases, applicants have often sanctioned by domestic legal authorities after disseminating certain types of information. The first ever application of Article 17 concerned the banning of the Communist Party in Germany in Communist Party of Germany v. the Federal Republic of Germany. As the Communist Party was deemed to support the “impairment” or “abolition” of the “liberal democratic order”, the Strasbourg Court upheld the Party’s dissolution by the German Federal Constitutional Court. In doing so, the ECtHR found no need to even refer to Article 10. In subsequent cases, the Court has extended the application of Article 17 to cases wherein applicants have disseminated racist and xenophobic views. An illustrative example of this was seen in Glimmerveen and Hagenbeek v. the Netherlands. In this admissibility decision, the applicants were members of a Dutch political party that called for an “ethnical homogeneous population” and condemned “racial mixing.” In the Netherlands, these applicants were convicted for possessing leaflets with a view to distribute these abhorrent views. As the applicants had planned to stand in municipal elections, their contention was that their “right to freedom of expression in the context of elections” had been violated under Article 10. The ECtHR found the application inadmissible, stating that no provision, including Article 10, could be used to advance activities “aimed at the destruction of any of the rights and freedoms” as clarified under Article 17. The rationale of the ECtHR was clear. To allow applicants to incite racial discrimination under the guise of Article 10 would be to undermine the very democratic values upon which the Convention is predicated. In the same way as genuine, vigorous, and spirited political debate can contribute to a flourishing democracy, racist and anti-democratic expression that seeks to destroy the rights of others is a barrier to democracy. Importantly, the ECtHR has applied Article 17 in cases concerning hateful political speech. For example, in numerous admissibility decisions involving Austria, the Court refused to apply Article 10 where political candidates had been convicted for disseminating pro-Nazi beliefs (B.H, M.W, H.P and G.K. v. Austria, 1989; Nachtmann v. Austria, 1998). This aspect of the ECtHR’s application of the abuse clause is particularly noteworthy because the Court is generally reluctant to allow infringements with this type of expression.

Should disinformation be considered under Article 10?

There is a legitimate argument that disinformation is not a form of expression that should be protected. Disinformation is used to manipulate public debate, sow division, and influence the outcome of elections (Martens et al 2018). Often, disinformation has been used to pollute the public debate in the run up to both national elections in Europe and parliamentary elections in the European Union (Ferrara, 2017; Pierri, 2020). This disinformation often involves racist and xenophobic content, designed to exploit fears and harm the rights of vulnerable people (Humprecht, 2020). For this reason, it is conceivable that disinformation, as a method of communication that is used to undermine the rights of others, should not be considered under Article 10 and should be instead seen through the prism of Article 17 and the abuse clause. This argument is even stronger when considering the reality that disinformation is often not expressed by natural persons. Research has demonstrated that disinformation in the run up to elections in Europe is spread by automated and bot accounts (Shao, 2018). In this manner, disinformation is more of a method of sophisticated computational propaganda than a legitimate form of speech or expression (Donovan, 2020). This begs the understandable question of why disinformation should even be considered under Article 10. After all, the ECtHR has explicitly refused to accept that certain lies should be considered under the purview of freedom of expression. A flagship example is seen in cases concerning holocaust denial, wherein the Court has classified the holocaust as a “category of clearly established historical facts” that must be acknowledged (Lehideux and Isorni v. France, 1998).

Disinformation under Article 17: A slippery scope?

While on one hand it could seem both prudent for the ECtHR to preclude disinformation from Article 10 scrutiny, there are numerous problems with this option. Importantly, the scope of where and when Article 17 should applied has shifted (Hannie and Voorhoof, 2011).  Initially, the abuse clause was applied to cases where applicants called for totalitarian states. However, the ECtHR has been haphazard in applying the abuse clause throughout its jurisprudence. For this reason, the material scope of expression addressed by Article 17 is unclear. Holocaust denial, support for dictatorship, and the dissemination of anti-Semitic and Islamophobic beliefs have all been addressed from the perspective of Article 17 (Pavel Ivanov v. Russia, 2007; Roj TV A/S v. Denmark, 2018). The ECtHR has also been somewhat inconsistent in its application of Article 17, and this is demonstrated through the Court’s treatment of genocide denial. For example, in Perinçek v. Switzerland, the Strasbourg Court did not give the same protection to denial of the Armenian genocide as has been afforded to Holocaust denial, on the grounds of a list of historical, geographical, and time related factors. In this case, unlike other cases concerning Holocaust denial, the Court did not apply Article 17.

In cases where Article 17 has been invoked, the refusal of the ECtHR to apply Article 10 has meant that the Court has not examined interferences under its traditionally useful three-pronged test. This test interrogates whether interferences with expression are 1) prescribed by law 2) in pursuit of a legitimate aim and 3) necessary in a democratic society. Through this three-pronged test, the Court has developed novel concepts such as the “pressing social need” principle, and has raised important questions surrounding the proportionality of measures. Often, the Court has found that while the domestic authorities were correct in limiting certain types of hate speech, the imposition of criminal sanctions was disproportionate to the aim pursued.

Analysing disinformation under Article 17 would create more confusion as to the scope of the abuse clause, and would raise even more concerns surrounding freedom of expression. Disinformation itself is often a fuzzy concept (Tandoc et al., 2018). Using the abuse clause as a blunt tool to combat disinformation would also make the ECtHR’s more general treatment of lies more difficult to ascertain. If false defamatory statements should be considered under Article 10, and not categorically excluded, it is difficult to see how and why disinformation should be compartmentalised in this manner.

The problem has been defined through a variety of wide ranging terminology. The most problematic of these terms is the phrase “fake news.” Unfortunately, the ECtHR itself used this term for the first time in 2019 case of Brzezinski v. Poland. In spite of this mishap, definitions in this area are gradually becoming more distinct. Misinformation refers to false information where the person sharing it is unaware of its falsity, where disinformation is knowingly spread as false (Wardle and Derakhshan, 2017). Even when focusing exclusively on the latter, it must also be acknowledged that not all forms of disinformation are unlawful, either under domestic law or EU law such as the E-Commerce Directive and the incoming Digital Services Act (DSA). While some forms of racist and subversive disinformation do involve content that could conceivably run foul of the abuse clause under Article 17, this is not universally true.

The ECtHR will invariably have to address cases where domestic legal authorities have sanctioned applicants for disseminating disinformation online. When this happens, the ECtHR will need to provide clarity. Specifically, the Court needs to address the legitimate aims under which restrictions on disinformation can be justified, and how to proportionately balance these interferences with the right to freedom of expression. These salient questions will need to be addressed in detail, and with reference to the requirements under Article 10(2). Failure to do so, and to instead relegate disinformation to Article 17 cases, could create unnecessary uncertainty in this ever-challenging area.