𝐇𝐨𝐰 𝐝𝐨𝐞𝐬 𝐭𝐡𝐞 𝐄𝐮𝐫𝐨𝐩𝐞𝐚𝐧 𝐇𝐮𝐦𝐚𝐧 𝐫𝐢𝐠𝐡𝐭𝐬 𝐋𝐚𝐰 𝐚𝐩𝐩𝐫𝐨𝐚𝐜𝐡 𝐃𝐢𝐬𝐢𝐧𝐟𝐨𝐫𝐦𝐚𝐭𝐢𝐨𝐧?
⚖️The European Court of Human Rights addresses disinformation primarily under Article 10 of the European Convention on Human Rights, which protects freedom of expression. At the same time, Article 17 of the Convention could be used where the spread of information aims to undermine the very principles of the Convention, notably if the discourse constitutes hate speech. However, it is unclear whether disinformation could reach such a threshold.
The ECtHR has however dealt with such challenges in some cases :
One of the most significant recent cases is 𝐍𝐨𝐯𝐚𝐲𝐚 𝐆𝐚𝐳𝐞𝐭𝐚 𝐚𝐧𝐝 𝐎𝐭𝐡𝐞𝐫𝐬 𝐯. 𝐑𝐮𝐬𝐬𝐢𝐚 (Application No. 46808/20). Russia had criminalised “discrediting the military” and spreading “fake news” about its war in Ukraine. The Court found these measures violated freedom of expression for such restrictions were part of a wider pattern of suppressing dissent and were not necessary in a democratic society.
Another important case is 𝐁𝐫𝐚𝐝𝐬𝐡𝐚𝐰 𝐚𝐧𝐝 𝐎𝐭𝐡𝐞𝐫𝐬 𝐯. 𝐭𝐡𝐞 𝐔𝐧𝐢𝐭𝐞𝐝 𝐊𝐢𝐧𝐠𝐝𝐨𝐦 (Application No. 15653/22). Several former MPs argued that the UK government’s failure to investigate Russian disinformation campaigns around elections violated their rights. The Court held that states enjoy a wide margin of appreciation in how they respond to disinformation. As long as measures taken are not manifestly inadequate.
In 𝐁𝐫𝐳𝐞𝐳𝐢ń𝐬𝐤𝐢 𝐯. 𝐏𝐨𝐥𝐚𝐧𝐝 (Application No. 47542/07), the Court examined restrictions imposed on an opposition candidate who had distributed a booklet criticising local authorities during an election campaign. Polish courts claimed the booklet contained false information. The ECtHR held that these restrictions violated Article 10, stressing that political speech, especially during elections, enjoys the highest protection, and even statements containing inaccuracies are protected.
𝐋𝐢𝐧𝐠𝐞𝐧𝐬 𝐯. 𝐀𝐮𝐬𝐭𝐫𝐢𝐚 (Application No. 9815/82), illustrates how the Court distinguishes between factual allegations and value judgments. While false factual statements can be restricted, value judgments, opinions, criticism, even harsh or exaggerated remarks, are more strongly protected.
➡️Across these cases, several themes emerge. States enjoy a margin of appreciation to regulate false or harmful speech, but restrictions must always be proportionate and narrowly defined. Political expression receives the highest level of protection, meaning attempts to suppress criticism of authorities under the guise of combating “fake news” are especially suspect.
⚠️At the same time, the ECtHR recognises that states face genuine challenges with disinformation, especially in contexts such as elections and armed conflicts. However, obligations are not yet fully clear and the Court has not gone so far as to require states to investigate or counter every disinformation campaign.
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