Archive/File: orgs/canadian/bc/Human-Rights-Commission/Collins-01-Press_Council-Submission.08 Last-Modified: 1998/09/21 169. In September, 1994, the European Court of Human Rights made its first and only ruling in a case involving "group defamation" in relation to Article 10 of the European Convention: Case of Jersild v Denmark. 170. The facts of the case were as follows. Jersild, a journalist, had contacted a group of young people calling themselves "the Greenjackets" and conducted a television interview of three Greenjackets during the course of which they made abusive and derogatory remarks about immigrants and ethnic groups in Denmark. The edited film was broadcast by Danmarks Radio as part of Sunday News Magazine, a serious television programme intended for a well-informed audience, dealing with a wide range of social and political issues, including xenophobia, immigration and refugees. The impugned statements by the Greenjacket interviewees included the following [at pages 11-14]: (Greenjacket) The Ku Klux Klan, that's something that comes from the States in the old days during - you know - the civil war and things like that, because the Northern States wanted that the niggers should be free human beings, man, they are not human beings, they are animals, right, it's completely wrong, man, the things that happened. People should be allowed to keep slaves. I think so anyway. (Jersild) Because blacks are not human beings? (Greenjacket) No, you can also see that from their body structure, man, big flat noses, with cauliflower ears etc. man. Broad heads and very broad bodies, man, hairy, you are looking at a gorilla and compare it with an ape, man, then it is the same [behaviour] man, its the same movements, long arms, man, long fingers etc. long feet. (Jersild) A lot of people are saying something different. There are a lot of people who say, but_ (Greenjacket) Just take a picture of a gorilla, man, and then look at a nigger, it's the same body structure and everything, man, flat forehead and all kinds of things. _ (Greenjacket) _.a nigger is not a human being, it's an animal, that goes for all the other foreign workers as well, Turks, Yugoslavs and whatever they are called_.We have painted their doors and hoped they would get fed up with it, so that they would soon leave, and jumped on their cars and thrown paint in their faces when they were lying in bed sleeping. (Jersild) What was it you did with that paint - why paint? (Greenjacket) Because it was white paint, I think that suited them well, that was the intended effect. (Jersild) You threw paint through the windows of an immigrant family? (Greenjacket) Yes (Jersild) What happened? (Greenjacket) He just got it in his face, that's all. Well, I think he woke up, and then he came out and shouted something in his hula-hula language. 171. The public prosecutor charged the Greenjacket interviewees with a violation of Article 266(b) of the Penal Code and Jersild with aiding and abetting the three youths. The Penal Code provided: "Any person who, publicly or with the intention of disseminating it to a wide circle of people, makes a statement, or other communication, threatening, insulting or degrading a group of person on account of their race, colour, national or ethnic origin or belief shall be liable to a fine or to simple detention or to imprisonment for a term not exceeding two years." 172. In proceedings before the High Court of Eastern Denmark, Jersild explained that although he had suspected that the Greenjacket's statements were punishable, he had refrained from omitting these from the programme, considering it crucial to show their actual attitude. The High Court (5-1) dismissed Jersild's appeal from his conviction in City Court, the tribunal of first instance. The Supreme Court of Denmark subsequently dismissed his appeal (4-1, reasoning that Jersild had caused the racist statements to be made public; he had not merely reported on a meeting. Jersild had himself contacted the three youths and caused them to make assertions such as those previously made to a newspaper, which he knew of and probably expected them to repeat. He had himself cut the recording of the interview, lasting several hours, down to a few minutes containing the crude comments. The Supreme Court further held that the "interest in protecting those grossly insulted by the statements had to be weighed up against that of informing the public of the statements. Whilst it is desirable to allow the press the best possible conditions for reporting on society, press freedom cannot be unlimited since freedom of expression is coupled with responsibilities." [page 17] "In striking a balance between the various interests involved, the majority had regard to the fact that the statements, which were brought to a wide circle of people, consisted of inarticulate, defamatory remarks and insults spoken by members of an insignificant group whose opinions could hardly be of interest of many people. Their news or information value was not such as to justify their dissemination and therefore did not warrant acquitting the defendants." 173. The European Court of Human Rights noted that Jersild's conviction had been presented by the Danish Government in a report to the United Nations Committee on the Elimination of Racial Discrimination. "Whilst some members welcomed it as "the clearest statement yet, in any country, that the right to protection against racial discrimination took precedence over the right to freedom of expression", other members considered that "in such cases the facts needed to be considered in relation to both rights" (Report of the Committee to the General Assembly, Official Records, Forty-Fifth Session, Supplement No. 18(A/45/18), p. 21, para 56) [at page 19]. 174. In the European Court of Human Rights, the Danish Government admitted that the measures giving rise to Jersild's appeal constituted an interference with his freedom of expression, and it was undisputed that this interference was "prescribed by law" within the meaning of Article 10(2) of the European Convention. It was also uncontested that the interference pursued a legitimate aim, namely the "protection of the reputation or rights of other." within the meaning of Article 10(2) of the European Convention. The Court held that the only point in dispute was whether the measures were "necessary in a democratic society." 175. On these facts, the European Court held (12-7) that Jersild's conviction involved a breach of Article 10 of the free speech guarantee in the European Convention. 176. Before the European Court, the Danish Government argued that Jersild had edited the Greenjackets item in a sensaationalist rather than informative manner and that its news or information value was minimal. "The Government stressed that at all three levels the Danish courts, which were in principle better placed than the European Court to evaluate the effects of the programme, had carried out a careful balancing exercise of all the interests involved." 177. In ruling that Jersild's free speech rights had been improperly violated, the European Court referred to its prior case law dealing with the role of the press [at pages 23, 25-26]: The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance (ibid). Whilst the press must not overstep the bounds set, inter alia, in the interest of "the protection of the reputation or rights of others", it is nevertheless incumbent on it to impart information and ideas of public interest. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of "public watchdog" (ibid). Although formulated primarily with regard to the print media, these principles doubtless apply also to the audiovisual media. In considering the "duties and responsibilities" of a journalist, the potential impact of the medium concerned is an important factor and it is commonly acknowledged that the audiovisual media have often a much more immediate and powerful effect than the print media _ At the same time, the methods of objective and balanced reporting may vary considerably, depending among other things on the media in question. It is not for this Court, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists. In this context the Court recalls that Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see the Oberschlikc v. Austria judgment of 23 May 1991, Series A no. 204, p.25, 57). [our emphasis added] _In this regard the Court does not accept the Government's argument that the limited nature of the fine is relevant; what matters is that the journalist was convicted. There can be no doubt that the remarks in respect of which the Greenjackets were convicted (see paragraph 14 above) were more than insulting to members of the targeted groups and did not enjoy the protection of Article 10 (see, for instance, the Commission's admissibility decisions in Glimmerveen and Hagenbeek v. the Netherlands, applications nos. 8348/78 and 8406/78, DR 18, p.187; and Knen v. Germany, application no. 12194/86, DR 56, p.205). However, even having regard to the manner in which the applicant prepared the Greenjackets item (see paragraph 32 above), it has not been shown that, considered as a whole, the feature was such as to justify also his conviction of, and punishment for, a criminal offence under the Penal Code. Having regard to the foregoing, the reasons adduced in support of the applicant's conviction and sentence were not sufficient to establish convincingly that the interference thereby occasioned with the enjoyment of his right to freedom of expression was "necessary in a democratic society"; in particular the means employed were disproportionate to the aim of protecting "the reputation or rights of others". Accordingly the measures gave rise to a breach of Article 10 of the Convention. 178. More recently, in Vogt v Germany (7/1994/454/535), the Court of Human Rights found an unjustifiable infringement of Article 10 of the European Convention where a teacher had been dismissed from the civil service on account of her political activities on behalf of the German Communist party. 179. Before the European Court of Human Rights, the German government argued that the restrictions on freedom of expression deriving from civil servant's duty of political loyalty were aimed at protecting national security, preventing disorder and protecting the rights of others. The European Court concluded that the applicant's dismissal pursued a legitimate aim within the meaning of Article 10(2) of the European Convention, but held that the restriction was not "necessary in a democratic society". The Court held that freedom of expression is one of the essential foundations of a democratic society and one of the basic conditions for its progress; that it is applicable not only to information and ideas that are favourably received or regarded as a matter of indifference, but also to those that shock. The European Court reviewed its prior jurisprudence concerning the free speech guarantee in Article 10 of the Convention stating [at pages 20]: (a) General principles 52. The Court reiterates the basic principles laid down in its judgments concerning Article 10: (i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society". Freedom of expression, as enshrined in Article 10, is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established_ (ii) The adjective "necessary", within the meaning of Article 10 2, implies the existence of a "pressing social need". The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the law and the decisions applying it, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a "restriction" is reconcilable with freedom of expression as protected by Article 10. (iii) The Court's task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was "proportionate to the legitimate aim pursued" and whether the reasons adduced by the national authorities to justify it are "relevant and sufficient" (see the Sunday Times v. the United Kingdom (No. 2) judgment of 26 November 1991, Series A no. 217, p.29, 50). In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see the above- mentioned Jersild judgment, p.26, 31). 180. The European Court concluded that although the reasons put forward by the Government were relevant, they did not establish "convincingly" that it was necessary in a free and democratic society to dismiss her. 181. In Gubi v Austria (34/1993/429/508), the European Court of Human Rights considered a complaint by Gubi, a conscript in the Austrian army, about a prohibition against the distribution of a magazine called "der Igel", which had been critical of military training and the principles governing national service. All other military periodicals published by various associations were distributed to soldiers at the army's expense together with official publications of the army. The European Court found agreed with the magazine publisher, also a party to the appeal, that the government's refusal to distribute "der Igel" with the other private publications was an interference with the publisher's right to impart information and ideas. [at page 9] 182. Before the European Court of Human Rights, the Austrian government argued that "der Igel" sought to undermine the effectiveness of the army and of the country's system of defence. "It's distribution had been particularly undesirable because at the material time, when the cold war had still been in progress, there had been a certain amount of friction in the _barracks." [page 10] Austria argued that the "periodical, which was critical and satirical, had represented a threat to discipline and to the effectiveness of the army." [page 11]. 183. The European Court noted, however, that "[n]one of the issues of der Igel submitted in evidence recommend disobedience or violence, or even question the usefulness of the army. Admittedly, most of the issues set out complaints, put forward proposals for reforms or encourage the readers to institute legal complaints or appeals proceedings. However, despite their polemical tenor, it does not appear that they overstepped the bounds of what is permissible in the context of a mere discussion of ideas, which must be tolerated in the army of a democratic State just as it must be in the society that such an army serves." 184. In the course of its judgment holding that Austria's restriction was disproportionate to the legitimate aim pursued by the government, the Court stated: 36. The Court reiterates that freedom of expression is also applicable to "information" or "ideas" that offend, shock or disturb the State or any section of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society"_ 185. The International Covenant on Civil and Political Rights, in Article 19(2), provides that "everyone shall have the right to freedom of expression", and goes on to define this right as including "freedom to seek, receive and impart information and ideas of all kinds, regardless of frontier, either orally, in writing or in print, in the form of art or through any other media of his choice." Article 19 (3) goes on to provide that the exercise of the right set out "carries with it special duties and responsibilities" and therefore may "be subject to certain restrictions" which "shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; _ (b) For the protection of national security or of public order (ordre public), or of public health or morals." 186. The International Convention on the Elimination or Racial Discrimination , in Article 5, guarantees freedom of expression. Article 4, which deals with measures to be employed to combat racial discrimination, specifically directs that Article 4 be read with due regard to the rights expressly set out in Article 5 of the Convention. Article 4 reads as follows: States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia: (a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; [underlining added] (b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law; (c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination." 187. Article 5, which contains the freedom of expression clause, reads: "In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (d) Other civil rights, in particular: (vii) The right to freedom of thought, conscience and religion; (viii) The right to freedom of opinion and expression; (ix) The right to freedom of peaceful assembly and association 188. Reference should also be made at this point to Article 6, which reads as follows: Article 6 States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination." 189. The Press Council respectfully submits that sections 318, 319(1), and 319(2) of the federal Criminal Code constitute a complete and sufficient compliance with Article 4(a) of the International Convention for the Elimination of Racial Discrimination. Further, to the extent that it may be desirable to provide for "remedies" within the meaning of Article 6, they should be provided in relation to conduct which constitutes a violation of section 318, 319(1) or 319(2) of the federal Criminal Code. 190. Further, although Canada has not formally entered any reservations to the International Convention on the Elimination of Racial Discrimination, the Charter is the supreme law of Canada and therefore over-rides any obligation created by ratification of the Convention. Further, it is significant that most of the other leading democracies have seen fit to emphasize their commitment to free speech values. See "International Conventions Affecting Hate Speech and Signatories' Reservations" [Tab 190]. "As of May 1992, 129 countries were parties to the CERD convention. Twelve of those have entered a reservation or declaration expressly concerning Article 4. Others, such as Guyana and Jamaica, have made sweeping declarations stating that they do not consider the Convention to impose any obligations beyond the limits set by their own constitutions. The U.S. upon signing the Convention, similarly stated that it did not consider the Convention to require any action incompatible with the U.S. constitution, in particular, its protection of free speech." [page 3 of 11 to 4 of 11] Most of the reservations enumerated at pages 4 of 11 to 11 of 11 emphasize the importance of the right to freedom of opinion and expression and the right to freedom of peaceful assembly. e.g. Austria, , Bahamas, Belgium, Fiji, France, Italy, Nepal, Tonga, United Kingdom, , the United States, _"
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