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 Knen 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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