International case law
Volodina v. Russia (no.2), 2021, European Court of Human Rights
cyberviolence as a form of domestic violence • failure of the State to comply with the positive obligation to protect right to private life of the victim by slow and inadequate investigations
Ms Volodina, a Russian national, reported to the police that she had been subjected to a series of cyberviolence offences for at least three years (such as non-consensual sharing of intimate photos, GPS tracking and impersonation through the creation of fake social media profiles), as a part of the psychological and physical abuse inflicted on her by her former partner. Although the Russian authorities were properly equipped for both civil and criminal responses in this case, the police did not treat the complaint diligently and a series of shortcomings prevented the case from being prosecuted and adjudicated.
Given that all internal means of complaint had been exhausted, Ms Volodina lodged a complaint with the European Court of Human Rights. In its judgment, the Court held that the Russian state violated Article 8 of the European Convention on Human Rights, that provides for the right to respect of private and family life, by failing to investigate and prosecute the acts of cyberviolence committed against the applicant.
In sum, the Court finds that, even though the existing framework equipped the authorities with legal tools to prosecute the acts of cyberviolence of which the applicant was a victim, the manner in which they actually handled the matter – notably a reluctance to open a criminal case and a slow pace of the investigation resulting in the perpetrator’s impunity – disclosed a failure to discharge their positive obligations under Article 8 of the Convention. There has accordingly been a violation of that provision.
Buturugă v. Romania, 2021, European Court of Human Rights
cyberviolence as a form of domestic violence • failure of the State to comply with the positive obligation to protect the right to private of the victim by adequate investigations
Mrs Buturuga, a Romanian national, filed a complaint with the police, alleging, among several other domestic violence claims, that her former husband had logged in to her Facebook account and made copies of her private conversations, documents and photos. She requested an electronic search of their family computer in view of obtaining electronic evidence for the offence. However, the police dismissed this complaint, on the ground that it was not connected to the domestic violence complaint. Therefore, Mrs Buturuga subsequently filed another complaint, invoking violation of the confidentiality of her correspondence by her former partner. Despite these complaints, the public prosecutor's office discontinued the case, deciding that the conduct of Mrs Buturga's former husband was not serious enough to constitute an offence and imposed an administrative fine on him. Mrs Buturuga challenged the decision in court, but the court rejected it. The court maintained that the breach of secrecy of her correspondence was irrelevant for the subject matter of the case, as the information was public on social media, and dismissed it. Thus, the applicant filed a complaint with the European Court of Human Rights.
In its judgment, the Court held that the Romanian state violated Articles 3 and 8 of the European Convention on Human Rights, that provide for the prohibition of torture, inhuman or degrading treatment and the right to respect for private and family life, by failing to protect the applicant through proper investigation and prosecution of the cyberviolence acts, as a part of domestic violence the applicant was submitted to.
The Court concludes that the national authorities did not approach the criminal investigation as raising the specific problem of domestic violence (see paragraphs 66-67 and 78 above) and that, in doing so, they failed to give an appropriate response to the seriousness of the facts complained of by the applicant. The investigation into the acts of violence was flawed and no examination on the merits of the complaint for violation of the secrecy of correspondence, which is, in the opinion of the Court, closely linked to the complaint for violence, has been carried out. There had therefore been a breach of the positive obligations under Articles 3 and 8 of the Convention and a violation of those provisions.
Khadija Ismayilova v. Azerbaijan, 2019, European Court of Human Rights
female journalist • illegal interception • sextortion • failure of the State to comply with the positive obligation to protect the applicant's rights to private life and to freedom of expression
Ms Ismayilova, a renown female journalist who investigated high level corruption cases in Azerbaijan, received a letter containing still images taken from a video that showed her engaged in sexual intercourse, along with the accompanying message: "Whore, refrain from what you are doing, otherwise you will be shamed!"
Afterwards, the journalist discovered many hidden cameras at home. However, she stated on social media that she would not cease her journalistic activities and she would not be silenced.
A few days later, the intimate videos were published and disseminated online. The journalist filed a complaint with criminal justice authorities. Despite launching a formal investigation, the authorities limited the applicant's access to her file and they did not take all necessary measures for effective investigations. The journalist lodged several complaints about the proceedings. As a response, the prosecuting authorities published a status report that disclosed sensitive personal data of the journalist. Several court complaints of the applicant were dismissed and she was not given any details about the investigation.
Thus, the case reached the European Court of Human Rights. In its assessment, the Court established that national authorities, by failing to effectively investigate the offences committed by the applicant, did not comply with the positive obligation to protect the applicant's rights to private life and freedom of expression (Article 8 and 10, European Convention on Human Rights), especially given her journalistic activities that need to be protected in a democratic society.
In such circumstances, having regard to the reports on the general situation concerning freedom of expression in the country and the particular circumstances of the present case, the Court considers that the threat of public humiliation and the acts resulting in the flagrant and unjustified invasion of the applicant’s privacy were either linked to her journalistic activity or should have been treated by the authorities when investigating as if they might have been so linked. In this situation Article 10 of the Convention required the respondent State to take positive measures to protect the applicant’s journalistic freedom of expression, in addition to its positive obligation under Article 8 of the Convention to protect her from intrusion into her private life.
K.U. v. Finland, 2008, European Court of Human Rights
online child sexual exploitation and abuse • positive obligation of member States to protect children online through adequate legal frameworks
In 1999, someone impersonating a 12-year-old boy posted an advertisement on an Internet dating site, which included personal data such as the boy's picture. The ad mentioned that the boy was looking for someone his age or older to start a sexual relationship with. When the child began receiving emails from someone interested, his family announced the police.
National courts declined the request to order the internet service provider to disclose subscriber information of the person who posted the ad, because the legislation in place at the time did not confer criminal justice authorities the powers to request such information from the providers.
Consequently, a complaint was filed with the European Court of Human Rights. The Court found there had been a violation of Article 8 of the Convention (right to respect for private life), as national authorities failed to provide an adequate legislative framework for protecting the child. Thus, States have the positive obligation to protect cildren online and provide a legislative framework for this. The child sexual abuse materials (CSAM) that had been produced online threatened the child's integrity and made him a target for online child sexual exploitation and abuse.
Without prejudice to the question whether the conduct of the person who placed the offending advertisement on the Internet can attract the protection of Articles 8 and 10, having regard to its reprehensible nature, it is nonetheless the task of the legislator to provide the framework for reconciling the various claims which compete for protection in this context. Such framework was not however in place at the material time, with the result that Finland's positive obligation with respect to the applicant could not be discharged.
Benedik v. Slovenia, 2018, European Court of Human Rights
child pornography material • unlawful interference with the right to private life through a criminal investigation without a prior court order
In 2006, Swiss law enforcement authorities conducted an investigation of the so-called "Razorback" network, and discovered that some of its users shared child pornography materials via peer-to-peer ("p2p") file sharing, that allows users' access to each other's computers, so that they can download each other's files. One of the dynamic Internet Protocol ("IP") addresses that was identified during the investigation belonged to a Slovenian national.
The Slovenian police, without a prior court order, requested the Internet service provider (ISP) to disclose the name of the subscriber, who turned out to be the applicant's father. The ISP disclosed the identity of the subscriber, and, at a later stage, the authorities requested a judicial order for disclosure of personal data and traffic data of the subscriber. The investigating judge also issued a house search warrant. After the house search and the seizure of four computers that contained child pornography material, the police then changed the suspect from the father to the applicant.
However, the applicant denied using the child pornography material, alleging that the files had been automatically downloaded through p2p file sharing. Eventually, criminal judicial proceedings were launched against the applicant, who, afterwards, was found guilty of displaying, manufacturing, possessing and distributing pornographic material under section 187(3) of the Criminal Code.
After exhausting all domestic remedies, the applicant lodged a complaint with the European Court of Human Rights, claiming that his right to private life (Article 8, European Convention on Human Rights) had been violated through the investigation without a prior court order. In its assessment, the Court found that the interference with the applicant's privacy, before a court order was issued, was not according to the law. Therefore, there had been a violation of Article 8, European Convention on Human Rights.
Having said that, the Court would be usurping the function of national courts were it to attempt to make an authoritative statement as to which law should have prevailed in the present case. It must instead turn to the reasoning offered by the domestic courts. It notes in this connection that the Constitutional Court considered that the “identity of the communicating individual [was] one of the important aspects of communication privacy” and that its disclosure required a court order pursuant to paragraph 2 of Article 37 of the Constitution (see paragraph 18 of the Constitutional Court’s decision, cited in paragraph 29 above). More specifically, according to the Constitutional Court’s interpretation, which was consistent with its previous case-law finding that the traffic data, as defined under the domestic law, fell within the protection of Article 37 of the Constitution (ibid.), the disclosure of subscriber information associated with a certain dynamic IP address in principle required a court order and could not be obtained by means of a simple written request by the police.
Trabajo Rueda v. Spain, 2017, European Court of Human Rights
child pornography material • unjustified police computer searches without prior judicial authorisation
Mr Trabajo Rueda, a Spanish national, was sentenced to four years' imprisonment in 2008, for possession and circulation of pornographic images of minors. The pornographic material was discovered by a computer technician in a shop where the applicant had taken his computer so that a defective data recorder could be replaced.
The technician called the police, who seized the computer and inspected all the files, without prior judicial authorisation, which was allowed by national legislation in an emergency. After exhausting all internal remedies, Mr Trabajo Rueda complained that his right to private life (Article 8, European Convention on Human Rights) was infringed.
In its assessment, the European Court of Human Rights found that this measure was disproportionate to the legitimate aims it pursued and unnecessary in a democratic society. According to the Court, this type of interference could set a dangerous precedent. In this case, the police could have requested and waited for the judicial authorisation of computer searches after seizing the computer.
In the present case, there is no doubt, in the eyes of the Court, that the interference pursued one of the aims listed in Article 8 § 2 of the Convention, namely the “prevention of criminal offenses or the "protection (...) of the rights of others". The Court has already established that “sexual abuse is unquestionably a heinous type of wrongdoing which weakens the victims”. [...] However, the exercise of such powers creates the risk of abuses which are easy to commit in individual cases and of such a nature as to entail prejudicial consequences for democratic society (Malone v. the United Kingdom, 2 August 1984, § 81, series A No. 82). Even the prosecution of serious crimes must be subject to certain limits if one does not want to "undermine, even [...] destroy, democracy on the grounds of defending it"
Sanchez v. France, 2023, European Court of Human Rights
Islamophobic hate speech • criminal liability for failure to remove unlawful third party content on the applicant's publicly accessible Facebook wall • proportionality analysis based on the applicant's public duties and notoriety
Mr Julien Sanchez, the mayor of Beaucaire since 2014, and chair of the Rassemblement national group (a political party known as "Front National" until 2018), was fined following criminal proceedings, on charges of failing to remove Islamophobic comments posted by a third party on his publicly accessible Facebook account, during an election campaign. Some of the comments were the following:
"This BIGWIG has turned NIMES into ALGIERS, there’s not a street without a KEBAB SHOP and MOSQUE; DRUG DEALERS AND PROSTITUTES REIGN SUPREME, NO SURPRISE HE’S CHOSEN BRUSSELS CAPITAL OF THE NEW WORLD ORDER OF SHARIA... CHEERS UMPS [amalgam of UMP and PS, Socialist Party], AT LEAST WE DON’T HAVE TO PAY FOR THE FLIGHTS AND HOTEL... JUST LOVE this free version of CLUB MED... Thanks FRANCK and KISSES TO LEILLA... AT LAST, A BLOG THAT CHANGES OUR LIFE ..." (sic)
“Drug trafficking run by the muslims rue des lombards, it’s been going on for years... even with CCTV in the street... more drug dealing in plain sight on avenue general leclerc where riffraff sell drugs all day long but police never come and even outside schools, stones get thrown at cars belonging to ‘white people’ route d’arles at the lights all the time ... nimes, insecurity capital of languedoc roussillon.” (sic)
After exhausting all internal remedies for contesting the criminal conviction, Mr Sanchez lodged a complaint with the European Court of Human Rights, alleging that the sanction did not pursue a legitimate aim in a democratic society, that it was not based on an accessible, precise and foreseeable law, and that it had been a disproportionate intereference with his right to freedom of expression (Article 10, European Convention on Human Rights). Mr Sanchez also argued that, as the holder of the Facebook account, where the comments had been posted, and in his capacity as a local councillor at the time, he was not liable for the comments, as he had not been their author and he had not even been notified by the injured party to remove the comments, whereas the debate on his Facebook page reflected the political manifesto of his party.
Nonetheless, the Court found that, especially given his public duties and the political context of elections, Mr Sanchez had the responsibility to take action for identifying, moderating and removing unlawful content posted as comments on his Facebook page, and the failure to do so resulted in an interference with his right to freedom of expression, that was deemed lawful and necessary in a democratic society. The criminal proceedings resulting from his liability fell within the margin of appreciation afforded to the respondent State and they were proportionate to the level of responsibility and notoriety of the applicant.
In its assessment, the Court also referred to the Additional Protocol to the Convention on Cybercrime of the Council of Europe as a relevant international instrument.
In view of the foregoing, on the basis of an assessment in concreto of the specific circumstances of the present case and having regard to the margin of appreciation afforded to the respondent State, the Court finds that the decisions of the domestic courts were based on relevant and sufficient reasons, both as to the liability attributed to the applicant, in his capacity as a politician, for the unlawful comments posted in the run-up to an election on his Facebook “wall” by third parties, who themselves were identified and prosecuted as accomplices, and as to his criminal conviction. The impugned interference can therefore be considered to have been “necessary in a democratic society”.
Üçdağ v. Turkey, 2021, European Court of Human Rights
violation of the right to freedom of expression by the State • criminal liability for alleged propaganda for a terrorist organisation, by sharing Facebook posts, did not meet necessity criteria in pursuit of a legitimate aim
The applicant, Mr Üçdağ, an imam at a local mosque, was convicted by Turkish courts on a charge of disseminating propaganda in favour of a terrorist organization, by sharing Facebook posts of individuals wearing uniforms similar to those of members of the Workers' Party in Kurdistan, an illegal, armed organization.
Given that all internal means of complaint had been exhausted, Mr Üçdağ filed a complaint with the European Court of Human Rights, alleging that his freedom of expression (Article 10, European Court of Human Rights) had been infringed.
The Court found that Article 10 had indeed been violated, concluding that, by convicting the applicant for sharing Facebook posts, domestic authorities had failed to conduct a balanced analysis that would take into account the jurisprudence of the Court. The criminal conviction was not deeemed necessary enough in a democratic society by the Court.
Liliendahl v. Iceland, 2020, European Court of Human Rights
criminal liability for online hate speech on the basis of sexual orientation • the interference with the right to freedom of expression was lawful, it pursued a legitimate aim and it was necessary in a democratic society
In 2015, the municipal council of Hafnarfjörður, a town in Iceland, approved the initiative to introduce education and counseling in elementary and secondary schools for those who identified themselves as lesbian, gay, bisexual or transgender. This generated a wide public debate. In response to an online news item that defended the proposal and criticised a radio show where people expressed their disapproval, one internet user wrote the following comment:
"We listeners of [Ú.S.] have no interest in any [expletive] explanation of this kynvilla [derogatory word for homosexuality, literally ‘sexual deviation’] from [Ó.S.Ó.]. This is disgusting. To indoctrinate children with how kynvillingar [literally ‘sexual deviants’] eðla sig [‘copulate’, primarily used for animals] in bed. [Ó.S.Ó.] can therefore stay at home, rather than intrude upon [Ú.S.]. How disgusting."
Consequently, the internet user was charged with a criminal offense and convicted by the Supreme Court of Iceland. The convicted filed a complaint with the European Court of Human Rights against the judgment of the Supreme Court, alleging a violation of his freedom of expression protected under Article 10 of the European Convention on Human Rights.
The Court found that there had been no violation of Article 10, referring to the Additional Protocol to the Budapest Convention in its analysis.
In view of the above, the Court finds that the Supreme Court took into account the criteria set out in the Court’s case-law and acted within its margin of appreciation. The Court considers that the Supreme Court’s assessment of the nature and severity of the comments was not manifestly unreasonable (see, a contrario, Egill Einarsson v. Iceland, no. 24703/15, § 52, 17 November 2017) and it adequately balanced the applicant’s personal interests against the more general public interest in the case encompassing the rights of gender and sexual minorities. Therefore, in light of its existing case-law and the principle of subsidiarity (see paragraph 31 above), it is not for the Court to substitute its own assessment of the merits for that of the Supreme Court. Thus, no strong reasons militate in favour of the Court reaching a different conclusion.
Beizaras and Levickas v. Lithuania, 2020, European Court of Human Rights
online hate speech on the basis of sexual orientation • failure of the State to investigate and prosecute the acts of hate speech resulted in the violation of the rights to non-discrimination, private life and effective remedy
Two men posted a photo of them kissing on Facebook, with the intention of announcing the beginning of their relationship. The photo was publicly available. It received around 2,400 likes and more than 800 comments, including homophobic comments.
The applicants lodged a complaint with the Prosecutor General's Office in Lithuania, on account of the hateful comments based on their sexual orientation, and, furthermore, with national district courts, given the decision of criminal justice authorities to not initiate a pre-trial investigation.
Having exhausted all internal means of complaint, the applicants lodged a complaint with the European Court of Human Rights. The Court found that there had been a violation of Article 13 of the Convention, as, without any investigation on the matter, the applicants had been denied effective domestic remedy to the breach of their right to respect for private life, having been subjected to online hate speech because of their sexual orientation.
In the light of the foregoing, the Court holds that, despite one-off cases showing otherwise (see paragraph 54 above), the applicants have been denied an effective domestic remedy in respect of their complaint concerning a breach of their right to respect for their private life, on account of their having been discriminated against because of their sexual orientation. Consequently, the Court concludes that there has been a violation of Article 13 of the Convention.
Belkacem v. Belgium, 2017, European Court of Human Rights
online hate speech by the leader of a religious organisation did not constitute protected speech • criminal sanctions were lawful, they pursued a legitimate aim in a democratic society, and they were necessary
Mr Belkacem, a Belgian national, founded the organization "Sharia4Belgium", which was dissolved in 2012, and frequently made remarks via YouTube about the Muslim ethnic community in Belgium, calling on viewers to overpower Muslims, teach them a lesson and fight them.
Consequently, Mr Belkacem was sentenced to prison and a fine, on a charge of offences committed under the Belgian national law on combating certain forms of discrimination.
Mr Belkacem appealed the decision and the appeal was rejected. Thus, he lodged a complaint with the European Court of Human Rights, claiming that his right to freedom of expression (Article 10, European Convention on Human Rights) had been violated.
The complaint was rejected and the Court found that the judgment of the Belgian court was correct, in the sense that Mr Belkacem had intentionally incited to hatred and violence, deflecting Article 10 from its real purposes.
Renaud v. France, 2010, European Court of Human Rights
violation of the right to freedom of expression by the State through criminal sanctions • offensive comments questioning a municipal policy did not constitute hate speech • prevalence of public interest
Mr Renaud, a French citizen from Sens, member of an association that contested an administrative decision that authorised the construction of a real estate complex, was fined by a criminal court (Tribunal correctionnel), on charges of defamation and public insults against a person with a public mandate (the mayor), for posting a series of online comments criticizing the construction authorization.
Some of the comments were the following:
1o "... at a time when the demand for local shops, in the city center, is increasingly strong (list of studies soon available in links), [the town hall] (what are its real financial interests ... ?) unilaterally decided to eliminate small businesses in favor of an insane implantation project more than 4 km from the center.
2o "Defense Committee of the southern district of Sens
Build yes, but not anyhow
Ceaucescu urban planning dictator"
After exhausting all internal means of complaint, the applicant lodged a complaint with the European Court of Human Rights. The Court considered that the French state infringed upon the right to freedom of expression (Article 10, European Convention on Human Rights) through the criminal sanctions applied to Mr Renaud. Although the Court admitted the virulent nature of the online comments, it put forward that the remarks benfitted from the protection of Article 10 not as coming from a member of the opposition, but as coming from a representative of an association with claims pertaining to the public interest.
Admittedly, the Court notes that the remarks attributed to the applicant are of a certain virulence. However, it retains that, even if, strictly speaking, they do not fall within the framework of the freedom of expression of a member of the opposition, these remarks fall within the expression of the body representing an association carrying the claims made by its members on a matter of general interest, in the context of the questioning of a municipal policy. The Court also observes that the applicant, involved in local political life, as demonstrated in particular by his subsequent election, was undertaking an act of political opposition. It must therefore carry out a particularly strict control.
Féret v. Belgium, 2009, European Court of Human Rights
racist and xenophobic online hate speech by a politician did not constitute protected speech on political grounds • criminal liability for racist and xenophobic online hate speech was lawful, and it pursued a legitimate aim in a democratic society
Mr Daniel Féret, a Belgian national who was the chairman of the "Front National - Nationaal Front" party and, at a later stage, got elected to the Bruxelles-Capitale Regional Council and to the Parliament of the French Community, was sentenced to 250 hours of community service for the integration of immigrants, as well as a 10-month suspended prison sentence, on accounts of incitation to hatred, discrimination and violence, by disseminating leaflets of xenophobic nature via his website, among other means.
After exhausting all internal remedies, Mr Féret lodged a complaint with the European Court of Human Rights. In his complaint, Mr Féret argued that his right to freedom of expression (Article 10, Europen Convention on Human Rights), in his official capacity, was violated.
However, the European Court of Human Rights maintained that the judgment of the Belgian criminal courts did not infringe upon any of Mr Féret's rights, who, in his offical position, had to avoid inciting to hatred and intolerance.