Necessary in a democratic society

An interference with freedom of expression is necessary in a democratic society if the reasons stated by the national authorities justify it and if the reasons are relevant and sufficient, and the means employed are proportionate to the legitimate aim pursued. The national authorities must apply standards in conformity with the principles of Article 10 and appropriately assess the relevant facts. Besides, it is primarily for the national authorities, notably the courts, to interpret and apply national law. The adjective “necessary” in paragraph 2 of Article 10 of the ECHR implies the existence of a “pressing social need”. Moreover, in assessing the existence and extent of the necessity for an interference with the freedom of expression, States enjoy a certain margin of appreciation. This margin of appreciation, however, is not unlimited. It goes hand in hand with ECHR supervision, the scope of which will vary according to the circumstances.¹⁶⁸¹ The safeguards to be afforded to the press are of particular importance. Whilst the press must not overstep various bounds set, inter alia, in the interest of the protection of the reputation and rights of others, it is nevertheless incumbent on it to impart information and ideas on political questions 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”. Moreover, freedom of the press gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society.¹⁶⁸²

In view of the above, in examining whether the sanctions imposed on the broadcasters or, precisely, on the moderator of the disputed programme, are irrelevant within the meaning of paragraph 2 of Article 10 of the ECHR, a number of factors must be taken into account, which, on the one side, observe the importance of freedom of expression in a democratic society and, on the other hand, observe the necessity of restricting the media’s freedom of expression. In cases where a television programme disseminates racist remarks, it is necessary first to establish who utters the offensive statements, either the broadcaster’s employees or third persons, guests in the programme. Even where such statements are uttered by third persons, i.e., guests in a programme, the broadcaster or the moderator of the programme are obliged to observe the views. Otherwise, the programme may seem to be speculative given that the media has an obligation to create public opinion objectively. In this regard, it is also necessary to establish whether certain views or programmes of the media, from an objective point of view, have as their purpose the propagation of racist views and ideas.¹⁶⁸³

Having established those criteria in case of “ORDO” RTV Sveti Georgije, the Human Rights Chamber came to the conclusion that a live, unedited, uncensored, call-in television programme, which presented racist remarks by third persons and which was broadcast only one day after extensive violent protests in Banja Luka preventing the groundbreaking ceremony for laying the cornerstone to reconstruct the former Ferhadija mosque, was unjustifiable. The suspension and later revocation of the broadcaster’s provisional broadcasting license were proportionate to the legitimate aims of protecting the rights of others, protecting public safety, and preventing disorder or crime.¹⁶⁸⁴

The same applies to a decision ordering a journalist to pay compensation for making an untrue statement of fact. Given the principle of proportionality, the court has to award fair and balanced compensation for damages in each individual case. These requirements shall not be satisfied in cases where the court incorrectly establishes that an untrue statement of fact has not been published. The amount of compensation ought to be made commensurate with the scope of damage.¹⁶⁸⁵