The scope of protection

As one of the essential foundations of a democratic society, freedom of expression enjoys special protection under the ECHR.¹⁶⁵² The rights protected by Article 10 of the ECHR overlap with some other rights protected by the ECHR, including the rights protected by Article 9 of the ECHR. However, in the context of the right to hold and express opinions, Article 10 is virtually indistinguishable from Article 9 of the ECHR.¹⁶⁵³ In addition, although some anti-democratic expression may be subject to a direct attack under Article 17 of the ECHR, the European Court has never relied on Article 17 to justify interference with freedom of expression. Rather, the European Court has required that the legitimacy of the interference with such expression must be justified under paragraph 2 of Article 10 of the ECHR.¹⁶⁵⁴ Article 10 of the ECHR protects every form of expression, even reviled expression. Given its fundamental importance for a democratic society, Article 10 of the ECHR 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 the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no democratic society.¹⁶⁵⁵

What is protected is an opinion, and not a mere insult, which is not intended to make certain spiritual decline toward something or which is not aimed at influencing a third person’s point of view or providing certain information to another person. Where it is possible to replace the challenged phrase by any other insulting term, then it does not involve a protected opinion but a plain insult.¹⁶⁵⁶

A careful distinction needs to be made between facts and value-judgments. The existence of facts can be demonstrated, whereas the truth of value-judgments is not susceptible of proof.¹⁶⁵⁷ In each individual case the court should carefully assess whether it implies value-judgments or facts.¹⁶⁵⁸

However, the opposite applies as well. A statement of untrue facts does not automatically imply that such expressions do not fall under the protection of Article 10 of the ECHR. For example, in a case where a journalist has a legitimate aim, when it involves a matter of great public concern and when reasonable efforts have been invested in confirmation of the facts, media enjoys the protection of Article 10 of the ECHR even in cases where it is later established that the facts were untrue.¹⁶⁵⁹ However, in cases where the media states untrue facts, those cannot be considered justified if the statements can be proved to be false. In such a case, a journalist’s reason being that he relied on a “trusted” source of information whose identity, pursuant to Article 9 of the Federation of BiH Law on Protection against Defamation (OG of FBiH, No. 59/02), he does not want to disclose, does not suffice.¹⁶⁶⁰ In cases where there is a wilful or negligent dissemination of untrue facts, an injured person shall be entitled to demand corrections or a denial to be issued in public.¹⁶⁶¹ Moreover, an injured person is obliged to employ this “procedural” possibility. In cases where the relevant media agree to issue a denial, no censure is allowed. In a denial, contradictory statements must not be removed. If the relevant media do not want or decline to make public the truth, i.e., a denial, an injured person shall be entitled to judicial protection and may raise an issue under Article 10 of the ECHR.¹⁶⁶² However, the judicial protection in this context can be afforded only if false facts have been made public, but the judicial protection does not relate to offensive language in public, since “a denial” cannot be issued for offensive language.¹⁶⁶³

Freedom of expression implies also an order to the media to impart information and ideas to the public, as the public is entitled to be informed.¹⁶⁶⁴ On the other hand, the media cannot be required to play the role of the “so called” public watchdog.¹⁶⁶⁵

Article 10 of the ECHR does not provide protection as to the creation of public broadcasting radio-television systems. Therefore, a complaint about disproportionate treatment of the State’s RTV system compared to the Entities’ systems because the programme of one is not transmitted via the networks of other systems does not fall within the protection afforded by Article 10 of the ECHR. Radio-television systems, which have the status of public institutions, do not enjoy the protection of this Article irrespective of the fact that they are independent legal persons. However, the position referred to in the preceding paragraph does not pertain to the right of employees of the public broadcasters who may, as any other citizens, seek protection under this right. Nevertheless, in cases where higher goals are to be achieved, such as, for example, the protection of the identity of one’s sources, certain restrictions on the exercise of freedom of expression by those persons may be justified.¹⁶⁶⁶