Cases & Projects
May it please the court...
Besides defending individual journalists from harassment through judicial processes, MLDI intervenes in cases that raise important points concerning free expression. In this way it seeks to highlight oppressive laws or judgments and affirm principles about media freedom.
MLDI is particularly active before the European Court of Human Rights, whose judgments set standards for all 47 States of the Council of Europe and are highly authoritative elsewhere.
The most recent case was in Germany, when the magazine, Bild, challenged an injunction against reporting critical remarks made by the leader of the opposition about former Chancellor Gerhard Schröder. The court ruled that Bild should establish the truth of the remarks and obtain a response from the former Chancellor before publishing them.
MLDI engaged argued that these requirements unreasonably constrained reporting on matters of public interest and so infringed Article 10 of the European Convention on Human Rights. MLDI also submitted five principles designed to protect coverage of such matters.
In another recent intervention before the ECHR, MLDI challenged a ban on the publication of “false news”. This concerned Armenia, where, following troubled elections and the declaration of a state of emergency in 2008, several editions of the daily Armenian Times were banned by presidential decree for publishing, among other things, “false or destabilising information”. False news laws are used in many other countries to restrict criticism of the government.
A major issue for MLDI is the widespread use of criminal libel laws to suppress debate, and, intervening in a case brought to the ECHR by a Portuguese newspaper, which had been sued by a public official over allegations of misusing public funds, MLDI formally asked the Court to lay down firm guidance to prevent the abuse of criminal libel in the 47 countries signed up to the European Convention.
While the Court has called for some broad constraints on the application of such laws, it has not laid down clear markers. MLDI asked it to declare these laws should never be used to shield public officials from criticism, to restrict commentary on matters of public interest or to prosecute expressions of opinion.
MLDI has a strong track record in its interventions at the European Court. Its intervention in the Court’s Grand Chamber in the case of Sanoma v. the Netherlands is a good example: MLDI brought together a coalition of interveners including the New York Times and Washington Post, and the resulting judgment strengthened the law on the protection of journalistic sources in Europe. Other successful interventions include MGN v. United Kingdom, which pulled the rug from underneath the UK's notoriously expensive funding scheme for plaintiff lawyers in libel and privacy cases, and Von Hannover v. Germany (2), which set principles on the balance to be applied between privacy and the right to freedom of expression.
Although cases at the European Court take a long time to come to fruition, the resulting judgments are worth the wait and can lead to changes in the law outside Europe as well as in the country against whom the case was taken. For example, the Sanoma judgment has been relied on to help recognise the principle of confidentiality of sources in South Africa. MLDI therefore continues to lodge interventions to push the European Court to set progressive freedom of expression standards.
MLDI is extremely grateful for the pro bono contributions to its interventions, including from Mark Stephens' team at Finers Stephens Innocent, Heather Rogers QC, Jessica Simor, and Mark Simpson QC, amongst others.