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MASTER’S THESIS INFORMATION LAW
NAME
CEES PLAIZIER
STUDENT NUMBER
10190821
SUPERVISOR
DR. TARLACH MCGONAGLEAnalyzing millions of data points, we consistently identified the most persuadable voters and the issues they cared about. We then sent targeted messages to them at key times in order to
move them to action
Cambridge Analytica website (2016 US Presidential election)1
The level of targeting we had available to us on Facebook—coupled with the research and data we produced internally—meant that we can say for the first time in a UK election that
digital made a demonstrable difference to the final election result
Craig Elder, Digital Director, The Conservative Party (2015 UK general election)2
1 Cambridge Analytica’s website.
A
BSTRACTRegulation of paid political advertising is a contentious topic in Europe. States have varying levels and modalities of regulation, and case-law by the European Court of Human Rights does not provide clear guidelines. As new and social media become more established actors in the larger media ecosystem, questions arise concerning the regulation of paid political advertising online.
This thesis examines the position of political advertising on social media within European human rights law, particularly the right to freedom of expression and the right to free elections. The comparative influence of social media is determined to assess whether regulation of paid political advertising on social media is warranted.
Insights into the human rights framework and the influence of social media are then shaped into a normative perspective on the regulation of paid political advertising on social media. Both States and private actors can take steps towards recognizing and regulating the permanently shifted media landscape. Such action would be beneficial to the media ecosystem and the public sphere as a whole. States have a duty to take measures under the relevant legal framework. Some recommended first steps towards fulfilling this duty are the development of a level playing field, and the introduction of transparency and accountability.
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ONTENTSINTRODUCTION 6
STRUCTURE AND METHODOLOGY 8
CHAPTER 1: SOCIAL MEDIA AND POLITICAL ADVERTISING 10 1.1. PAID POLITICAL ADVERTISING ON SOCIAL MEDIA 10
1.2. SOCIAL MEDIA IN A LARGER MEDIA LANDSCAPE 11
1.3. ISSUES FACING SOCIAL MEDIA AND THE POSITION OF POLITICAL ADVERTISEMENTS 13
1.4. VARIETY WITHIN SOCIAL MEDIA AND FOCUS ON FACEBOOK 13
CHAPTER 2: FREE SPEECH AND FREE ELECTIONS 15
2.1. FREEDOM OF EXPRESSION 15
2.1.1. THE RIGHT TO FREEDOM OF EXPRESSION 15
2.1.2. POLITICAL SPEECH 18
2.1.3. POLITICAL ADVERTISEMENTS 21
2.1.4. THE RIGHT TO RECEIVE INFORMATION 24
2.2. ELECTIONS 28
2.2.1. THE RIGHT TO FREE ELECTIONS 28
2.2.2. MEDIA COVERAGE OF ELECTIONS UNDER ARTICLE 3PROTOCOL NO.1 30
2.3. CONCLUSION 32
CHAPTER 3: SHIFTING MEDIA INFLUENCES? 33 3.1. DETERMINING THE POSITION OF SOCIAL MEDIA 33
3.1.1. NEW MEDIA VS. TRADITIONAL MEDIA 33
3.1.2. SOCIAL MEDIA WITHIN NEW MEDIA 35
3.2. DATA-DRIVEN POLITICS ON SOCIAL MEDIA 38
3.2.1. ONLINE BEHAVIOURAL ADVERTISING 38
3.2.2. ONLINE BEHAVIOURAL ADVERTISING AND POLITICS 40
3.3. THE INFLUENCE OF PAID POLITICAL ADVERTISING ON SOCIAL MEDIA 43
3.3.1. WHAT WOULD BE A SERIOUS SHIFT IN INFLUENCE? 43
CHAPTER 4: REGULATING PAID POLITICAL ADVERTISING ON SOCIAL
MEDIA 49
4.1. PROTECTING ONLINE OPINION-FORMING IN THE ELECTORAL PROCESS 49
4.2. TRANSPARENCY AND ACCOUNTABILITY 52
4.3. RECOMMENDATIONS FOR FILLING THE GAPS IN THE LEGAL FRAMEWORK 55
CONCLUSION 58
I
NTRODUCTIONOn the third of January 2018, French President Emmanuel Macron announced his intention to create a legal framework regulating ‘fake news’ on social media in times of election, in order to protect democratic life. Social media will have to disclose the advertisers behind sponsored content, and spending limits will be put in place.3 Increased transparency of paid political
advertising on social media is called for on a daily basis in the United States, due to the probe into Russian meddling with the American Presidential election through targeted ads.4
Social media have been around for well over a decade. The applications for these platforms have since diversified to engage all sectors of society, and social media rank among the busiest crossroads of information and discourse on the Internet. Inevitably, politicians and political agendas have also found their way to online advertising.Currently there is very little societal or governmental insight into the content of the advertisements, the target audiences, the actors behind the advertisements, or the amounts spent.
A number of western countries held elections in the past year, and in all of these countries questions arose about the power of social media as a campaigning tool.5 Transparency, or the
lack thereof, is often mentioned in this discourse.6 However, introducing regulation on the
social media that form the platforms for online political propaganda is a tricky endeavour. These social media are both mass enablers of free speech the and unofficial gatekeepers of the boundaries of acceptable speech.7 ‘Fake news’ has an inherent malignant connotation and
regulation to reduce ‘fake news’ therefore seems obvious, but what about regulation of paid online campaign messages by political parties?
3 Angelique Chrisafis, ‘Emmanuel Macron promises ban on fake news during elections’, The Guardian 3 January 2018.
4E.g. The New York Times posts daily updates, and has reported on this since 14 June 2016.
5 Ample examples of commentary on social media campaigning in the UK and US are found throughout this thesis, for examples from the Netherlands and Austria see: Reinier Kist and Annemarie Kas, ‘Zo proberen politieke partijen in jouw tijdlijn te komen’, NRC 24 January 2017; Luisa Beck and Griff Witte, ‘How dirty campaigning and fake Facebook sites came to dominate the Austrian election’, The Washington Post 15 October 2017.
6 Carole Cadwalladr, ‘Who's supposed to regulate elections in the 21st century? Apparently no one’, The Guardian 11 June 2017; Natasha Lomas, ‘US election agency seeks views on rule change for digital ad platforms’,
TechCrunch 15 September 2017.
The practice of paid political advertising through social media has benefits, not only for political parties, but also for voters interested in political discourse. Critics, however, voice concern over the stockpiling of voter data, the rise of ‘fake news’, and the effects of targeted political advertisements on the electoral process. This last concern is researched in this thesis.
The primary research question of this thesis is:
When approached from a human rights perspective, what level and modalities of regulation are warranted with regard to paid political advertising on social media in times of election?
The answer to the primary research question will be approached through the following sub-questions:
1. What is paid political advertising on social media?
Paid political advertising and social media are fundamental to this research. To provide a meaningful answer to the primary research question, both terms will be analysed from a legal and a communications science perspective.
2. What is the human rights framework for paid political advertisements on social media?
This research focusses on the Council of Europe’s human rights framework, and more specifically on the European Convention on Human Rights (‘ECHR’ or ‘Convention’) and the European Court of Human Rights (‘ECtHR’ or ‘Court’). Relevant policy documents by committees or advisory bodies are also discussed.
3. What evidence is there of a ‘serious shift in the respective influence’ of social media in relation to traditional media in the field of paid political advertising?
The passage in quotation marks is taken from the Animal Defenders International case by the ECtHR.8 The Court held that there is no evidence of a sufficiently serious shift in the
respective influences of new and broadcast media to undermine the need for special measures for the latter. To examine whether a serious shift in influence has occurred, traditional, new, and social media will be compared. Subsequently, data driven politics will be analysed to examine the implications of paid political advertising on social media.
Finally, the questions of what a sufficiently serious shift would be, and whether one has taken place, will be answered.
4. What are the gaps in the relevant human rights framework and what measures can make this framework more effective?
After mapping the legal framework governing paid political advertisements on social media, and assessing the influence of paid political advertising on social media, this thesis will make recommendations on how to fill any gaps in the current legal framework.
The title of this thesis, ‘Micro-targeting Consent’, is a twenty-first century adaptation of the titles of Herman and Chomsky’s book ‘Manufacturing Consent’ and Bernays’ article ‘The Engineering of Consent’.9 Both of these works argue the important role the media play in
influencing public opinion.
S
TRUCTURE ANDM
ETHODOLOGYThis thesis examines the position of political advertising on social media within European human rights law and aims to develop an understanding of the effects that paid political advertising on social media have on human rights. These insights are then shaped into a normative perspective on the regulation of paid political advertising on social media. For certain elements of this thesis the fields of communications science and political science will be drawn upon.
The first chapter will contain a brief description of the practice of paid political advertisements on social media, and an overview of the position that social media have in society as well as in a larger media landscape. The aim is to provide an introduction to the first sub-question that can be built upon in chapter 3, and to distinguish the topic of this research from a range of other societal and legal issues that relate to social media.
The second chapter will address sub-question 2. It will provide insight into the right to freedom of expression, which is enshrined in Article 10 of the ECHR, and the right to free elections,
9 Edward Herman and Noam Chomsky, Manufacturing Consent: The Political Economy of the Mass Media, Pantheon 1988; Edward Bernays, ‘The Engineering of Consent’, ANNALS of the American Academy of Political
which is enshrined in Article 3 of Protocol No. 1 to the Convention.10 The relevant aspects of
the right to freedom of expression and the right to free elections with regard to paid political advertising will be discussed.
The third chapter will address sub-questions 1 and 3. It will take an analytical approach, in which the influence and effects of paid political advertising on social media are examined. To do this, first traditional media and new media are compared, and social media is distinguished from other new media. Second, data-driven politics on social media in the form of behavioural advertising are examined from a communications science perspective. Finally, the question whether a sufficiently serious shift in the respective influence of new media in relation to traditional media with regards to paid political advertising has occurred will be analysed and answered.
The fourth chapter will address sub-question 4. It will be normative and aim to provide insights into the legally warranted level regulation of paid political advertising on social media. The current legal framework described in chapter 2 will serve as a starting point to provide elements of regulation and a comparative base. Insights from chapter 3 will serve as indicators of societal effects and warranted levels of regulation. Ultimately the fourth chapter will provide recommendations to achieve an improved regulatory framework on paid political advertising on social media from a human rights perspective.
10 The European Convention on Human Rights, adopted 4 November 1950, entered into force 3 September 1953, Article 10; Protocol No 1 to the European Convention on Human Rights, adopted 20 March 1953, entered into force 18 May 1954, Article 3.
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DVERTISING1.1. Paid political advertising on social media
Political advertising has been around for as long as there have been chosen representatives. Political advertising is a broad term that can encompass anything related to promoting (or attacking) a cause, candidate, or party. Political advertising is not necessarily done by the candidate or party itself, third-party action groups, influential societal groups, or individuals also partake. Within the European Union, there are countries in which paid political advertising is banned, and countries which allow for paid political advertising in some shape or form. The United Kingdom and Ireland, for instance, have strict bans on political advertising on broadcast media outside of specifically allotted timeslots on public broadcast media.11 In other countries
such as Poland and Montenegro, paid political advertising is not regulated nationally, but by broadcasters through internal advertising codes.12 The Committee of experts on Media
Pluralism and Transparency of Media Ownership (‘MSI-MED’) found that national provisions on paid political advertising vary substantially between member States.13
Social media are a new means of engaging in political advertising, both paid and free. They offer advertisers a means of engaging with an intended audience in ways that are impossible with traditional media such as television or newspapers. Social media allow candidates or parties to engage with potential new voters for free through tools like Tweeting, vlogging on YouTube, or posting on Facebook. Social media also sell political advertisement space to parties and candidates, and to other individuals and organisations. These advertisements appear on users’ news feeds in between the rest of the platform’s content. For the purpose of this research, any mention of political advertising is understood to refer to paid political advertising by a political party or candidate during election times.
When planning to launch an ad on traditional media, advertisers have some means of targeting their advertisement. They can, for instance, place a television commercial during a broadcast that attracts their target audience, or place an ad in a national newspaper that is read by their target audience. When targeting of an advertisement can be specified on a (near) individualized
11 Davor Glavaš, ‘Political advertising and media campaign during the pre-election period: A Comparative Study’,
OSCE Mission to Montenegro May/July 2017, p. 4-6.
12 ibid, p. 9, 24.
13 MSI-MED, (2016)10rev4, Draft study on the use of Internet in electoral campaigns, Council of Europe 14 November 2017, p. 10-11.
level, it is called ‘micro-targeting’. The largely indiscriminate targeting of big audiences that takes place in traditional ‘broadcasting’ is replaced by the purposeful selection of a (near) individualized audience through identification of that audience’s needs, wants, expectations, beliefs, preferences, and interests. These are are then appealed to in the form of micro-targeted messages.14 The practice of micro-targeting is sometimes described as ‘narrowcasting’, to put
explicit emphasis on its distinction to broadcasting.
Narrowcasting is most effective when you know your target audience, and you have a means of reaching them individually. Here, social media come in. Political advertising on social media is unique due to its advanced targeting options. Facebook allows for near individualized targeting through demographics, location, interests, and behaviour.15 Users give platforms lots
of data themselves, e.g. name, date of birth, hometown, friends, and likes. Platforms have algorithms to deduce further personality traits through browsing behaviour both on its own website and on others, which can be used to make (accurate) assumptions on the user’s personality.16 Political parties themselves also compile data on eligible voters through
combination of voter rolls, donor and response data, campaign web data, and consumer and other data.17 The large scale gathering of voter data by political parties is mostly prevalent in
the United States, but commentators expect this practice will increasingly be observed in European countries.18
1.2. Social media in a larger media landscape
Social media are the most recent development in a long line of technologically-driven innovations in media. The printing press gave rise to pamphlets, books, and newspapers. Broadcasting innovation saw the inception of radio and television. For years now, the Internet has been the new kid on the block.19 In many ways it has surpassed the other, ‘traditional’,
media. For instance in the US, Internet is the largest source of news.20 However, Facebook and
14 Ira Rubinstein, ‘Voter Privacy in the age of Big Data’, Winsconsin Law Review 2014, p. 882. 15https://www.facebook.com/business/products/ads/ad-targeting#core_audiences.
16 Wu Youyou, Michal Kosinski, and David Stillwell, ‘Computer-based personality judgments are more accurate than those made by humans’, Proceedings of the National Academy of Sciences 2015 112(4), p. 1039.
17 Ira Rubinstein, ‘Voter Privacy in the age of Big Data’, Wisconsin Law Review 2014, p. 879.
18 Colin J. Bennett, ‘Voter databases, micro-targeting, and data protection law: can political parties campaign in Europe as they do in North America?’, International Data Privacy Law 2016, 6:4, p. 274-275.
19The World Wide Web was launched in 1991, making it 26 years old and thus not very new, nor a kid.
20 Nic Newman, ‘Reuters Institute Digital News Report 2017’, Reuters Institute for the Study of Journalism 2017, p. 102.
other social media do not self-identify as media, to avoid the stringent regulation on traditional news media that national and European lawmakers have put in place. Society does tend to see Facebook as a source of news, as will be shown in 1.4, and academics have also given substance to the notion that Facebook should be seen as a news editor.21 As it stands, as far as the legal
framework of the Council of Europe is concerned, social media are not media and do not have to adhere to the rules applicable to broadcast or print media.22 There have been policy initiatives
to widen the notion of ‘media’ with the goal of including the Internet, and social media, within its scope but as of yet most national lawmakers appear reluctant to act on these advances.23
Defining social media is difficult both from a legal and a sociological point of view. A driving force behind the confusion and lack of consensus is the variety in terminology. New media, digital media, online media, and social media are frequently used synonymously in contemporary vocabulary and their mutual relationship is unclear at face value. Does social media fall under all of the other media categories? Are there new media that are not digital? All these terms carry underlying issues and assumptions when wielded in an academic context.24 Chapter 3.1.2. will take a closer look at social media, and define them as networked
database platforms that combine public with personal communication. Further use of the terms ‘social media’ and ‘social media platform’ both refer to this definition.
Through social media, a large portion of the global population has access to unprecedented means of discourse, either one-to-one, one-to-many, or many-to-many. Social media enable free open discourse during electoral periods for anyone with an Internet connection. Applications of new technologies, or ‘affordances’, on social media enable users: to access previous conversations due to information persistence, to transport information from one conversation to another, to reach immense audiences, and to search for specific information.25
21 Natali Helberger and Damian Trilling, ‘Facebook is a news editor: the real issues to be concerned about’, LSE
Media Policy Project Blog 26 May 2016.
22 European Audiovisual Observatory, ‘Media coverage of elections: the legal framework in Europe’, IRIS Special July 2017, p. 7-20.
23 See for instance: Recommendation CM/Rec(2011)7 of the Committee of Ministers to member States on a new notion of media, adopted on 21 September 2011.
24 Eugenia Siapera, Understanding Social Media, SAGE 2012, p. 3-6.
25 Danah Boyd, ‘Social Network Sites as Networked Publics: Affordances, Dynamics, and Implications’, in Zizi Papacharissi, A Networked Self: Identity, Community, and Culture on Social Network Sites, Routledge 2011, p. 45-56.
1.3. Issues facing social media and the position of political advertisements
Social media are a crossroads for many contemporary issues relating to technology and innovation.26 Social media are the main playing field for ‘fake news’, mainly due to lack of
editorial supervision over content and the micro-targeting options explained in 1.2. Privacy is another topic that keeps users of social media, and the platforms themselves, in its grip. A third issue is the taxation of globally operating Internet platforms. The European Commission has stated it wants to impose European tax laws on platforms that are active in the European Union but have their headquarters elsewhere.27
Paid political advertisements on social media feature aspects of all of issues stated above. These advertisements are the tools used to spread ‘fake news’, be it by the Russian government or a group of Macedonian teenagers.28 The targeting options available when creating political
advertisements form a strong incentive for political parties to create large databases of voter data to allow for more precise targeting of individuals or groups on social media.29 The
compiling of data has repercussions for individual voters’ privacy. Finally, social media platforms generate the vast majority of their revenue through the sale of advertisements.30
Regulation of political advertisements therefore strikes at the core of social media platforms’ business model. It affects their ability to generate revenue through advertising and restricts their autonomy to define the boundaries of acceptable discourse on their platform.
1.4. Variety within social media and focus on Facebook
The main focus of this research into political advertising is Facebook, the world’s largest social medium in terms of individual users.31 Facebook has no political advertising policy, although
it is in the process of implementing self-regulatory measures relating to political ad.32
26 John Naughton, ‘The tide is starting to turn against the world’s digital giants’, The Guardian 24 September 2017.
27 Jennifer Rankin, ‘EU to find ways to make Google, Facebook and Amazon pay more tax’, The Guardian 21 September 2017.
28 Emma Jane Kirby, ‘The city getting rich from fake news’, BBC News 5 December 2016.
29 Emma Goodman and Others, ‘The new political campaigning. Media Policy Brief 19’, Media Policy Project, London School of Economics and Political Science, p. 19-20.
30 Facebook, ‘Facebook Reports Third Quarter 2017 Results’, 1 November 2017.
31 World Economic Forum, ‘The world’s most popular social networks, mapped’, 20 March 2017.
32 Facebook, ‘Advertising Policies’; Rob Goldman, ‘Update on Our Advertising Transparency and Authenticity
A key finding of the Reuters Digital News Report 2016 reads: “Facebook is by far the most important network for finding, reading/watching, and sharing news”.33 80% of the respondents
of the Reuters Digital News Report 2017 stated they weekly use a Facebook product for any purpose.34 The runner-up social medium for news use is usually YouTube, a platform which is
rather dissimilar to Facebook in terms of functionality and purpose. A more direct competitor such as Twitter is often in the top five social media in terms of weekly usage for news, but only occasionally sees double digit usage percentages. Facebook rarely has less than a third of a country’s population hooked on its news feed. In the Netherlands, 32% of the population uses Facebook as a source for weekly news. Twitter is fourth with 8%, and Instagram fifth with 4%.35
Facebook is the biggest social media platform in terms of users and weekly usage. Facebook is also the main target of the ‘fake news’ and ‘transparency in social media advertising’ debate. It is worth posing the question whether ‘fake news’ had any practical effect on the electoral process, as critics voice doubts.36 Nevertheless, ‘fake news’ aspects of political advertising fall
outside of the scope of this research, due to both the limited scope of this research and the lack of a legal framework governing ‘fake news’. The ‘fake news’ discussion does add to the prevalence of critical discourse concerning political advertisements on social media, which underlines urgency to develop a solid understanding of the human rights aspects of targeted political ads during electoral periods.37
The next chapter will outline the legal framework of the ECHR and the ECtHR governing paid political advertising on social media in electoral periods.
33 Nic Newman, ‘Reuters Institute Digital News Report 2016’, Reuters Institute for the Study of Journalism 2016, p. 7.
34 ibid, p. 12. 35 ibid, p. 80.
36 For insight into the phenomenon ‘fake news’ and its effect see: Tarlach McGonagle, ‘“Fake news” – False fears or real concerns?’, Netherlands Quarterly of Human Rights 2017, 35(4), p. 202-209, and Hunt Allcott and Matthew Gentzkow, ‘Social Media and Fake News in the 2016 Election’, Journal of Economic Perspectives 2017 31(2), p. 211-236.
37 Reporting on ‘fake news’ often also includes a wider look at political advertisements on Facebook, e.g. Julia Carrie Wong, ‘Russia's election ad campaign shows Facebook's biggest problem is Facebook’, The Guardian 22 September 2017.
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2.1.1. The right to freedom of expression
Freedom of expression is enshrined in Article 10 ECHR, which states that “[e]veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. […]”.38 In its Handyside judgement, the ECtHR elaborated on the importance of this
right. It found that the right to freedom of expression is an essential foundation for a democratic society and the progress thereof. Furthermore, it is one of the basic conditions for the development of every man.39 The Court went on to consider the scope of free speech in one of
its most referenced passages: “[freedom of expression] 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 that pluralism, tolerance and broadmindedness without which there is no "democratic society"”.40 This passage illustrates the necessity of vigilance and scrutiny when
any restriction to free speech is imposed by a Contracting State. ‘Merely’ being offended or shocked by an expression is not in itself grounds for restricting it. The scope for restrictions of free expression will always vary on a case-by-case basis.
Restrictions of free speech are permissible under Article 10, but must comply with Article 10(2). Any restriction must be prescribed by law, pursue a legitimate aim, and be necessary in a democratic society.41 Out of these three, necessity in a democratic society is the most
contentious requirement for interferences of Article 10. Necessity implies that there is a pressing social need for the restriction, and that the restriction is proportionate in light of the legitimate aim.42 To establish whether a measure is necessary, the Court often performs a
balancing exercise between the right to freedom of expression on the one hand, and the reasons for restriction on the other. Examples of relevant reasons for restricting political speech are the
38 The European Convention on Human Rights, adopted 4 November 1950, entered into force 3 September 1953, Article 10.
39 Handyside v the United Kingdom App no 5493/72 (ECtHR, 7 December 1976), para 49. 40 ibid.
41 Sunday Times v the United Kingdom App no 6538/74 (ECtHR, 26 April 1979), para 45. 42 ibid, paras 59, 62.
protection of effective pluralism and the democratic process, or to provide for a certain equality of opportunity among different forces of society.43
The right to freedom of expression does not just mean that a State must refrain from interfering with Article 10. The ECtHR has found that an effective exercise of freedom of expression may require States to establish positive measures of protection, even in relations between individuals.44 In Dink, the Court established a broad interpretation of the positive obligations
doctrine: States must create an enabling environment in which everyone can effectively exercise their right to freedom of expression and communication among themselves. This includes the dissemination of ideas or opinions that are contrary to those of the political or societal majority, and also encompasses messages that can be deemed annoying or shocking.45
For establishing whether a positive obligation exists, the Court must strike a fair balance between the general interests of the community and the specific interests of the individual.46 In
the balancing exercise, some relevant factors are the type of expression rights involved, the public interest nature of these expression rights, their capacity to contribute to public debate, the nature of restrictions on expression rights, the accessibility of other options for dissemination, and the importance of countervailing rights of others or the public.47 The onus
of positive obligations is not to achieve a result, but to undertake action towards the goal of guaranteeing a favourable environment for free speech.48
The ECtHR has stressed that the rights of the ECHR must be practical and effective, and not theoretical and illusory.49 In Stafford it stated that “[a] failure by the Court to maintain a
dynamic and evolutive approach would risk rendering it a bar to reform or improvement”.50
43 Verein gegen Tierfabriken v Switzerland App no 24699/94 (ECtHR, 28 June 2001), para 72; Animal Defenders
International v the United Kingdom App no 48876/08 (ECtHR, 22 April 2013), para 99.
44 Dink v Turkey App nos 2668/07, 6102/08, 30079/08, 7072/09 et 7124/09 (ECtHR, 14 September 2010), para 106.
45 ibid, 137.
46 Ozgür Gündem v Turkey App no 23144/93 (ECtHR, 16 March 2000), para 43.
47 Harris and Others, Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights, Oxford University Press 2014, p. 629-630; Appleby and Others v the United Kingdom App no 44306/98 (ECtHR, 6 May 2003), paras 42-49.
48 Tarlach McGonagle, ‘Positive obligations concerning freedom of expression: mere potential or real power?’ in Onur Andreotti, Journalism at risk: Threats, challenges and perspectives, Council of Europe Publishing 2015, p. 30.
49 Airey v Ireland App no 6289/73 (ECtHR, 9 October 1979), para 24; Mansour v Slovakia App no 60399/15 (ECtHR, 21 November 2017), para 90.
This ‘practical and effective’ interpretation of the Convention is closely linked to the living instrument doctrine. The Convention’s provisions must be interpreted in light of present-day conditions.51 As a result, the Court will not consider what the Convention’s drafters envisaged
in terms of scope or level of protection when creating the Convention.52 The living instrument
doctrine also means that the Court will not rely upon what a respondent State’s government or public deems an acceptable standard. Present-day conditions must in some way be common or shared between multiple States.53 The living instrument doctrine enables the Court to develop
its case-law on freedom of expression parallel to and in recognition of current societal values. A clear example of this is the development of the watchdog doctrine, which the Court broadened in 2016 to include bloggers and social media users.54
The ECtHR makes a distinction between certain types of speech, with regard to the protection afforded under the ECHR and the margin of appreciation that States enjoy when restricting that type of speech. The Court has discerned political speech, artistic speech, and commercial speech, and hybrids of these. The margin of appreciation and the room for restriction of these types of speech is a sliding scale; the Court will allow for the least restriction of political speech. For artistic speech the margin is wider, and for commercial speech the margin is even wider still. The nature of political speech and its importance for the functioning of a democratic society cause the Court to allow very little scope for restrictions on political speech permissible.55 A more detailed analysis of political speech will follow in 2.1.2.
Artistic speech is afforded protection under Article 10.56 The scope of protection is however
not as wide as with political speech. For instance, in Otto-Preminger-Institut a wider margin of appreciation was awarded because the case required interpretation of ‘morals’.57 This is
more often the case with artistic expression, where a domestic court is deemed better equipped to rule on the admissibility of a restriction to artistic speech.58
51 Tyrer v the United Kingdom App no 5856/72 (ECtHR, 25 April 1978), para 31.
52 George Letsas, ‘The ECHR as a Living Instrument: Its Meaning and Legitimacy’, 14 March 2012, p. 2. 53 ibid.
54 Magyar Helsinki Bizottság v Hungary App no 18030/11 (ECtHR, 8 November 2016), para 168.
55 Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986), para 42; Wingrove v the United Kingdom App no 17419/90 (ECtHR, 25 November 1996), para 58.
56 Muller v Switzerland App no 10737/84 (ECtHR, 24 May 1988), para 27.
57 Otto-Preminger-Institut v Austria App no 13470/87 (ECtHR, 20 September 1994), para 50. 58 See also Muller v Switzerland App no 10737/84 (ECtHR, 24 May 1988), para 35.
Commercial speech, although also a form of protected speech, is furthest away from the core of a democratic society and therefore only marginally protected by the Article 10. For commercial matters, a margin of appreciation is essential, and accordingly the Court only assesses “whether the measures taken on the national level are justifiable in principle and proportionate”.59 With regards to commercial speech, the Court must sometimes determine
whether or not certain speech constitutes an advertisement, and is therefore of a commercial nature. Other cases involve the assessment of truthfulness of communications.60
Hybrid speech is where the expression contains elements of two or more of the aforementioned categories of speech. For instance, in Verein gegen Tierfabriken (‘VgT’) an organisation tried to air a commercial with the aim of participating in an ongoing public debate. The expression took the form of a commercial, but its content and purpose concerned a political statement.61
When hybrid speech is reviewed, the ECtHR will strike a balance between the two categories of speech and determine the applicable margin of appreciation accordingly.62
2.1.2. Political speech
The ECtHR examines restrictions of political speech with the utmost scrutiny, making it the type of speech with the highest level of protection under the ECHR.63 Its free existence is a
prerequisite for democratic debate and human advancement.64 Political speech is not limited to
expressions made by political figures relating to matters of public interest. Journalistic coverage of matters of public interest falls within the scope of political speech, and an ‘ordinary’ individual’s potential to contribute to public debate is also recognized by the ECtHR. A range of actors play a part in political debate: the government, politicians, political parties, and journalists. Each of these actors’ relationship to political expression will now be examined in turn.
59 Markt Intern Verlag GmbH v Germany App no 10572/83 (ECtHR, 20 November 1989), para 33, on a similar note Barthold v Germany App no 8734/79 (ECtHR, 25 March 1985), para 55.
60 Roger Shiner, Freedom of Commercial Expression, Oxford University Press 2003, p. 98-99. 61 Verein gegen Tierfabriken v Switzerland App no 24699/94 (ECtHR, 28 June 2001), para 70. 62 ibid, para 71.
63 Harris and Others, Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights, Oxford University Press 2014, p. 629-630.
The government’s role in public debate will be examined first. The doctrine of positive obligations protects an individual person’s right to freedom of expression. This entails that States must ensure effective exercise of the right of free speech.65 As there is a narrow margin
of appreciation for restrictions to political speech, States have a duty to enable other actors to participate in public debate. The government also has an obligation to tolerate a high amount of criticism: “[i]n a democratic system the actions or omissions of the Government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion”.66 With regard to the government itself, there the limits of acceptable criticism are
wide, even wider than for politicians.67 This heightened degree of tolerance of criticism applies
to all levels of government, and includes public officials.68
Politicians occupy a special position in the ECtHR’s case-law regarding political speech. Naturally, politicians are at the heart of public debate. This position brings with it both rights or privileges and duties or responsibilities. A politician’s political expression enjoys a privileged status because of their contribution to public debate.69 The Court holds that freedom
of expression is important for everybody, but especially so for chosen representatives. They represent the people, draw attention to matters of public interest and defend the public’s interests. For these reasons, interference with a politician’s right to freedom of expression requires the utmost scrutiny of the Court.70 However, politicians must refrain from hate speech
or speech that incites hatred or violence. In the case of Féret, a Belgian politician was sentenced to 250 hours of community service, a 10-month suspended prison sentence, and a symbolic fine for spreading racist leaflets and posters.71 The Court found no violation of Article 10, since
the expression spread hatred and racial discrimination.72 The Court noted, crucially, that the
leaflets were spread during election times. It reasoned that the hateful discourse therefore had a larger impact and subsequently gave cause for a more restrictive approach.73
65 Harris and Others, Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights, Oxford University Press 2014, p. 617.
66 Lombardo and Others v Malta App no 7333/06 (ECtHR, 24 April 2007), para 54. 67 Castells v Spain App no 11798/85 (ECtHR, 23 April 1992), para 42.
68 Tarlach McGonagle, Freedom of Expression and Defamation: A study of the case law of the European Court
of Human Rights, Council of Europe 2016, p. 32-37.
69 Harris and Others, Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights, Oxford University Press 2014, p. 630.
70 Castells v Spain App no 11798/85 (ECtHR, 23 April 1992), para 42. 71 Féret v Belgium App no 15615/07 (ECtHR, 19 July 2009), paras 34-35. 72 ibid, para 78.
The flipside of the public nature of politicians is that they must be more tolerant of criticism. In Lingens, the ECtHR found that the limit of acceptable criticism for politicians is wider than for the private individual.74 This does not mean that anything goes where discourse about
elected officials is concerned, but the protection of their reputation must be weighed against the interest of open discussion of political issues.75 Consequently, public debate concerning a
politician’s public affairs is afforded a high amount of protection under Article 10.
Political parties are afforded to a right to freedom of expression under Article 10.76 The ECtHR
considers pluralism to be a prerequisite for democracy, and political parties play a crucial role in achieving pluralism.77 Party leaders will, however, often be responsible for their own
political expressions.78 The right to freedom of assembly enshrined in Article 11 of the ECHR
is a more fundamental provision for the effective functioning of political parties.
Finally, journalists are afforded a special position under free speech protection of Article 10. Not unlike politicians, journalists fulfil a special role in a democratic society. The press has a duty to impart information and ideas on all matters of public interest.79 Furthermore, the public
has a right to receive this information. This right to receive information is discussed further in 2.1.4. Apart from this function as disseminator of information, journalists are also regarded by the ECtHR as public watchdog.80 With this public watchdog, the ECtHR refers to the role of
the press to report information of serious public concern.81 The Court’s notion of ‘watchdog’
has expanded over the years, in line with the living instrument doctrine. When the doctrine was introduced in Barthold, it specifically concerned the press.82 In Vides Aizsardzības Klubs the
Court stated non-governmental organisations could also perform a watchdog function.83 In
74 Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986), para 42. 75 ibid.
76 The United Communist Party and of Turkey and Others v Turkey App no 19392/92 (ECtHR, 30 January 1998), para 43.
77 Refah Partisi (The Welfare Party) and Others v Turkey App nos 41340/98, 41342/98, 41343/98, and 41344/98 (ECtHR, 13 February 2003), para 89.
78 Harris and Others, Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights, Oxford University Press 2014, p. 631.
79 Bladet Tromsø and Stensaas v Norway App no 21980/93 (ECtHR, 20 May 1999), para 59. 80 Barthold v Germany App no 8734/79 (ECtHR, 25 March 1985), para 58.
81 Bladet Tromsø and Stensaas v Norway App no 21980/93 (ECtHR, 20 May 1999), para 59. 82 Barthold v Germany App no 8734/79 (ECtHR, 25 March 1985), para 58.
Magyar Helsinki Bizottság (‘MHB’) the Court broadened the notion of watchdog even further
by including bloggers and popular users of social media.84
2.1.3. Political advertisements
The issue of restriction of political expression in the form of paid advertisements has made its way to the ECtHR on a handful of occasions. Although somewhat contradictory, this line of judgements gives insight into what the ECtHR considers to be relevant factors when assessing restrictions on paid political advertising. The most recent judgement in which political advertising plays a role, albeit a minor one, is Orlovskaya Iskra. The judgement reiterates a particular tension between journalistic coverage of elections on the one hand, and advertisements for a political party or candidate on the other hand. Where the first category is concerned, the ECtHR affords Contracting States only a narrow margin of appreciation. For the second category however, States enjoy much more freedom in shaping their legal framework and posing restrictions.85
In VgT, previously mentioned as an example of hybrid speech, the restricted expression contained elements of commercial expression and political expression, as a commercial promoting a political cause was barred from commercial television advertising. The facts of this case did not occur during (the run up to) an election. The Swiss government’s argument for banning political advertisements on television was “to protect public opinion from the pressures of powerful financial groups and from undue commercial influence”.86 However, the
Court found that the applicant is not one of those powerful groups. Furthermore, the Swiss government’s justification for banning this particular political advertisement are not “relevant and sufficient”, although the Court cannot exclude that a prohibition of political advertising may be compatible with Article 10.87 The applicant organisation merely intended to participate
in an ongoing general debate, and had no means to reach the entire Swiss population other than through a commercial on the public radio or television broadcasting service.88
84 Magyar Helsinki Bizottság v Hungary App no 18030/11 (ECtHR, 8 November 2016), para 168. 85 Orlovskaya Iskra v Russia App no 42911/08 (ECtHR, 21 February 2017), para 115.
86 Verein gegen Tierfabriken v Switzerland App no 24699/94 (ECtHR, 28 June 2001), para 72. 87 ibid, 75.
A subsequent ECtHR case concerning political advertising was TV Vest, in 2008.89 A regional
branch of the Norwegian Pensioners Party purchased advertising time from private broadcaster TV Vest to air three advertisements several times per day during an electoral period. The State Media Authority fined TV Vest for airing political advertisements, as there was a law against political advertisements in television broadcasting. The Court recognised the arguments of pluralism and quality that the Norwegian Supreme Court stated in defence of the ban on political advertisements. Use of political advertising as a form of expression would likely reduce the quality of political debate in general. Complex issues could get distorted and powerful financial groups would have a stronger influence. The ban was limited to television due to the persuasive power of the medium, and by limiting the costs of election campaigns a level playing field would be ensured as “those who could afford it did not obtain an undesirable advantage through the possibility of using the most potent and pervasive medium”.90
This rationale, however, was not persuasive enough in the particular case of TV Vest. The Pensioner’s Party is not a financially powerful party that the ban purports to constrain. On the contrary, larger parties were frequently featured on television coverage but due to the ban, and similar to VgT, advertisements were the only means for the party to get their message across on television. The availability of other, less potent, media does not diminish this imbalance.91
The Court found that the enforcement of a ban on political advertising by imposing a fine on TV Vest was disproportionate to the legitimate aim and therefore not necessary in a democratic society.92
In 2013 the Court issued judgement in the case of Animal Defenders International.93 The facts
of this case bear a resemblance to VgT. Animal Defenders International (‘ADI’) is a British NGO campaigning against the use of animals in commerce, science, and leisure. It seeks to change law and public policy and influence public and parliamentary opinion. The particular expression concerned was an advertisement intended for television for the campaign ‘My Mate’s a Primate’, which sought to contribute to a public debate on the confinement of primates. The Broadcast Advertising Clearance Centre declined to clear the advertisement due
89 TV Vest AS & Rogaland Pensjonistparti v Norway App no 21132/05 (ECtHR, 11 December 2008). 90 ibid, para 70.
91 ibid, para 73; somewhat contrarily: Appleby and Others v the United Kingdom App no 44306/98 (ECtHR, 6 May 2003), para 48.
92 ibid. para 78.
to its political nature, in line with the stringent ban on political advertising on television and radio in the United Kingdom.94 ADI argued before the ECtHR that restricting the ban to
television and radio is illogical given the rationale of the ban, which is to protect the democratic process from undue unequal access based on wealth. After all, print and online media were not covered by the ban and therefore open to undue unequal access based on wealth.
The ECtHR saw no faults in a distinction between different media: “[t]he Court recognises the immediate and powerful effect of the broadcast media, an impact reinforced by the continuing function of radio and television as familiar sources of entertainment in the intimacy of the home”.95 In other words: broadcast media are of a singular effectiveness when it comes to
influencing consumers. It went on to argue that advertisements on the Internet and social media do not have the same synchronicity or impact as on broadcast media, and that although the Internet and social media have significantly developed in preceding years there is no evidence of a substantial change of influence between broadcast and online media.96 The ECtHR found
the interference with ADI’s freedom of expression to be permissible. It noted that for a measure such as this to be proportionate, it is important for other ‘useful’ media to be accessible.97 In
this particular case, ADI had had the option to participate in radio or television discussion programmes of a political nature and to advertise in print and online media.98
A final case of note is Appleby and Others.99 It concerned access to a privately-owned town
centre for the purpose of campaigning a topic of public interest. The campaigners wanted to oppose plans to place a building on part of the only playing field open to the local community.100 When denied access to the privately owned shopping centre, they demanded
access in a national court and eventually before the ECtHR. The applicants reasoned that the shopping centre functioned as a town centre since it also contained a post office and offices of the Council housing department.101 This appeal appears to invoke a right similar to the United
94 ibid, paras 8-10; UK Communications Act 2003, Section 321(2). 95 ibid, para 119.
96 ibid.
97 ibid, para 124; Appleby and Others v the United Kingdom App no 44306/98 (ECtHR, 6 May 2003), para 48. 98 ibid.
99 Appleby and Others v the United Kingdom App no 44306/98 (ECtHR, 6 May 2003). 100 ibid, paras 10-16.
101 Harris and Others, Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights, Oxford University Press 2014, p. 619.
States public forum doctrine, where individuals must be allowed access to privately owned public spaces for enjoyment of their right to free speech.102
Confronted with this unique appeal to the positive obligation that rests upon States to ensure the right to freedom of expression, the ECtHR formulated a set of criteria by which to determine whether a State is obliged to regulate property rights to ensure an effective exercise of freedom of expression.103 The Court considered the nature of the expression involved; a contribution to
an ongoing public debate. Subsequently, it looked at the nature of the restrictions imposed, as well as the alternative venues available to the applicants. The applicants were free to campaign through alternative means, and did so quite successfully. They also managed to campaign in the shopping centre, when a shop owner let them campaign in his shop. In the Court’s view it could therefore not be said that the applicants were effectively prevented from communicating their views to their fellow citizens as result of the refusal of a private company.104
The ECtHR’s case-law, although erratic, addresses many of the factors and arguments involved in the discussion on regulating political advertisement. The importance of protecting public debate from influence by powerful financial groups is often a pivotal consideration. In both
VgT and TV Vest the fact that the applicant party did not have other, equally effective, means
of nationwide dissemination of their message was a substantial argument for concluding violation of Article 10. In Animal Defenders International the fact that ADI had multiple options left for participating in public debate carried much weight in finding no violation. Moreover, in Animal Defenders International the Court finds itself struggling with the viability of new media and their influence on public debate. The Appleby case shows the ECtHR does not shy away from determining a positive obligation may exist when a public forum impedes an individual’s exercise of Article 10.
2.1.4. The right to receive information
The right to freedom of expression is broader than its title suggests. Article 10 does not only encompass the right to express information or ideas, it also explicitly encompasses a right for individuals to receive information or ideas.105
102 ibid.
103 Appleby and Others v the United Kingdom App no 44306/98 (ECtHR, 6 May 2003), para 47. 104 ibid, para 48.
The right to receive information has two prongs, the right of access to information and the right to receive information. First there is the right of access to information held by state authorities, which will be only marginally discussed as it is of secondary importance to this research. The right of access to information has been called the ‘publicity principle’ by commentators, and entails the dissemination of State held information to requesting parties under certain circumstances.106 Such a subjective right can be found in national legislation, in for instance
the Netherlands it can be found in the Government Information Act, and on a European level in a regulation and in the Tromsø Convention.107
The ECtHR has stated on numerous occasions that it is difficult to derive a general right of access to administrative data and documents from Article 10.108 The Court held that States
cannot impede an individual from receiving information that others wished to impart on him, but the ECtHR did not deem there to be a positive obligation on States to collect and disseminate information of its own accord.109 The Társaság A Szabadságjogokért (‘TASZ’)
judgement marked an important step in expanding the publicity principle from freedom to right.110 The Court considered that an NGO aiming to promote fundamental rights, civil society
and the rule of law has a social watchdog function similar to that of the press. A State body’s unwillingness to provide information that is of public importance and upon which it has a monopoly therefore amounts to censorship, which constitutes an interference with Article 10.111 The State had an obligation to eliminate barriers to the exercise of press functions with
regard to issues of public interest.112 TASZ heralded a shift in the ECtHR’s case-law, justified
by the aforementioned living instrument doctrine, towards a more universal right of access to
106 Päivi Tiilikka, ‘Access to Information as a Human Right in the Case Law of the European Court of Human Rights’, Journal of Media Law 2013 5:1, p. 80.
107 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission Documents; Council of Europe Convention on Access to Official Documents, CETS 205, Tromsø,18 June 2009.
108 E.g. Leander v Sweden App no 9248/81 (ECtHR, 26 March 1987), para 74; Gaskin v the United Kingdom App no 10454/83 (ECtHR, 7 July 1989), para 54.
109 Guerra and Others v Italy App no 14967/89 (ECtHR, 19 February 1998), para 53. 110 Társaság A Szabadságjogokért v Hungary App no 37374/05 (ECtHR, 14 April 2009). 111 ibid, paras 27-29.
State documents.113 The most recent development in this shift is the 2016 MHB judgement, in
which the Court expanded on threshold criteria for right of access to State held information.114
The second prong to freedom to receive information is the right avail oneself of information, the right to form one’s own opinion, and to develop as an autonomous individual. This right sees to a wider range of information and ideas, not just government-held. As an element of the right to freedom of expression, the right to receive information is underdeveloped in academia in comparison to other elements of Article 10.115 As with the first prong, there is no general
right to receive specific information from for instance news actors. States do have positive obligations to ensure effective exercise of the right to receive information under certain circumstances. An individual cannot invoke his right to freedom of expression against other private actors, as Article 10 only applies vertically, in other words: between State and private actor. This is apparent from Article 1 ECHR, which exclusively addresses States.
There have, however, been instances where a State’s positive obligations concerned the relations between private actors.116 In Fuentes Bobo, the ECtHR found that in some cases, the
State has a positive obligation to protect the right to freedom of expression against attacks even by private persons.117 Eskens, Helberger, and Moeller examined the positive obligations
incumbent on States under the right to receive information, and determined five perspectives from which to understand the scope of the right. These perspectives are political debate, truth finding, social cohesion, avoidance of censorship, and self-development.118 In the context of
paid political advertising, the perspectives of political debate, truth finding, and self-development are most relevant.
113 Jan Oster, Media Freedom as a Fundamental Right, Cambridge University Press 2015, p. 98. 114 Magyar Helsinki Bizottság v Hungary App no 18030/11 (ECtHR, 8 November 2016), paras 157-170. 115 Sarah Eskens, Natali Helberger, and Judith Moeller, ‘Challenged by news personalisation: five perspectives on the right to receive information’, Journal of Media Law 2017, 9:2, p. 260.
116 Tarlach McGonagle, ‘Positive obligations concerning freedom of expression: mere potential or real power?’ in Onur Andreotti, Journalism at risk: Threats, challenges and perspectives, Council of Europe Publishing 2015, p. 13-14.
117 Fuentes Bobo v Spain App no 39293/98 (ECtHR, 29 February 2000), para 38; Declaration of the Committee of Ministers on Risks to Fundamental Rights stemming from Digital Tracking and other Surveillance Technologies, 11 June 2013, para 4.
118 Sarah Eskens, Natali Helberger, and Judith Moeller, ‘Challenged by news personalisation: five perspectives on the right to receive information’, Journal of Media Law 2017, 9:2, p. 261.
As has been discussed above, political debate is of fundamental importance to the functioning of any democratic society, and political speech is afforded the highest level of protection by the Court. Consequently, the Court has formulated concrete obligations for States in ensuring the right to receive information regarding political debate. In Manole the Court stated that there rests a duty on the State to ensure “that the public has access through television and radio to impartial and accurate information and a range of opinion and comment, reflecting inter alia the diversity of political outlook within the country”.119 This passage illustrates the crucial role
that media play in effective enjoyment of a right to receive information for the purpose of participating in public debate.
Truth finding, or truth seeking as it is also referred to, is one of the primary arguments for a right to freedom of expression. Truth seeking implies that the public is entitled to receive a diversity of information out of which the truth will arise.120 In the past year, truth seeking has
become a mainstream topic due to emergence of ‘fake news’. Where ‘fake news’ often concerns the false presentation of information as fact, political advertising concerns more subjective statements.121 These subjective statements, or value-judgements, are inherent in
political advertising. The importance of truth seeking for the right to receive information in a political advertising context lies in the opportunity to be exposed to the stances of a diverse array of political parties on key issues. When individuals are exposed to a range of different political advertisements, the concept of a marketplace of ideas comes to fruition which enables the individual to reach the best obtainable version of the truth.
Self-development, or self-fulfilment, is one of the core arguments for free speech. It goes beyond the notion of effective participation in public debate, and stipulates the importance of free speech for personal growth.122 The ECtHR frequently recognises the importance of
freedom of expression for self-fulfilment.123 Where the argument of participation in public
119 Manole and Others v Moldova App no 13936/02 (ECtHR, 17 September 2009), para 100. 120 Eric Barendt, Freedom of Speech, Oxford University Press 2005, p. 7-13.
121 The ECtHR distinguishes between facts and value-judgments inter alia the case of Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986), para 46; see also Harris and Others, Harris, O’Boyle and Warbrick: Law of the
European Convention on Human Rights, Oxford University Press 2014, p. 697-700.
122 Eric Barendt, Freedom of Speech, Oxford University Press 2005, p. 13-14.
123 E.g. Bédat v Switzerland App no 56925/08 (ECtHR, 29 March 2016), para 48; Janowski v Poland App no 25716/94 (ECtHR, 21 January 1999), para 30.
debate sees to a particular part of an individual’s life, the self-fulfilment argument for a right to receive information concerns his development as a whole.
It follows from these perspectives, that the right to receive information is vital during electoral periods. Especially so when it concerns official party communication on key issues. Meiklejohn ranks the importance of receiving information over the importance of expressing information in this context: “If there are arguments against our theory of government, our policies in war or in peace, we the citizens, the rulers, must hear and consider them for ourselves”.124 In a democracy, the individual is the ruler and only when he is properly informed
on the arguments for and against the status quo can he truly make the right decisions.
So how do paid political advertisements interact with the right to receive information? Eskens, Helberger, and Moeller noted that news personalisation can enhance the right to receive information in a number of ways, for instance by recommending similar news to people in local communities to stimulate social cohesion or to provide each individual with news that is most beneficial to their self-development. They also found that the novel option to cater to specific individual information needs is not as important for enhancing the right to receive information from the perspective of political participation and truth finding because from those perspectives, it is less important what the individual finds interesting.125 For political
participation, only receiving specific messages from specific political actors can actually impede the right to receive a diverse palette of political stances on key issues, and thereby hinder a person in his participation in democracy.
2.2. Elections
2.2.1. The right to free elections
“Free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of any democratic system”.126 This other half of the foundation of democracy,
free elections, is not enshrined in the ECHR. It was added to the Convention through Protocol
124 Alexander Meiklejohn, Free Speech and Its Relation to Self-Government, Harper and Brothers, 1948, p. 66. 125 Sarah Eskens, Natali Helberger, and Judith Moeller, ‘Challenged by news personalisation: five perspectives on the right to receive information’, Journal of Media Law 2017, 9:2, p. 280.
