As neither of the domestic courts had held an oral hearing, the ECtHR investigated whether this absence caused an unfair trial. The judges reiterated that despite the importance of the public character of the proceedings, the obligation to hold a public hearing is not absolute and has to be examined on a case-by-case basis.
Consequently, in cases that raise no question of credibility or do not give rise to a sufficient controversy over the facts, the ECtHR stressed that courts may decide such disputes in a fair and reasonable manner solely by the submissions made by the parties, without an oral hearing. Recalling that news is a perishable commodity and even a short delay in its publication might well deprive it of all its value and interest, the court applied this rule to the facts of the present case. Ultimately, the judges found that the legal issues had not been especially complex and did not require oral presentation of evidence or cross-examination of witnesses.
Therefore, even though the right of reply proceedings under Turkish law require national courts to rule within three days (shorter than average compared to other countries), the ECtHR did not consider the domestic court’s conclusions or procedures as arbitrary or patently unreasonable. Rather, the judges emphasised that this promptness was a necessary and justifiable element to these proceedings to enable untruthful information published in the media to be contested and to ensure a plurality of opinions in the exchange of ideas on matters of general interest.
Concluding, the court stressed that the applicant was still able to present his arguments against the publication of the reply in writing, which was considered sufficient to satisfy his right to a fair trial. Hence, the ECtHR, unanimously, held that the lack of a public hearing did not violate Article 6 ECHR.
Figure 1 (Photo by Rachel Hinman is licensed under the Creative Commons Attribution-Share Alike 2.0 Generic)
3.2. Is the right of reply endangering freedom of expression?
Because the Turkish courts had limited the editor’s right to choose the content of his newspaper, the ECtHR examined whether this compulsion to print a reply had interfered with Mr Eker’s freedom of expression under Article 10 ECHR. The judges found that the domestic court order restricted the editorial power of the publisher to decide whether to include contributions from individuals in his newspaper. Therefore, this led to an interference with the applicant’s freedom of expression.
However, the exercise of this right may be subject to lawful restrictions (see Article 10(2)). Hence, the court, consistent with ECtHR case law, examined whether the obligation to print the reply had been prescribed by law, had pursued a legitimate aim, was necessary in a democratic society and proportionate to the aim.
Reiterating that the interference had been prescribed by Turkish law, the court held that the right of reply is intended to afford all persons the possibility of protecting themselves against certain statements or opinions disseminated by the mass media that are likely to be injurious to their private life, honour or dignity. Thus, by giving the affected association the ability to defend themselves against allegations in the press, the restriction of Mr Eker’s rights was found to have the legitimate aim of protecting the ‘reputation or rights of others’. Significantly, the court also stressed that the publication of the reply enabled the affected journalist association to exercise their own right to freedom of expression. Consequently, the ECtHR emphasised that the right of reply is a necessary guarantee of the pluralism of information and that it must be respected in a democratic society.
However, reinforcing previous case law, the judges highlighted that this limitation must also be proportionate to the aim pursued. As there had been no obligation for the publisher to amend the original article, and he still had the opportunity to re-publish his version of the facts, the court found the publication of the reply was proportionate. In addition, the court considered the right of reply as an answer to the social need to not only allow the challenge of false information, but also to ensure a plurality of opinions. Consequently, the ECtHR, unanimously, concluded that the compulsion to print a reply had not amounted to a violation of the applicant’s freedom of expression under Article 10 ECHR.
4. Comments
This judgment is significant for the right of reply’s normative basis, content and court proceedings under the ECHR. To date, this is only the third time that a newspaper has claimed that an obligation to publish a reply under domestic law violates the ECHR. In Ediciones Tiempo SA v Spain App no 13010/87 (12 July 1989), the European Commission on Human Rights, which became obsolete with the restructuring of the ECtHR in 1998, seemed to root the right of reply solely in protecting rights guaranteed under Article 8. Remarkably, the judges in Kaperzyński v Poland App no 43206/07 (ECtHR, 3 April 2012), omitted these findings and held that the right of reply solely derives from Article 10, based on the need to be able to contest untruthful information and ensure plurality of opinions.
Reiterating the findings of both decisions, the present judgment convincingly emphasised that the protective purpose of the right of reply is twofold: The obligation to publish a reply can not only be justified by the protection of individual interests but also by the need to inform the people on the broadest possible basis and to make diverse sources of information available for them. Thus, the court sees the right of reply’s normative basis in both Article 8 and Article 10. This ‘two-pillar theory’ pays tribute to the fact that a right of reply goes beyond a mere retraction of facts and enhances public discourse in general, whilst ensuring comprehensive, reliable media coverage (see also Melnychuk v Ukraine App no 28743/03 (ECtHR, 5 July 2005)).
When looking at the examination of proportionality, it is striking that the court stressed that a right of reply must not obligate the newspaper to amend the original article, or prohibit them from publishing their version of the facts. This approach to balancing all the fundamental rights and interests involved is a recurring theme of the right of reply and is consistent with ECtHR case law (Kaperzyński). By reiterating this approach, the court gives clear guidance for national courts and ensures a level playing field between the publisher and the affected party.
Regarding the content of the reply, the ECtHR did not object that the reply in question included possibly disparaging remarks about the applicant. Considering that the tone of the reply was substantially similar to the original contribution, it is only reasonable to allow the same for the reply to guarantee an ‘equal fighting chance’ between the publisher and the affected party.
By outlining the circumstances under which a court is allowed to rule in its opinion, the ECtHR has emphasised the importance of swift proceedings for the effectiveness of the right of reply. Although not expressly mentioned by the court, this argument picks up on the ruling in Ediciones Tiempo, where the Commission held that the veracity of the reply could not be checked in any great detail. In today’s fast-moving media landscape, lengthy proceedings lead to the danger that the challenged statement will be long forgotten by the time the trial is finished (also known as the ‘fading factor’). Therefore, only the immediate realisation of the so-called ‘equal fighting chance’ can effectively fulfil the right’s normative purpose.
This judgment is not final as any party may still request referral to the Grand Chamber of the Court within a three-month period following the delivery of the judgment.
Felix is a second-year PhD Candidate in Law at the University of East Anglia (UEA). Before coming to England, he achieved his German Diploma in Law with distinction in 2015. Subsequently, he was awarded an LLM with distinction from UEA in 2016. After obtaining the Faculty of Social Sciences Studentship for his PhD studies, he has been working on his thesis focussing on Comparative Media Law since October 2016. Besides having worked as a Research Associate for the UEA Centre for Competition Policy and UEA Law School, Felix has also taught on both undergraduate and masters modules.