The role of the ECHR and national judicial systems in protecting freedom of speech was discussed during the Vilnius Dialogue with the participation of the Supreme Court representatives

Ukraine has long-standing traditions of democracy and freedom of speech that date back at least to the Cossack era. The decriminalisation of defamation more than twenty years ago was another confirmation of our commitment to these fundamental rights. Today, despite the war, Ukraine continues to maintain high standards of observance of the right to freedom of expression, but, like any state that is subject to aggression, threats to national security and territorial integrity, it must take care to prevent the abuse of these rights in the interests of the enemy and their other use to the detriment of our society and state.

This was stated by President of the Supreme Court Stanislav Kravchenko during the Vilnius Dialogue, dedicated to the development of a culture of public debate in Europe.

The event, organised by the Council of Europe jointly with the Supreme Court of the Republic of Lithuania under the auspices of the Lithuanian Presidency of the Committee of Ministers of the Council of Europe, was held in the Seimas of the Republic of Lithuania.

The event was attended by the Deputy Speaker of the Seimas Julius Sabatauskas, President of the Supreme Court of the Republic of Lithuania Danguolė Bublienė, President of the Supreme Court of Latvia Aigars Strupišs, Vice-President of the European Court of Human Rights Arnfinn Bårdsen, ECHR judges Gediminas Sagatis and Mykola Gnatovskyy, and Head of the Division of the Department for the Execution of ECHR Judgments Pavlo Pushkar.

The delegation of the Supreme Court included President of the Supreme Court Stanislav Kravchenko, Judge of the Grand Chamber of the Supreme Court Olha Stupak, Judges of the Administrative Cassation Court of the Supreme Court Yan Bernaziuk, Myroslava Bilak, Olena Hubska, Judges of the Civil Cassation Court of the Supreme Court Vasyl Krat and Pavlo Parkhomenko, and First Deputy Chief of Staff - Head of the Department for Analytical and Legal Work of the Supreme Court Rasim Babanly.

The speakers focused on the analysis of the ECHR case law on the application of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the criteria that the state must adhere to in order to strike a balance between freedom of expression and the duties and responsibilities derived from this right. A separate panel discussion was devoted to the issue of responding to SLAPPs - strategic lawsuits against public participation aimed at censoring and suppressing public criticism.

In his speech, the President of the Supreme Court stressed that the aggressor, the Russian Federation, pays considerable attention to propaganda both inside and outside the country, which underlines the importance of the role of the media in hybrid wars and full-scale invasions. Every democracy must use tools to protect itself from such influence, as information and psychological operations can sometimes be as effective as direct attacks with weapons. Citizens of Ukraine are literally confronted with such cases every day, and unfortunately the media are sometimes used for these purposes in such a covert way that the falsity of certain messages spread by them is only realised later.

Stanislav Kravchenko also noted that in the context of the war and the growing number of challenges facing the judiciary, the need to maintain a balance between the right to criticise and the protection of the Court's authority has become more important than ever. The ECHR has repeatedly sought to strike this balance, noting that the judiciary must enjoy the confidence of the public in order to perform its functions effectively.

Mykola Gnatovskyy, ECHR judge from Ukraine, referenced case law from the Grand Chamber of the ECHR, citing pivotal positions established in judgments in the cases of NIT S.R.L. v. the Republic of Moldova and Sanchez v. France. In the case of NIT S.R.L. v. the Republic of Moldova, the government revoked the license of a prominent TV channel that was utilized for critical commentary on government affairs and was accused of exhibiting a lack of diversity in opinion, presenting news coverage that was perceived to be politically biased in favor of the opposition political party, and disseminating/broadcasting distorted news.

The speaker emphasised that this decision is important for understanding the category of ‘media pluralism’, namely its internal (coverage of different political views in a media resource) and external (the presence of other media covering different political views) manifestations.

The case of Sanchez v. France concerns the responsibility of the owner of a Facebook account for moderating comments, namely for not deleting an Islamophobic comment under a post on his account. In this case, the ECHR found the fine imposed on the person to be proportionate. 

The panelists repeatedly emphasised that the emergence of new means of communication, primarily social media, necessitates the search for mechanisms to counter reputational threats to public figures, cases of dissemination of false information and fake news.

In this context, Judge Arnfinn Bårdsen, Vice-President of the ECHR from Norway, stressed that we must not allow new technologies to destabilise society. In particular, he cited the example of the use of artificial intelligence to 'sort' voters and to create messages containing distorted facts to be delivered to social media users according to their preferences. Such targeting results in users receiving incomplete information presented from only one perspective.

AI technologies are also used to determine what information should be hidden, meaning that some users simply do not receive it. The judge stressed that in order to respond effectively to such cases, it is necessary to understand how AI technologies work and how they can be used in the process of disseminating information.

The Deputy Speaker of the Lithuanian Seimas, Julius Sabatauskas, recalled that 40 years ago in his country it was necessary to use the language of Aesop to express opinions, as the totalitarian state opposed freedom of expression. Today, you can talk about anything directly - express your opinion and defend your point of view. Referring to the election process in Lithuania, the speaker stressed that a modern means of disinformation is the use of a very dangerous mixture in the media - a mixture of truth and lies.

The joint responsibility of the ECHR and national courts was the subject of a speech by Hasan Bakirci, Registrar of the ECHR Section. He noted that national courts face at least two requirements: to provide sufficient justification for decisions restricting freedom of expression, and to ensure a balance between competing interests. According to the speaker, it is the national courts, which are directly involved in this context, that are in the best position to find the boundaries that ensure the appropriate balance.

In her report, Myroslava Bilak, Judge of the Administrative Cassation Court of the Supreme Court, stressed that the situation with freedom of expression changes significantly in the context of extraordinary situations, especially in a defensive war to protect against external aggression. Modern hybrid warfare in the information space is waged with no less ferocity than on the battlefield. The dissemination of hostile propaganda, largely based on disinformation, is a means of psychological influence designed to mislead, confuse, and reduce the ability to resist aggression.

Therefore, in time of war or other public danger threatening the life of the nation, as stated in Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms, freedom of expression, like some other rights and freedoms protected by the Convention, may be subject to restrictions proportionate to the objectives of protecting State sovereignty, national security and the democratic system.

Summing up the conference, Pavlo Pushkar, Head of the Division of the ECHR's Judgments Execution Department, stressed that new challenges prompted an evolutionary interpretation of the Convention, and the implementation of the right under Article 10 of the Convention was a joint responsibility of the ECHR and national judicial systems. Pavlo Pushkar also emphasised the need to continue the dialogue initiated in Vilnius and to strengthen the dialogue between the journalistic and legal communities. 

The visit also included a working meeting of the SC delegation with the President of the Supreme Court of the Republic of Lithuania Danguolė Bublienė.