10
EINARSSON v. ICELAND JUDGMENT
However, this margin goes hand in hand with European supervision,
embracing both the legislation and the decisions applying it, even those
delivered by an independent court. In exercising its supervisory function,
the Court’s task is not to take the place of the national courts, but rather to
review, in the light of the case as a whole, whether the decisions they have
taken pursuant to their power of appreciation are compatible with the
provisions of the Convention relied on (see, inter alia, Petrie v. Italy, cited
above, § 40-41, with further references).
37. In cases which require the right to respect for private life to be
balanced against the right to freedom of expression, the Court considers that
the outcome of the application should not, in theory, vary according to
whether it has been lodged with the Court under Article 8 of the Convention
or under Article 10. Indeed, as a matter of principle these rights deserve
equal respect. Accordingly, the margin of appreciation should in theory be
the same in both cases (Couderc and Hachette Filipacchi Associés v.
France [GC], no. 40454/07, § 91, ECHR 2015 (extracts)).
38. Where the national authorities have weighed up the interests at stake
in compliance with the criteria laid down in the Court’s case-law, strong
reasons are required if it is to substitute its view for that of the domestic
courts (Bédat v. Switzerland [GC], no. 56925/08, § 54, ECHR 2016, with
further references).
39. Relevant criteria for balancing the right to respect for private life
against the right to freedom of expression may be: the contribution to a
debate of general interest; how well-known is the person concerned and
what is the subject of the report; his or her prior conduct; the method of
obtaining the information and its veracity; the content, form and
consequences of the publication; and the severity of the sanctions imposed
(see, for example, Axel Springer AG v. Germany, cited above, § 89-95, and
Von Hannover v. Germany (no. 2), cited above, § 108-113).
40. Lastly the Court points out that, in order to assess the justification
for an impugned statement, a distinction needs to be made between
statements of fact and value judgments. While the existence of facts can be
demonstrated, the truth of value judgments is not susceptible of proof. The
requirement to prove the truth of a value judgment is impossible to fulfil
and infringes freedom of opinion itself, which is a fundamental part of the
right secured by Article 10. The classification of a statement as a fact or as a
value judgment is a matter which in the first place falls within the margin of
appreciation of the national authorities, in particular the domestic courts.
However, even where a statement amounts to a value judgment, there must
exist a sufficient factual basis to support it, failing which it will be excessive
(see Do Carmo de Portugal e Castro Câmara v. Portugal, no. 53139/11,
§ 31, 4 October 2016 and Pedersen and Baadsgaard v. Denmark [GC], no.
49017/99, § 76, 17 December 2004).
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