14
NIX v. GERMANY DECISION
crime, for the protection of health or morals, for the protection of the reputation or
rights of others, for preventing the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the judiciary.”
43. The Court reiterates that Article 10 of the Convention applies to the
Internet as a means of communication and that the publication of
photographs on an Internet site falls under the right to freedom of
expression (see Ashby Donald and Others v. France, no. 36769/08, § 34,
10 January 2013). It considers that the applicant’s conviction for having
displayed a picture of Himmler in SS uniform with a swastika armband in
his blog post of 23 March 2014 amounted to an interference with his right to
freedom of expression, as guaranteed by Article 10 of the Convention. Such
interference will infringe the Convention if it does not meet the
requirements of Article 10 § 2. It should therefore be determined whether it
was “prescribed by law”, whether it pursued one or more of the legitimate
aims set out in that paragraph and whether it was “necessary in a democratic
society” in order to achieve those aims.
44. The Court is satisfied that the applicant’s conviction was prescribed
by Article 86a of the Criminal Code. It notes that the purpose of that
provision is to prevent the revival of prohibited organisations or the
unconstitutional ideas pursued by them, to maintain political peace, and to
ban symbols of unconstitutional organisations in German political life (see
paragraph 30 above). The Court therefore considers that the interference in
question was in accordance with the law and pursued the legitimate aim of
the prevention of disorder.
45. The fundamental principles concerning the question of whether an
interference with freedom of expression is “necessary in a democratic
society” are well established in the Court’s case-law and have recently been
summarised as follows (see Perinçek v. Switzerland [GC], no. 27510/08,
§ 196, ECHR 2015 (extracts)):
“(i) Freedom of expression is one of the essential foundations of a democratic
society and one of the basic conditions for its progress and for each individual’s
self-fulfilment. Subject to Article 10 § 2, it applies 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. Such are the demands of pluralism,
tolerance and broadmindedness without which there is no ‘democratic society’. As set
forth in Article 10, this freedom is subject to exceptions, but these must be construed
strictly, and the need for any restrictions must be established convincingly.
(ii) The adjective ‘necessary’ in Article 10 § 2 implies the existence of a pressing
social need. The High Contracting Parties have a margin of appreciation in assessing
whether such a need exists, but it goes hand in hand with European supervision,
embracing both the law and the decisions that apply it, even those given by
independent courts. The Court is therefore empowered to give the final ruling on
whether a ‘restriction’ can be reconciled with freedom of expression.
(iii) The Court’s task is not to take the place of the competent national authorities
but to review the decisions that they made under Article 10. This does not mean that
the Court’s supervision is limited to ascertaining whether these authorities exercised
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