28
DELFI AS v. ESTONIA JUDGMENT
(d) Necessary in a democratic society
(i) General principles
78. The fundamental principles concerning the question whether an
interference with freedom of expression is “necessary in a democratic
society” are well established in the Court’s case-law and have been
summarised as follows (see, among other authorities, Hertel v. Switzerland,
25 August 1998, § 46, Reports of Judgments and Decisions 1998-VI; Steel
and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005-II;
Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR
2012 (extracts)); and Animal Defenders International v. the United
Kingdom [GC], no. 48876/08, § 100, 22 April 2013:
“(i) Freedom of expression constitutes 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 paragraph 2 of Article 10, it 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. 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,
which ... must, however, be construed strictly, and the need for any restrictions must
be established convincingly ...
(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the
existence of a ‘pressing social need’. The Contracting States have a certain margin of
appreciation in assessing whether such a need exists, but it goes hand in hand with
European supervision, embracing both the legislation and the decisions applying it,
even those given by an independent court. The Court is therefore empowered to give
the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression
as protected by Article 10.
(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the
place of the competent national authorities but rather to review under Article 10 the
decisions they delivered pursuant to their power of appreciation. This does not mean
that the supervision is limited to ascertaining whether the respondent State exercised
its discretion reasonably, carefully and in good faith; what the Court has to do is to
look at the interference complained of in the light of the case as a whole and
determine whether it was ‘proportionate to the legitimate aim pursued’ and whether
the reasons adduced by the national authorities to justify it are ‘relevant and
sufficient’.... In doing so, the Court has to satisfy itself that the national authorities
applied standards which were in conformity with the principles embodied in
Article 10 and, moreover, that they relied on an acceptable assessment of the relevant
facts ....”
79. Furthermore, the Court reiterates the essential function the press
fulfils in a democratic society. Although the press must not overstep certain
bounds, particularly as regards the reputation and rights of others and the
need to prevent the disclosure of confidential information, its duty is
nevertheless to impart – in a manner consistent with its obligations and
responsibilities – information and ideas on all matters of public interest (see