CEU Electronic Theses and Dissertations, 2019
| Author | Zaltsman, Anna |
|---|---|
| Title | Five Categories Defined, No Consistency Found: ECHR Convention and Case Law on Freedom of Artistic Expression |
| Summary | A number of NGOs and other rights organisations report on attacks on artists, censorship and conflicts of arts and other rights around the globe. Freemuse, an international NGO primarily reporting on attacks on artists around the globe stated that there have been 1,028 attacks and violations of artists’ rights in 2016 and this number only increased compared to the previous year. These challenges exist regardless of international and regional mechanisms of protection. The purpose of the research study is to analyse the case law of the European Court of Human Rights and its former Commission and find out whether or not the Court is delivering consistent judgements and reasoning when it comes to the protection of artistic expression in the European legal space. The methods used in this research were case-law analysis, analysis of relevant international treaties and instruments, analysis of reports by international and non-governmental organizations, theoretical assessment on the protection of speech and research on artistic expression by other scholars. After collecting all the data, case law, historical overview and legal framework, it was possible to divide the Court’s case law into five categories. The first category is the most massive and least consistent when it comes to reasoning - the category involves clashes between freedom of artistic expression and religious sensitivities. The second category involved satire as a more consistent defence used in freedom of artistic cases; however, the satirical nature of an expression even though explicitly protected by the case law of the European Court of Human Rights, is not always considered in the reasoning of the Court. Perhaps the second largest chunk of cases that occurs in regards with artistic freedom is when such freedom allegedly violates someone’s reputation which makes up the third category. Protection of reputation very often prevails over artistic expression in the Court’s decisions due to the discretion allowed for the protection of a legitimate aim in question. When the form of expression is in a form of some conduct, the Court explicitly states that such form of expression falls within the meaning of Article 10. The cases in this fourth category are quite consistent - the preference is given to the applicants - but at the same time, the sample size is quite small so far. The Court recognises that certain artistic forms, especially literary forms of art such as poetry and novels, have limited potential to impact large masses of people which in most cases in the fifth category, if spoken about, is used as the major factor to decide in favour of the applicants. By collecting and analysing case-law of the Court, as the main method, it was possible to infer that the Court should revise its case-law in order to increase consistency in reasoning to ensure better protection of the rights and higher effectiveness of the European Convention overall. Even though the consistency in judgment is problematic, a tendency towards more consistent judgments in the latest cases is visible. The research ends with a number of recommendations in the area of artistic expression protection for the members states, international, non-governmental and other relevant organisations and actors. |
| Supervisor | Parmar, Sejal |
| Department | Legal Studies MA |
| Full text | https://www.etd.ceu.edu/2019/zaltsman_anna.pdf |
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