A. Introduction
Digitization has transformed society on several fronts. In recent years, we have seen the rise of social networks, the expansion of blogging and micro-blogging, the development of collaborative knowledge and video-sharing sites, and the broad uptake of instant messaging and online forums. The digital revolution has multiplied communication channels, increasing the number of spaces available for deliberation and debate. Social networks, blogs, chat rooms, and so on have expanded the possibilities of individuals to exercise the right to freedom of expression, and to obtain and diffuse information.Footnote 1 Digitization has brought to the fore new tools for expression, revolutionizing access to information and knowledge.
Digitization has also yielded a number of challenges for policy-makers. Social media has facilitated the dissemination of illegal content,Footnote 2 exposed children and other vulnerable groups to harmful content,Footnote 3 bred disinformation,Footnote 4 and undermined democratic values. Tension between freedom of expression and other rights and freedoms—such as the right to privacy, data protection, human dignity, and intellectual property, amongst others—have also come into greater prominence online.Footnote 5 The challenges and opportunities digitization has raised for public policy have sparked heated debate over regulatory standards in Europe,Footnote 6 with few regulatory initiatives having been put into practice so far.Footnote 7 Less consideration has been given, however, to the role of courts in this evolving legal area, despite the fact that both national and supranational courts in Europe have been increasingly required to rule on digital and social media disputes.
This Article seeks to untangle the social media jurisprudence of national courts in a selected set of EU Member States. It identifies and analyzes relevant case law, exploring the interpretative steps of the deciding judges. In doing so, the Article focuses on judicial dialogue and sheds light on the nature and breadth of judicial interaction via references to and use of the jurisprudence of peers. In social media cases, judges may be particularly inclined to look towards the rulings of other courts to cope with complex legal questions in the new environment. Do national judges engage with the jurisprudence of higher domestic courts, foreign courts and European supranational courts—namely the CJEU and the ECtHR— when deciding social media disputes? What is the volume of judicial interaction in social media cases and what is the contribution of judicial dialogue to solving the dispute at hand?
To answer these questions, the Article is structured as follows. Section B expands on the concept of judicial dialogue that is employed in this study and discusses its relevance and importance for judicial decision-making. Section C provides an overview of the court rulings reviewed and general patterns of judicial dialogue identified. Sections D and E explore the input of judicial dialogue to judicial reasoning in constitutional and supreme court cases respectively from Bulgaria, Croatia, Greece, Italy, Latvia, Slovakia, and Slovenia. The emphasis on higher courts allows for a better understanding of the input of judicial dialogue in social media rulings with final legal authority and constitutional implications. Supreme courts are commonly required to judge questions of law with final jurisdiction. Constitutional courts tend to be entrusted with duties such as protecting the fundamental rights of individuals set forth in domestic constitutions, keeping the legislature in check and resolving institutional disputes between different organs or levels of state. Supreme and constitutional courts may be particularly likely to use judicial dialogue to ensure that their reasoning is well-informed and properly substantiated given the authoritative nature of their rulings and the broad influence that these rulings exert. Country selection combines the study of western European democracies with the study of states from central and eastern Europe, where courts—especially higher courts—have established themselves as important players in the transition towards liberal democracy. It also reflects the variety of EU Member States in terms of legal systems and judicial structures. It is worth noting, for instance, that not all the countries under examination rely on a constitutional court to uphold constitutional provisions.Footnote 8 The list of countries chosen further represents different levels of experience with the EU legal order on the one hand and the European Convention on Human Rights (ECHR) on the other, which may have a role to play regarding judicial interaction with the CJEU and the ECtHR.Footnote 9
B. Judicial Dialogue
Judicial dialogue is generally understood to denote engagement with the case law of other courts.Footnote 10 In her seminal work, ‘A Global Community of Courts,’ Anne-Marie Slaughter describes the growing interaction between courts worldwide as being forged by judges’ ‘common function of resolving disputes under rules of law’, relying above all on judges’ self-awareness.Footnote 11 Judges, Slaughter argues, see each other as fellow professionals in an endeavor that cuts across national boundaries: Facing common problems and based on a sense of participation in ‘a common judicial enterprise’,Footnote 12 they may seek to learn from one another’s experience and cooperate to resolve disputes. Two main strands of dialogue were identified in light of such considerations: Constitutional cross-fertilization through constitutional courts’ citation of the jurisprudence of foreign constitutional courts; and cooperation between national courts in transnational litigation concerning cross-border disputes.
Other authors have claimed that judicial dialogue is an inappropriate term, both conceptually and empirically, for much of the interaction that takes place between judges,Footnote 13 through face-to-face meetings, judicial conferences, and formal and informal judicial networks, aimed at connecting judges and encouraging the exchange of ideas and experience. A distinction should also be drawn between judicial dialogue understood as judicial cooperation in the form of non-binding engagement with other courts’ rulings and judicial dialogue that goes beyond voluntary inspiration.Footnote 14 To illustrate, pursuant to Article 267 of the Treaty on the Functioning of the European Union, any court or tribunal in the EU Member States may—while a final court must—refer a question on the interpretation of EU law or on the validity of EU legislation that is raised in a case pending before it, for a preliminary ruling to the CJEU. The CJEU’s ruling is binding on the referring court and all courts in the EU Member States for that matter.Footnote 15 The preliminary ruling procedure, a ‘formal mechanism’ of judicial dialogue between the CJEU and the referring court,Footnote 16 differs substantially from instances of judicial dialogue in which national courts voluntarily draw on the decisions of other courts—whether supranational, national or foreign. Voluntary reference to other courts’ rulings may serve as persuasive authority, corroborating the reasoning of the deciding judge. It may also allow the deciding court to juxtapose its reasoning to the reasoning of others and sometimes to even criticize judicial stances and approaches to similar legal issues elsewhere.
It becomes evident then that judicial dialogue can take many forms: It incorporates references and citations to other courts’ judgments, mutual cooperation in transnational disputes, mandatory cooperation, and judges’ networking and meetings in person. Although this study acknowledges that judicial dialogue is multi-faceted and can occur in different contexts, it approaches judicial dialogue through case law references. Two main strands of judicial dialogue receive attention in this context: horizontal and vertical judicial dialogue, depending on whether the interacting courts operate at the same level. More specifically, three distinct types of judicial dialogue are examined: Internal horizontal judicial dialogue, external horizontal judicial dialogue, and external vertical judicial dialogue. Internal horizontal judicial dialogue refers to the interaction between higher courts within the same EU Member State, for example a supreme court interacts with another supreme court or the constitutional court in the same EU Member State. External horizontal judicial dialogue refers to the interaction between higher courts operating at the same level in different EU Member States or in an EU Member State and a non-EU country, for example a supreme court in country A interacts with a supreme court or the constitutional court in country B. External vertical judicial dialogue is understood as the interaction between a national higher court and European supranational courts—the CJEU and the ECtHR. Case law references are given consideration only when the cases referred to are relevant for the—social— media dimension of the dispute in question. Judicial dialogue on any other matter does not come within the scope of the study.
The analysis is based on the premise that courts may have good reasons to look for insight and inspiration in the rulings of peers. To begin with, judicial dialogue can facilitate finding answers to complex but common legal problems. Footnote 17 By contrasting self-referential judgments that may undermine a judge’s understanding of what solution works best in a given dispute, judicial interaction that induces judges to consider how colleagues have dealt with similar questions elsewhere can help courts learn from their accumulated experience. Judicial dialogue can also improve the quality of the judicial output. Recourse to ‘comparative’ jurisprudence can contribute to better-informed and properly reasoned judgments, enhancing clarity and comprehensiveness in argumentation. Ultimately, an informed ruling with elaborate reasoning can gain legitimacy. Footnote 18 A court decision that considers the ways similar problems and claims have been tackled by fellow judges makes clear to the litigants—and wider society—that the deciding judge has made the effort to carefully engage with the relevant arguments. Simply put, it shows that the decision was reached after all potential sources of input were given attention. No less important, judicial dialogue may shield the national judge from political or other pressures Footnote 19 and bolster judicial authority—especially in politically, socially, or otherwise controversial cases. Footnote 20
The benefits that judicial dialogue may bring do not necessarily come at the expense of judicial autonomy: Judges enjoy a considerable amount of discretion regarding the sources they take into account and the arguments they formulate unless “cooperation” is required.Footnote 21 Concerning the use of foreign case law, in particular—as has been usefully explained in the literature—the starting point for the national judge will always be the domestic set of rules, on which the eventual argument justifying the decision taken will need to be grounded. Footnote 22 If the reasoning is not convincing in domestic law, foreign case law will not be able to help. If the reasoning is convincing in domestic law, foreign case law can support and lend weight to the national legal argument. Because of the myriad differences in national legal orders, no simple borrowing of foreign argumentation will ever be easy or straightforward. Footnote 23 Some form of adjustment will always be necessary in order to integrate foreign courts’ argumentation in domestic judicial reasoning and fit the case and legal context at hand.
Judicial decision-making in liberal-democratic systems, especially at the level of higher courts, is shaped by a multiplicity of legal, procedural, institutional, organizational and personal factors Footnote 24 that have a bearing on the way judges approach the rulings of peers. Domestic law, established practice, judicial culture as well as the education and experiences of individual judges can promote or conversely hinder judicial interaction. Still, in social media cases, judges may be particularly inclined to engage with the rulings of other courts—national, foreign, and supranational. This is not only due to the pace of technology’s evolution that may put the judiciary under strain. It is also related to the fact that social media and platform-specific regulation has thus far been rather limited overall. Judicial dialogue may be particularly useful in a field of law that is still developing. A judicial search for inspiration could pave the way for developing legal protection at the national level. By steering attention to solutions found elsewhere, judicial dialogue could underline insufficiencies in domestic law and policy, thus helping advance domestic legal standards. Moreover, in Europe’s post-national legal order, where supranational and national legal systems co-exist, judicial dialogue between national and supranational courts can prove particularly helpful in cases where the applicable rules originate in supranational forums.
Other factors that may support judicial dialogue in social media cases relate to the fundamental rights dimension that is inherent in social media cases, especially from the perspective of free speech and its interaction with other rights and interests, although evidently, not all social media cases are framed as fundamental rights cases. The argument made is that judicial dialogue can lead to better-informed and properly reasoned judgments on key issues pertaining to fundamental rights. Human rights are regulated in Europe by national and supranational regimes, such as the EU and the Council of Europe. Although relevant regimes do not operate in isolation from each other, they naturally come with their own features and characteristics. Judicial interaction between courts in Europe can mitigate the risk of conflicting interpretations, sharpened by the novelty of the factual and legal context that new technologies create. This consistency argument is essentially an argument of fairness: It is important to treat like cases alike, Footnote 25 particularly on issues concerning fundamental rights which are associated with the dignity of the human person and the promotion of human well-being. Judicial dialogue can limit disjointed and insufficiently informed case law on a growing variety of fundamental rights issues, promoting adjudicative coherence in social media disputes.
C. Judges in Dialogue
Our sample of social media rulings contains 147 cases from constitutional and supreme courts in the EU Member States reviewed from between January 1, 2012–May 31, 2018. The selection covers cases on social media as well as cases on blogs and online forums, which share similar characteristics with social media, in particular connective communication—namely communication that is mostly driven by the need to connect and relate to others—creative self-expression through user-generated content and interactivity. Footnote 26 Cases on traditional news media that operate on the Internet and news portals have been incorporated in the study when they specifically deal with activities that display similar features to social media—for example, cases concerning user-generated content in the form of online readers’ comments on published articles. Cases concerning peer-to-peer file-sharing networks which do not share all the above mentioned characteristics are covered only when they raise broader issues of importance to social media from a fundamental rights perspective.
Most of the higher court cases under examination make no reference to the case law of other national higher courts, foreign courts, the CJEU or the ECtHR. Judicial dialogue in the social media cases reviewed is rather limited. Only in ten cases within our sample, seven percent, did national judges refer to other courts’ rulings. Three out of the five constitutional court cases identified and seven out the 142 supreme court cases studied engaged in judicial dialogue.
Interestingly, the constitutional and supreme court rulings that engaged in judicial dialogue also engaged in fundamental rights reasoning. This indicates that cases that address fundamental rights might enjoy more opportunities for judicial interaction. In such cases, courts may usefully draw on domestic higher court rulings, interpreting for instance the rights and freedoms enshrined in the constitution. In response to parties’ pleadings but also of their own accord, courts may also examine whether any supranational sources of fundamental rights protection, such as the Charter of Fundamental Rights (CFR) of the EU or the European Convention on Human Rights (ECHR), apply in cases with a fundamental rights dimension. If so, the national judge will naturally need to define the scope and level of protection afforded to fundamental rights by the relevant supranational sources. Resort to the jurisprudence of the latter’s interpretative organs could prove particularly helpful in this regard.
Sections D and E below explore the contribution of judicial dialogue to judicial reasoning on social media in constitutional and supreme court cases respectively. Evidently, reference to other courts’ rulings depends on the factual circumstances of a case and whether or not any similar cases have been assessed in other judicial fora. Other important factors that can nurture or conversely stifle judicial dialogue may have to do with the domestic legal framework and judicial culture, judges’ level of awareness and knowledge of foreign and European case law in the field of interest, the arguments of the parties, the degree of similarities and differences between legal systems—particularly regarding engagement with foreign case law—and the applicability of EU law in the dispute that is pending before the national court which can trigger attention to CJEU decisions. Although judicial dialogue is generally limited in the cases under study, the analysis attests to the different ways in which courts engage with the rulings of other courts and informs on the nature of the latter’s contribution to judicial evaluation.
D. Constitutional Courts: Judicial interaction with the ECtHR and Foreign Courts
All three constitutional court cases within our sample that engaged in judicial dialogue made reference to the case law of the ECtHR.Footnote 27 Two of these cases also engaged in external horizontal judicial dialogue.Footnote 28 Reference to ECtHR case law and foreign court rulings mostly served to support the reasoning of the deciding judge. In some instances, though, it merely took place as part of the legal background and context of the case.
Decision 313/2013 of December 17, 2013 by the Italian Constitutional Court belongs to the group of cases where reference to the ECtHR’s jurisprudence was made as a supporting argument.Footnote 29 The case stemmed from the posting on a blog of allegedly defamatory statements by a member of the Italian Senate against the President of the Italian Republic. The Italian Constitutional Court referred to the ECtHR rulings in Cordova v. Italy Footnote 30 and CGIL and Cofferati v. Italy Footnote 31 to reinforce its reasoning that parliamentary immunity should only be granted for statements made in connection with the exercise of parliamentarian functions. Pursuant to Article 68(1) of the Italian Constitution, members of parliament should not be held accountable for any opinions expressed or votes cast “in the performance of their function.”Footnote 32 With reference to the above mentioned ECtHR rulings, the Constitutional Court observed that the right of individuals to have access to a court would be restricted in a manner incompatible with Article 6(1) ECHR on the right to a fair trial if parliamentarians could escape liability for any statement that “might be political in nature or connected with political activities.”Footnote 33
In Cordova v. Italy, the ECtHR had recognized that there was a long-standing practice for states party to the ECHR to confer varying degrees of immunity to parliamentarians, with the aim of securing free speech and preventing partisan complaints from interfering with parliamentary functions,Footnote 34 in view of the role of parliament as an essential forum for political debate.Footnote 35 Parliamentary immunity should not in principle be regarded as imposing a disproportionate restriction on the right of access to a court.Footnote 36 However, it “would not be consistent with the rule of law in a democratic society, or with … Article 6(1) [ECHR] … if a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of … claims.”Footnote 37 Parliamentary speech that was not connected with the exercise of parliamentary functions should not come within the ambit of protection offered specifically for opinions expressed in the exercise of parliamentary duties.Footnote 38 On the basis of such considerations—replicated for the most part in CGIL and Cofferati v. Italy—the Italian Constitutional Court concluded that enjoyment of parliamentary immunity required rigorous scrutiny of a “functional link” between the parliamentarian’s opinion and the exercise of parliamentary functions.Footnote 39
Decision II. ÚS 307/2014-45 of December 18, 2014 by the Slovak Constitutional CourtFootnote 40 dealt with the repercussions of the advent of social media on the interpretation of TV broadcasting rules. The case derived from proceedings against a decision by the Slovak media regulator which found that a TV broadcaster had breached domestic rules for objective and impartial news reporting. According to the Constitutional Court, relevant rules should henceforth be interpreted with the characteristics of the evolving media ecosystem taken into account, in particular the broad variety of operators available and the emergence of social media.Footnote 41 Against this backdrop, the Constitutional Court held that impartiality standards amounted to a restriction on TV broadcasters’ freedom of expression and that such a restriction was unlawful because it could not be justified by any of the permissible grounds for restrictions on free speech laid down in the Slovak Constitution and the ECHR.Footnote 42 Particularly regarding restrictions on free speech, the Constitutional Court asserted that the state’s margin of appreciation went hand in hand with supervision by the ECtHR and the Constitutional Court itself, and that supervision covered both the legislation concerned and its application, mainly through courts. Several ECtHR rulings where the Strasbourg Court had expanded on the features of European supervision on the state’s margin of appreciation were mentioned in this context, namely Handyside v. the United Kingdom,Footnote 43 Sunday Times v. the United Kingdom (No 1),Footnote 44 Tele 1 Privatfernseh v. Austria Footnote 45 and Movement Raëlien Suisse v. Switzerland.Footnote 46
Notably, in discussing free speech and the obligations deriving from it for state authorities, the Constitutional Court identified a positive obligation for the state to secure pluralist sources of information in society. To strengthen its reasoning on this point, the Constitutional Court referred to the ECtHR’s decision in Çetin and Others v. Turkey, Footnote 47 concerning an administrative ban on the distribution of a daily newspaper in Turkey that had been imposed without proper reasoning and without the ban being subjected to judicial scrutiny. The Constitutional Court recalled that the ECtHR had rejected the argument of the Turkish government, according to which the applicants had not suffered interference with their free speech as journalists because they were involved in the publication of various newspapers in Turkey and had thus been able to impart ideas and information through other means.Footnote 48 Citizens—the ECtHR had affirmed—should be allowed to receive a variety of information and views so they could choose those upon which to shape their opinions. Footnote 49
The decision of the Slovak Constitutional Court is also one of the rare decisions within our sample where foreign case law was referenced. Alongside a number of ECtHR rulingsFootnote 50 mentioned as part of the domestic court’s reasoning on the importance of freedom of expression in a democratic society,Footnote 51 the Constitutional Court referred to several rulings of the German Federal Constitutional Court, the Czech Constitutional Court, and the Slovenian Constitutional Court. Footnote 52 General statements contained in these rulings were cited to underline the significance of free speech as one of the essential foundations of democracy and to underscore the role of the media for the provision of information on matters of public interest, the facilitation of public debate, and the formation of public opinion.Footnote 53 In holding that free speech is not absolute and that restrictions can be allowed, the Slovak Constitutional Court also made reference to the seminal ruling of the Supreme Court of the United States of America in Schenck v. United States. Footnote 54 There, the Supreme Court established that restrictions on freedom of expression are allowed when the expression creates a “clear and present” danger to a legitimate public interest.Footnote 55
Decision Up-540/11 of February 13, 2014 by the Slovenian Constitutional CourtFootnote 56 contains references to ECtHR and foreign case law as well. Here, the dispute revolved around whether or not a violation of Article 37 of the Slovenian Constitution had occurred. Article 37 of the Slovenian Constitution guarantees the privacy of correspondence and other means of communication.Footnote 57 It requires that any restriction be prescribed by law, be based on a court order, be limited in duration, and be necessary for the institution or course of criminal proceedings or for reasons of national security.
The facts of the case are as follows: After obtaining data on the complainant’s dynamic Internet Protocol (IP) address from the Swiss police, which had monitored the users of a file-sharing network involving child pornography, law enforcement authorities in Slovenia obtained data regarding the user to whom the above-mentioned IP address had been assigned by the relevant Internet service provider (ISP) without a court order. The complainant had been subsequently found guilty of the criminal offence of possession and distribution of pornographic material. The Constitutional Court did not accept the argument advanced by the complainant that the evidence for his conviction had been gathered in breach of the right to privacy of communication. According to the Constitutional Court, the complainant had no legitimate expectation of privacy: He had not hidden the IP address through which he had accessed the Internet in any way, and he had consciously exposed himself to the public since access to the file-sharing network in question was not restricted.Footnote 58 Consequently, the data concerning his identity as the user of the dynamic IP address at issue did not come within the ambit of protection of Article 37 of the Slovenian Constitution.Footnote 59
Article 37 of the Slovenian Constitution. on the right to privacy of communication was mentioned in conjunction with Article 8 ECHR on the right to respect for private and family life, together with the ECtHR’s ruling in K.U. v. Finland. Footnote 60 This ECtHR decision was about the publication of an advertisement of a sexual nature on an Internet dating site in the name of a minor. The offender had posted the ad online pretending to be a twelve-year-old boy, who had become aware of the ad when contacted with an offer to meet. Domestic legislation in Finland on the protection of confidentiality in electronic communications at the time made provision for the disclosure of telecommunications identification data only in relation to certain offences. On this basis, the Finnish courts had refused to oblige the ISP to divulge the identity of the user of the dynamic IP address at issue, so that the applicant could bring charges, with reference to the requirement for the protection of secrecy. The Constitutional Court recalled that by prioritizing the confidentiality of communications against the minor’s physical and mental integrity, the Finnish authorities had been found to have violated Article 8 ECHR.Footnote 61 For the ECtHR, effective protection under Article 8 ECHR entailed a positive obligation on the state for effective deterrence against such serious acts against fundamental values and essential aspects of private life, in the form of efficient criminal law provisions enabling the identification and prosecution of the perpetrator.Footnote 62
Whereas reference to K.U. v. Finland appears to have been made mostly for informative reasons as part of background information on Article 8 ECHR and its interpretation by the ECtHR, the Constitutional Court also integrated in its reasoning the ECtHR’s rulings in Malone v. the United Kingdom Footnote 63 and P.G. and J.H. v. the United Kingdom. Footnote 64 According to these rulings, Article 8 ECHR should be construed as protecting not only the content of communication but also the circumstances and facts related to the communication.Footnote 65 In a similar vein, the Constitutional Court observed that protection under Article 37 of the Slovenian Constitution should be construed as covering not only the content of communication but also traffic data, that is, “any data processed for the transmission of communications in an electronic communications network or for the billing thereof.”Footnote 66 For the Constitutional Court, IP addresses were traffic data and, thus, the question was whether or not the complainant legitimately expected privacy regarding his dynamic IP address.
Considering that there was no interference with the complainant’s right to privacy of communication, as the complainant had knowingly exposed himself to the public, the Constitutional Court also referred to a decision of the Austrian Constitutional Court.Footnote 67 It stated that, on the basis of constitutional requirements similar to those of Article 37 of the Slovenian Constitution, the Austrian Constitutional Court had found that when police authorities obtain the content of a message either from a communication that is available to the public or from a communication that is closed to the public, with disclosure taking place by one of the participants in the communication, protection cannot be granted on grounds of the secrecy of communications.Footnote 68
Reference to foreign case law and the ECtHR decisions in Malone v. the United Kingdom and P.G. and J.H. v. the United Kingdom Footnote 69 showed consistency in the interpretation of domestic constitutional provisions with foreign and ECHR provisions on the secrecy of communications. Particularly with regards to the interaction of Article 37 of the Slovenian Constitution with Article 8 of the ECtHR, the Constitutional Court also engaged in comparative reasoning: it declared that domestic constitutional provisions ensured a higher level of protection.Footnote 70 While the requirement set forth in Article 37 of the Slovenian Constitution for a court order to be issued for any kind of interference with the right to privacy of communication seems to have played a role here, the higher level of protection supposedly offered by the Slovenian Constitution did not secure a decision in line with Article 8 ECHR—as shown in the ECtHR’s decision in Benedik v. Slovenia.Footnote 71
Called upon to rule on this case, the ECtHR found that the fact that the applicant had not hidden his dynamic IP address was not decisive in the assessment of whether or not he had a legitimate expectation of privacy.Footnote 72 What was significant was whether he reasonably expected privacy in relation to his identity.Footnote 73 The ECtHR found that he did. The applicant had never disclosed his identity in relation to his online activity,Footnote 74 his dynamic IP address—even if visible to other network users—could not be traced to the specific computer without the ISP verifying the relevant data,Footnote 75 and statutory regulation in Article 37 of the Slovenian Constitution guaranteed that any interference with the right to privacy of communication would rest on a court order.Footnote 76
Thus, considering that the request of the police to the ISP and the use made of the subscriber information leading to the applicant’s identification amounted to interference with the applicant’s right to respect for private life,Footnote 77 the ECtHR examined whether the interference was in conformity with the requirements of Article 8(2) ECHR. It concluded that it was not “in accordance with the law” and that a violation of Article 8 ECHR had occurred.Footnote 78 The ECtHR found that the provisions of the Criminal Procedure Act that had been relied upon by the police were not sufficiently clear for the type of data disclosure request in question.Footnote 79 Also, they did not form part of a coherent legal framework regarding the level of protection granted to the right to respect for private life,Footnote 80 they did not offer adequate protection against arbitrary interference,Footnote 81 and they were not complemented by rules that specified the conditions for the retention of the data obtained and safeguards against abuse by state officials with respect to access to and transfer of such data.Footnote 82
Case Up-540/11 of the Slovenian Constitutional CourtFootnote 83 is important because the privacy perspective that it endorsed is intrinsically connected with questions concerning the protection of secrecy of communication online. The issue is not only linked to anonymous use of social media and blogs; it also relates to the qualification of communication on social media—as public or private—and the differences that may exist depending on whether communication takes place on personal social media profiles—where a reasonable expectation of privacy might exist under conditions—social media groups, or open social media pages.
E. Supreme Courts: Judicial Interaction with Domestic Constitutional Courts and European Supranational Courts
The majority of the supreme court cases under examination engaged in internal horizontal judicial dialogue with references to the jurisprudence of domestic constitutional courts. Most of the cases reviewed also included an external vertical judicial dialogue dimension with references to decisions of the CJEU and the ECtHR. Mention of constitutional court rulings was for the most part made to show consistency with the findings of the domestic constitutional court. Use of the jurisprudence of the CJEU and the ECtHR was similarly made to support their findings.
1. Internal Horizontal Judicial Dialogue
Decision II.IPS.307/2014 of September 17, 2015 by the Supreme Court of Slovenia focused on whether or not a blog post in an online news portal with reference to a known writer’s sexual life was in breach of her right to privacy, which is protected under Article 35 of the Slovenian Constitution, and had therefore to be removed.Footnote 84 Lower courts in Slovenia had found the plaintiff’s claims to be unjustified, taking the view that the blog post in question merely summarized the content of the plaintiff’s books, as promoted by the plaintiff.Footnote 85 The Supreme Court did not adhere to this. The issue at hand, as was clarified, was to strike an appropriate balance between the right to privacy and the right to free speech, enshrined in Article 39 of the Slovenian Constitution, and assess the proportionality of the interference with the former for the purposes of protecting the latter.Footnote 86 The plaintiff had indeed disclosed information on her private life herself. However, the blog post also contained statements that were not intended to “inform the public” but rather sought to “personally disqualify the plaintiff.”Footnote 87
In assessing the interference with the plaintiff’s right to privacy, the Supreme Court referred to certain rulings of the Slovenian Constitutional Court as part of legal background analysis on the right to respect for private life and its collision with other rights.Footnote 88 According to judgment Up-444/09 of April 12, 2012 by the Slovenian Constitutional Court, for instance, the less intimate the area of an individual’s private life was, the less protection should be enjoyed by the right to privacy, when in conflict with other rights and interests.Footnote 89 However, the specificities of the individual whose privacy rights were encroached upon should also be taken into account. As regards public persons in particular, it was permissible to disclose— without consent—any aspects related to the “character, actions and thoughts” of public persons “in relation to their public engagement.”Footnote 90 By contrast, any aspects about their intimate life should not be published without consent.Footnote 91 In addition, the degree of protection afforded to privacy should be considered to be lower when individuals “exposed themselves” to the public.Footnote 92 Taking note of the reasoning of the Slovenian Constitutional Court, including in judgment Up-345/01 of February 5, 2004, which had underlined the importance of freedom of expression for the search for truth, public scrutiny and opinion formation,Footnote 93 the Supreme Court held that the contested blog post in part reflected the promotion of the plaintiff’s books and in part discredited the plaintiff and was therefore illegal.Footnote 94
Reference to constitutional court rulings appears to have been made within our sample mostly to document the reasoning of the deciding judge on the interpretation of applicable constitutional provisions, covering fundamental rights provisions.Footnote 95 In one of the cases under review, reference to constitutional court rulings was also made to demonstrate consistency with the jurisprudence of the CJEU, emphasizing endorsement of the CJEU’s pronouncements by the domestic constitutional court. Thus, in decision 51143/2014 of May 12, 2014Footnote 96—discussed in more detail in part E3 in connection to judicial dialogue with the CJEU—the Italian Supreme Court gave thorough consideration to decision 174/2010 of May 13, 2010 by the Italian Constitutional Court. This had addressed focal points of the CJEU’s decision in Marra,Footnote 97 a preliminary ruling focused on the interpretation of the EU legal framework governing the system of immunity and privileges for the members of the European Parliament. The Supreme Court pointed in particular to the fact that the Constitutional Court had integrated the CJEU’s findings in its reasoning.Footnote 98
Judicial dialogue with domestic constitutional courts in the cases reviewed generally reflects the willingness of the deciding judge to follow and adhere to the verdicts of the constitutional court. However, there are also instances within our sample where the deciding judge refused to align judicial reasoning to that of the constitutional court. Decision 5Sž/11/2015 of March 28, 2017 of the Slovak Supreme Court is a useful example of this.Footnote 99 This case originated in a dispute concerning the Slovak media regulator’s decision that found a TV broadcaster to have violated domestic rules on labelling requirements for minors’ protection.Footnote 100 In reaction to one of the pleas of the TV broadcaster, the Supreme Court referred to decision II. ÚS 307/2014-45 of the Slovak Constitutional Court.Footnote 101 The TV broadcaster had challenged the proportionality of the media regulator’s decision and to substantiate its argument, it had cited the ruling of the Slovak Constitutional Court where the mitigating effects of social media on the interpretation of TV broadcasting rules had been acknowledged.Footnote 102 The Supreme Court took the Constitutional Court’s decision into accountFootnote 103 but refrained from adopting a similar stance in support of a less cumbersome interpretation of existing labelling requirements for TV broadcasting. According to the Supreme Court, labelling requirements amounted to a legitimate restriction on TV broadcasters’ free speech for the purposes of protecting the moral development of minors, which was necessary and proportional to the objective pursued.Footnote 104
2. External Vertical Judicial Dialogue: Dialogue with the ECtHR
Turning to judicial dialogue with supranational courts, the abundance of ECtHR rulings on digital media, freedom of expression and the latter’s balancing with the right to respect for private life has allowed national judges to choose those ECtHR decisions that conveniently serve to underline particular points in domestic judicial reasoning. To illustrate, in decision II.IPS.307/2014,Footnote 105 the Slovenian Supreme Court referred to Article 39 of the Slovenian Constitution, together with Article 10 ECHR,Footnote 106 as part of legal analysis on freedom of expression and the blog post in question. Mention of the ECtHR rulings in Lingens v. Austria Footnote 107 and Thorgeir Thorgierson v. Iceland Footnote 108 was made in this context to stress that besides verifiable data or facts, free speech protection also includes opinions, criticism and even speculation.Footnote 109 In Lingens v. Austria, one of the seminal ECtHR rulings on freedom of expression, the ECtHR affirmed that free speech is “applicable not only to ‘information’ or ‘ideas’ that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.”Footnote 110
The Slovenian Supreme Court also referred to Jacubowski v. Germany,Footnote 111 emphasizing that the protection of free speech should not be affected by whether or not the content of speech was in the public interest.Footnote 112 In Jacubowski v. Germany, the ECtHR had indeed declared that the fact that free speech may be “exercised other than in the discussion of matters of public interest does not deprive it of the protection of Article 10 ECHR.”Footnote 113 Reference to Observer and Guardian v. the United Kingdom Footnote 114 sought in turn to exemplify the point that free speech is not absolute and that it can be restricted.Footnote 115 Relevant restrictive grounds, however, including the protection of the honor and rights of others, should be interpreted narrowly and the necessity for any of the restrictions upheld convincingly established.Footnote 116 Pursuant to the ECtHR case law, the Supreme Court went on, in the case of violations of one’s honor or reputation, a distinction should be drawn between facts and opinions or value judgments.Footnote 117 This distinction has been part and parcel of the ECtHR’s jurisprudence in defamation cases, with the ECtHR clarifying that contrary to the existence of facts that can be demonstrated, the truth of value judgments is not susceptible to proof. Still, the Supreme Court cautioned, the ECtHR had made clear that, in the case of value judgments, the proportionality of interference with free speech should be assessed in light of whether there was a sufficient factual basis to support the statement made. Failing this, a value judgment should be considered excessive.Footnote 118 In the case at hand, the Supreme Court concluded that the disputed blog went far beyond the notion of opinion or criticism; it was an attack on the plaintiff.Footnote 119
ECtHR case law has similarly assisted the deciding judge in several cases adjudicated by the Italian Supreme Court. These examined the qualification of social media and blogs vis-à-vis the press, in disputes concerning the legality of injunctions for the seizure, as a precautionary measure, of allegedly defamatory content posted online. Decision 31022/2015 of January 29, 2015 in particular focused on an injunction for the seizure of a webpage of an online newspaperFootnote 120 and decision 11895/2013 of October 30, 2013 on an injunction for the seizure of a blog.Footnote 121 In the former, the Italian Supreme Court explained that the online press could benefit from the constitutional prohibition of seizure of the press on condition that it had the same structure and characteristics as the printed press.Footnote 122 Social media and blogs did not come within the concept of the press and therefore could not benefit from relevant constitutional guarantees.Footnote 123
Judicial reasoning in decision 31022/2015 developed with consideration given to the ECtHR jurisprudence on freedom of expression and its importance for the press. The Supreme Court underlined key points emerging from the ECtHR’s case law, namely that the press plays a vital role as a public watchdog, that the public enjoys a right to receive information and ideas on matters of public interest —this goes hand in hand with a duty incumbent on the press to impart information and ideas on matters of public interestFootnote 124—and that protection of free speech extends to opinions that are not favorably received.Footnote 125 Particular mention was made in the ECtHR rulings of Fressoz and Roire v. France, Observer and Guardian v. the United Kingdom and Vogt v. Germany.Footnote 126 Whereas the first two cases were related to the press,Footnote 127 Vogt v. Germany focused on the dismissal of a teacher from the civil service due to her political activity, which was found to be a violation of Article 10 ECHR.Footnote 128
Specifically, as regards the comparability of the printed press with the online press, the Italian Supreme Court referred to Wegrzynowski and Smolczewsky v. Poland. Footnote 129 This ECtHR decision had derived from Polish courts’ refusal to order a newspaper to remove from its Internet archive an article that damaged the applicant’s reputation. The ECtHR had ruled in particular that online press “archives” fell within the ambit of protection of Article 10 ECHR, even if the risk of harm posed by content and communications on the Internet to the exercise of fundamental rights was higher than that posed by the printed press.Footnote 130 Notably, Wegrzynowski and Smolczewsky v. Poland was also mentioned in decision 11895/2013 of the Italian Supreme Court.Footnote 131 Here, the Supreme Court likewise found that blogs could not come within the scope of the constitutional provisions against seizure targeting the press. However, any precautionary measure of seizure should be adopted with respect for the principle of proportionality, given the importance of blogs for free speech.Footnote 132 To stress its point, the Supreme Court underlined that freedom of expression was enshrined in Article 10 ECHR and Article 11 CFR besides Article 21 of the Italian Constitution and drew attention to Wegrzynowski and Smolczewsky v. Poland as one of the latest ECtHR rulings on the subject matter of interest.Footnote 133
The national judge has occasionally referred to the ECtHR’s judicial practice, without identifying any specific cases. For example, in decision 159/2015 of June 19, 2015 by the Supreme Court of Bulgaria,Footnote 134 mention of Article 10 ECHR was combined with a general reference to the jurisprudence of the ECtHR on freedom of expression. The case focused on the qualification of the crime of insult in an online environment, in connection to the conviction of a journalist for having made social media statements that attacked the honor and dignity of a politician. The Bulgarian Supreme Court acknowledged that in accordance with the ECtHR’s case law, restrictions on free speech should be interpreted narrowly and that the limits of acceptable criticism vis-à-vis public figures in particular were wider. In fact, there should be no restriction on free speech in cases of criticism concerning the professional and public activity of a public figure. In this specific case, however, the journalistic statements made affected the intimate sphere of the politician in a degrading manner and were not necessary or acceptable in discussion of her professional development and political career.
3. External Vertical Judicial Dialogue: Dialogue with the CJEU
Decision 51143/2014 of May 12, 2014 by the Italian Supreme Court is one of the few cases in our sample where an extremely detailed account of CJEU case law was incorporated in the reasoning of the domestic court.Footnote 135 Consideration was given in particular to the CJEU jurisprudence in cases Marra and Patriciello, Footnote 136 where the CJEU had the opportunity to interpret the EU legal framework on the immunity and privileges of members of the European Parliament. The Italian case stemmed from a dispute over the publication of allegedly defamatory statements by a member of the European Parliament against an Italian judge and her husband, a lawyer, on a blog. In defamation proceedings against the member of the European Parliament, the parliamentarian made a request to the European Parliament seeking defense of his immunity in accordance with the procedure set forth at the time in the Rules of Procedure of the European Parliament.Footnote 137 He argued that the blog post in question was an expression of political activity aimed to inform on deficiencies in the Italian justice system.Footnote 138 The request for defense of immunity was recommended for adoption and the deciding judge granted immunity, with the case eventually reaching the Italian Supreme Court.
Pursuant to Article 8 of Protocol (no. 7) on the privileges and immunities of the European Union (PPI), “members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties.”Footnote 139 According to the CJEU, such immunity seeks to protect the freedom of expression and independence of members of the European Parliament and constitutes an absolute immunity, barring any judicial proceedings with respect to an opinion expressed or a vote cast in the exercise of parliamentary duties.Footnote 140 The Italian Supreme Court clarified that in accordance with the Marra ruling,Footnote 141 establishing whether the conditions for immunity are met lay with the exclusive jurisdiction of national courts.Footnote 142 The national judge was not obliged to refer the question to the European Parliament as the latter had no powers, pursuant to the PPI, to determine whether the conditions for immunity were fulfilled.Footnote 143 In line with the duty of sincere cooperation between the European institutions and national authorities, however, national judicial authorities should cooperate with the European Parliament to avoid any conflict in the interpretation and application of the provisions of the PPI.Footnote 144
The Italian Supreme Court continued to identify key findings of the CJEU’s decision in Patriciello.Footnote 145 The emphasis was placed on the fact that Article 8 PPI—intended to apply to statements made within the precincts of the European ParliamentFootnote 146—could also cover statements made elsewhere. These should, however, amount, in their character and content, to an opinion expressed “in the performance of parliamentary duties.”Footnote 147 For the CJEU, the Supreme Court observed,Footnote 148 the benefit of immunity presupposed a “direct” and “obvious” connection between the opinion expressed and parliamentary duties.Footnote 149 On the basis of such considerations, the Supreme Court reached the conclusion that a rather abstract judicial evaluation of the blog posts concerned had been performed without verification of the CJEU’s requirement for a direct and obvious link between the posts and the performance of parliamentary functions.Footnote 150
In decision 31022/2015,Footnote 151 alongside mention of the ECtHR’s ruling in Węgrzynowski and Smolczewsky v. Poland, the Italian Supreme Court also referred—as part of supranational case law on the comparability of the online press to the printed press—to the CJEU’s decision in eDate advertising and Others.Footnote 152 In this case, the CJEU had offered guidance on the courts that have jurisdiction in case of an infringement of personality rights on the Internet.Footnote 153 In particular, it had interpreted Article 5(3) of Council Regulation (EC) No 44/2001 of December 22, 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.Footnote 154 This allows proceedings to be brought in the courts of “the place where the harmful event occurred or may occur,” by way of derogation from the principle of jurisdiction of the courts of the place of domicile of the defendant.Footnote 155
Drawing on an earlier case, Shevill and Others,Footnote 156 the CJEU recalled in eDate advertising and Others that a victim of defamation by a newspaper that is distributed in several EU Member States can bring an action for damages against the publisher of the newspaper either before the courts of the Member State of the place of establishment of the publisher or before the courts of each Member State in which the publication has been distributed and where the victim claims to have suffered injury.Footnote 157 Whereas the former enjoy jurisdiction to award damages for all the harm caused, the latter have jurisdiction to rule solely on the harm caused in the Member State of the court seized.Footnote 158 In Shevill and Others, the CJEU had explained that the diverse possibilities available for bringing an action for damages stemmed from the fact that “the place where the harmful event occurred,” pursuant to what was then Article 5(3) of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters,Footnote 159 covered both the place where the damage occurred and the place of the event giving rise to the damage. The place where the damage occurred should be understood as the place where the event giving rise to the damage produced its harmful effects upon the victim: The place of distribution of the publication in question.Footnote 160 As for the place of the event giving rise to the damage—this was the place of establishment of the publisherFootnote 161—which should generally coincide with the head of jurisdiction: The courts of the Member State of the defendant’s domicile.Footnote 162
In eDate advertising and Others, the CJEU adapted its interpretation of the special jurisdiction rule laid down in Article 5(3) of Regulation No 44/2001 to the specificities of the online environment.Footnote 163 The main rationale behind such adaptation was that an online publication should be distinguished from the distribution of the printed press, in that it was intended, in principle, to render the content ubiquitous.Footnote 164 This reduced the usefulness, within the context of the Internet, of the criterion relating to the occurrence of damage and therefore of the criterion of the place of distribution of content.Footnote 165 Moreover, it also aggravated the nature of the harm that could be suffered precisely because the injurious content was available on a world-wide basis.Footnote 166 In light of such considerations, the CJEU took the position that besides the courts of the Member State where the publisher was established, an action for liability with respect to all the damage caused could also be brought before the courts of the Member State where the center of interests of the person concernedFootnote 167 was based.Footnote 168 In addition, in accordance with the criterion of the place where the damage occurred, an action could also be brought, in line with Shevill and Others, before the courts of each Member State where the impugned content was or had been accessible. In this case, however, the courts enjoyed jurisdiction only with respect to the damage caused in the territory of the Member State of the court seized.Footnote 169
The Italian Supreme Court did not enter the specificities of the CJEU’s ruling. It refrained from offering an account of the CJEU’s decision and did not expand on the precise input in the CJEU’s reasoning in the case. Decision 31022/2015 thus stands in marked contrast with decision 51143/2014 and the latter’s meticulous analysis of the CJEU’s jurisprudence.
F. Conclusion
Dialogue between judges has been intrinsically connected to debates about consistency and quality in judicial interpretation. The increase in the number of rulings on social media, blogs, chat rooms and so on over the past few years has brought to center stage the important role that courts play in a legal area that is still evolving. In the sample of social media cases analyzed, the assumption has been that judges would be favorably disposed to judicial dialogue as a means to cope with rapid technological change and complex legal problems, besides seeking to address disputes that raise fundamental rights questions in a coherent manner. The rate of judicial dialogue within our sample was still quite low.
A clear preference has been noted towards the use of constitutional court rulings and the ECtHR’s jurisprudence as a point of reference when engaging in judicial dialogue. Constitutional court rulings have been mostly referred to in connection with the interpretation of constitutional provisions, especially those on fundamental rights. Mention of constitutional court cases was mainly used as a supporting argument, bolstering judicial reasoning by showing consistency with the interpretations of the domestic constitutional court. However, there are also instances where the deciding judge acknowledged the reasoning of the constitutional court without adhering to it.Footnote 170
Reference to European court decisions has relied on a broad range of rulings enabling particular points—especially in the ECtHR’s reasoning—to be stressed. Occasionally, the national judge referred to the ECtHR’s jurisprudential practice without singling out any specific cases.Footnote 171 Reference to European supranational case law has generally shown that domestic judicial reasoning unfolds in line with the jurisprudence of the CJEU and the ECtHR. In none of the cases under examination did the national judge express disapproval of or disagree with the findings of the European courts.
Turning to foreign case law, this was used least within our sample. Certainly, resort to foreign court decisions requires careful consideration of the comparability of the foreign legal context with the national one. In fact, it is more likely that national courts will follow and pay attention to the jurisprudence of foreign courts that belong to a legal system similar to the national legal system. In the limited instances within our sample where the national court engaged with foreign jurisprudence, this was to validate domestic judicial reasoning by bringing attention to the fact that similar conclusions were also reached elsewhere.
Overall, judicial dialogue through references to case law in the cases reviewed displays varying degrees of detail. Whereas some cases were merely mentioned without any substantive analysis, others were used to stress particular points in judicial reasoning. There are also cases within our sample where the national court gave a thorough account of the case law referred to, explaining in detail how this fed domestic judicial assessment. Mention in particular of the CJEU’s jurisprudence may have lagged behind the ECtHR’s case law in terms of the frequency of references, but in some cases it has been extremely detailed, making a valuable contribution to and substantiating the reasoning of the deciding judge.
Cases such as decision 51143/2014 of the Italian Supreme Court,Footnote 172 for instance, where domestic judicial reasoning drew directly on the findings of the CJEU in Marra and Patriciello, confirm the crucial input that engagement with CJEU case law may offer the national judge. It is true that the dispute in question was visibly associated with the application of EU rules—namely, the system of immunity and privileges of the members of the European Parliament—and that both Marra and Patriciello were preliminary rulings of the CJEU on the interpretation of these rules - what is more triggered by Italian courts,Footnote 173 which might explain such accurate understanding of the CJEU’s reasoning by the Italian Supreme Court. Decision 51143/2014 also shows that judicial dialogue through references to CJEU case law may occur in a context that verges on compliance; the CJEU’s preliminary rulings—besides being binding on the referring court—also function as legal precedents for other courts in the EU Member States. However, even in less constraining contexts of judicial interaction within our sample, national courts have benefited from the judicial reasoning of peers. The use of ECtHR case law in particular has markedly served to enrich and solidify domestic judicial reasoning with national courts carefully selecting the ECtHR rulings according to the arguments to be supported.
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