Con la sentenza CASE OF DELFI AS v. ESTONIA (Application no. 64569/09), la Corte europea per i diritti dell'Uomo - richiamanodsi ai precedenti in materia - fa il punto sull'estensione del diritto di libera manifestazione del pensiero / libertà di espressione (art. 10 CEDU): occorre infatti realizzare un bilanciamento tra i valori in conflitto, stabilendo
- se la restrizione alla libertà di espressione è prevista dalla legge,
- se serve ad uno scopo legittimo, e
- se è necessaria in una società democratica (la qual cosa si verifica se l?interferenza corrisponde a un bisogno sociale imperativo, come, tra l?altro, la tutela della reputazione di un individuo)
La Corte ricorda che l?altro valore in conflitto che deve essere correttamente bilanciato con la libertà di espressione è il diritto alla tutela della propria reputazione anch?esso previsto dalla Convenzione dei diritti dell?uomo all?articolo 8. Quindi occorre che si valuti in concreto, e sulla base di un esame complessivo, se la specifica decisione dei giudici nazionali, tesa alla tutela della reputazione di un soggetto, ha compresso eccessivamente la libertà di espressione del soggetto ricorrente.
Ecco i passi fondamentali della sentenza:
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 Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298; De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports of Judgments and Decisions 1997?I; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999?III). In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (seePrager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313, and Bladet Tromsø and Stensaas, cited above, § 59). The limits of permissible criticism are narrower in relation to a private citizen than in relation to politicians or governments (see, for example, Castells v. Spain, 23 April 1992, § 46, Series A no. 236; Incal v. Turkey, 9 June 1998, § 54, Reports of Judgments and Decisions 1998?IV; and Tammer v. Estonia, no. 41205/98, § 62, ECHR 2001?I).
80. The Court reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others, cited above, § 70; Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010). In order for Article 8 to come into play, however, an attack on a person?s reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway, no. 28070/06, § 64, 9 April 2009, and Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012).
81. When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the ?protection of the reputation or rights of others?, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand freedom of expression protected by Article 10, and on the other the right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007; MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011; and Axel Springer AG, cited above, § 84).
82. The Court has found that, as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect, and the outcome of an application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who has been the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both cases (see Axel Springer AG, cited above, § 87, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, with further references to the cases ofHachette Filipacchi Associés (ICI PARIS), cited above, § 41; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no.48009/08, § 111, 10 May 2011).
83. The Court has considered that where the right to freedom of expression is being balanced against the right to respect for private life, the relevant criteria in the balancing exercise include the following elements: contribution to a debate of general interest, how well known the person concerned is, the subject of the report, the prior conduct of the person concerned, the method of obtaining the information and its veracity, the content, form and consequences of the publication, and the severity of the sanction imposed (see Axel Springer AG, cited above, §§ 89-95, and Von Hannover (no. 2), cited above, §§ 108-113).
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