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Article 10 ECHR's right to freedom of expression and defending the client. What rights do solicitors have?

Past president of GULS, Ali Cooper, analyses the development of Freedom of Expression in relation to lawyers by reference to the Grand Chamber judgement of Moris v France...

Article 10 ECHR's right to freedom of expression and defending the client. What rights do solicitors have?

The right to freedom of expression protected by Article 10[1] goes to the very heart of a lawyer’s principal duty - that of defending his client. As enthusiastically put by the ECtHRs Judge Casadevall: “Speech! The sole weapon, together with the pen or the keyboard, is a very simple but nevertheless formidable one at the lawyer’s disposal when he is defending a party to proceedings”.[2]  That said, whilst the lawyer’s right is afforded certain privileges[3] his/her speech is also subject to restrictions. The focus of disputes in this context have centred predominantly on lawyers’ statements in court. Indeed, this was recognised in the landmark case of Moris v France: “until recently, the issue of the lawyer’s freedom of speech has arisen only inside the courtroom … [however] the point of principle in the present case is the lawyer’s freedom of expression to defend his client when he is addressing the press”.[4] The case raises significant issues connected to the lawyer’s rights under the ECHRs to address the public on behalf of his/her client.

In the case, the Grand Chamber[5] was tasked with determining whether the applicant’s right to criticise members of the judiciary in the press had been interfered with by his conviction for defamation. Overturning the Chamber judgement, the Court concluded unanimously that Art. 10 had been violated. In its judgement it reached a number of interesting conclusions about the status of lawyers and the need to maintain judicial authority. The case also illustrates a more general trend towards greater freedom of expression for lawyers.

Development of Freedom of Expression in relation to lawyers

The ECtHRs has traditionally been reluctant to find a breach of Article 10 as regards the defamation of judges.  In Prager[6] (1995), the court emphasised that confidence in the judiciary must be protected “if it is to be successful in its duties ... especially in view of the fact that judges who have been criticised are subject to a duty of discretion.”  Deference to the margin of appreciation has also inhibited the Court from finding a violation of the lawyer’s right to freedom of expression when criticising judges.

Schöpfer v. Switzerland (1998)[7], concerned a Swiss lawyer who made critical remarks to the press about local administration of justice and was subsequently fined by the Lucerne Bar for breaching professional ethics[8]. The Strasbourg Court, in scrutinising the balance between the public right to information and the need to uphold administration of justice and dignity of the legal profession, emphasised that, “because of their direct, continuous contact with their members, the Bar authorities and a country’s courts are in a better position than an international court to determine how, at a given time, the right balance can be struck.”[9]

In Perna v Italy (2003)[10] the Court stressed the importance of proving factual allegations when attacking the conduct of judges[11]. Overruling the Chamber judgement, the court held that “at no time did the applicant try to prove that the specific conduct imputed to [the judge] Mr Caselli had actually occurred”.

These three cases demonstrate the more traditional view held by the ECtHRs where it is has been reluctant to find a violation of Article 10 relation to the of defamation of judges.

However, more recent judgements have indicated a bolder approach, affording greater protection of the lawyers freedom of expression. In 2005, the Grand Chamber held in Kyprianou v Cyprus[12] that, “only in exceptional circumstances that restriction – even by way of a lenient criminal penalty – of defence counsel's freedom of expression can be accepted as necessary in a democratic society”. The case relied on the judgement in Nikula v Finland[13] that emphasised “counsel's duty to defend their clients' interests zealously”[14].

In Foglia v Switzerland (2007),[15] the applicant lawyer was convicted for making public statements about the Prosecutor’s office, in which it was claimed their investigation was “superficial and lazy”.[16] Crucially, it was not proved the applicant had been responsible for leaking the document. The Court held his conviction amounted to a violation of Article 10.

Again in Mor v France (2011),[17] the ECtHRs came to the defence of lawyer’s freedom of expression in a case that concerned an Advocate’s conviction for comments made to the press regarding an expert report. The Court pointed out that a lawyer would occasionally be obliged as part of his duty to defend his client to speak to the press. It held that, “giving an interview to the press was a legitimate part of [the clients’] defence, given that the case had aroused interest in the media and among the general public”.[18]

These decisions reflect a move by the court to bolster the lawyer’s Art 10 rights. Whilst it is necessary that freedom of expression should be subject to restrictions under civil claims, criminal sanctions could deter lawyers from the ‘zealous’ defence of their clients. As stressed by one author, “there is a symbolic and educational value in the absolute principle of freedom of expression concerning the conduct of public officials”.[19]

Given the trend, the finding by the Chamber in Morice v France was surprising. The case concerned an application by an Advocate at the Paris Bar convicted for the defamation of two judges. In remarks made to Le Monde, he accused a judge of conduct “completely at odds with the principles of impartiality and fairness” for failing to pass on evidence to her successor. Morice did succeed under his Art. 6 claim in the Chamber[20] however it held by six votes to one there had been no violation of Art. 10.

Firstly, the Chamber judges reiterated “as guarantors of justice, judges and prosecutors must enjoy public confidence ... it therefore may prove necessary to protect them against public attacks”.[21] Morice had “publicly attacked” the judiciary, waiting just one day after submitting a formal complaint to the Minister of Justice before going to the press. Even if Morice’s aim had been intended to alert the public, he had done so in “particularly virulent terms”.[22]

Stressing that “the primary task of lawyers is to defend their clients”[23], the court went on to point out that lawyers have judicial remedies to resolve shortcomings in the system of which Morice had already employed these successfully. The Court found that Morice had “overstepped” his limits in criticising the justice system, especially given (1) the seriousness of the allegations and (2) the “personal animosity” that had “driven” the comments. Lastly, the Court held the infringement was proportionate and did “not appear excessive”[24]. It was within the State’s margin of appreciation to utilise criminal sanctions for defamation.

In her highly critical dissenting opinion, Judge Yudkivska argued that responsibility for highlighting shortcomings in judicial investigations “lies precisely with lawyers”. She contended the interview with Le Monde pursued this objective, contrary to the majority’s inference of “personal animosity”[25]. Yudkivska distinguished the purposes behind Morice’s actions. The interview aimed to draw public attention to judicial shortcomings whereas reporting to the Justice Ministry aimed to launch disciplinary procedures, the latter not solely “an appropriate means of expression when it comes to the lawyer’s freedom of speech”. Her opinion also points to the inherent paradox in this case. Morice’s conviction - founded on the desire to protect the rights of others (judicial integrity) - would likely discredit the court to a far greater extent than his initial comments, due to the “wall of silence” imposed by the judgement over professionals in a trial at the centre of the public eye. Concluding that “the very existence of criminal proceedings has a chilling effect and that lawyers defending their clients should not have to fear prosecution”, she found the sanction disproportionate.

In April 2015 the Grand Chamber unanimously overruled the decision.  The court held that lawyers are entitled to comment in public the judiciary, provided their criticism does not overstep certain bounds - the usual restrictions of conduct emanating from the professional bodies.[26] The Court scrutinised the status of lawyers, finding that they occupy a “central position in the administration of justice as intermediaries between the public and the courts”.[27] However, it was not prepared to accept the view taken by the Council of Bars and Law Societies in Europe[28] that in such extraordinary cases, “especially” concerning reasons of State “ lawyers should have the same freedom of speech and expression as journalists”.[29] The court found that lawyers and journalists occupied intrinsically different roles.

Whilst it cannot be doubted that the court should apply a narrow margin of appreciation and high protection for freedom of expression in cases concerning contribution to public interest, to equate the journalist’s freedom of expression to that of the lawyer’s risks confusing the lawyer’s principal duty. The lawyer must defend their client “zealously”[30] whereas the journalist’s principal duty is “respect... for the right of public to the truth”.[31] Both professions are anchored to distinctly different perspectives and accordingly it was right of the Court to allow for a more nuanced approach to the lawyer’s freedom of expression outside the courtroom.

Another issue the Court analysed was the means necessary to maintain judicial authority. It stressed that although it might be necessary to defend the judiciary from “gravely damaging attacks ... bearing in mind that judges are prevented from reacting by their duty of discretion ... this cannot have the effect of prohibiting individuals from expressing their views”.[32]

Here the court was right to dismiss the “parallel”[33] drawn between the judge’s duty of discretion and lawyer’s freedom of speech. Comments made by judges are regarded as objective, binding not only on the judge, but the entire legal system. Lawyers are protagonists in the system, speaking on behalf of clients. Again the court dispelled a link between two fundamentally distinct roles in the legal system, albeit this time in the favour of the applicant. The argument, relied on by the Government, essentially that a restriction on one actor’s freedom of expression could in some way justify another’s restriction of freedom of expression would have taken the court down a very concerning line of reasoning. As illustrated by Davies,[34] “article [17] prevents States from using their powers, recognised under the Convention, to restrict freedom in proportionate ways and for certain purposes in order to restrict the rights of others”. To follow the Government’s reasoning here would therefore have been problematic. Compounded by the Court’s view that, “as part of a fundamental institution of State, [judges] are therefore subject to a wider limit of acceptable criticism than ordinary citizens”[35], the court came to a well-reasoned conclusion on maintaining the authority of the judiciary.

In contrast to the gradual approach of the ECtHRs in protecting the lawyer’s freedom of expression, other jurisdictions have taken a much firmer stance.  The US constitution has always afforded substantial protection to free speech under the First Amendment. Michael K. Addo[36] points out that “exposure of the judiciary to harsh criticism ... without fear of prosecution has always been standard practice in the United States.”  As far back as 1964, the Supreme Court held that a District Attorney’s conviction for remarks attributing a case backlog to certain judges’ laziness and regular vacations violated the constitution[37]. The case bears some similarities to Prager[38] where, 30 years after the US decision, the ECtHRs found no violation of Article 10. In stark contrast to the European approach, Justice Brennan, wrote that “a candidate [for public office] must surrender to public scrutiny”[39].

A similar picture has evolved in Canada since the enactment of the Charter of Rights and Freedoms[40]. In R v Kopyto[41] a lawyer’s free speech was violated by conviction for remarks made to the press, claiming that a judgement “stinks to high hell” and also referring to the “charade of the courts”. Given the progressive leaps made across the Atlantic, it is striking the ECtHRs has taken so long to come effectively to the defence of lawyers criticising judges. The Grand Chamber found the sanctions disproportionate but was not prepared to go as far as Judge Yudkivska’s view that the “very existence” of a criminal proceeding was enough to have chilling effect. However, it stressed such sanctions were especially likely to have such an effect and that States should use “restraint in resorting” to them.

Despite a push in 2007 for decriminalisation of defamation[42], little progress has been made in the intervening seven years. A recent report found that only 5 of 28 EU Member States had repealed criminal defamation, noting that “despite an overall trend toward the abolition of criminal defamation laws, to say such laws are alive and well in the European Union would be putting it mildly[43].” It is alarming that across Europe criminal defamation remains ‘on the books’ in many countries. Although they might be seldom used, the 2015 case of Morice v France illustrates how it is not yet a thing of the past. Morice v France not only afforded the court an opportunity to clarify its case law[44], it also signalled a profound shift regarding a lawyer’s freedom of expression. The Court’s analysis of the status of lawyer and maintaining judicial authority were particularly interesting. In rejecting the two parallels drawn between a lawyer’s freedom of expression and the judges’ and journalists’, the court came to a well-reasoned conclusion. Whilst such a move is long overdue, especially in light of advances made across the Atlantic, it does signal a step in the right direction.

Morice commented to the press that the judgement was “a great victory overall for the profession”, however, it is fair to say it is also a great victory for freedom of expression.  




[1] European Convention of Human Rights (1950)

[2] Casadevall J. “L’avocat et la liberté de l’expression”, in: Freedom of expression: essays in honour of Nicolas Bratza, President of the European Court of Human Rights, Josep Casadevall ... [et al.] (eds.), Strasbourg: Council of Europe/European Court of Human Rights; Oisterwijk: Wolf Legal Publishers (WLP), 2012 - pp. 235-244

[3] See for example French Freedom of the Press Act 1881, s.41.

[4] Morice v. France, no. 29369/10, § 118 & 119, ECHR, 2013

[5]no. 29369/10, ECHR (GC), 2015

[6] Prager & Oberschlick v. Austria, no. 15974/90, § 34, ECHR 1995

[7] Schöpfer v. Switzerland, no. 25405/94, 1998

[8] T. Mc GONAGLE (ed.) and D. Voorhoof, Freedom of Expression, the Media and Journalists. Case law of the European Court of Human Rights, Strasbourg, European Audiovisual Observatory, Iris, Themes, 46

[9] Schöpfer v. Switzerland § 33

[10] no. 48898/99, § 47, ECHR (GC) 2003

[11] David Harris and others, Law of the European Convention on Human Rights, (OUP, Oxford 2014), p 704

[12] no. 73797/01, § 174, ECHR (GC) 2005

[13] no. 31611/96, ECHR 1996

[14] Ibid § 54

[15] no. 35865/04, ECHR 2007

[16] Ibid  § 97

[17] no. 28198/09, ECHR 2011

[18] Ibid., § 59 (translated)

[19] Re'em Sege, Freedom of Expression: Criticising Public Officials, Amsterdam Law Forum (2009- 2010), p 85

[20] Alleged violation of Article 6(1) of the Convention found by the Chamber

[21] Op. cit., § 59

[22] Op. cit., § 106

[23] Ibid

[24] Op. cit. § 108

[25] Op. cit. pp 29-31

[26] Op. cit., § 134

[27]  Op. cit., § 132

[28] Given leave to intervene as third parties at § 113

[29] Op. cit., § 116

[30] Nikula v. Finland, no. 31611/96, § 54, ECHR 1996

[31] Declaration of Principles on the Conduct of Journalists, Principle 1, International Federation of Journalists, (Amended) 1986 World Congress

[32] Op. cit., § 168

[33] Op. cit., § 121

[34] Howard Davies, Human Rights and Civil Liberties, (Willan Publishing 2003), Chp 2, (2.4 Article 17)

[35] Op. cit., § 168

[36] Are Judges Beyond Criticism Under Article 10 of the European Convention on Human Rights?, International and Comparative Law Quarterly, Vol, 47, 1998, p 43

[37] Garrison v. State of Louisiana, 379 U.S. (1964)

[38] Prager & Oberschlick v. Austria, no. 15974/90, ECHR 1995

[39] Garrison v. State of Louisiana, 379 U.S. (1964), § 77

[40] Article 2(b) of the Canadian Charter of Rights and Freedoms

[41] 47 D.L.R. (4th), (1987) 213

[42] “Towards decriminalisation of defamation”, Resolution 1577 (2007), Parliamentary Assembly of the Council of Europe, 4 October 2007 and “Towards decriminalisation of defamation”, Recommendation 1814 (2007), Parliamentary Assembly of the Council of Europe, 4 October 2007

[43] Out of Balance: Defamation Law in the European Union and its Effect on Press Freedom, International Press Institute, July 2014, p 12

[44] Op. cit., Chamber judgment Morice v. France § 115. The Court, in previous judgements (see JULY AND SARL LIBÉRATION v. FRANCE) seemed to adopt the approach that a degree of immunity applied when criticising the justice system but not when criticising a judge. The realities of drawing a distinction between comments made against a judge and those against the system were almost impossible to make. 

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