Communicated on 15 January 2016
SECOND SECTION
Application no. 40631/14
AUSAD VALIMISED MTU
against Estonia
lodged on 22 May 2014
STATEMENT OF FACTS
The applicant, Ausad Valimised MTÜ, is a non‑profit association registered in Estonia. It is represented before the Court by Mr K.‑K. Sepper, a lawyer practising in Tallinn.
A. The circumstances of the case
1. The applicant association
The applicant was set up on 2 March 2012. It is dedicated, among other things, to researching and disclosing information about election fraud in Estonia and analysing the lawfulness of elections held in Estonia. Since its establishment the association has been organising various talks, conferences and seminars and publishing materials mainly about electronic voting in Estonia and elsewhere in the world. The applicant association has close ties to an opposition party in Estonia. One of its board members is also a member of the board of this party. Like the political party, the applicant association has been critical of electronic voting in Estonia.
2. Internet voting in Estonia
Estonia was the first country in the world to introduce nationwide remote electronic voting over the Internet with legally binding results. Since 2005, electronic voting over the Internet has been used eight times in various elections for electing municipal councils, the Parliament and the European Parliament. The percentage of votes cast via the Internet has grown from 1.9% of all votes cast in the municipal elections of 2005 to 30.5% of all votes cast in the parliamentary elections of 2015. The Internet voting has generally enjoyed wide support and trust of the voters. Nevertheless, the security of Internet voting has been an object of public debate as well as court cases. In specialists’ circles opinions about Internet voting in general and specific aspects of the Internet voting system in Estonia have varied over time.
3. The applicant association’s poster campaign
Between 18 March 2013 and 7 April 2013 the applicant association organised an outdoor poster campaign in Tallinn, Estonia. It commissioned the display of posters on advertising columns in sixty-eight different locations across the city.
The upper part of these posters depicted on a red background a stylised version of a human head with a black fedora and dark glasses. The middle part contained a slogan in white letters on a black background. Depending on the poster, the slogan read either “They can give your vote to whom they want!” or “They can erase your vote!”. On the lower part of the posters there was a slogan in black letters on a red background. It said: “Each e-vote can be a threat to Estonia’s independence.” Under it the name of the applicant association was printed in a smaller font.
4. Imposition of a fine on the applicant association and ensuing proceedings
By a decision of 3 June 2013, the Consumer Protection Board (“the Board”) fined the applicant association 1,600 euros (EUR) for a misdemeanour under the Advertising Act. The Board observed that the posters had been made public with the aim of directing persons away from electronic voting to using ordinary voting methods. It considered that voting in general and electronic voting in particular were included in the notion of “public interest”. The posters therefore amounted to information which had been made public in a generally perceptible form for the purpose of directing the conduct of persons in public interests. Consequently, the posters had been advertisements within the meaning of section 2(1)(3) of the Advertising Act. They had had to comply with the requirements set out in that act.
The Board then explained that the statements on the applicant association’s advertisements had disparaged electronic voting and participation in the elections by using electronic voting. However, this was one of the lawful means of participating in the elections. Moreover, the statement “Each e-vote can be a threat to Estonia’s independence” had left the impression that the persons who participated in the elections using electronic voting endangered Estonia’s independence. The applicant association’s advertisements had therefore been in breach of the requirement set out in section 3(4)(2) of the Advertising Act that advertising must not disparage lawful behaviour.
The Board finally found that the statements on the advertisements had at least indirectly also denigrated electronic voting as an activity. The advertisements had therefore breached the requirement set out in section 3(4)(9) of the Advertising Act by which advertising must not, either directly or by implication, disparage or in some other manner denigrate, among other things, an activity.
The Board concluded that the applicant association had violated general requirements for advertising. Under section 33 of the Advertising Act, this constituted a misdemeanour which was punishable by a fine of up to EUR 3,200.
On 18 June 2013 the applicant lodged an appeal against the decision of the Consumer Protection Board with the Harju County Court.
The County Court delivered its judgment on 1 October 2013. It confirmed, in substance, the decision of the Board, but reduced the fine to EUR 800.
The County Court considered that the applicant association’s posters had been advertisements to which the Advertising Act applied. It observed that the posters had aimed to dissuade people from using electronic voting in elections and that voting in elections was a matter of public interest. The posters had thus constituted advertisements within the meaning of section 2(1)(3) of the Advertising Act.
Responding to the applicant association’s argument that its advertisements had been election and political advertisements to which the Advertising Act was not applicable, the court noted that such a position was incorrect and that, in any event, the advertisements at issue had not been election or political advertisements. In this respect, the court pointed to three aspects. Firstly, the information contained in the applicant’s advertisements had not referred to a political organisation, an election promise or a statement in the programme of a political party. Secondly, the applicant’s articles of association had revealed that the applicant association was not a political organisation. According to the articles of association, the applicant’s aim was, among other things, to research and disclose instances of election fraud in Estonia and analyse the lawfulness of elections organised in Estonia. Thirdly, unlike political advertising which seeks to increase the popularity of a party which has commissioned the campaign in its own interests, the applicant’s advertisements had sought to promote interests independent from its own popularity. As the applicant’s representatives had stated at the hearing, the advertisements had not been addressed to particular persons but to the public in general. Their aim had thus been to shape attitudes and values about electronic voting in society, urging people not to use electronic voting and inviting them to vote in polling stations instead.
The court then agreed with the Board that the applicant’s advertisements had disparaged lawful behaviour and therefore had violated section 3(4)(2) of the Advertising Act. It noted that electronic voting was one of the lawful means for casting a vote in elections and electronic voters were acting in a lawful manner. The statements in the applicant’s advertisements had disparaged, at least in words, electronic voting and thereby also participation in elections and one of the lawful means of such participation. Moreover, in the court’s opinion the advertisements had left the impression that persons using electronic voting in elections endangered Estonia’s independence. The statements had created an impression in the public that voting for any candidate by means of electronic voting endangered Estonia’s independence. Furthermore, the design of the posters alone had a negative connotation because it provoked a certain feeling of creepiness. Notably, a man with a fedora and dark glasses corresponded to an average person’s imagination of a spy. According to the court, at a time when spies, eavesdroppers and treason had been topical in Estonia, those images had left an impression that persons using electronic voting could have identified themselves with traitors who had endangered Estonia’s independence and democracy. The statements had also referred to the possibility that a vote cast electronically could have been transferred to persons who were a direct threat to Estonia’s independence. In support of its reasons the court referred to the applicant’s counsel’s statements at the hearing according to which the use of the colours of red and black as well as the picture of a man with a fedora wearing glasses had been intended to create a negative image. The counsel had added that the very nature of the topic was such as to have required a degree of stimulation or excitement. The court further noted that the slogans on the advertisements had created confusion and doubts among people using electronic voting that they had done something wrong, that by using electronic voting they had endangered or would endanger Estonia’s independence, which was an important issue for an overwhelming majority of Estonian citizens. The advertisements had disparaged the behaviour of persons using electronic voting, because the advertisements had suggested that the lawful behaviour of those persons had endangered national independence.
The court moreover considered that the advertisements had at least by implication disparaged or in some other manner denigrated electronic voting as a specific activity, thereby also violating section 3(4)(9) of the Advertising Act. The statements on the advertisements had shown electronic voting in a bad light. The fact that the applicant’s aim had been to denigrate electronic voting as a specific activity was corroborated by the statements of the applicant’s representative, who had explained at the hearing that the advertisements’ purpose had been to urge people to think about the dangers of voting electronically and to inform them of how to act. The advertisements had not denigrated anybody in particular and had been impersonal, which is why they had disparaged the activity of all the persons voting electronically. The advertisements had invited people not to use electronic voting but to prefer voting in polling stations, because otherwise they would have been a threat to Estonia’s independence, since their vote might have been erased or given to somebody else. The slogans had associated electronic voting with endangering the State’s independence and it was precisely that aspect which had denigrated persons who voted electronically, as they had been accused of endangering Estonia’s independence.
The court additionally noted that the applicant had not simply urged the people to vote in polling stations but had done so by accusing persons who voted electronically of endangering Estonia’s independence. It added that opinions could have been expressed in a manner that did not disparage directly or by implication those who held different opinions.
The court further held that the applicant’s right to freedom of expression under Article 45 of the Estonian Constitution had not been violated. The applicant had not been prohibited from expressing an opinion on the insecurity of electronic voting. It had had several channels for doing so: various internet forums, Facebook, interviews in the media, newspaper comments, organisation of events, publication of books and booklets. The applicant’s representative had stated at the hearing that they had used some of those possibilities to publicise their opinion. The court added that when an opinion was expressed by sticking up various posters around Tallinn, then account needed to be taken of the fact that these posters constituted advertisements and the Advertising Act applied to them.
In reply to the applicant’s argument that the information contained on the posters had been correct, the court noted that it could not assess whether this was the case. The court had not been presented with any evidence about it. In any event, even if an advertisement presented truthful information, it had to comply with the requirements of the Advertising Act.
Finally, the court considered the fine of EUR 1,600 to have been disproportionate to the nature of the offence. Taking account of the absence of aggravating circumstances, the duration of the offence, the fact that the applicant association had not been punished before and that the offence had been committed due to carelessness, the court reduced the fine to EUR 800.
On 31 October 2013 the applicant association lodged an appeal against this judgment with the Supreme Court. It argued firstly, that the information it had displayed had corresponded to reality and therefore its responsibility for a misdemeanour had been excluded. The applicant referred to some articles and a security incident during the parliamentary elections of 2011, when a voter had demonstrated to the public an experimental malware of his own invention. This malware could, if it had been running on a voter’s computer, have blocked the transfer to the election servers of those votes which the programme had not accepted and it could have done so without the possibility for the voter or the election authorities to detect it. Secondly, the applicant considered that its posters had constituted electoral and political advertisements to which the Advertising Act was not applicable. Thirdly, the applicant argued that penal law liability could not be imposed for using its fundamental right to freedom of expression and that, in any event, the interference with its fundamental right had been disproportionate.
On 8 January 2014 the Supreme Court declined to hear the applicant’s appeal.
B. Relevant domestic law
The Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) provides:
Article 45
“(1) Everyone has the right to freely disseminate ideas, opinions, beliefs and other information by word, print, picture or other means. This right may be restricted by law to protect public order, morals, and the rights and freedoms, health, honour and the good name of others. This right may also be restricted by law for State and local government public servants, to protect a State or business secret or information received in confidence which has become known to them by reason of their office, and the family and private life of others, as well as in the interests of justice.
(2) There is to be no censorship.”
Section 2(1)(3) of the Advertising Act (reklaamiseadus) defines advertising as “information which is made public in any generally perceptible form for a charge or without charge for the purpose of increasing the provision of services or the sale of goods, promoting an event or directing the conduct of a person in public interests”.
Section 3(4)(2) of the Advertising Act in Chapter 2 entitled “General requirements for advertising” provides that advertising must not incite to act unlawfully or violate prevailing standards of decency, justify offences or disparage lawful behaviour. Section 3(4)(9) provides that advertising must not directly or by implication disparage or in some other manner denigrate a person, a person’s name, trade mark, a geographical indication, activity, area of activity, goods, services or an event.
Section 33 of the Advertising Act entitled “Violation of general requirements for advertising” provides in subsection 1 that the placing, producing or publicising of advertising which violates the general requirements for advertising is punishable by a fine of up to 300 fine units. Subsection 2 of the same section specified, at the material time, that the same act, if committed by a legal person, was punishable by a fine of up to EUR 3,200.
Article 3 of the Penal Code (karistusseadustik) provides that an offence is a punishable act provided for in the Penal Code or another Act and that offences are divided into criminal offences and misdemeanours. A misdemeanour is defined in the same article as an offence which is provided for in the Penal Code or another Act and the principal punishment prescribed for which is a fine or detention.
COMPLAINT
The applicant association complains that the domestic authorities’ decisions finding it guilty of a misdemeanour of violating the requirements for advertising and imposing a penalty on it amounted to a breach of its right to freedom of expression under Article 10 of the Convention.
QUESTIONS TO THE PARTIES
Has there been a violation of Article 10 of the Convention? In particular, was the interference with the applicant association’s right to freedom of expression “necessary in a democratic society” within the meaning of that Article (see, among many others, Animal Defenders International v. the United Kingdom [GC], no. 48876/08, §§ 102–103, ECHR 2013 (extracts); Steel and Morris v. the United Kingdom, no. 68416/01, § 89, ECHR 2005‑II; Oberschlick v. Austria (no. 1), judgment of 23 May 1991, Series A no. 204, p. 25, § 57; Tuşalp v. Turkey, nos. 32131/08 and 41617/08, § 48, 21 February 2012; Fáber v. Hungary, no. 40721/08, § 56, 24 July 2012; Stoll v. Switzerland [GC], no. 69698/01, § 146, ECHR 2007‑V; Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 111, ECHR 2004‑XI)?
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