December 09
2021
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Dolores Utrilla
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21st January 2020
Data, Tech & IP Human Rights

ECtHR: limits to freedom of expression in electoral contexts need a sufficiently precise legal basis

Yesterday the European Court of Human Rights (ECtHR) delivered its judgment in the case Magyar Kétfarkú Kutya Párt v. Hungary. The Court’s Grand Chamber held that there had been a violation of Article 10 (right to freedom of expression) of the European Convention of Human Rights (ECHR) due to the lack of precision of the law applied by Hungarian authorities when imposing a fine on the applicant.

The fine had been imposed on a political party (the Hungarian Two-tailed Dog Party Magyar Kétfarkú Kutya Párt) on account of the use it had made of a mobile app during the 2016 referendum on European Union on plans for the relocation of migrants. Specifically, the applicant had made a mobile phone application available to voters enabling them to anonymously share and comment on photographs of spoiled ballots papers during the referendum.

The ECtHR considered that the use made by the applicant party of the mobile app amounted to an exercise of its freedom of expression. Even when such exercise can be limited by the State, in this case the ECtHR considered that Hungarian authorities did not respect the requirement of legal certainty stemming from Article 10 ECHR, in so far as they fined the applicant relying on the principle of domestic election law that rights should be exercised in accordance with their purpose. This provision was too wide as to allow the applicant party to foresee that it could be penalised for its management of the mobile up. Therefore it lacked the sufficient precision to rule out arbitrariness and to allow the applicant party to regulate its conduct in advance.

Read the judgment here.

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