Publishing Secrets: A Case Study on the Balancing of Press Freedom and Public Interests in European Human Rights Jurisprudence

Abstract

The European Court of Human Rights has frequently been criticised for methodical weakness and especially for how it balances rights against public interests. This article demonstrates that the Court’s jurisprudence is acceptably consistent but lacks conceptual clarity. Janneke Gerards’ recommendation of the classic proportionality test to improve the Court’s balancing approach is therefore well founded. Whether the proportionality test is also practically compatible with the Court’s jurisprudence becomes the next pertinent question. This analysis is based on a review of Article 10 cases in which states restricted freedom of the press by enforcing secrecy laws to protect public interests. A case review suggests that the Court tacitly uses some elements of proportionality in an unstructured manner. It is argued that the Court’s reasoning may be systematised and ordered through the three-step test of proportionality. However, the test’s third step (proportionality in the narrow sense) can hardly be reconciled with the Court’s prevalent interpretation of its margin of appreciation doctrine.