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The right to

freedom of
expression under
Article 19
A case study on Abloh and La
Semaine Cabengaine v. Cabengon
Rucsandra Pintea
20142015

In taking a look at the controversial given situation, it is crucial that we first establish whether an
interference with the right to freedom of expression guaranteed by Article 19 has occurred.
Previously, at paragraph 14, we can see that Ms. Bernadette Abloh was being prosecuted, under a
Cabengon law, for disclosing information regarding the expenditure of the President and for
entering the Parliament under false pretences. Taking into consideration the right to receive and
impart information referred to in Article 19 and in Cabengon domestic law paragraph 5:
Cabengons basic law guarantees the right to freedom of expression and to hold opinions and
impart information and ideas without interference by a public authority, subject to such
restrictions as are prescribed by law and are necessary in a democratic society in the interests of
national security, prevention of crime, protection of morals, protection of the reputation and the
rights of others, preventing the disclosure of confidential information and maintaining the
authority and impartiality of the judiciary. and the fact that Ms. Abloh was found guilty and
initially sentenced to four months imprisonment, we can naturally consider that a violation of the
right took place.
It is very important to note that this violation reaches multiple levels and, although it peaked with
Ms. Ablohs second conviction, it has deeper roots. First, it is important to note that, similar to all
previously totalitarian countries, Cabengons state funded broadcasting company held a certain
monopoly over national media outlets. Despite the lack of any formal restrictions on
broadcasting licenses, developing competition was still difficult due to financial reasons. Second,
not only open dialogue is not encouraged, but it is limited by continuously undermining the voice
of opposition. While it is important to take into consideration that the tone of the two
publications La Semaine Cabengaine and The Citizen is regarded as more inciting and
violent, their objective is to start a public debate in a society characterized by oligarchy and
monopoly. Therefore it should not be considered as acting in bad faith, but rather seen as serving
the public interest and still under the protection of qualified privilege. Going back to the
applicants request, at point (a) the statement reads that their Article 19 rights have been
interfered with because of The requirement that all broadcasts, including online broadcasts, be
licensed and pre-recorded, which interfered with La Semaine Cabengaines aspirations to run
an interactive online newspaper site. After a good read of paragraph 5, we can note that, being a
member of the United Nations that has ratified the International Covenant on Civil and Political
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Rights, Cabengon is being restrained from imposing any restrictions on media ownership and
broadcasting licenses. However, in paragraph 18, the case presents a new domestic law that made
broadcasting licenses whether we are speaking of TV, radio, or online materials dependent
upon previous pre-recording and/or pre-moderation. This law was extended to the texts and
dialogue with the public. The passing of this new law itself was a clear violation of the right to
freedom of expression under Article 19, as the State is required to refrain from conditioning the
receiving of broadcasting licences on something other than technical aspects. A direct control of
the authorities over the content that it is being transmitted to the public stands as a serious
violation of the right, not only because it narrows the protection that journalists enjoy under the
freedom of expression since they are considered public watchdogs but on the right the
public has to receive information of general interest. Therefore, an interference of the State
existed in this particular case.
The second point in the application established a violation of the right in the form of a direct
prosecution of Ms. Bernadette Abloh for: (i) giving a false identity to Parliament; (ii) breach of
the 2008 Act; and (iii) incitement. First of all, it is important to understand what false identity
really consists of in order to give a verdict on this matter. Identity fraud is commonly regarded to
as the act of stealing personal information, opens credit card accounts in the victim's name
without their permission, and charges merchandise to those accounts. However, identity fraud
does not necessarily involve theft of another persons identity, but also fake names, ID cards,
falsified or forged document and misleading on ones age. Document forgery refers to
Government issued papers, and therefore, in Ms. Ablohs case, it cannot be considered that she
entered the premises of the Parliament under fake identity. Also, the only misleading information
on her badge was the media outlet she was working for La Semaine Africaine instead of
Citizen and not her name. Hence, we cannot speak of false identity and this should not
constitute grounds for her prosecution. Further, Ms. Abloh was being sued for a breach of the
2008 Act, ensuring privacy, data protection and credit fraud prevention. It is to be noted that,
indeed, Ms. Abloh presented in public Presidents credit card statement without his previous
consent, thus making an attempt to the politicians private life. It is also very important to take
into consideration the fact that international Human Rights Courts recognise the importance of
free political and public interest speeches and have chosen, over the years, to prioritise them over
politicians private life, as they consider that politicians, public officials and persons exercising
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functions of a public nature must tolerate a higher degree of scrutiny of their actions and be
willing to accept criticism in the press (Freedom of Expression Under the European Convention
on Human Rights Article 10, 2009). In Lingens v. Austria (1986), the European Court of
Human Rights noted that the politician inevitably and knowingly lays himself open to close
scrutiny of his every word and deed by both journalists and the public at large, and he must
consequently display a greater degree of tolerance. Also, in Fressoz and Roire v. France (1999)
the Court handled the issue of confidential information versus public interest by stating that The
press plays an essential role in a democratic society. Although it must not overstep certain
bounds, in particular in respect of 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. Moving on from the area of privacy breach and confidential information, we can
clearly state that no credit card fraud was committed as Ms, Abloh did not succumb to illegal
actions in order to attain the credit card details. This information was publicly available as a
result to a London court case, following President Pontneufs extravagant expenditure and was
grounds for an open debate regarding the economic status of Cabengon and the lack of
improvements in the public sector, regardless of the fiscal benefits the World Bank and IMF have
granted Cabengon. Therefore, yet again, these actions did not suffice as grounds for criminal
prosecution, and further on, by denying the public interest values of this information, domestic
courts have committed a serious interference with the right provided by Article 19. Ms. Abloh
was also being prosecuted for incitement, with special regards to the direct implication in the
events that led to the quarrels mentioned at paragraph 20. It is important to be noted the fact that
La Semaine Cabengaine were not the only media sources that had investigated or published
stories targeted at the President The Citizen also made multiple attempts at his person,
however, the newspaper could not be prosecuted under Cabengon jurisdiction. Further, we have
previously recognised that Ms. Ablohs reporting, although slightly invasive and sharp, was
directed towards the public interest and did not search for immediate action and incitement, but
rather an awakening of both the Cabengon people and international stakeholders with direct
interest in the national expenditure of Cabengon. The misfortunate events mentioned at
paragraph were the climax of a chain of events that had older roots, that has started long before
her first prosecution, therefore she cannot be held as a direct responsible for what happened.

As for the breach of confidence committed by La Semaine Cabengaine it is important to note


that it only picked up the story from the Poto Citizen. And also, given that fact that we are
discussing the medical files of a politician, it can fit in the area of public interest, since any
medical condition can influence his actions in the public sphere. As seen in paragraph 6, we
cannot clearly ascertain whether or not the medical files are valid, however, the way in which the
Poto Citizen published the records was more as a personal attack, rather than a call for an open
debate see the speculations involving mental incapacity, physical fitness and allegations of
wifes infidelity. In light of these facts, this breach of confidence cannot enjoy the protection of
political expression and public interest speech, being grounds for defamation. Therefore, an
interference of the State is justified and legal, since it protects the rights of others here,
President Pontneuf and his wife and the quantum of damages instated by the domestic court is
not exaggerated.
Moving on to the next point on the application, we learn that there is no Cabengon domestic law
that offers protection to journalistic sources. The journalistic sources and their use are at the core
of a journalists activity and, therefore, are a very important pawn in a democratic society. Under
the negative obligations imposed by Articles 10 of the European Convention on Human Rights
and Article 19 of the International Covenant on Civil and Political Rights, the State must, indeed,
refrain from introducing any abusive laws that can restrict in any way the freedom of expression.
However, omitting such an important aspect as the protection of journalistic sources and failing
to adopt a bill that officially regulates this protection could be seen as a violation of the right
provided by Article 19, especially when it keeps a journalist from fulfilling his/her duty. In the
case of Goodwin v. the United Kingdom (1996), the European Court of Human Rights has noted
that Protection of journalistic sources is one of the basic conditions for press freedom.
Without such protection, sources may be deterred from assisting the press in informing the public
on matters of public interest. As a result the vital public-watchdog role of the press may be
undermined, and the ability of the press to provide accurate and reliable information be
adversely affected. Therefore, it is crucial that the State creates the proper environment, through
any means it possesses, for the correct exercise of the right to freedom of expression.
The extended protection provided to journalists and media institutions is a basic principle in a
democratic society. It is crucial that journalists, regardless of their political inclinations, provide

the public with as many angles of a story as possible and offer them the information that other
people seek to hide. In this case, what Ms. Abloh and La Semaine Cabengaine did was to break
the information monopoly of Cabengon and offer their audience a different angle. It must be
considered the potential these articles had in provoking the public and to exacerbate the security
situation in a country that has been dealing with homeland safety issues. However, we must also
see how authorities have failed to have sufficient respect towards the publics right to be
informed, and how La Semaine Cabengaine and the Poto Citizen provided the audiences
with a different perspective, be that one of a dissonant political voice. The judgement made by
Cabengons domestic courts are highly alarming as, the judge himself has noted that the issues
risen by Ms. Abloh were legitimate questions to be answered by President Pontneuf. A
majority of the points in the application of Ms. Abloh and La Semaine Cabengaine constituted
serious interferences with the right to freedom of expression. Therefore we can agree that a
violation of Article 19 has been made and that the quantum of damages awarded against La
Semaine Cabengaine was disproportionate with the offence.

Bibliography
Greer, Steven, The Exceptions to Articles 8 to 11 of the European Convention on Human Rights;
The Council of Europe, 1997.
***, Civil and Political Rights: The Human Rights Committee Fact Sheet No. 15; United
Nations, Geneva, 2005.
Callamard, Agnes, PhD, Freedom of Expression and Advocacy of Religious Hatred that
Constitutes Incitement to Discrimination, Hostility or Violence; United Nations High
Commissioner for Human Rights, Geneva, 2008.
***, Factsheet Protection of journalistic sources; European Court of Human Rights,
Strasbourg, 2014.
Voorhoof, Dirk, The Protection of Journalistic sources under fire?; Ghent University, 2004.
***, Freedom of Expression Under the European Convention on Human Rights (Article 10);
Interights, 2010.
Macovei, Monica, Freedom of Expression: A Guide to the Implementation of Article 10 of the
European Convention on Human Rights; Directorate General of Human Rights, Council of
Europe, Strasbourg, 2004.