Balancing Freedom of the Press with Competing Rights and Interests: A Comparative Perspective

Abstract:     
The non-absolute nature of freedom of the press is an understandable consequence of the existence of other fundamental rights and competing public interests. As any formal hierarchy among fundamental rights ought to be excluded, discovering what is protected under the guarantee of freedom of the press requires a never-ending attention to the case law. In other words, it would be fallacious to pretend that the weight of freedom of the press could be determined ne varietur. When faced with a conflict between competing rights and interests, courts usually favour a judicial approach where the relevant rights and interests are "harmonized" with due regard to the particular circumstances of each case. Such ad hoc balancing is more an artistic exercise than a scientific one as the circumstances of each case will ultimately determine which norm shall prevail. Nonetheless, from a "transversal" analysis of the case law of the European Court of Human Rights, a general framework of "guiding principles" can be deduced. This, in turn, offers some legal certainty when trying to evaluate the potential outcome of each set of circumstances.

Keywords: Freedom of the press, Freedom of Expression, European Convention on Human Rights,European Court of Human Rights, Balancing of Rights

Accepted Paper Series