Freedom of Expression and the Right to Reputation: Human Rights in Conflict
This is an Accepted Manuscript version of an article published in American University International Law Review (2011), 183-236. Available online under a Digital Commons License.
49 Pages Posted: 17 Jul 2017 Last revised: 20 May 2018
Date Written: February 9, 2011
This paper -- awarded an honorable mention at the 2010 Human Rights Essay Award of the Academy on Human Rights and Humanitarian Law at the American University Washington College of Law -- analyses conflicts between freedom of expression and the right to reputation in the defamation case law of the European Court of Human Rights (ECtHR). Contrary to previous research on the subject, which was limited to narrow selections of case law, this paper takes a more systematic approach -- presenting a comprehensive study of the conflict through extensive, if not exhaustive, analysis of ECtHR case law. The author demonstrates that in defamation cases involving a conflict between freedom of expression and the right to reputation, the ECtHR’s legal reasoning suffers from a lack of clarity, consistency, and transparency. To address these issues, the author proposes a theoretical framework that could be an invaluable tool for the development of transparent and coherent reasoning in these kinds of cases. The author then applies the model to the ECtHR’s defamation case law, offering concrete insights into how the model may assist in the development of more consistent jurisprudence. Whether or not the model could also be used for the resolution of other conflicts between human rights, needs to be examined through further research.
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