ISLP is guided by the principle that freedom of expression is essential to the tenets of accountability and transparency that underpin inclusive development and the rule of law. Led by ISLP emeritus board member Richard (Dick) Winfield, our Media Law Working Group supports journalists and watchdog non-governmental organizations that investigate, report on, and litigate matters that threaten mechanisms for government accountability. One approach to this work is to draw from comparative and international law to intervene on consequential cases before international human rights fora — the decisions of which may have far-reaching implications for the freedom of expression beyond their own jurisdictions.
Last summer, ISLP’s Media Law Working Group learned that the European Court of Human Rights was considering a controversial case, Van Ballaer v. Belgium, wherein a Belgian judge had punished the author of published criticism of court policy, notwithstanding that the judge was neither named nor identified in the criticism. Because the issue so closely resembled that decided by the U.S. Supreme Court in the famous New York Times Co. v. Sullivan case, ISLP’s Media Law Working Group asked the European Court for permission to file an intervention in the form of an amicus curiae brief. The Court’s permission in hand, we wrote and filed our brief in December 2020. In it, we urged the Court to adopt the reasoning of the American Court that held that the universal right to freedom of expression — and the right to hold government accountable — requires that critics of government be protected against punishment by public officials who are neither named nor identified in the criticism. To permit the Belgian case to stand would chill political debate and obstruct citizen participation in self-government. The cost of allowing such punishment by unnamed public officials is simply too high a price for a democratic society to pay. The Belgian case remains pending in Strasbourg.