The European Court of Human Rights has ruled that restricting the use of an application that allows voters to anonymously share photos of the ballot card violates the freedom of expression.
What has happened?
The Tribunal adopted such a position on January 23, 2018 in the case of the Hungarian opposition political party Magyar Ketfarku Kutya Part. In connection with the announcement by the government of a referendum regarding the admission of refugees under the so-called mechanism of relocation, this party has called on its supporters to boycott a referendum or to cast an invalid vote. The party also prepared a smartphone app that allowed users to post photos of their electoral cards anonymously showing that they gave away an invalid voice.
As a result of a complaint lodged with the National Election Commission, the application was found to violate the secrecy of voting, and stated that photographing and transmitting photos of election cards is contrary to the purpose for which they are served. The party appealed against this decision to the court, which did not agree that the principle of secrecy of the voting had been violated, but upheld the Commission’s position that there had been a violation of the law by using ballots not in accordance with the purpose. The party was obliged to pay the fine. The party attempted to challenge the decision in the Constitutional Tribunal, but the latter found that there is no reason to do so because, potentially, it was not party’s right to express an opinion that was violated, only people who used or wanted to use the application and rejected the complaint for formal reasons.
Judgment of the ECtHR
The party has asked the European Court of Human Rights to rule that the Hungarian authorities violated Article 10 of the European Convention on Human Rights, which guarantees everyone the right to express opinions. The Court emphasized on the basis of its earlier rulings that Article 10 guarantees the right to information and the right of the public to receive it (see Observer and Guardian v. The United Kingdom, 26 November 1991 and Guseva v. Bulgaria, no. 6987/07). It also stated that freedom of expression includes the publication of photographs (see Von Hannover v. Germany (no. 2) [GC], no. 40660/08 and 60641/08.). In addition, according the Tribunal, Article 10 applies not only to the content of information, but also to the means of transmission or reception, since any restrictions imposed on the media interfere with the right to receive and provide information (see Öztürk v. Turkey, no. 22479/93).
The Tribunal underlined that the catalog of restrictions on the right to express opinions is exhaustive and it cannot be interpreted in a broader way, and due to the fact that the party made sure that the application was anonymous, none of the values specified in Article 10 para. 2 Convention (eg public safety) were breached. According to the Tribunal, the Hungarian authorities did not show any connection between the fact that the electoral cards were also used for a purpose other than voting and exemptions allowing for restricting freedom of expression.
Why is it important?
The Court’s ruling seems to be important for two reasons. First of all, there is one of the few judgments regarding the use of new technologies often used by the civic tech sector. Secondly, in the in terms of the elections approaching in Poland and other CEE countries, it assures the creators of similar applications that their actions are in accordance with the international law.
