DISSENTING OPINION OF JUDGE POWER

I voted against the majority with some doubt. However, in the final analysis, I could not overlook the fact that the case involved a dispute on the scope of the protection afforded under Article 10 and that the applicants, in publishing the offensive cartoon and articles, were acting in their capacity as trade union representatives in the aftermath of a contentious labour dispute. In such circumstances, the sanction imposed upon them, summary and permanent dismissal from their employment, warranted serious analysis from the point of view of proportionality.

Since freedom of expression constitutes one of the essential foundations of a democratic society, it is well established that it is applicable to information or ideas that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’ . [1] The Court ’ s limited task is to ensure that any interference in the right to freedom of expression is provided for by law, pursues a legitimate aim and is necessary in a democratic society.

The judgment, in my view, pays insufficient regard to the fact that at the time of the events in question the applicants were members of a recently formed trade union. Whilst obviously not in the same category as journalists who exercise important ‘ public watchdog ’ functions, trade unions, nevertheless, play an important role in voicing and defending matters of public interest in the areas of trade, labour and employment. The cartoon and articles, crude as they are, must be viewed in the context in which they were published, namely, in a trade union bulletin and by way of response to and commentary upon a serious labour dispute involving the employer and trade union members.

In Vereinigung Bildender K ü nstler v Austria , the Court found that Article 10 had been breached where the domestic courts had granted an injunction prohibiting the exhibition of a piece which depicted certain individuals in a somewhat outrageous manner, naked and involved in sexual activities. [2] Arguably, in that case, the image was even more offensive and shocking than the publications in the instant case. The Court, nevertheless, found that such portrayal amounted to a “caricature of the persons concerned” using satirical elements. It noted that “ satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate .” [3] Noting that the penalty imposed was not limited in space or time, the Court found that the impact of the measure on the applicant association was disproportionate to the aim pursued and, therefore, constituted a violation of Article 10.

The applicants, in this case, also chose caricature and satire to convey their commentary, as union representatives, on what had transpired within a recent industrial dispute and, of course, this involved features of exaggeration and distortion of reality which aimed to provoke and agitate. For this, they were sacked, summarily, deprived of their livelihood and obliged to sustain all the adverse consequences that flow from dismissal from employment.

The Court has consistently held that a margin of appreciation which a State enjoys in assessing whether and to what extent interference is necessary goes hand in hand with European supervision covering both the legislation and the decisions applying it. [4] When carrying out that supervision, the Court must ascertain whether the measures taken at national level are justifiable in principle and are proportionate [5] and it must look at the impugned judicial decisions against the background of the case as a whole.

Given the background and context of this case as a whole, the level of “supervision” exercised by the majority is minimal in the extreme, deferring, effectively, to the decisions of the domestic authorities. Where the Court accepts that an impugned interference with freedom of expression is proportionate, such an assessment must involve some consideration of the necessity for such a measure. The threshold of the “necessity” test of interference with freedom of expression is not equivalent to nor does it have the latitude associated with such notions as “tolerable”, “acceptable” or “reasonable”. Necessity implies the existence of a “ pressing social need ”. [6] I find no consideration in the judgment as to what, if any, “pressing social need” existed which required the summary and permanent dismissal of the applicants, as distinct from, say, the imposition of some other form of penalty, such as, suspension, a fine or even a negotiated “exit strategy”.

One cannot and should not ignore the fact that the applicants were members of a recently formed trade union whose mandate was, presumably, to represent the views and protect the interests of its members. The publications were made within the context of an employment dispute. If, as is this case, those representatives were provocative and offensive in the manner in which they expressed themselves, whether in cartoon form or otherwise, such a choice, in my view, falls within the ambit of Article 10 and any interference with the right protected thereunder must be strictly necessary. To my mind and having regard to all the circumstances of the case, it has not been established that the applicants ’ forfeiture of their jobs for having published the cartoon and commentary was “necessary” or otherwise proportionate.

Finally, it would have been preferable, to my mind, for the Court to consider whether the summary dismissal of the applicants constituted an unjustified interference with their rights under Article 11. In my view, their status as representatives of a recently formed trade union is of considerable significance. Having regard to the special importance of freedom of association and freedom of expression, which are closely linked in this instance, the Court should examine the severity of the disciplinary sanction imposed in the light of the case as a whole. The proportionality principle demands that a balance be struck between the requirements of purposes listed in Article 11 § 2 and those of the free expression of opinions by persons, such as the applicants, acting in a representative capacity. The pursuit of a just balance must not result in trade union representatives being discouraged, for fear of disciplinary sanctions, from making clear their opinions on contentious matters arising between employers and employees. The freedom to participate in an assembly or an association (including the right to form and join trade unions) is of such importance that it cannot be restricted in any way so long as the person concerned does not commit any reprehensible act on such occasion. [7] The “act” in question in this case, crude as it was, cannot, in my view, be regarded as being so reprehensible as to warrant the ultimate disciplinary sanction, namely, summary and permanent dismissal. Such a penalty was not, to my mind, compatible with the strict requirement of a “pressing social need” and, therefore, cannot be regarded as having been “necessary in a democratic society”.

[1] Handyside v. the United Kingdom , 7 December 1976, § 49 , Series A no. 24.

[2] Vereinigung Bildender Künstler v. Austria , no. 68354/01, ECHR 2007 ‑ II .

[3] At § 33.

[4] Groppera Radio AG and Others v. Switzerland , 28 March 1990, Series A no. 173 ; M arkt I ntern Verlag GmbH and Klaus Beermann v. Germany , 20 November 1989 , Series A no. 165.

[5] Groppera Radio AG and Others v. Switzerland , § 72; see also Barfod v Denmark , 22 February 1989, Series A  no 149.

[6] Lingens v. Austria , 8 July 1986, §§ 39-40, Series A no. 103; Sunday Times v. the United Kingdom (no. 2) , 26 November 1991, § 50, Series A, no. 217.

[7] Ezelin v France , 26 April 1991, § 53, Series A no 202