Facts

The Lebanese Press Editors’ Syndicate (Editors’ Syndicate) brought an urgent application to stop “The Alternative Press Syndicate” (Alternative Syndicate) from making any public statement through any media in Lebanon and from publishing any news or statements of any kind. The Editors’ Syndicate also called for the to impose a sanction of a LBP 100 million fine for each violation. It would appear that the Editors’ Syndicate brought the case in response to the Alternative Syndicate having submitting an appeal against the results of an election by the Editors’ Syndicate during which the Alternative Syndicate had documented abuses. According to the court, the purpose of such urgent applications pursuant to Article 604 of the Code of Civil Procedure is to address situations where an urgent decision is needed “to protect people’s interests, which are at serious risk of being lost in urgent matters during which ordinary litigation procedures are not possible”. During such proceedings, decisions may be issued without summoning and hearing the defendant.

Decision

The decision started out by referring to the importance that international law places on freedom of expression and its importance to democracy. It also noted that the Lebanese Constitution indicates that Lebanon is a founding member of the United Nations and, as such, abides by its covenants and, in particular, the Universal Declaration of Human Rights. The decision also referred explicitly to Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees freedom of expression, and the UN Declaration on Human Rights Defenders. Furthermore, “Lebanon is a parliamentary democratic republic based on respect of public liberties, especially the freedom of opinion, according to Article 13 of the Lebanese Constitution, which guarantees the freedom to express one’s opinion orally or in writing, as well as freedom of the press and other freedoms within the limits established by law”.

Beyond referring to these international and constitutional guarantees for freedom of expression, the court noted that this right is inherently linked to freedom of peaceful assembly and that it is “one of the fundamental pillars of a democratic society, playing a pivotal role in both protecting citizens’ rights, maintaining democracy, the rule of law, and promoting social development and reform”.

In terms of the case at hand, the court noted that “the judiciary is the guardian of freedoms, including the freedom of expression and individual and personal freedoms”. It noted that in an urgent application of that sort, the court could only limit freedom of expression very exceptionally, “when the right to preserve an individual’s reputation supersedes the right to information” and that this would apply only when “the individual has suffered severe irreparable and irreversible damage”. The court also noted that it was the job of the judge to “reconcile to the extent possible, different rights and freedoms”.

The court noted that the Alternative Syndicate enjoyed the right to freedom of expression and that the application sought to limit that right. The Editors’ Syndicate had failed to provide any evidence that it would suffer harm from the exercise, by the Alternative Syndicate, of its right to freedom of expression. As such, the court could not grant the relief sought by the Editors’ Syndicate. While the court could intervene to prevent an imminent risk of harm or significant harm that could not be compensated later on, it could not prevent the Alternative Syndicate from speaking to the media in general.

As such, the court dismissed the application by the Editors’ Syndicate, while noting that the latter was free to seek subsequent judicial review.

Analysis

It should be noted, at the outset, that the claim by the Editors’ Syndicate was, at a social and moral level, wholly illegitimate especially in its incredible breadth. It did not, for example, merely seek to prevent the Alternative Syndicate from defaming the Editors’ Syndicate or even speaking out publicly about it but, instead, sought to muzzle the Alternative Syndicate entirely. In addition, a measure of this sort, if imposed, would represent a very broad form of prior restraint, which international human rights law views with grave suspicion and which could be legitimate only in very limited circumstances. As the European Court of Human Rights has noted, the “dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court”.^[1]

It was positive that the court in this case referred to various international guarantees of freedom of expression and also the important role of freedom of expression in society, which it recognised broadly. And of course the outcome was a victory for freedom of expression. At the same time, the court did not advert to the entirely unreasonable breadth of the relief sought by the Editors’ Syndicate, which was quite dramatic. It did, however, refer to the lack of evidence of any harm to the Editors’ Syndicate.

The court also referred somewhat indirectly to the idea of prior restraint, through its comments on reviewing a case “beforehand” and the conditions on this. This was also somehow implicit in the decision. It would have been helpful, however, if it went beyond this to mention explicitly the idea that it was being asked to impose a prior restraint on speech and the strong presumption against the validity of any such measure.

[1] Observer and Guardian v. United Kingdom, Application No. 13585/88 (1991), para. 60, http://hudoc.echr.coe.int/eng?i=001-57705).

This report was made possible thanks to the support of: