De kritische toetsing van beperkingen van de uitingsvrijheid is door het EHRM in recente oordelen niet afgezwakt, maar eerder verscherpt. In EHRM 12 oktober 2010, nr. 184/06 (Saaristo e.a. tegen Finland), wordt uitgebreid ingegaan op het karakter van de toelaatbaarheid van de inperking van de uitingsvrijheid bij onder meer smaad (defamation) op de grond van noodzakelijkheid in een democratische samenleving. De Finse strafzaak betreft overigens niet smaad, maar aantasting van de reputatie door schending van de persoonlijke levenssfeer. De in Straatsburg gedeponeerde klacht is gericht tegen de strafrechtelijke veroordeling wegens aantasting van de persoonlijke reputatie door schending van de persoonlijke levenssfeer van een vrouw door berichtgeving over een buitenechtelijke relatie tussen een presidentskandidaat, gehuwd en vader van vier kinderen, en aangeefster (een vrouwelijke communicatieadviseur). De journalist en het mediaconcern beroepen zich op het feit dat in de verkiezingsstrijd familiewaarden centraal stonden en dat in dat verband de publicatie van deze relatie het publieke debat diende. De feitelijke correctheid van de publicatie staat niet ter discussie. De klagers waren door een Fins hof in hoger beroep veroordeeld tot geldboetes van respectievelijk € 270,= en € 650,=, alsmede proceskosten (resp. € 5.045,64 en € 6.500,= met rente, in cassatie kwamen daar proceskosten bij). De Finse Hoge Raad oordeelde, met de lagere rechters, dat het primaire doel van de publicatie was het bevredigen van publieke nieuwsgierigheid, zonder dat daardoor een legitiem maatschappelijk doel was nagestreefd. Het EHRM overweegt als volgt:

"3. Whether the interference was necessary in a democratic society

54. According to the Court's well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual's self-fulfilment. Subject to paragraph 2 of Article 10 of the Convention, it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no "democratic society". This freedom is subject to the exceptions set out in Article 10 § 2 which must, however, be strictly construed. The need for any restrictions must be established convincingly (see, for example, Lingens v. Austria, 8 July 1986, § 41, Series A no. 103, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII).

55. The adjective "necessary", within the meaning of Article 10 § 2, implies the existence of a "pressing social need". The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a "restriction" is reconcilable with freedom of expression as protected by Article 10 (see Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999-I).

56. The Court's task in exercising its supervision is not to take the place of national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I).

57. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks made by the applicants and the context in which they made them. In particular, it must determine whether the interference in issue was "proportionate to the legitimate aims pursued" and whether the reasons adduced by the national authorities to justify it were "relevant and sufficient" (see Sunday Times v. the United Kingdom (no. 1), cited above § 62, Series A no. 30; Lingens, cited above, § 40; Barfod v. Denmark, 22 February 1989, § 28, Series A no. 149; Janowski, cited above, § 30; and News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 52, ECHR 2000 I). In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298).

58. The Court further emphasises the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart - in a manner consistent with its obligations and responsibilities - information and ideas on all matters of public interest (see Jersild, cited above, § 31; De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports of Judgments and Decisions 1997 I; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999-III). Not only do the media have the task of imparting such information and ideas, the public also has a right to receive them (see, Sunday Times v. the United Kingdom (no. 1), cited above, § 65). In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313, and Bladet Tromsø and Stensaas, loc. cit.).

59. The limits of permissible criticism are wider as regards a politician than as regards a private individual. Unlike the latter, the former inevitably and knowingly lay themselves open to close scrutiny of their words and deeds by journalists and the public at large, and they must consequently display a greater degree of tolerance (see, for example, Lingens v. Austria, cited above, § 42; Incal v. Turkey, 9 June 1998, § 54, Reports of Judgments and Decisions 1998 IV; and Castells v. Spain, 23 April 1992, § 46, Series A no. 236).

(...)

68. Finally, the Court has taken into account the severity of the sanctions imposed on the applicants. It notes that the first and second applicants were convicted under criminal law and observes that they were ordered to pay ten day-fines, amounting to EUR 270 and EUR 650 respectively. In addition, they were, together with the applicant company, ordered to pay damages jointly and severally to O.T. in a total amount of EUR 5,045.64 plus interest and her legal fees and witness costs amounting to EUR 6,500 plus interest and to EUR 2.415,60 plus interest. The amounts of compensation must be regarded as substantial, given that the maximum compensation afforded to victims of serious violence was approximately FIM 100,000 (EUR 17,000) at the time (see paragraph 28 above).

69. The Court would observe in this connection that in view of the margin of appreciation left to Contracting States a criminal measure as a response to defamation cannot, as such, be considered disproportionate to the aim pursued (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 59, ECHR 2007-..., Radio France and Others v. France, no. 53984/00, § 40, ECHR 2004-II and Rumyana Ivanova v. Bulgaria, no. 36207/03, § 68, 14 February 2008). Nevertheless, when a statement, whether qualified as defamatory or insulting by the domestic authorities, is made in the context of a public debate, the bringing of criminal proceedings by a public prosecutor (like in other Finnish cases, see for example Niskasaari and Others v. Finland, no. 37520/07, § 77, 6 July 2010 and Ruokanen and Others v. Finland, no. 45130/06, § 50, 6 April 2010) against the maker of the statement entails the risk that a prison sentence might be imposed. In this connection, the Court points out that the imposition of a prison sentence for a press offence will be compatible with journalists' freedom of expression as guaranteed by Article 10 only in exceptional circumstances, notably where other fundamental rights have been impaired as, for example, in the case of hate speech or incitement to violence (see Cumpana and Mazare v. Romania [GC], no. 33348/96, § 115, ECHR 2004-XI). For the Court, similar considerations should apply to insults expressed in connection with a public debate (see Dlugolecki v. Poland, no. 23806/03, § 47, 24 February 2009). The Court would further observe that the Parliamentary Assembly of the Council of Europe in its Resolution 1577 (2007) urged those member States which still provide for prison sentences for defamation, even if they are not actually imposed, to abolish them without delay (Resolution Towards decriminalisation of defamation adopted on 4 October 2007). For the Court, similar considerations should apply to infringements of privacy which arise in circumstances such as those in the instant case.

70. The Court considers that such consequences, viewed against the background of the circumstances resulting in the interference with O.T.'s right to respect for her private life, were disproportionate having regard to the competing interest of freedom of expression.

71. In conclusion, in the Court's opinion the reasons relied on by the domestic courts, although relevant, were not sufficient to show that the interference complained of was "necessary in a democratic society". Moreover, the totality of the sanctions imposed were disproportionate. Having regard to all the foregoing factors, and notwithstanding the margin of appreciation afforded to the State in this area, the Court considers that the domestic courts failed to strike a fair balance between the competing interests at stake.

72. There has therefore been a violation of Article 10 of the Convention."