The Court’s assessment
(a) Whether there was an interference with the applicant political party’s freedom of expression
35. The Court notes at the outset that the applicant political party was sanctioned for running a mobile telephone application enabling users to share their comments and photographs taken of their ballot papers. The Court notes the argument of the domestic courts, reiterated by the Government, that this measure had not infringed the applicant political party’s right to freedom of expression since this latter had not engaged in political speech itself.
36. The Court has consistently emphasised that Article 10 guarantees the right to impart information and the right of the public to receive it (see, amongst other authorities, Observer and Guardian v. the United Kingdom, 26 November 1991, §§ 59(b), Series A no. 216 and Guseva v. Bulgaria, no. 6987/07, § 36, 17 February 2015). It also held that the freedom of expression includes the publication of photographs (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 103, ECHR 2012). Moreover, Article 10 applies not only to the content of the information but also to the means of transmission or reception since any restriction imposed on the means necessarily interferes with the right to receive and impart information (see, for example, Öztürk v. Turkey [GC], no. 22479/93, § 49, ECHR 1999-VI).
37. The Court notes that the mobile phone application was developed by the applicant political party precisely for voters to share, by information and communication technologies, opinions through anonymous photos of invalid ballot papers. Thus the mobile phone application in the present case possesses a communicative value and thus, for the Court, constitutes expression on a matter of public interest, as protected by Article 10 of the Convention. Moreover, in the present case, the Court is satisfied that what the applicant political party was reproached for was precisely the provision of the means of transmission for others to impart and receive information within the meaning of Article 10 of the Convention. It considers that the actions taken by it are afforded protection under Article 10 § 1 of the Convention and that, consequently, its sanctioning interfered with its right to freedom of expression (see Neij and Sunde Kolmisoppi v. Sweden (dec.), no. 40397/12, 20 June 2012). Such interference breaches Article 10 unless it was “prescribed by law” and pursued one or more of the legitimate aims referred to in Article 10§2.
Curtea Europeană a Drepturilor Omului
(Hotărârea din data de 23 ianuarie 2018, Magyar Kétfarkú Kutya Párt împotriva Ungariei, CE:ECHR:2018:0123JUD000020117)