Labeling theory and the test of freedom of speech vs. the right to reputation.

Nowadays, human rights lawyers around the world seem to be familiar with the margin of appreciation that characterizes freedom of speech and its subjection to limitations as to not indefinitely and unjustifiably harm a person’s right to reputation. This is also known as the fair balance test between articles 8 and 10 of the ECHR. Nevertheless, journalists appear to be less diligent and at times unaware of the role and consequences of their freedom of speech. This case memo will examine the synergy between the labeling theory and its criminological unfolding with the fine lines of freedom of speech and its balance with the right to reputation derived from article 8 of the ECHR.

 I will try to demonstrate that the ECHR promotes an insufficient concept of the right to reputation and does not take into account that freedom of speech can affect the general public’s psychological state encouraging labeling and stereotyping suspects of crimes as criminals putting these at risk for a modification in self-identity patterns that can result in actual criminal behavior.

Across a 60 years time frame, from Tannenbaum to Braithwaite, labeling theory has been modified, interpreted and simplified into different conceptualizations. Nevertheless, it retained a core argument: the external reaction of society towards an offender and labeling him as a criminal is what generates or deepens deviant behavior. In other words, social interaction is what shapes people as lawbreakers through their psychological self-identification array that will absorb the negative stimulus. This theory has its roots in the social psychology’s postulate that our identities are fluid and constantly interpreted with every external interaction we put in motion.[1]

For example, JALBĂ v. ROMANIA is one of the many cases where the Court had to asses if the test of balance between freedom of expression and the right to reputation has been correctly implied by domestic tribunals. The facts are less relevant to support my hypothesis. Instead, I will outline the merits and the Court’s view regarding the conjunctive interpretation of articles 8 and 10. First of all, the Court stresses the idea that information of public interest is subjected to “wider criticism”[2] than information concerning private individuals. Secondly, the Court implies that a distinction must be made between “statements of fact and value judgments’’[3], the latter being impossible to demonstrate by providing factual proof. Finally, the Court recognizes the margin of appreciation that domestic tribunals are invested with when it comes to applying the test. The case concerns a civil servant that was painted as corrupt by a journalist that provided no proof of his allegations in a defamatory article. The applicant suffered professional consequences and his right to reputation was severely infringed by the claims made in a local newspaper.

If we were to apply the labeling theory to this particular case we would attain an astonishing conclusion: journalists, as informants and defenders of public information are active subjects of passive labeling. Even though labeling derives primarily from a direct interaction, it is more than clear that we are inclined to assume and interiorize passive information. By implying a level of deviant behavior in a value judgment, the suspect of a crime is at risk for being stereotyped as a criminal. Furthermore, since politicians and public servants are faced with a permitted wider criticism, we can assume that they run a greater risk for labeling.

Even though the Court warns that statements must be at all times based on factual proof, it fails to stress out that private individuals who hold the power to inform the general public must assume a level of responsibility: the fair balance test, if not performed at the opportune time of delivery of information is illusory. After labeling has occurred and the public interiorized the information, the individual will begin self-identifying himself with the concept. Tannenbaum called this process the ‘’dramatization of evil”: once a person is labeled as a criminal, the identity he was trying to suppress comes to life and if he is a “fragile social identity”[4] he will most likely assume a divergent social status. Even more, chances are he will act accordingly.

The right to reputation as envisioned by the ECtHR in Karakó v. Hungary or Polanco Torres and Movilla Polanco v. Spain is a barrier for freedom of expression only when the personal integrity of an individual is at risk. Personal integrity is a vague concept that has not been properly defined by the Court yet. It does not contain self-identity elements that encompass future actions. In Karakó v. Hungary the Court held that “personal integrity rights falling within the ambit of Article 8 are unrelated to the external evaluation of the individual”[5]. In other words, the Court seems to depart from the labeling theory, focusing on internal expressions of a transgressed reputation without realizing that the labeled subjects might develop a criminal career as result of the external stereotyping process.[6]

By choosing to ignore external evaluations of individuals as part of one’s right to reputation, the ECtHR promotes the construction of an incomplete right. The right to reputation should be defined by both external and internal derivations of personal integrity. Moreover, it should be taken into account that a false claim derived from a value judgment can lead to labeling and consequently to criminal behavior that could have been prevented. Since the ultimate purpose of social control and criminal justice should be to prevent crime rather than punish it, labeling theory should be included into the considerations of the Court at the time of interpretation and implementation of rights.

[1] LANIER, Mark M. and HENRY, Stuart, Failed Socialization: Control Theory, Social Bonds, and Labeling, Chapter 7, p.192.

[2] ECtHR, JALBĂ v. ROMANIA (Application no. 43912/10), paragraph 30.

[3] Ibid, paragraph 31.

[4] LANIER, Mark M. and HENRY, Stuart, Failed Socialization: Control Theory, Social Bonds, and Labeling, Chapter 7, p.193.

[5] Karakó v. Hungary, (Application no. 39311/05), paraghraph 23.

[6] Jón Gunnar Bernburg, Marvin D. Krohn and Craig J. Rivera, Official Labeling, Criminal Embeddedness, and Subsequent Delinquency: A Longitudinal Test of Labeling, Journal of Research in Crime and Delinquency 2006, p.68.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s