CYIL vol. 14 (2023)

CYIL 14 (2023) THE EUROPEAN COURT FOR HUMAN RIGHTS AND ACADEMIC FREEDOM establishing facts, on which Professor’s criticism was based, meant that reasons adduced by the domestic courts to justify the injunction in question, were “relevant and sufficient”. As a result, the ECtHR ruled the injunction was necessary in a democratic society. 130 The decision in Krysztofiak v Poland is controversial in several aspects. First, it is not easy to reconcile the ECtHR’s statement that “the Court is not in a position to make pronouncements about the methodology employed by the applicant or about the quality of his work” 131 with its findings concerning the lack of diligence on behalf of Professor Krysztofiak. Most essentially, however, the ECtHR’s ruling seems to afford greater protection against criticism to private higher-education institutions and that based on the argument over the existence of commercial interests on behalf of private higher education institutions, namely “interest in protecting the commercial success and viability of commercial educational entities, for the benefit of employees and investors, but also for the wider economic good.” 132 This is, however, to overlook that public institutions of higher education can comparably claim they also have specific interests to defend, linked to providing public services or doing research in public interest. Moreover, in the era of commercialization and corporatization of education and research, 133 financial viability of public institutions of higher education depends on their capacity to participate in a “competition” for students too. It can be, thus, believed that, in future, the ECtHR will have to revisit its positions on the scope of freedom to criticize in the context of private academic institutions, at least, as long as they are integrated to the education and research system in the Contracting States. Academic Accountability as a Limit to Freedom of Expression in Academic Context Although in cases in which academic freedom is invoked, freedom of expression is conceived as particularly wide by the ECtHR, this freedom is not absolute and can be subject to restrictions under specific justifications. Under the ECtHR’s view, the principal justification which is permitted in the context of restrictions of academic freedom is closely linked to what can be designated as academic accountability. This academic accountability comes into a play especially where the protection of the reputation or rights of others is at stake 134 and where balancing between freedom of expression on one hand and the protection of the reputation or rights of others on the other hand appears as imperative. In overseeing the results of balancing, which should be basically carried out by bodies of the Contracting States in individual cases, the ECtHR pays special attention to whether, when exercising her or his freedom of expression, an individual academic acted in a good faith and whether their statements had a reasonable link to verifiable facts. The fact the permissibility of restrictions on freedom of expression is linked to accountable exercise of academic freedom, aligns the law of the ECHR with recommended international standards. It is worth noting that the UNESCO Recommendation lays down that “[a]ademic freedom carries with it the duty to use that freedom in a manner consistent with the scholarly 130 Wojciech Krysztofiak v Poland (n 122) para 22. 131 Idem, para 21. 132 Idem, para 19; interestingly, no proof of real impact of Professor’s criticism on the number of students was presented before the ECtHR. 133 HAO, Z., Commercialization and Corporatization vs. Professorial Roles and Academic Freedom in the USA and Greater China, in: Z. Hao, Z. and Zabielskis, P., (eds.) (n 4) pp. 37–60. 134 See Article 10(2) ECHR.

149