Headnotes:
I. The dissemination of disinformation is not excluded from the scope of Article 17(1) and (2) of the Charter of Fundamental Rights and Freedoms; it may only be restricted by law and under the conditions set out in Article 17(4) of the Charter.
II. Criminal prosecution for spreading false alarms under Section 357 of the Criminal Code is, in abstracto, a measure that can be considered necessary in a democratic society, particularly for the protection of others' rights and freedoms, state security, public safety, and public health (Article 17(4) of the Charter).
III. When assessing whether a particular statement fulfils the elements of the offense of spreading false alarms, law enforcement authorities must consider whether the statement is of a political nature.
IV. The political nature of the statement suggests that it is closer to an opinion than to a factual statement and therefore cannot, in principle, be described as true or false.
V. The political nature of the statement also influences the assessment of whether the statement was alarming, i.e., whether it could cause serious concern among the population, as exaggeration and hyperbole are common in discussions on political topics, and the population is aware of this.
Summary:
I. The complainant was found guilty by the court of a first instance of spreading false alarms (“scaremongering”). He allegedly committed the crime, in short, by stating in a live broadcast on YouTube and Facebook that the government of the Czech Republic wanted to attack the Russian Federation with nuclear weapons from fighter jets and that specific government officials wanted to start a war. The appellate court overturned the judgment only in respect of the sentence. The Supreme Court dismissed the complainant's appellate review as manifestly unfounded.
In the constitutional complaint, the complainant argued that his statements had been taken out of context, that it was only exaggeration, and that it had not been proven that the statements could cause fear of war among the public. The complainant had merely exercised his freedom of expression, which had been violated by the courts.
II. The Constitutional Court stated, that the protection provided by Article 17(1) and (2) of the Charter applies not only to expressions that are favourably received or considered harmless, but also to those that offend, shock, or disturb. It is precisely such expressions that will most often need protection, as their nature may give rise to a tendency on the part of public authorities or society to silence or restrict them.
Freedom of expression may only be restricted by law if such measures are necessary in a democratic society. If such restrictions are imposed by criminal law, they must be done so in strict compliance with the principle of ultima ratio. These principles apply all the more to expressions of a political nature, which enjoy the highest protection, as the ability of anyone to express themselves without fear on matters of public interest is crucial to the proper functioning of democracy. With regard to disinformation, especially that disseminated in the online environment, the Court did not question the legitimate interest of the state in preventing it. However, the fight against its dissemination must be conducted in accordance with the aforementioned principles. The extent of constitutionally acceptable restrictions on freedom of expression also depends on whether the expression is a statement of fact or an evaluation – the expression of evaluative, albeit controversial, judgments is fundamentally protected by the Constitution.
A typical example of the criminal offense of spreading false alarms is deliberately shouting "fire!" in a theatre or falsely reporting a bomb in a school or hospital. In principle, apolitical statements are punishable if their truthfulness can be clearly assessed and if they are clearly capable of causing serious and immediate disruption and damage that cannot be prevented (trampling of panicking people, endangering the provision of medical care, etc.).
As stated, only a statement that can be assessed as false and that is "alarming," i.e., capable of causing serious concern among (at least) part of the population, can be considered an alarmist message (false alarm). In the present case, the complainant's statement on social media may, according to the Court, initially have attracted the attention of the criminal investigation authorities. However, further investigation and the broader context made it clear that it was rather an expression of a political nature and the complainant's own interpretation of generally known facts (the purchase of F-35 aircraft), regardless of how absurd and misleading it may have appeared. Despite elements of disinformation, the complainant's statement was closer to an opinion than a statement of fact and, as such, could not be simplistically declared false within the meaning of the criminal offense of spreading false alarms.
The Court also relativized the presence of another element of the criminal offense, i.e., causing serious concern to at least part of the population. Discussions on political topics are often heated and filled with tragic scenarios, and the population is familiar with such form of communication. In this regard, the Court pointed to generally known facts that significantly weakened the realism of the scenario presented by the complainant and his ability to frighten the population.
The Court concluded that the ordinary courts had failed to take into account the predominantly political nature of the complainant's statement and the context in which it was made and, contrary to Article 17 of the Charter, had chosen an inadmissibly broad interpretation of the criminal offense of spreading false alarms. At the same time, the courts failed to take into account, in the complainant's favour, the aforementioned doubts as to whether all the elements of this criminal offense had been fulfilled. The Court therefore granted the constitutional complaint and annulled the contested decisions.
The Justice Rapporteur was Tomáš Langášek. None of the Justices dissented.