10. Freedom of expression under Article 10 + exclusions under Art. 17

Question 1

What does the court say about art. 10?

Answer 1

• The court has said, that article 10 constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every man.

Question 2

What is art. 10?

Answer 2

Freedom of expression

Question 3

Which art. is there a link to?

Answer 3

• There is a link to article 9 since expression of personal beliefs and ideas is for many an inherent part of the holding of those beliefs and ideas.
• Also a link to article 11 (come together) and 8.

Question 4

Art. 10 paragraph 1 is broad (bred) and what does that mean ?

Answer 4

• The right to freedom of expression in paragraph (1) is extremely broad. All forms of expression are included, through any medium - includes paintings, books, cartoons, films, video-recordings, statements in radio interviews, information pamphlets, and the internet and with any content, including incitement to hatred and pornography.

Question 5

Expression can be a powerfull tool seen in paragraph 2 and in caselaw

Answer 5

• However, as seen in paragraph 2 and in case-law, expression is a powerful tool, carrying special duties and responsibilities (especially by the mass media).

o Two aspects: we have to protect the right to free expression, but it can also be used to incite violence, spread hatred and impinge on individual privacy and safety.
o The case law tries to find this balance between these two aspects

Question 6

What kind of cases is the majority of art. 10?

Answer 6

• The majority of cases concerning article 10 is about people who have received some penalty for defaming or insulting other people.
o The court will here consider a number of factors to see if there is a violation of article 10 - including the function fulfilled by the author and the subject, whether the impugned expression consists of a statement of fact or a value judgment and the severity of the penalty.

Question 7

What constitutes an interference with free expression?

Answer 7

• The court takes a broad view of what constitutes an interference with free expression. It includes executive orders preventing publication or the confiscation of published material. Paragraph (2) makes clear that penalties, restrictions, conditions and formalities must be justified. Other forms of post-publication measures can also constitute interferences if they have a chilling effect on future expression (for example attempts to uncover journalistic resources). Pre-publication notifications can have a chilling affect on the media and so would not impose such a requirement.

Question 8

what is the limitations on freedom of expression

Answer 8

• Certain restrictions are expressly allowed. Article 10 (1) provides that states may require the licensing of broadcasting, television or cinema enterprises.
• (2) = permits a state to limit the right set out in (1), provided that such limitations are “prescribed by law” and “necessary in a democratic society” in pursuit of one of the specified aims.

Question 9

When can it be justifiable to limit the freedom of expression?

Answer 9

• The situations in which a restriction may be justifiable include the need to protect important public interests (such as national security, territorial integrity, freedom from crime and disorder, health and morality) and also other individual rights (right to privacy or reputation).
o The margin of appreciation allowed vary depending on the purpose and nature of the limitation. It must be proportionate to the legitimate aim pursued.
o Other important factors to take into account include the extent of the restriction and the form of the expression.

• The court will also look at whether the applicants had alternate means of expression.

Question 10

The difference on audio-visual media vs print media

Answer 10

• The court has acknowledged that account must be taken of the fact that audio-visual media have more immediate and powerful effect than print media. More restrictive measures will be permissible in relation to audio and visual media, because the damage is greater.
o Also cases about the internet - the risk of violation of rights is high here because there are billions of users worldwide.
o Case: the court said there is no general right of access to the internet for prisoners - however where access is given, then restrictions on certain websites have to be justified - a lot of information can only be found on the internet, and therefore it is a bigger right.

Question 11

what can you say about Hate speech

Answer 11

• In practice the court has not maintained any clear distinction between statements that “spread, incite, promote or justify hatred based on intolerance” and “concrete expressions constituting hate speech”. The court have relied on article 17 and on the limitations in 10 (2), as interchangeable justification for declaring inadmissible complaints where the expression in question incites violence or hatred based in intolerance.

Question 12

what can you say about Incitement

Answer 12

• Important whether or not a statement constitutes and incitement (tilskyndelse). A statement is less likely to be interpreted as an incitement to violence if it is reported to a well informed audience as part of a pluralistic debate.
• If the context is one of conflict and tension, on the other hand, particular caution will be required of the media. In such situations journalists bear special responsibilities and duties, because they can become a vehicle for the dissemination of hate speech and violence.
• Cases on page 492 and forward.

Question 13

Obscenity(uanstændighed) and blasphemy

Answer 13

• The court has noted, that there is no uniform European concept of morality and states enjoys a wide margin of appreciation in assessing whether measures were required to protect moral standards.
• One of the problems of the cases concerned with obscenity and blasphemy is that the earlier case-law of the court came very close to establishing a right not to be insulted by others in relation to religious feelings. A preferable way to deal with such cases would be to offer no protection to the advocacy of religious hatred.
• There is a line of cases, which suggests that the court is not fully wedded to the notion of protecting a right not to be insulted by others in relation to religious feelings, but is rather concerned with respect for freedom of expression on the one hand while securing the right of others to respect for their freedom of thought, conscience and religion.
• Cases on page 495 and forward (Mohammad-tegningerne)

Question 14

How does the press work as the “watchdog” of democracy

Answer 14

• The press act as a public watchdog in a democratic society. Although they must not overstep certain bounds and may be regulated, they have a duty nevertheless to impart information and ideas on all matters of public interest. Not only does the press have the task to imparting such information and ideas, the public also has a right to receive them. As a result, the national margin of appreciation is limited when the author of the expression in question is a journalist, fulfilling his social duty to impart information and ideas on matters of public concern. Journalists should even be free to use a degree of exaggeration and provocation.

Question 15

How should a journalist work “as a watchdog”

Answer 15

• However journalists should act responsibly and criminal behaviour may limit the protection that article 10 provides.
• A journalist’s right to publish a story about an on-going criminal investigation is balanced against the article 6 right of the accused.

Question 16

Protest

Answer 16

• Although public protest is generally covered by article 11, similar principles are applied under article 10. Can use article 10 when the protest is held by one or a small number of people.
o The two articles are closely linked.
o The court has noted, that the need for a proportionate response where “direct action” as a form of protest may be unlawful. Unlawful action may not justify a severe penalty such as imprisonment.
• Case page 503.

Question 17

The conflict with the right to private life

Answer 17

When does an expectation of respect for private life get trumped by the right of the general public to be informed?
o The court has stated, that the public interest cannot be reduced to the public’s thirst for information about the private life of others, or to the reader’s wish for sensationalism or even voyeurism.

Question 18

Confidential (fortrolig) information

Answer 18

• Article 10 has been interpreted to guarantee the freedom to receive as well as impart information, but it does not necessarily confer a right of access to information. However, it is a violation of article 10 for a state to refuse to grant access to documents once a national court limited right to access to information in certain circumstances.

Question 19

Whistle-blowers

Answer 19

• In a number of cases where civil servants had publicly criticised their employees and suffered disciplinary measures, the commission accepted that state employees and service personnel have a special “duty of discretion” meaning that their freedom to criticise government policies in a public manner is curtailed. Nonetheless, restrictive measures much be proportionate, and the movies of the person disclosing the information and the ability to substantiate his or her criticisms are relevant considerations. Criticisms that are made to a more limited audience, for example the commanding officer of military personnel, require a greater degree of tolerance, even if expressed in strong terms

• Two key factors would be considered by the court in assessing the proportionality of the interference with article 10 rights.
o The first is the public interest in the disclosed information.
o The second is the authenticity of the information which is disclosed.
o Whistle-blowers will also be expected to show that they have acted in good faith, and not from any sense of personal grievance, or expectation of personal advantage.
o The severity of any penalty imposed upon the whistle-blower will need to be weighed in the balance.

Question 20

Positive obligation

Answer 20

• It is clear that positive obligations do arise in relation to securing to all the rights of freedom of expression enshrined in the provision. This includes ensuring pluralism in broadcasting.
• Positive obligations do include providing a legal framework that protects expression such as the enforcement of a court order to provide information.

Question 21

Von Hannover v Germany (No 2) (violation, journalist went too far with breaching privacy)

Answer 21

Von Hannover v Germany (violation, journalist went too far with breaching privacy) –

Princess Caroline of Monaco who complained that failed attempts in judicial proceedings in Germany to control publication of photographs of herself constituted a violation of her right to respect for her private life.

ECtHR Held: the importance of “pluralism, tolerance and broadmindedness” in a democratic society and the corresponding necessity of information that is favourably received and that which “offends, shocks, or disturbs”, must be stressed. Article 8 and Article 10 are of equal value and that the margin of appreciation should be the same in both cases. Criteria for the balancing exercise:

• A. Whether the information contributes to a debate of general interest: The Court gave some guidance based on its case law as to what it generally considers is or is not a subject of general interest (rumoured marital difficulties of a politician or financial troubles of a famous singer being amongst those not found to be matters of general interest).
• B. How well known the person concerned is and the subject matter of the report: private individuals may have a particular protection under Article 8 because there is a “fundamental distinction” between “reporting facts capable of contributing to debate in a democratic society, relating to politicians in the exercise of their official functions for example, and reporting details of the private life of an individual who does not exercise such functions.”
• C. The prior conduct of the individual concerned: the fact that an individual has previously cooperated with the press may not serve as a trump card removing all protection against publication of the photo in question.
• D. Consent, form, and consequences of the publication: This may also include the scope of dissemination, the size of the publication, readership etc.
• E. The circumstances in which the photos were taken: Factors such as the consent of the subject, their knowledge that the photo was being taken, whether it was taken illicitly or through subterfuge will be relevant here. In addition, regard should be had to the “nature or seriousness of the intrusion and the consequences of publication” for the individual. An unknown, private individual may suffer a greater interference through publication of their image than a well-known person, for example.

In relation to the “status” of the applicants, the Court found that whether and to what extent Princess Caroline assumed official functions had no bearing on the fact that they were both very well-known and so could not be considered “private individuals”. This test is certainly not satisfied where the sole purpose of the publication is to satisfy the curiosity of readers about the private life of a particular person. There was a violation of Art. 8.

Question 22

Is is a fundmental right?

Answer 22

to express ideas and opinions is one of the most fundamental aspects of being human. Communication via spoken and written language is one of the defining characteristics of humans.

Question 23

What can “trump” right to freedom of expression?

Answer 23

Art. 10 is a qualified right, in that various other interests, such as public health or morality, public safety, prevention of public disorder or crime, national security or territorial integrity, the rights or reputation of others, may justify restrictions on the freedom of expression where necessary in a democratic society.

Those other interests may “trump” freedom of expression, if they are prescribed by law and proportionate.”

Question 24

The courts approch

Answer 24

1. applicant must show that the complaints falls within the interest/scope identified in the.
2. examin wheter there has been a interference (limitation ok if prescribed by law and necessary para 2)

= the Court often needs to balance the applicant’s interests protected by Article 10 and a third party’s interests protected by other provisions of the Convention and its Protocols.