9) ECHR 8 & 10 Flashcards
1
Q
Key objective of art 8 ECHR
A
- Protect individual citizens against arbitrary interference in their private life.
- Freedom and autonomy to lead and improve lives.
- Broader concept
2
Q
Art 8(1)
A
- State must respect each person’s private and family life, their home and correspondence.
3
Q
Four protected interests under Art 8
A
- Private life
- Family life
- Home
- Correspondence
4
Q
What type of right is Article 8?
A
A qualified right
5
Q
Can private, family life, home and correspondence be restricted?
A
Yes, this is a qualified right
6
Q
Art 8(2)
A
State is able to interfere with these rights but only where the interference is “in accordance with the law”, pursuant to one of the legitimate aims set out and is “necessary in a democratic society”
7
Q
Is article 8 engaged?
Art 8(1)
A
Article 8 will be engaged if the state has interfered with a person’s right to respect for their private life, family life, home or correspondence.
8
Q
Can the state justify the interference?
Art 8(2)
A
- Interference is in accordance with the law; PBL; Sunday Times
- In pursuit of a legitimate aim; refer to list in art 8(2)
- Necessary in a democratic society proportionate
Article 8 is a qualified right
9
Q
Structure of Art 8
A
- Is article 8 engaged? Art 8(1)
- Can the state justify the interference? Art 8(2)
10
Q
Necessary in a democratic society
A
- Common to qualified rights
- eg Handyside v UK
- Interferences will be necessary in a democratic society if they answer a pressing social need and are proportionate to the legitimate aim pursued.
11
Q
Soering v UK
A
- Inherent in the whole of the Convention is a search for a fair balance, between the demands of the general interest of the community and the requirements of the protpection of the individuals fundamental rights
12
Q
Necessary in a democratic society
A
- Proportionality
- Qualified rights
13
Q
Categories of a private life
A
- Not closed or clearly dfined/
- Given a wide meaning = “living instrument”
Costello-Roberts v UK;
Von Hannover v Germany
14
Q
Costello-Roberts v UK
A
- Private life =** “physical and moral integrity”**
- Young boy at boarding school = corporal punishment
- Breach of art 3 and 8
Found there was no breach
15
Q
Von Hannover v Germany
A
- Article 8 extends to aspects relating to personal identity
- A person’s name, or persons picture.
“zone of interaction of a person with others, even in a public context”
16
Q
McDonald v UK
A
- Issue was whether applicant’s dignity has been respected when her local authority decided to reduce level of night time assistance.
- The very essence of ECHR = respect for human dignity and freedom
- Did infringe on rights, states have a wide margin of appreciation in allocation fo resources.
Not compelling enought to amount to a violation of article 8
17
Q
R(Nicklinson) v MoJ
A
- Applicant paralysed following a severe strike
- Wanted the court to make a declaration to lawfully assitst him to die.
- UK law incompatible with right to life and autonomy.
Court declined to make a declaration - high policy
18
Q
Sexual orientation and fulfiment
A
- Bound up with the respect for private life
- People’s privacy at home, and rights to privacy in the workplace.
Dudgeon v UK; ADT v UK
19
Q
Dudgeon v UK
A
The criminal prohibition on gay conduct between consenting adults in private, existing at that time in Northern Ireland.
- Interference with the applicant’s right to respect for private life (includes his sexual life) the meaning of Art 8(1)
20
Q
ADT v UK
A
- Consensual sexual activity between five adult men in the applicant’s home was a matter of private sexual behaviour.
- Protected by article 8
- Criminalisation of activity was a breach of right to respect for private life
21
Q
Bellinger v Bellinger
A
- Lawlords made a declaration of incompatibility in respect s11(c) of Matrimonial Causes Act 1973
- No provision for gender reassignment
- Incompatible with art 8 and 12
22
Q
R(C) v SoSWP
A
- DoWP retaining information relating to reassignment of gender on “Customer Information System” database
- Proportionate interference with art 8 rights
- Very significant interference with right to private life = very significant
- Provision of safeguardsm complexities and expense of national information system = leewy
- Policy was seen as a proportionate one
23
Q
Are searches of the person an interference with the respect to private life?
A
Gillian and Quinton v UK
Court held that Art 8 was indeed engaged
Insufficient safeguards in domestic legislation to protect against arbitrary interference
Enabled violations of article 8
R(Gillian) V CoP of Met contrasted
24
Q
R(Gillian) v Commissioner of Police of the Metropolis
A
- Stop and Search powers in the Terrorism Act 2000 ss44-47
- Not incompatible with art 8
- normal and uncomplainingly submit to at airports
Contrasted with Gillian and Quinton v UK
25
Khan v UK
* Police had installed listening device in hotel and obtained a recording of drugs deal
* No legislation at the time governing;
* Use of surveillance measures = "in accordance with the law"
* No clear statutory framewrok existed = unlawful interference
*
26
RIPA
**Regulation of Invesigatory Powers Act 2000**
* Clear test for whether state surveillance is legal or not
* Authority must be obtained
* taking into account "necessity" and "proportionality"
27
R(Wood) V Commissioner of Police of the Metropolis
* Retention of police photographs of a peaceful demonstrator
* Member of Campaigh Against Arms Trade
* Held to engage article 8
* Retention of photographs **beyond a reasonable period of time**
* After apparent that they had not committed any crime
= **disproportionate = hence a breach of art 8**
28
Wilson v Met Police Commissioner
* Far greater degree of state surveillance with sig consequences
* Polie officer entered into sexual relations with seceral women in activist groups
**Violations under 3, 8 and 10**
* Art 8 = disproportionate
* Not in accordance with RIPA = breadth and open-ended quality failed to provide a limit on the undercover officers activities.
* **RIPA itself incompatible with Convention rights**
29
Family life
* involving spouses, partners and children
* Family = broad concept.
* Not restricted to traditional family units
30
Kroon v Netherlands
* Family in art 8 not limited to marriage.
* Stable relationship despite Mrs Kroon being married
* Mr Kroon would have to deny paternity.
**Found that de facto "family ties" were partners are living together outside of marriage**
31
Any action that may disrupt the family unit...
Any action that may disrupt the family unit **may engage article 8**
32
Abdulaziz, Cabales and Balkandali v UK
* Three female applicants
* Lawfully settled in the UK, subsequently married husbands fromm their countries of origin
* Article 8 duty not extended to accepting non-national spouses for settlement
33
Quila v SoS for the Home Dept
* Ban in Immigration Rules on the grant of marriage visas, where either party was under 21 years, breached the right to family life guaranted by art 8
* Sought to prevent forced marriages.
* Interference was **not "necessary in a democratic society"** = disproportionately impacted a greater numner of unforced marriages.
* Ban did not achieve legitimate aim by way of least intrusive means
34
R(Johnson) v SoS for HD
* Found in favour of the appellant as they considered his liability to deportation
*** Due to accident of his birth out of wedlock**
* Unlawfully discriminatory in breach of rights under art 14, read together under art 8
35
Evans v UK
* Balancing competing family rights derived from art 8
* Applicant complained that domestic law permitted her former partner to withdraw his consent to the storage and use by her of joint embryos. Partner argued opposite
**Appropriate balance** = rights
36
Steinfield & Keidan v SoS Educ
* Bar against entering into civil partnership for opposite-sex couples
* **Civil Partnerships Act 2004** not proportionate interference with couple's rights
* Incompatibility declaration
* Art 14 (prohibition of discrimination), and art 8
37
Re Northern Ireland HR Commission
* Majority in SC found that the law was incompatible with art 8
* Prohibited abortion in cases of foetal abnormality, rape and incest.
* Formal declaration of incompatibility could not be made under s 4 as NIHRC was not granted standing
38
Issues that are engaged in relation to family life
* Personal dignity
* Sexuality
* Searches of the person
* State surveillance
* Marriage rights
* Immigration
* Abortion
39
principle was established by the ECtHR in Costello-Roberts v UK
The courts have held that the right to private life includes a person’s physical, mental, and moral integrity
40
"home"
Homelife should be respected.
* Person's home, should be protected from invasion and intrusion.
* Respect for home and home life extends to maintaining the situation to which a person has become accustomed, and the very permanence which gives comfort.
41
R(Coughlan) V N and E Devon Health Authority
* paraplegic
* used to particular place of residence
* Adapted for use
* Health authroity went back on promise not to move her.
**Violated art 8** = emotionally devastating and anti-therapeutic, **not justified under considerations in art 8(2)**
42
R(M) v Hampshire Constabulary
| Monitoring of the home
Rejected argument that visiting home of reg sex offenders for monitoring was a breach of art 8
* Ability to seek a warrant - vitiated consent.
* Not accepted, as warrant not an automatic entitlement.
**Intereference was justified, policy designed to achieve legitimate aim of protecting vulnerable & proportionate**
* So long as not overly frequent or disclose private info
43
Quality of home life
Right to respect for home = not just physical area, but free from other interferences....
* Noise
* Nuisancs
* Smell
* Leaking of waste
**Complaint under art 8**
44
Hatton v UK
Scrutinised gov efforts to reduce noise levels around Heathrow Airport. Detrimental effect on quality of life of the Hatton family.
* Gov not directly responsible
* Did have a **positive obligation** to manage it.
* Seena s part of the state's **margin of appreciation**, ECtHR could examine to see if margin properly applied.
**No violation of art 8, violation of art 13 (available remedies in domestic law)**
45
Correspondence
* Protected under art 8
* Applied to letters
* Advances in tech - applies to emails, text messages and other forms of communication
| Malone v UK; Foxley v UK; Halford v IL
46
Malone v UK
Interceptions of applicant's post and telephone for [prevention of detection of crime
* Violated art 8
* Not "in accordance with the law
* English Law did not idnicate with **reasonable clarity**, the scope and manner of exercise of relevant discretion.
47
Foxley v UK
* Correspondence between applicant and solicitors intercepted
* Breach of art 8
* Lawful justification for interference (**Insolvency Act 1986**)
* Intercepts continued after order expired.
* Beyond necessary
48
Halford v UK
* Telephone calls conducted from business premsies
* Can engage article 8
49
Copland v UK
* Confirmed business calls can engage art 8
* As does monitoring of emails and internet usage by a public employer engage art 8
50
Prisoner's correspondence
* High degree of protection for comms with legal advisors
| Campbell v UK; Daly v SoS HD
51
Campbell v UK
* Life prisoner convicted ofmurder
* Advised by solicitor of brinigng civil actions.
* Authprotoes may only open letters from lawyer to a prisoner when **they have reasonable cause to believe that it contains illicit disclosure** that normal means of detection have failed to disclose.
* Opened and **not read**, guarantees = in front of pisoner
* Reading only in **exceptional circumstances** = reasonable cause.
52
R(Daly v SoS) for HD
* Common law protection for correspondence with solicitor
* Cells could be searched in their absence
* Confidentiality over privileged legal correspondence.
* Search policy had a **chilling effect** on prisoners' willingness to comm wiht legl advisers.
* Violation was found, blanket nature of policy = infringement **greater than necessary to serve legitimate aims**
* Would have engaged art 8
53
s8(2) when can a state justify interference with a person's rights?
* Must be a legal basis to justify the interference with the right
* Same as PBL under art 5(1)
* **Sunday Times**: Accessible and sufficiently precise to enable regulation of conduct, and reasonably forsee consequences of actions
* **Gillian and Quinton v UK**: executive discretion should not be expressed in terms of unfettered power - allowing arbitrary action
54
In the context of art 8, where has the UK found to have breached the "in accordance of the law" requirement
* Gillian and Quinton
* Khan v UK
* Malone v UK
55
Legitimate aims
| Under art 8(2)
Contracting state must demonstrate that it is interfering with the person's right under art 8 in pursuance with a legitimate aim.
* National security
* Public safety or economic well-being
* Prevention of disorder or crime
* Protection of health or morals
* Protection of rights and freedoms of others
*** Under art 8(2)**
56
National security
| Legitimate aims - art 8(2)
* ECtHR affords a sizeable **margin of appreciation** to member states.
* Assertion of national security will not automatically be accepted.
* ** Control orders** issued to Home Sec under Prevention of Terrorism havebeen found to engage art 8.
57
SoS for HD v AP
| Legitimate aims - art 8(2)
* National security
* Imposition of 16 hour curfew and requirement to live 150 miles from family = violation of right to family life
58
Economic well being cases
* De Silva v Netherlands
* McDonald v UK
59
De Silva v Netherlands
* Brazilian applicant and daughter, a minor with Dutch nationality
* Violation of art 8 from refusal to grant residence permit
* Argued her interests were outweighed the economic wellbeing of the country where she worked illegally
* ECtHR disagreed **felt on balance in favour of preserving family ties.**
60
McDonald v UK
* Need for local authority services dept to balance budget
* Apportion public resoruces as fairly as possible
* **= legitimate aim**
61
Prevention of disorder or crime
| Legitimate aims - art 8(2)
Sometimes necessary for state to interfere with art 8 rights in order to guard against criminal activity or disorder
| R vv CC of SY Police, ex parte Marper; s and Marper; R(H) v A CC
62
R v CC of South Yorks Police
* Court did not consider art 8 had been engaged
* By retaining DNA and fingerprints of suspect cleared of criminal charges
* Measure was justified
* **given the effectiveness of the practice in preventing crime**
63
S & Marper v UK
| Legitimate aims - art 8(2)
Applicants were successful because of **blanket and indiscrimnate nature** of the DNA retention policy.
* Seen as **disproportionate**
* Failed to take into account the **lack of gravity** of the offences suspected,
* or the **presumption of innocence** that should be enjoyed by acquitted
| Prevention of disorder
64
R(H) v A City Council
| Legitimate aims - art 8(2)
* Applicant challenged a local authority decision to disclose to several organisations a previous conviction for indecent assault of a child.
* LA had **disproportionately interfered** with applicant's right to a private life.
* Adopted** a blanket approach** to disclosing **information to all of his contacts**
* When **applicant did not work with children as part of his affiliation with the organisations.**
| Prevention of disorder
65
R(T and others) v CC of Greater Manchester
* Challenged Enhanced Criminal Record Certificate Scheme
* All previous cautions held on national computer were disclosed
* Engaged art 8
* Adversely affected **ability to engage in private life - aspects of working and developing relations with others**
* **Blanket nature** = disproportionate to legitiamte aims. Went beyond necessary.
* Courd made a **declaration of incompatibility**
66
R(T and others) v CC of Greater Manchester
**Third Applicant**
* Challenged serious convictions without spent date
* Not a blanket policy as discriminated between offences
* ** = Proportionate means of achieving identified legitimate aims**
67
R(Catt) and R(T) v Commissioner of Police of Met
| Data retention case
* Review of the system operating under Data Protection Act 1998
* Retention fo information for continuing policing purposes
* Man who peacefully protested in association with orgs
* Homophobic remarks to neighbout.
* Data retention =** proportionate to fuflil legitimate a**im of crim prevention (some differing opinions amongst justices)
68
Protection of health and morals
| Legitimate aim - Art 8(2)
**Wainwright v UK** Two applicants** strip & intimatel**y searched when visiting an inmate in prison.
* Court held there was no doubt that art 8 was engaged
* In accordance with the law (**Prison Act 1952**
* Not satisfied that searches were proportionate to legitimate aim, due to **intimate and poorly regulated manner**
69
Protection of rights and freedoms of others
| Legitimate aim - Art 8(2)
**Copeland v UK** - public employer's monitoring of telephones, emails and internet usage violated art 8 rights.
* UK argued = justified to protect abuse of publicly funded facilities = rights and freedoms.
* No basis in domestic law = amounted to breach. (NO PBL)
70
Which legitimate aim concerns the media's right of freedom of expression?
Rights and freedoms of others
71
Article 10
* Freedom of expression = freedom to hold opinions and to receive and impart information and ideas without interference by public
* **Qualified right** if restriction **is PBL in pursuit of legitimate aims (proportionate)**
* authorities and regardless of frontiers
* Public or private expression of views
* Idea of free speech = constitutional
72
Prior to the HRA 1998 was there a postive "right" to free speech?
* No positive right to free speech.
* Freedom to express themselves in any way, as long as not prohibited by law
* = **a residual right**
73
What does s12 of HRA protect?
* Right to freedom of expression
* when court is considering whether to grany any relief that might affect the exercise of the right.
**Court must have "particular regard" to the importance of the right to freedom of expression**
74
Scope of article 10
* Hold opinions
* Recieve ideas and information
* Right to exxpress views and opinions
(Words, pictures, images and actions intended to express and idea or present information)
75
What did *Handyside v UK* concern?
* Publication of the Little Red Schoolbook
* Discussed how Freedom of Expression = one of the basic conditions of progress.
76
Freedom of "expression" meeaning
Wide range of expression
* Political opinion
* Journalistic freedom
* Artistic expression
* Commercial information
77
Case concerning political opinon
Bowman v UK
78
Case concerning journalistic freedom
Goodwin v UK
79
Case concerning artisitc expression
Muller v Switzerland
80
Case concerning commercial info
Colman v UK
81
In practice what forms of expression do courts give stronger protection?
* Political
* Journalistic
82
R v SOS HD, ex parte Simms
* Blanket policy
* Journalists visiting convicted criminals to undertake that interveiw contents would not be used in professional capacity
* Offended the principle of free speech
* Had been crucial to uncovering miscarriages of justice in the past
| Note that common law free speech relied upon, not art 10
83
Lord Steyn quote on freedom of speech
* Freedom of speech
* Lifeblood of democracy
* A safety valve
* People are more ready to accept decisions that go against them
* If in principle they can seek to influence them
| R v SOS HD, ex parte Simms
84
Right to provide and be provided with information
**Key cases**
| Article 10
* Open Door Counselling and Dublin Well Woman Centre Ltd v Ireland
* R v SoS for Health, ex parte Wagstaff
* Kennedy v The Charity Commission
85
* Open Door Counselling and Dublin Well Woman Centre Ltd v Ireland
| Article 10
* Absolute and unqualified injunction re: abortion information
* Disproportionately interfered with applicant clinics freedom and violated article 10
86
R v SoS for Health, ex parte Wagstaff
* Holding in private the inquiry into Harold Shipman
* Contravened art 10
* Interfered with reception of info that others wished to impart
87
Kennedy v The Charity Commission
* No general right of freedom of information.
* Majority of the SC found there was no free-standing positive duty of disclosure imposed by art 10?
88
Does Art 10 provide a general right to freedom of information?
* No it does no
* **Kennedy v The Charity Commission**
89
Restrictions on freedom of expression
* Unsder s**10(2)** can interfere as **PBL** in puruit of a **legitimate aim**
* Qualified right.
90
Prescribed by law requirement article 10(2)
* Same as test under article 8 and 5
* Key case = **Sunday Times v UK** & **Gillian and Quinton v UK**
91
Legitimate interest 10(2)
* Interests of national security
* Territorial integrity
* Public safety
* Prevention of disorder or crime
* Protection of health or morals
* Protection of the reputation or rights of others
* Preventing the disclosure of information received in confidence
* Maintaining the authority and impartiality of the judiciary
92
National security
| Legitimate interest 10(2)
* **Official Secrets Act**, can be used alongsided action for** Breach of Confidence**
| Spycatcher; Brind v McLaughlin v UK; Miranda v SoS HD
93
Spycatcher
* Serialisation in newspapers of a book called **Spycatcher**
* Written by British Intelligence service former member
* **The Observer and Guardian v UK**
* AG obtained interlocutory injunctions preventing disclsorue of contents - pending injunctions.
* **Period before publication in USA** - injunctions necessary as reasons "relevant" "sufficint" "proprtionate" to aim pursued.
* **Period ending with final England Determination** - found disproportionate, following publication in USA damage had been done. No interest in confidentiality.
| Legitimate interest 10(2)
94
Brind v McLaughlin v UK
* Direction made by Home Sec
* Preventing recorded speech from certain named organisations, including Sinn Fein, being roadcast
* A decision which endorsed the judgment of HoL
* With **reference to margin of appreciation** permitted to states - the ban was **proportionate in the interests of national security**
| Legitimate interest 10(2) - National Interest
95
Miranda v SoS for HD
* Journalist stopped by police at Heathrow inder s7 of Terrorism Act 2000
* Encrupted Storage Devices obtained by Edward Snowden
* Confiscated from him
* CoA rejected argument that case concerned protection of journalistic sources.
* CoA not "prescribed by law", because **lack of adequate safeguards** in form of independent scruitny **Suseptible to arbitrary useage**
* Consequently provision was found to be incompatible with article 10
| Legitimate interest 10(2) - National Interest
96
R (Lord Carlile) v SoS for HD
* No violation of art 10 rights when HD had excluded Iranian dissident politician, Maryam Rajavi (who lived in Paris) from the UK.
* She had been invited by two members of the HoL
* HS concerned about Iranian-UK political relations
* Court dismissed attempts by the UK gov to say the ECHR did not apply when involving a foreign state not sharing values in Convention.
* **Confirmed the article 10 was engaged** - but not sufficiently significant to risk Iranian relations.
* **Found that interference was proprotionate**
## Footnote
Legitimate interest 10(2) - National Interest
97
Pevention of disorder or crime: Protest
**Cases**
| Legitimate interest 10(2)
* R(Laporte) v CC of Gloucestershite
* R(Gallastegui) v WCC
98
* R(Laporte) v CC of Gloucestershite
* Coaches on way to RAF Fairford
* Intercepted and escorted back to london
* Breach of the peace feared
* No **Reasonable apprehension** of **sufficiently imminent** BoP.
* Interference not PBL; premature and indisctiminate = **disproportionate restriction** of noth Art 10 and 11
| Legitimate interest 10(2) - prevention of disorder or crime (protest)
99
* R(Gallastegui) v Westminster City Council
* Claimant's case challenged removal of tents from Westminister Square
* Based on articles 6
* Court of Appeal reconising articles 10 and 11 were engaged
* No violation, **as rights to protest remained intact in other respects**, only banned from setting up tents
| Legitimate interest 10(2) - prevention of disorder or crime (protest)
100
Protest Cases
* DPP v Ziegler (in favour of protestors art 10 / 11 rights)
* R v Trowland and Decker (opposite)
| Legitimate interest 10(2)
101
* DPP v Ziegler
* Examined "lawful authority or excuse" defence in s137 of the Highways Act 1980
* In relation to obstruction of the highway
* Protestors charged with offence after attempting to disrup a London arms fair.
* **Protection of rights under art 10 and 11, did extend to deliberate disruption through obstruction of the highway**
* The fact the protest was peaceful and targeted and limited duration, no other criminal action = **interference with protestors' rights had been excessive**
| Legitimate interest 10(2) - (protest)
102
* R v Trowland and Decker (opposite)
* Just Stop Oil protest
* Public nuisance
* Caused them to close QE bridge over Dartford crossing for 40 hours
* Sentences of 3 years and 2 years 7 months = excessive interference with their rights given **very serious protracted disruption** that caused the danger they caused others
| Legitimate interest 10(2) - (protest)
103
Protection of health or morals - article 10
* Determining issues relating to state's code of moraltiy, ECtHR has often accroded a **wide margin of appreciation**
* Handyside v UK
* Muller v Switzerland
* Wingrove v UK
* Open Door Counselling ccase
104
Handyside v UK
* No uniform European conception of morality
* National Authorities are in a better position to assess necessity for any restriction on freedom of expression to **uphold their own moral code**
**The Little Red Schoolbook = sex ed book**
* Books seized and destroyed under Obscene Publications Acts
**No Article 10 violation**
| Legitimate interest 10(2) - Protection of health or morals
105
Muller v Switzerland
* Artist contributed paintings to exhibition
* Sexually graphic images
* No warning to attendees.
* Visitors reacted badly - Muller convicted by publishing obscene material - paitnings confiscated to protect public morals
**Aim to protect public morals and "the rights of others", deemed the actions taken to have been proportionate**
| Legitimate interest 10(2) - Protection of health or morals
106
WIngrove v UK
* Video " Visions of Ecstacy"
* Refused classification certificate - infringed on blasphemy
* No violation of Art 10
* **Law of blasphemy satisfied PBL**
* Banning the flm proprotionate as **wider margin of appreciation available for matters relating to morals and especially religion**
| Legitimate interest 10(2) - Protection of health or morals
107
Open Door Counselling Case
* Health an issue
* Court accepted that Irish government was in pursuit of the legitimate aim of **protection of health and morals**
* Ultimately did not consider interference to have bene proportionate, therefore not justified
| Legitimate interest 10(2) - Protection of health or morals
108
Protection of reputation
| Art 10(2)
* Right to reputation limiting freedom of expression
* **Lingens v Austria**
109
Lingens v Austria
* Journalist convicction for defamation of Austrian Chancellor
* **Disproportionate** response to this aim.
* Had the effect of criminalising statements of opinion
* Imposed impossible burden of justification.
**Limits of acceptable criticism are wider for politicians than citizens**
| Legitimate interest 10(2) - Protection of reputation
110
Protection of the rights of others
| Art 10(2)
* Generic phrasing
* relates to number of legitimate reasons for interference with art 10
* Morality; blasphemy / offence; religous grounds; racist or terrorist rhetoric.
| Legitimate interest 10(2) - Protection of rights of others
111
Rights of others - morality
Cases
| Art 10(2)
* Handyside;
* Muller cases;
* Prolife Alliance v BBC
| Legitimate interest 10(2) - Protection of rights of others - morality
112
Prolife Alliance v BBC
* BBC refused to broadcast party political broadcast on behalf of Prolife Alliance
* **On behalf of taste and decency**
* Consistent with parliamentary obligation for broadcasters to comply with taste and decency.
* Graphic videos of abortions are **proprotionate to restrict**
* Rather than restricting the underlying political and ehtical message = **importance of free speech**
| Legitimate interest 10(2) - Protection of rights of others - morality
113
Rights of others - Religion
Cases
| Art 10(2)
* Wingrove
* Muller
* Otto- Preminger-Institut v Austria
| Legitimate interest 10(2) - Protection of rights of others - religon
114
Rights of others - Religion
| Art 10(2)
* Wide margin of appreciation allowed in this area
* National laws protecting religous sensibilities
* Generally upheld as compatible with art `0
| Legitimate interest 10(2) - Protection of rights of others - religon
115
* Otto- Preminger-Institut v Austria
* Screening of Daas Liebeskonzil
* Controversial and blasphemous themes
* Court ordered permanent forfeiture and seizure.
* Protect against expressions that are **gratuitously offensive**, without contributing to any form of public debate.
* Protect sme expression that **shocks, offends and disturbs**
* **Margin of appreciation treated as having regional application within states not just nationally**
| Legitimate interest 10(2) - Protection of rights of others - religon
116
In which case was the **margin of appreciation** treated as **regional application** within states, rather than national?
Otto-Preminger-Institut v Austria
* Screen showing of Das Liebeskonzil
* Blasphemous theme
| Legitimate interest 10(2) - Protection of rights of others - religon
117
Rights of others - Racism; Terrorism
| Art 10(2)
* Generally ECtHR has provided a lower degree of protection for racist and terrorist expressions.
* Unless they promote or form part of a wider public debate (**eg Brind)**
| Brind; Mbala M'Bala v France; Jersild
118
Mbala M'Bala v France
| s10(2)
* French comedian (Dieudonne) was convicted for causing "public insults towards a group of persons on religous and racial grounds"
* Argued breach of his article 10 rights = Rejected
* **Cannot rely on set of rights based on democracy and discrimination, undermining and mocking them through display of anti-semitism**
| Legitimate interest 10(2) - Protection of rights of others - racism
119
When will freedom of expression not be upheld?
When incompatible with the **letter and spirit** of the ECHR
| Mbala M'Bala v France
120
Jersild v Denmark
* Journalist on Danish TV
* Right wing group was openly racist and abusive on Danish TV
* They were convicted under the Danish Penal Code along with the journalist
* Journalist for aiding and abeting, notwithstanding they rejected there views.
* **Criminal measures against journalist = disproprotionate** - reasoning to do with **applicant's motives being critical journalism**
| Legitimate interest 10(2) - Protection of rights of others - racism
121
What did the decision in Jersild hinge on?
* Applicant's motives
* eg Critical journalism
122
Court on public journalism?
* New reporting = vital to journalists role of **public watchdog**
* Punishment of a journalist could hamper the **contribution of the press to discussion of matters of public interest**
123
Preventing the disclosure of information received in confidence
| s10(2)
* Breach of confidence is a civil remedy preventing disclosure of "confidential information"
* Can be used to ny government (Official Secrets Act) for the legitimate aim of national security.
* Need for confidentiality of sources of information can be raised in defence of actions
| Spycatcher; Goodwin v UK; FT v UK
124
When can breach of confidence be considered?
* National security (**Spycatcher**
* Confidentiality of sources (**Goodwin v UK**; **FT v UK**; **Ashworth Security Hosp v Mirror Group Newspaper**)
| Legitimate interest 10(2) - confidentiality
125
Goodwin v UK
Journalist working for Engineer magazine who received confidential company information, convicted of contempt of court for refusing to disclose his source.
* Violation of his art 10 rights
**reiterate the importance of strong protection for serious journalism** to avoid the potentially **chilling effect** of forced source disclosure.
| Applied in **FT v UK**; Legitimate interest 10(2) - confidentiality
126
**Ashworth Security Hosp v Mirror Group Newspaper**
| Art 10(2)
* An exceptional case where a newspaper was ordered to identify its source.
* Medical records of Ian Brady had been supplied **in breach of confidence and contract** by an employee at the hospital.
* Unless the source was **identified and dismissed** = significant risk of further selling of confidential information.
* **Disclosure of private information = an attach of an area of confientiality = protected in a democratic society.**
| Legitimate interest 10(2) - confidentiality
127
Maintaining the authorityand impartiality of the judiciary
| Art 10(2)
* Uphold rule of the juduiciary
* Cause tension in some situations
* & constitutonal ideals such as open justice
| Sunday Times v UK
128
Sunday Times v UK
**Case**
* Article highlighting controversy over the Thalidomide drug and legal conflict between manfuacturers and affected children
* Article pre-judged legal issues, pressurising manufactureres to frgo legal rights and seek settlment.
**Courts imposed preventative restriction on publication**
* Measure did restrict freedom under art 10
* Justified under art 10(2) = aim of "maintaining judicial authority
* Courts held that the interfernce was **not "ncessary in a democratic society"**
129
Restraints on freedom of expression
* Injunction = high level of justification
* Super-injunction
* Confiscation of property **Muller**
* Copyright laws **HRH Prince of Wales v Associated Newspapers**
* Refuse immigration entry **R(Farrakhan) v SoS**
* Limitations on election expenditure **Bowman v UK**
130
Superinjunction
| Restraints on freedom of expression
* An order restraining publication of material
* Restraining information about the content of the order itself and even the fact that an order was made
| Restraints on freedom of expression
131
Case re: Confiscation of property
| Restraints on freedom of expression
Muller
132
Case re: Copyright laws
| Restraints on freedom of expression
HRH The Prince of Wales v Asscoiated Newpapers
133
Case re: Decisions to refuse immigration entry
| Restraints on freedom of expression
R(Farrakhan) v SoS
134
Case re: limitations on election expenditure
| Restraints on freedom of expression
Bowman v UK
135
Mosley v UK
| Restraints on freedom of expression
* Argued that Art 8 imposed a positive obligation on contracting states to enact a legal measure
* Requiring individuals to receive notification from media organisations in advance of them publishing information that interfered in private lives..............
Outcome?
136
Case re political and social opinion
Laporte
137
Case re journalistic freedom
* Goodwin
* Jersild
138
Case re artistic expression
* Muller
* Wingrove
139
Case re: Commercial information
Colman
140
What type of right is article 10?
* Qualified right
141
In what circumstances can the state justify interfering with article 10?
**Article 10(2)**
* PBL *(Sunday Times; Gillian and Quinton)*
* Pursuant to a legitimate aim (see **10(2)**)
* Necessary in a democratic society = proprotionate
142
Margin of appreciation doctrine and Article 10
* Particular application re: article 10
* Broader margin of appreciation to states to decide what degree of interference is necessary with expression impacting **moral and religous beliefs and views.**
* But more likely to **supervise state's enforcement of article 10 in cases involving journalistic freedom and political forms of expression**
143
How is freedom of expression defined?
Broadly
What constitutes ‘freedom of expression’ and the contexts in which the right operates is not defined in the article, nor has it been precisely defined by the ECtHR.
Whilst the areas identified in the answer do apply to article 10, they have not been ‘closely defined’ and article 10 has been held to have broad application in terms of the forms of expression covered and the areas in which the right operates.
See, for example, the case of Handyside v UK. This answer also excludes commercial information which is covered by article 10 (see Colman v UK).
