Article 10 Flashcards
Step 1: What is Article 10?
Article 10 is the right of freedom of expression. This is a qualified right so the state can interfere with the right so long as it’s justified under Article 10 (2)
Step 2: How does Article 10 relate to the HRA 1998?
s.7 and s.6
s.7 (b) HRA 1998 allows a person who claims a public authority has acted unlawfully can rely on the Convention rights or rights concerned in any legal proceedings, with s.6 (3) defining a public authority as including (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature
Step 3: How does Article 10 relate to the HRA 1998?
s.2
s.2 (1) HRA however, makes it possible for a court of tribunal determining a question which has arisen in connection with a Convention right must take into account any judgements of the ECtHR
Step 4: Article 10 (1) protects the freedom to…
- hold opinions
- impart information and ideas
- recieve informaiton and ideas
- Guerra v Italy: the state is not under a positive obligation to provide information. But this restriction has been overcome in UK law as seen in Sarah’s Law, Freedom of Information Act 2000 and the Data Protection Act 2018
Step 5: Under Article 10 (1) some forms of expression are given a high value
high value = narrow margin of appreciation (ie. no wiggle room)
- Political expression - political debate and free elections are part of the foundations of a democratic system. The press provides an important role and should be able to scrutinise the government
- R v BBC
- Public interest expression
- Steel and Morris v UK
- Sunday Times v UK
Step 6: Under Article 10 (1) some forms of expression are given a low value
low value = wide margin (ie. more wiggle room)
- Artistic expression - some countries give a higher value to artistic expression than others, therefore the ECtHR applies a wide margin of appreciation
- Otto-Preminger-Institut v Austria
- Incitement of hatred - an individual cannot argue a violation under Article 10 for thier right to express ‘hate speech’ as Article 17 deals with hate speech and states one human right cannot be used to undermine another human right. But incitement of hatred can be dealt with under Article 10
- Garaudy v France
Step 7: Freedom of expression under UK Law
Freedom of expression is regarded highly in the UK
Some information regarding the state is protected under the Official Secrets Act 1989, but Freedom of Information Act 2000 allows access to state information
Contempt of Court Act 1981 limits expression in the courtroom that could undermine the right to a fair trial (Article 6)
s.12 HRA places importance on artistic, journalistic and literary expression and forces to courts to consider Article 10 even if they aren’t claiming under it
Step 8: Freedom of expression under UK Law
Case Law
- Political expression
- R (on the application of pro Life Alliance) v BBC
- Public protest
- Laporte
- Munim Abdul and ors v DPP
Step 9: Article 10 (2)
Article 10(2) contains the conditions that the state must meet if they wish to limit this right. Any limitation must be:
- prescribed by law
- have a legitimate aim
- be necessary in a democratic society
Step 10: Article 10 (2)
Prescribed by law
ie. there is a law that allows for it to be taken away. Must be clear, precise, predictable and not be arbitrary
Laws which may justify interfernce with this right
- Obscene Publications Act 1959 and 1964
- Theatres Act 1968
- Broadcasting Act 1990
- Protection from Harassment Act 1997
- Malicious Communication Act 1998
- R v Gibson - outraging public decency (foetus earrings)
- R v Howell - breach of the peace
Step 10: Article 10 (2)
Prescribed by law
Public Order Act 1986
Public Order Act 1986
s.1 riot, s.2 violent disorder, s.3 affray, s.4 causing fear or provocation of violence, s.4A causing intentional harassment, alarm or distress, and s.5 causing harassment, alarm or distress
Step 12: Article 10 (2)
Prescribed by law: Trespass to land
s.1 Public Order Act 1986
Riot
12+ people use/threaten unlawful violence for a common purpose and their combines conduct would cause a reasonable person to fear for their safety
Step 12: Article 10 (2)
Prescribed by law: Trespass to land
s.2 Public Order Act 1986
Violent disorder
3+ people use/threaten unlawful violence and their combined conduct would cause a reasonable person to fear for their safety
Step 12: Article 10 (2)
Prescribed by law: Trespass to land
s.3 Public Order Act 1986
affray
1 person uses/threatens unlawful violence to another and their conduct would cause a reasonable person to fear for their safety
Step 12: Article 10 (2)
Prescribed by law: Trespass to land
s.4 Public Order Act 1986
causing fear or provocation of violence
intent to cause a person harassment, alarm, or distress, Ising threatening behaviour, or displays which are threatening. Intent to cause that person to believe that immediate unlawful violence will be used against him or another or be provoked
Step 12: Article 10 (2)
Prescribed by law: Trespass to land
s.4A Public Order Act 1986
causing intentional harassment, alarm, or distress
intent to cause a person harassment, arm or distress using threateming/disorderly behaviour or visibly displays signs of threats causing harassment, alarm or distress
Step 12: Article 10 (2)
Prescribed by law: Trespass to land
s.5 Public Order Act 1986
causing harassment, alarm or distress
using threatening or disorderly behaviour. Visible displays of threatening or abusive language within the hearing or sight of a person likely to cause harassment, alarm or distress
Step 11: Article 10 (2)
Have a legitimate aim
- interests of national security
- territorial integrity or 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 recieved in confidence
- maintaining the authority and impartiality of the judiciary
Step 11: Article 10 (2)
Have a legitimate aim
Interests of national security
Observer v UK
Step 11: Article 10 (2)
Have a legitimate aim
Territorial integrity or public safety
R v Shaylor
Step 11: Article 10 (2)
Have a legitimate aim
Prevention of disorder or crime
Shurek v Turkey
Step 11: Article 10 (2)
Have a legitimate aim
Protection of health or morals
- Müller v Switzerland
- Open Door and Dublin Well Woman v Ireland
- Obscene Publications Act 1959
- Broadcasting Act 1990
- Theatres Act 1968
- R v Gibson
Step 11: Article 10 (2)
Have a legitimate aim
Protection of the reputation or rights of others
- Bédat v Switzerland
- Defamation Act 2013
- s.2 Truth
- s.3 Honest Opinion
- s.4 Publication matter of public interest
- s.5 Operators of websites
- s.6 Peer Reviewed statement in scientific or academic journal
- s.7 Reports protected by privilege
Step 11: Article 10 (2)
Have a legitimate aim
Preventing the disclosure of information recieved in confidence
Coco v AN Clark
- Coco v A N Clark (Engineers) Ltd
- The information has ‘the necessary quality of confidence about it’
- The information must have been imparted in circumstances with an obligation of confidence
- There must be an unauthorised use of that information to the detriment of the party communicating it
- Campbell v MGN
Step 11: Article 10 (2)
Have a legitimate aim
Preventing the disclosure of information recieved in confidence
Attorney General v Observer
- The duty of confidentiality only applies whilst the information is confidential
- The duty of confidentiality does not apply to useless information or trivia
- Although confidence should be preserved and protected by law, there may be some other public interest that favours disclosure
Step 11: Article 10 (2)
Have a legitimate aim
Maintaining the authority and impartiality of the judiciary
Sunday Times v UK
Step 12: Article 10 (2)
Be necessary in a democratic society
- is it more proportionate?
- weigh up the rights of the individual v the community
- margin of appreciation
- Handyside v UK
Step 13: Balance between Article 8 and 10
Proportionality - weigh up Article 8 and Article 10
- Goodwin v UK
- Axel Springer v Germany
- Does the information contribute to a debate of general interest?
- What is the notoriety of the person concerned and the subject matter of the report
- Does it refer to prior conduct of the person concerned?
- What was the method of obtaining the information and its veracity?
- What is the content, form and consequences of the publication?
- What is the severity of the sanction imposed?
- Mosley v News Group Newspapers • Campbell v MGN
- A v B (Flitcroft v MGN)
- CC v AB
Step 14: protection of identity
- Thompson and Venables v News Corp
- Mills v News Group Newspapers
Step 15: technology
Editorial Board of Parvoye Delo and Shtekel v Ukraine
