Article 10 Flashcards
what kind of right is article 10?
qualified right, can be interfered with
article 10(1) and article 10(2)?
article 10(1) contains meaning of expression and article 10(2) sets out how state can justify and interference with article 10
article 10
1 everyone has right to freedom of expression, includes freedom to hold opinions and to receive and impart info/ideas without state interference
2 exercise of these freedoms may be subject to restrictions or penalties as prescribed by law, necessary in democratic society for national security, public safety, preventing disorder or crime, protection of health or morals, protection of reputation or rights of others, prevent disclosure of info received in confidence, maintain impartiality of judiciary
what is freedom of expression?
freedom for a person to hold opinions, receive and give info without state interference
right to express oneself in any medium such as words, pics, images, action (like public protest so overlap with A.11)
3 components of right to freedom of expression?
- freedom to hold opinions
- freedom to communicate info/ideas
- freedom to receive info/ideas
does right to receive info have a duty on state to provide info?
NO, Guerra v Italy
no positive obligation to collect and disseminate info
- freedom to hold opinions
- restrictions in A.10.(2) do not apply here
- state must not try to indoctrinate citizens and should not be allowed to distinguish between individuals holding one opinion and another.
- this is to prevent prejudice against an individual because of his views by public authorities like police or school.
- indoctrination could include promotion of info by state, unless a balanced view is promoted
- individual’s freedom to hold opinions includes negative freedom of not being forced to communicate opinions
- what type of expression is protected?
- political expression (including comments on matters of general public interest) (high value expression, less margin of appreciation)
- artistic expression
- commercial expression, particularly where it raises matters of legitimate public debate and concern
- Handyside v UK
‘little red schoolbook’
includes right to ‘offend, shock and disturb’ so extends to protect offensive material
- freedom of the press
freedom to impart ideas requires freedom of the press. public and media should be able to comment on political matters without hinderance.
to insure this, elements of free press are protected like journalistic sources.
Goodwin v UK-
journalist should be able to protect sources, here he was required to divulge identity of his sources = breach of human right
- Financial times ltd v UK
decision of Goodwin v UK repeated
an order requiring organisations to disclose leaked documents which might lead to revelation of journalistic source was an unjustified interference with A.10
- problem of freedom of press
problem is the balance between A.10 and A.8
Axel Springer AG v Germany
6 criteria set out to be used in balancing 2 articles:
-method of obtaining info
-severity of sanction imposed
-whether info contributes to debate of general interest
-content, form and consequence of publication
- freedom political expression
meaningful free elections are not possible without this freedom.
difficulty where political expression contravenes criminal law relating to protests or what is considered political.
limits of acceptable criticism is wider with respect to a politician as they inevitably lay themselves open to close scrutiny of every word by the public so must display a greater degree of tolerance. BUT reporting must be at standard of reasonable journalism
- civil or public interest expression
where expression raises matters of legitimate public debate and concern. might be with respect to building of motorway, rail line, hunting, fracking or activities by commercial enterprise.
Steel and Morris v UK-
brought libel case against McDonalds
- Artistic expression
vital for fostering individual fulfilment and the development of ideas. wide margin of appreciation to reflect different cultures and values.
Otto-Preminger-institut v Austria- conflict between freedom of expression and religion, no violation when film banned as it offended religion
- hate speech or incitement to hatred
hate speech falls outside scope of A.10 but if found to have incitement of racial hatred, then under A.10-
Garuady v France- however unpalatable his views, publication contained ideas so should be protected under A.10 BUT restriction was justifiable under A.10 so no breach
- freedom to receive info and ideas
freedom to receive info includes right to gather info and to seek info through all possible lawful sources e.g. internet, international tv.
this enables media to impart info to public who have right to be adequately informed on matters of public interest
- Guerra v Italy
this right to receive info does not put a general positive obligation on state to provide info.
- freedom to receive info and ideas
includes right to gather info and seek info through all possible lawful sources.
this right enables media to communicate such ideas to public, who have right to be adequately informed on matters of public interest.
UK- freedom of info act 2000 gives everyone right to access recorded info held by public sector organisations.
can refuse request of info if info is sensitive or costly.
- without interference by public authority
Magyar Helsinki v Hungary
ECHR tied access to info to freedom of expression.
where access to info is ‘instrumental’ for individuals exercise of their right to freedom of expression, info must be disclosed.
- deciding whether info is ‘instrumental’
criteria:
1) the purpose of info request (must be to receive and communicate ideas to others, necessary for FOE)
2) nature if info sought- needs to meet public interest test
3) role of applicant (journalist, social watchdog, non-govt organisation, researchers and academics are in a privileged position so long as they seek to inform public
4) ready and available info
Justifications for interference with rights, by which state may seek to avoid a finding of violation
limitations only permissible when satisfy 3 criteria:
– interference is prescribed by law (part of relevant state’s law, in UK it includes statutory and common law e.g. Sunday times v UK common law rules on contempt of court
– #interference is aimed at protecting a legitimate aim, list is exhaustive; no other ground can be relied on
– interference is necessary in democratic society. national court must apply principle of proportionality (was aim proportional with means used to reach legitimate aim?)
Observer and Guardian v UK - ‘necessary’ means existence of pressing social need
in interests of national security
court rarely challenges legitimate national security aim argued by state.
with respect to territorial or public safety
means borders of state, public safety would include legislation to prevent bomb hoaxes (people led to believe explosion to occur)
for prevention of disorder or crime
state could justify interference by arguing it would cause crime and disorder so criminal offence is needed to protect against it.
however, question is whether state’s actions are proportionate
Surek v Turkey - proportionate to legitimate aim
for protection of health or morals
areas of expression that no society or state is likely to allow
e.g. incitement to murder, pornography to and including children..
one difficulty is different states have different morals- Muller v Switzerland
for protection of health or morals ,abortion
combines issues on both health and morality.
A.10’s application will reflect prevailing views at the time complaint, case is based on standards of the day rather than strict precedent.
Open Door and Dublin Well Woman v Ireland
prohibited from providing info to pregnant women about abortion, breach
protection of reputation or rights of others
Bedat v Switzerland , criminal proceeding brought against journalist for having published secret documents, no breach, fine imposed necessary in democratic society
balancing conflicting rights to fair trial and FOE
restriction on HR - defamation
UK, law on defamation is compatible with ECHR
2 forms; libel and slander
libel is defamation in permanent form, including broadcasting slander in transient form.
for preventing disclosure of info received in confidence
Guja v Maldova
ECHR used this case to stress that open discussion of topics of public concern was essential to democracy and great importance for public not to be discouraged from voicing opinions on matters
Heinisch v Germany - need to strike fair balance between need to protect employers reputation and protecting right to FOE of whistle-blower (failure of court to order reinstatement of whistleblower was breach)
maintaining authority and impartiality of judiciary
usually restrictions on press disclosing details of a trial so that case can proceed fairly, without those involved being swayed by media
restrictions on videos, photographs in court, punishable as criminal
Sunday Times v UK
Pinto v Portugal - balanced right of media with interests of participants- breach
