Article 10 Flashcards
What are the key features of Article 10?
Everyone has the right to freedom of expression
It holds opinions- which links to article 9
You can receive and impart information without interference.
Is Article 10 a positive or negative obligation?
Negative obligation- they place a duty on State authorities to refrain from acting in a way that unjustifiably interferes with Convention rights
What is the structure to bringing a claim under Art 10?
What is the type of expression covered by Art 10(1)?
Has the expression been restricted?
Is the restriction justified under 10(2)?
What forms of expression are included under Art 10?
Free speech- News Group v Switzerland (1983)
Art- Muller v Switzerland (1988)
Music
Dance
Political speech- Barthold v Germany (1985)
Political marches, meetings, demonstrations- Steel v United Kingdom (1999)
Does this include expressions that may offend, shock, or disturb? Cases?
Yes- Freedom of expression is an essential foundation of a democratic society- and is applicable even for offensive content.
Handyside v UK (1979-80)
Wingrove v UK (1996)
Are there limits to expression regarding advertising? Cases?
Yes- the complete ban on broadcast political advertising was upheld by the English courts in R v Radio Authority ex parte Bull [1997]
Pro-Life Alliance v BBC [2003]
What is excluded from protection under Art 10? Cases?
Any Hate Speech and inciting violence
Norwood v UK (2005)
Which Article prohibits abuse of ECHR rights?
Article 17- Cannot use Convention rights to engage personally in activities aimed at the destruction of any of the rights and freedoms outlined in the Convention
Use of speech aimed at undermining the values protected by the convention.
What is covered under 10(1)?
Expression in a variety of forms
Even expression which “offends, shocks or disturbs”
What isnt covered by 10(1)
Expression which aims to “destroy the rights of others”
What interferes with freedom of expression under 10(1)? Examples?
Any formality, condition, or penalty
Injunctions and damages
Criminal convictions
Restraining orders
Confiscation orders
Refusal of entry, advertise
What does 10(2) highlight?
It highlights whether the restriction of the expression is justified under certain categories
What are the categories?
Prescribed by law
Necessary in a democratic society
Specified aim
What is prescribed by law? Cases?
Its the basis in national law, it is always accessible and foreseeable
Laporte v Chief Constable of Gloucestershire Constabulary[2007]
R (Miranda)vSecretary of State for the Home Department[2016]
What are the specified grounds under 10(2)?
National security (Carlile)
Territorial integrity or public safety
For the prevention of disorder or crime
For the protection of health or morals (Handyside, Wingrove, Perrin)
For the protection of the reputation or rights of others
For preventing the disclosure of information received in confidence
Or for maintaining the authority and impartiality of the judiciary (Sunday Times v UK)
What is necessary in a democratic society under 10(2)?
Set out in R v Shayler (2002):
Restrictions must be based on relevant and sufficient reasons.
Restrictions must aim to meet a pressing social need.
The pressing social need must be met in a ‘proportionate’ way.
Proportionality involves a balancing of interests, but the starting point is freedom of expression, with the burden of proof on the authorities to justify the need for the restrictions and that the restrictions are no more than are necessary.
The authority’s reasons must be subject to scrutiny by a court.
How do we show the interference is proportionate in a democratic society?
There is a structured four stage analysis:
1. Whether the objective is sufficiently important to justify the limitation of a fundamental right
2. Whether it is rationally connected to the objective
3. Whether a less intrusive measure could have been used
4. Whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community
Cases that relate to proportionality for 10(2)?
Proportionate:
Hammond v DPP [2004]
Disproportionate:
Dehal v DPP [2005]
What does the case of Carlile set out for 10(2)?
- An area of discretion is afforded to primary decision maker by UK courts (and a margin of appreciation by the ECHR)
- Less intrusive measures- the judge may be satisfied that the limitation is one that would be reasonable to adopt
- Fair balance has been struck between the rights of the individual and the interests of the community
What is a recent case for proportionality analysis?
Director of Public Prosecutions v Ziegler [2020]
Another recent case of proportionality?
Leigh & Ors v (1) The Commissioner of Police of the Metropolis and (2) Secretary of State for Health and Social Care (Interested Party)[2022] EWHC 527
What is classed under protection of health or morals?
Has a wide margin of appreciation- yet not unfettered discretion (Open Door and Dublin Well Woman v Ireland)
Political and Artistic performances
Philosophical or religious protection
Education
What about protection of religious faith? Cases?
The protection of religious faith, depending on the specific features of each Contracting State, may arise from the legitimate aim of the protection of morals
Sekmadienis Ltd v Lithuania (2018)
What about the protection of rights of others regarding religion? Case?
The protection of the reputation or rights by others is by far the legitimate aim most frequently relied on in Art 10
Otto-Preminger (1994)
