article 10 eval Flashcards
what are the 5 eval points
This is a very important democratic right
It is a qualified right
High and Low Value forms of expression
Overlaps with article 8 (as well as 6 and 11)
A.10 and access to the Internet
This is a very important democratic right meaning
Allows full participation in debate and in challenging the ideas of government
This also allows new ideas and approaches to be considered and created
This is a very important democratic right dev
Investigative journalism is essential for democracy and uncovering corruption (e.g. MP’s expenses scandal – The Telegraph) – and article 10 is needed to protect this
Without this there can be no accountability or criticism of the governments actions – which is very dangerous (e.g. Russia/Iran)
This is a very important democratic right extra
However – if it is seen as such an important right, there is a question about why there is no legal aid offered for cases in this area
This is a very important democratic right extra point
S.12 HRA 1998 specifically requires freedom of literary, artistic and journalistic expression too
However this may appear to be more symbolic than anything, as these forms of expression can still be limited if they fall under the restrictions in article 10(2)
It is a qualified right meaning
So interference with it can usually be justified if it is ‘necessary’ (Handyside v UK), proportionate and in pursuit of the legitimate aims
can be limited
It is a qualified right dev
1 act for example and 1 case for example
There is a long list of laws in the UK which will allow interference as well – including statute law (Theatres Act, Broadcasting Act) and common law (outraging public decency – R v Gibson, Shaw v DPP)
It is a qualified right extra
Also the fact that the state can impose licencing conditions on broadcasting is a clear example of state’s ability to limit freedom of expression
It is a qualified right extra point
Perhaps this is fair, as long as state limitations or restrictions are used sparingly & only when really ‘necessary’, but it does leave a lot of power at state’s disposal
High and Low Value forms of expression meaning
Different forms of expression attract a different level of protection due to the margin of appreciation
High and Low Value forms of expression dev (case example)
States are more likely to be able to restrict rights which have a wide margin of appreciation
This is because they are given more flexibility and the court are less likely to intervene
Example is artistic expression (Otto-Preminger v Austria)
High and Low Value forms of expression extra (case example)
However states are less likely to be able to restrict rights which have a narrow margin of appreciation
This is because they are given less flexibility and the court are more likely to intervene to protect citizens
Examples include political expression (Lingens v Austria)
High and Low Value forms of expression extra point
This all shows the ability of the ECHR to adapt to different situations and to allow for outcomes which respect the different cultures and beliefs across the European states – whilst remaining fair and effective
Overlaps with article 8 (as well as 6 and 11) meaning
Press argue that the public have a right to know about the stories they report on
Overlaps with article 8 (as well as 6 and 11) dev (2 case e.gs)
This has to be balanced with article 8 and the right to privacy of the subject of the stories, especially when considering the law of defamation
Freedom of press needs to balance public interest & individual’s A.8 right to private life (Flitcroft v MGN / Axel Springer v Germany)
Overlaps with article 8 (as well as 6 and 11) extra
Press should be responsible since a poorly thought out newspaper publication may lead to reprisals (like retaliation) on individuals, such as trolling or vigilante killings (e.g. Sun newspaper reporting on Hillsborough disaster)
Overlaps with article 8 (as well as 6 and 11) extra point
there still isn’t really any truly independent way of dealing with press complaints
A.10 and access to the Internet meaning (don’t deep + case example)
Article 10 is freedom to receive information as well – so this protects an individual’s right to access internet information (Yildirim v Turkey)
A.10 and access to the Internet meaning dev
But this is a much simplified view because there can’t possibly be a right to access ALL info, otherwise people would be able to browse online child pornography as well
A.10 and access to the Internet meaning extra
Therefore it is clear states cannot control the internet or its content even if they perhaps should at least attempt to do so (e.g. removing hateful content from social media platforms or YouTube)
A.10 and access to the Internet meaning extra point
However it could be argued that attempts to censor the internet would be undemocratic, as associated with countries such as Russia, North Korea and China
