Article 10 - Evaluation Flashcards
Introduction
Article 10 is the right to free expression
Qualified right - need to strike a balance between the rights of the individual and the rights of the community e.g. Handyside v UK
AO1: Article 10 (1)
Freedom of expression includes:
- freedom to hold opinions;
- freedom to impart information and ideas
- freedom to receive information and ideas (no duty on the state to provide info - Guerra v Italy)
High value - political/religious; low value - artistic/commercial
AO1: Article 10 (2)
Interference allowed if (1) prescribed by law; (2) has a legitimate aim; (3) necessary in a democratic society
National Security - ECtHR rarely challenges the national security aim e.g. Spycatcher case (Observer v UK)
Health & Morals - by not allowing two Northern Irish women from getting abortion advice in the UK, the ECtHR said this violated Art 10 (Open Door and Dublin Well Woman v Ireland)
Outraging public decency (R v Gibson) and Obscene Publications Act 1959 and 1964
Information received in confidence - the duty of confidentiality was defined in Coco v A N Clark as a 3pt test. However, the Spycatcher case identified 3 limitations to the duty: (1) is the info confidential? (2) is the info useless or trivial? (3) does public interest favour disclosure?
AO1: Article 10 (2)
Reputation and rights of others
The reputation and rights of others - Defamation of character: libel - written or filmed; slander - spoken or conduct. Section 1 Defamation Act 2013 requires ‘serious harm’ to the reputation of the claimant e.g. financial loss. However, there are lots of defences e.g. Lord Hain used the defence of Parliamentary Privilege to name Sir Philip Green in the House of Lords in 2018 (other defences of s.2 (truth); s.3 (honest opinion); s.4 (publication on matter of public interest); s.5 (operators website); s.6 (peer-reviewed statement in scientific or academic journal); s.7 (reports protected by privilege)
AO1: UK Law
Freedom of expression - This is limited by the Official Secret Act and Contempt of Court Act but protected by the Freedom of Information Act and s.12 HRA protects the sources of journalists
Political expression - R v BBC (2003) - the BBC were allowed to ban a broadcast by the Pro Life Alliance based on public decency
Public protest - Munim v DPP - convictions upheld of men who shouted ‘baby killers’ to soldiers. R (Laporte) - police should not have escorted passengers on a coach away from an anti-war protest at an RAF base
The balance between Art.8 and Art.10 - A v B (Flitcroft) a public figure is entitled to a private life but restricting press freedom needs a clear justification. Just because ‘it’s not in the public interest’ is not a sufficient reason. Sex in a marriage has a greater right to privacy than such activities outside of marriage. Lord Woolf - ‘it is not an easy task’ to balance Art 8 and Art 10 rights. These balances were also seen in Campbell v MGN and Mosley v News Group
Protection of identity - Thompson and Venables have an indefinite injunction protecting their identity and whereabouts - due to ‘serious risk to physical safety’. Mills v Newspaper Group - Heather Mills could not get an injunction to stop a newspaper printing her address as there was no risk to physical safety.
AO1: ECtHR Cases
Political expression - high value so narrow margin of appreciation and ensures a democratic society
Public expression - high value so narrow margin of appreciation e.g. Sunday Times v UK (Thalidomide case) - the public have a right to be informed
Artistic expression - low value so wide margin of appreciation e.g. Otto v Austria - erotic films about Jesus
Incitement of hatred - Garaudy v France - no violation of Art 10 because the state was justified to protect the reputation of others 10(2) e.g. Jewish people
The balance between Art.8/Art.10 - Goodwin v UK - press cannot be forced to reveal sources
Axel v Germany - established the criteria for when a news story is in the interests of the public
For role models in the public eye - higher standards are expected and people who court public attention have less grounds to complain
AO1: Technology
This is information found on the internet that the state can only interfere with if there is a law in place. In Editorial Board v Ukraine - there was no law in Ukraine stopping the press publishing information found on the internet, therefore they couldn’t interfere
AO3: Expression
One area of Article 10 that somewhat protects the right to free expression is the forms of expression and how they are valued (P).
Under this article, some forms of expression are given more value than other, for example political, public interest and religion are all high value forms of expression which means that they are effectively protected (DP).
This is because the ECtHR will give a narrow margin of appreciation when deciding if the interference is necessary and an example of this was in Sunday Times v UK, the Thalidomide case was a matter of public interest so an injunction stopping the newspaper reporting was a violation (WDP).
However, artistic and commercial expression are low value and are given a wide margin of appreciation, for example in the case of Otto v Austria where the ECtHR upheld the ban of an erotic film about Jesus because they realise that different countries have different morals and values (VWDP).
AO3: Interference
Interference is allowed in 10(2) and the state can interfere with this right if it meets one of the legitimate aims stated (P).
However, there is a long list of these aims, arguably making the protection ineffective and there are lots of laws in the UK limiting freedom of expression based on morals, e.g. Obscene Publications Act, Broadcasting Act, Theatres Act and the common law of outraging public decency under which in R v Gibson the defendant was convicted when he made foetus earrings (DP).
Also protection of reputation is governed by the Defamation Act (including a long list of effective defences) and confidentiality is well defined in Observer v UK illustrating that the right is effectively protected (WDP).
AO3: Political Expression
Generally, political expression is effectively protected as it is of high value, however, some UK cases have upheld limitations on this right (P).
In R v BBC, the court said that the BBC were allowed to refuse to broadcast a political advert by the Pro Life Alliance and the right to express views at a protest was limited in Munim v DPP (DP).
The protestor said he had a right to express his views even if they are considered distasteful by others, however, the court upheld his conviction for a public order offence thus illustrating that the right to express oneself is not always effectively protected (WDP).
AO3: Balancing Articles 8 and 10
The press have the right to print stories that are in the interests of the public, e.g. Sunday Times v UK, and they cannot be forced to reveal their sources as was illustrated in Goodwin v UK (P).
Whether a story is in the public’s interest needs to meet the criteria established in Axel v Germany and it was held there was no public interest in Campbell v MGN and Mosley v News Group (DP).
However, a part that is not protected as effectively was seen in A v B (Flitcroft), as Lord Woolf said that celebrities who court public attention have less grounds to complain and role models should have higher standards of conduct (WDP).
Lord Woolf admitted that it is very hard to balance Art 8 and 10, as neither have priority over the other (VWDP).
Conclusion
Article 10 somewhat effectively protects the right to free expression, due to the wide variety of expression that is covered. It is also effective that some types of expression e.g. political and religious are difficult for the state to interfere with due to them being given a ‘high value’. However, it is debatable how effective Article 10 really protects when looking at the legitimate aims when the state can interfere as there are several and some are quite wide e.g. ‘public safety’. Furthermore, this right will often be balanced with other qualified rights e.g. Article 8, where the outcome will be decided on a case-by-case basis.
