Article 10 - freedom of expression Flashcards
what type of right is it
qualified right
the right 10(1)
everyone has the right tofreedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises
levels of expression
- Political/religious = highest value form of expression
- Artistic/commercial = lowest value from of expression
- freedom to hold opinions
10(1)
Freedom to hold opinions is actually kind of an absolute right - a state cannot restrict this (e.g indoctrinating or brainwashing everyone to have the same opinions) - this would be totally against democracy
.2. freedom to recive infomation and ideas
- Includes eight to gather information through all possible sources e.g TV broadcasts, the internet
- Enables media to impart information to public who have a right to be adequately informed (especially on matters of public interest - freedom of information
- Guerra v italy - this right doesnt put a positive obligation to actually provide information - telling people if asked/appropriate
- Can request information - freedom of information act 2000 - public body must provide unless it is to confidential and sensitive e.g MPs expenses (2008 scandal)
- T and V v News corp - people trying to find out the new identities of the boys and wanting to know where they live - would have been extremely disparate as would have ruined their lives ect
- Mills v Newsgroup newspapers - published bad things about her and wanted to publish her home address , newspapers tried to get an injunction but didnt as it didn’t way up A8
.3. freedom to impart infomation and ideas
.3. freedom to impart infomation and ideas
- Right to “offend, shock and disturb” - freedom of speech extends very far
- Includes political expression, artistic expression, commercial expression
Political expression
.3. freedom to impart infomation and ideas
- Politicians lay themselves open to close scrutiny of every word and decision by journalists and public as a whole so they must display greater degree of tolerance to things said about them, wide range of views expressed e.g 2016 EU referendum expression taken too far - murder of jo cox MP
- Navalny v Russia - putin’s opposition put in prison
civil/public interest expression
.3. freedom to impart infomation and ideas
- Expression raises matters of legitimate public concern e.g building a motorway or hunting
- Steel and morris - tried to say mcdonalds were using bad ingredients
Artistic expression
.3. freedom to impart infomation and ideas
- Important for individualism and fulfilment. Much variety over what is acceptable (wide margin of appreciation to reflect different values in multicultural society)
- Otto-Preminger-Institut v Austria - banned a film which was against catholics - no breach (religious country)
- Gibson v UK - using a freeze dried human foetuses as earrings for a work of art was held to constitute the offence for outraging public decency
freedom of the press
.3. freedom to impart infomation and ideas
- Goodwin v UK
- Trainee journalist
- Received information about a company financial information from an anonymous source
- Company tried to force him to reveal the source
- After got an injunction that he couldn’t publish it they were still forcing him to say
- A breach of article 10
- Handyside v UK
- Mr Handyside had published a ‘little red schoolbook’
- The purpose of the book was to teach school children about sex, drugs and the use of pornography
- Convicted under the Obscene Publications Acts 1959 and 1964
- “Shock, offend and disturb”
- No breach from the public body to stop this from happening as protects health + morals of the children
Axel SPringer AG v Germany - test for newspapers realising infomation
.3. freedom to impart infomation and ideas
- Balance between A8 and A10 - sets out the 6 criteria for balancing the two articles ( only applies to newspapers)
- (goats nipples produce milk very creamy + smooth)
- .1. Whether all information contributes to a debate of general interest
- .2.The notoriety of the person concerns and subject matter or report
- .3.The prior conduct of the person involved
- .4. The method of obtaining the information and its veracity
- .5. The content, form and consequences of publication
- .6. The severity of the sanction imposed
Hate speech
.3. freedom to impart infomation and ideas
- Dealt with under Article 17 generally BUT incitement to racial hatred can be dealt with under article 10
- Garaudy v France
- Tried to publish a book that said the holocaust never happened
- Government stopped him
the restriction
10(2)
the exercise of these freedoms may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, (legitimate aims) in the interest of nation security, territorial integrity, or public safety, for the prevention of disorder or crime, for the protection of health and morals, for the protection of reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary
prescribed by law
10(2)
- Spycatcher case (1995)
- Wrote extracts on what the british security service did (unlawful activities)
- Didn’t get their permission to publish it
- Put an injunction on it but had been published in USA and was being deported over
- So the injunction was pointless as the classified information had been published
national secruity
10(2)
- Hadjianastassiou v Greece
- Exposed government material
- No breach as in interest of national security
territorial integrity or public safety
10(2)
- R v Shayler
- Been a member of security services and disclosed documents to a journalists
- Argued that it was in public interest but defence failed
prevention of disorder or crime
10(2)
- Surek V Turkey
- Convicted of disseminating propaganda and provoking hatred on the state
- Said this was a breach of his expression
- No breach
protection of healt and morals
10(2)
- Muller v Switzerland (1988)
- Published obscene items including paintings
- No violation by fining them
- Open door and dublin well women v Ireland (1992)
- Prohibited from providing any information to pregnant women about abortion in clinics
- This was a breach of article 10
protection of reputation
10(2)
- Bedat v Switzerland
- Finished for publishing an article questioning an accused motorists state of mind - with pictures ect
- No breach as it was fair to impose a fine as it was necessary in a democratic society
preventing the disclosure of infomation recieved in confidence
10(2)
- Heinisch v Germany (2001)
- The applicant’s dismissal without notice had therefore been disproportionate and the domestic courts had failed to strike a fair balance between the need to protect the employer’s reputation and the need to protect the applicant’s right to freedom of expression. Conclusion: violation
maintaing the authority and impartiality of the judiciary
10(2)
- Sunday times v UK
- Injunction put against sunday times to stop publishing an article on thalidomide victims
- There was a matter of public concern so no injunction was granted
- Pinto Coelho v Portugal
- Fined for broadcasting unauthorised audio recordings of a criminal trial
- Court balanced the rights of public interest and found there was a breach
Obscene Publications Act 1959
UK restriction
- Section 1(1)
- Sets out the legal test for obscenity
- Its describes an ‘obscene’ item as one that has the effect of tending to deprave and corrupt persons likely to read, see or hear it
- Based on the case law R v Hicklin - whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall
- Lady chatterleys lover by DH lawrence
- ‘Deprave’ - meaning to make morally bad, to debase, to pervert or to corrupt morally
- ‘Corrupt’ - as meaning to render morally unsound or rotten, to destroy moral purity or chastity, to pervert or ruin a good quality and to debase or defile
- Section 1(2)
- Applies to a wide range of media
- ‘Article’ - means any description of article containing or embodying matter to be read or looked at or both, any sound record, and any film or other records of a pictures or pictures
Obscene Publications Act 1964
UK restriction
- This includes some limited provisions to further restrict the law on obscenity
- In particular, these tighten the rules on making a gain from obscenity
- Protects against obscenity that would cause moral outrage
- Shaw v DPP - the common law offence of outraging public decency could be used in situations where there was no obvious statutory provision to protect the public welfare
Theatres Act 1968
UK restriction - obscenity
- Applies a similar definition of obscenity to plays and performance
- This is also extended to the live broadcasting act 1990
- There is also a possible lesser offence of outraging public decency
- Public decency requires a level of behaviour which is generally accepted in public and is not obscene to observers
- Galleries (and their staff) may be committing a criminal offence if, for example they sell, show or distribute work that is considered to be obscene or which causes public outrage
Outraging Public Decency
Uk restrictions - obscenity
- A related offence which criminalises behaviour or displays which lewd, obscene or disgusting and take place in public
- urinating in public
defamation act
UK law restriction
- Can be split into libel (permanent e.g. writing, broadcasting) and slander (less permanent e.g. spoken word, conduct)
- Defamation Act 2013 – claimant must show that the statement is defamatory, (people would think worse of them because of it), it identifies them, is published to a third party, and causes loss (financial).
- But there are defences to defamation claims
- s.2 statement is true
- s.3 statement is the person’s honest opinion
- s.4 statement is a matter of public interest (rather than just making good news)
- s.5 internet defence
- s6 and 7 ‘privilege’ (MPs are allowed to say what they want, and academics if peer reviewed).
harrasment act 1997
UK law restricitions
- gives people protection of their right to private life (physical and psychological integrity) by creating two criminal offences (below) and allowing civil court to impose injunctions and damages for victims of harassment
- s.2 - pursuing a course of conduct amounting to harassment
- s.4 - the conduct puts the victim in fear of violence
malicious communications act 1998
Uk law restricition
offence to send another person a letter or electronic communication which conveys a threat, gross or indecent content or false information. Impacts on the sender’s right to correspondence but a justifiable and proportional interference so lawful.
well protected
evaluation
- Margin of appreciation is used to allow different expression in different countries - E.g. Otto Preminger
- Freedom of the press in UK. There are the Axel Springer criteria to make sure we are weighing up with A8 fairly and from a level starting point (no advantage to A8 over expression…)
- Can’t restrict the internet - good in the UK
- UK restrictions on publications are very insignificant e.g. no ban on publications, but just age restrictions on films, games etc…
- Restrictions on hate speech are fair enough (Garaudy v UK)
poorly protected
evaluation
- Why are we allowing ‘right to shock, disturb and offend’? (Handyside v UK, Gibson v UK)
- Lots of private life cases supporting A8 over A10 e.g. Cambell, Wood. Press are too restricted impacts on right to receive info by public
- Countries in ECHR who have infringed this e.g. Turkey (Google - Yildrim v Turkey), Russia (restrictions foreign news reporting)
- Laws restricting A10 in the UK - Defamation Act, Obscene Publications Act
