Article 10 - Freedom Of Expression Flashcards
Jersild v Denmark***
Context is important.
A broadcast on a Danish tv programme showed a group of self-confessed racist youths who made extremely racist remarks about black people. The presenter and head of the news section were prosecuted. Held, the presentation was not intended to propagate racist views but to address an issue of some public interest. The broadcast was intended for a well-informed audience. The penalties imposted were not necessary in a democratic society for the protection of the rights of others.
Gündüz v Turkey***
‘…tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance (including racial intolerance), provided that any ‘formalities’, ‘conditions’, ‘restrictions’ or ‘penalties’ imposed are proportionate to the legitimate aim pursued…’
Ozgurd Gundem v Turkey***
‘Regard must be had to the fair balance that has to be struck between the general interest of the community and the interest of the individual’
Garaudy v France***
There are some historical facts which are still so sensitive that attempts to deny or revise them would be considered hate speech and removed from the protection of article 10 by article 17. Garaundy was a historian who wrote a book which denied certain aspects of the Holocaust.
Leander v Sweden***
Article 10 guarantees the freedom to receive information, but it does not confer a positive obligation on the state to disclose any secret documents or military intelligence or the police.
Guerra and others v Italy***
‘…the provision of information to the public is now one of the essential means of protecting the well-being and health of the local population in situations where the environment was at risk. Article 10(1) has to be construed as conferring an actual right to receive information, in particular from the relevant authorities, on members of local populations who had been or might have been affected by industrial or other activity representing a threat to the environment’
Surek v Turkey***
The Strasbourg Court emphasised that there was limited scope under article 10(2) for restrictions on political speech or on debate on matters of public interest and that the boundaries of permissible criticism were wider with regard to the government than in relation to a private citizen or even a politician.
Goodwin v United Kingdom
The Strasbourg Court has repeatedly emphasised that the press act as a ‘public-watch dog’ in a democratic society.
Thorgeir Thorgierson v Iceland
The press must not over step certain bounds but they nevertheless have a certain duty to impart information and ideas on all matters of public interest.
Steel and Morris v United Kingdom***
The Strasbourg Court has recognised that associations such as environmental campaign groups, fulfil a role, similar to the press, in stimulating public discussion.
McDonalds case - large multi-national companies can be afforded some protection given it is interested in protecting the commercial success and viability of companies - wider economic good.
Prager and Oberschlick v Austria
Journalists should even be free to use a degree of exaggeration and provocation.
Dichand and others v Austria
The limits of acceptable criticism are wide in regard to all politicians, whether or not they are in government, because they knowingly lay themselves open to scrutiny from the press and public.
Even value judgements will require, at least, some basis in fact.
July and SARL Libération v France
The limits of acceptable criticism are wide for public servants acting in an official capacity.
Castells v Spain***
The limits of permissible criticism are wider with regard to the government than in relation to a private citizen or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny of the legislative and judicial authorities and also the press and public opinion. The dominant position of the government - make it necessary to display restraint in resorting to criminal proceedings.
Heinisch v Germany***
Whistle-blowers.
The Court has held that the signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace should enjoy, in certain circumstances, protection. This may be called for where the employee is the only one or only a number of people in a position to view the wrongdoing. Employees still owe their employers a duty of loyalty, reserve and discretion.
