Article 10: Right to Freedom of Expression

Question 1

What is expression defined as under this Article?

Answer 1

Freedom to hold opinions, impart information and the freedom to receive information.

Question 2

What are the legitimate aims under 10(2) and give a case for each.

Answer 2

1) . National Security - Observer v. UK
2) . Protection of health and morals - Dublin Well Women v. Ireland
3) . To protect the reputation and rights of others - No case

Question 3

What is a ‘duty of confidentiality’ defined as in Coco v. AN Clark?

Answer 3

When:

1) . Has the necessary quality of confidence about it
2) . Information is imparted with an obligation of confidence
3) . Likely to cause detriment to the party communicating it

Question 4

What are the three additions made to the Coco definition of a ‘duty of confidentiality’ in Observer v. UK?

Answer 4

Duty applies only:

• whilst the information is confidential
• when the information is not trivial
• when public interest favours its disclosure.

Question 5

Give three UK laws that contribute to Article 10.

Answer 5

Official Secrets Act 1989
Freedom of Information Act 2000
S.12 HRA 1998

Question 6

Discuss two advantages of Article 10.

Answer 6

Advantages:
- Adequately factors the nature of being in the public eye as it recognises celebrities may be more susceptible to the popular press - A v. B (Flitcroft v. MGN) - Lord Woolf - ‘courted public opinion less right to object the intrusion that follows’ - objectivity of the law that is a requisite - ultimately the press is favoured here - could be said to undermine the Article 8 right of the celebrity.

• Journalistic expression receives augmented importance as outlined in s.12(4) HRA - also law protects journalistic sources by prohibiting their disclosure - advantageous as it prevents the ‘chilling effect’ (Goodwin v. UK) to the free flow of information - however, the phone hacking scandal has called into the question the security of having an open press.

Question 7

Discuss two disadvantages of Article 10.

Answer 7

• Regardless of the ‘living instrument’, the law may still fall behind as evident with regards to technological advancements - Shtekel v. Ukraine - no law to state publishing information found online was unlawful - as there was no clear law, there was a violation - technology is a rapidly advancing area and the law must remain congruous to maintain the integrity of Article 10 as vague laws undermine its authority.
• The internet, theoretically, is a platform for completely free expression - thus proliferating the right under Article 10 - heavily unregulated meaning individuals may be subject to potentially explicit content - however the new Online Safety Bill seeks to ‘limit the exposure to illegal content while protecting freedom of speech’ - if one finds it repulsive, one should simply tolerate it and not view it.

Question 8

List the 6 defences to defamation in the Defamation Act 2013 with there relevant sections.

Answer 8

s. 2 Truth
s. 3 Honest opinion
s. 4 Publication on matter of public interest
s. 5 Operators of websites - must be able to name the person who published it
s. 6 Peer reviewed statement or academic journal
s. 7 Reports protected by privilege (Parliamentary privilege, Qualified privilege)