Chapter 12: ECHR Article 10 Flashcards
1 Introduction
Freedom of expression covers many aspects of a person’s right to express views, whether in public
or private. The idea is enshrined in many constitutional documents and very often embodied as
the right to free speech
No positive ‘right’ to free speech prior to HRA 1998, residual right instead
Instead, individuals had the
freedom to express themselves in any way they wanted, as long as this was not prohibited by law;
in other words, this was a residual right. Now, the freedom of expression found in article 10 is
incorporated into UK law. This includes the ‘freedom to hold opinions and to receive and impart
information and ideas without interference by public authorities and regardless of frontiers’.
Qualified Convention right,
As with article 8, freedom of expression is a qualified Convention right, and it can therefore be restricted by the state if that restriction is: prescribed by law; is in pursuit of one or more of the legitimate aims (found in article 10(2)); and is necessary in a democratic society - in other words,
proportionate.
Section 12 HRA
Also gives protection to the right to freedom of expression when the court is considering whether to grant any relief that might affect the exercise of this right. According to s
12(4), the court must have ‘particular regard‘ to the importance of the right to freedom of expression.
Right to hold opinions and to receive ideas and
information,
As stated above, the freedom includes the right to hold opinions and to receive ideas and
information, as well as the right to express views and opinions. The concept of expression covers words, pictures, images, and actions intended to express an idea or to present information.
Handyside v UK (1976) 1 EHRR 737
Concerned the publication of the Little Red Schoolbook (for further details on the issues, see content below). In the case, the ECtHR sought to define the
scope of freedom of expression
Essential foundations of […] a democratic
society
Freedom of expression constitutes one of the essential foundations of […] a democratic society, one of the basic conditions for its progress and for the development of man. Subject to para 2 of art 10, it is applicable to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or
disturb the state or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society.
1.1 Context of ‘expression’
Freedom of expression can be used to protect a wide range of expression including:
- Political opinion (see Bowman v UK (1998) 26 EHRR 1, concerning the distribution of political
leaflets) - Journalistic freedom (see Goodwin v UK (1996) 22 EHRR 123, relating to a journalist’s refusal to
disclose sources) - Artistic expression (Müller v Switzerland (1988) 13 EHRR 212)
- Commercial information (see Colman v UK (1993) ECHR 30)
In practice
In practice, the courts tend to give stronger protection to political and journalistic expression than to the other forms of expression.
1.2 Importance of freedom of speech
R v Secretary of State for the Home Department,
ex parte Simms [2000] 2 AC 115 (HL).
The House of Lords found that the Secretary of State’s near blanket policy, which required journalists visiting convicted criminals to give an undertaking that
the contents of any interviews would not be used in a professional capacity, offended the
principle of free speech. The applicants had been interviewed by journalists with the aim of proving their innocence and the court noted that this had been crucial in uncovering miscarriages of justice in the past.
Lord Steyn said:
Freedom of speech is the lifeblood of democracy […]. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them.
Note
The applicants in this case relied on a common law interpretation of freedom of speech rather than article 10 specifically, and the House of Lords referred only sparingly to the ECHR.
1.3 Right to receive and impart information
Article 10 can also protect the right to provide and be provided with information.
Open Door Counselling and Dublin Well Woman Centre Ltd v Ireland (1992) 14 EHRR 131
ECtHR ruled that an absolute and unqualified injunction, prohibiting the dissemination in Ireland
of information regarding abortion services (in the UK), disproportionately interfered with the applicant clinics’ freedom and violated article 10.
R v Secretary of State for Health, ex parte Wagstaff [2001] 1 WLR 292
The High Court ruled that
the holding in private of the inquiry into the multiple murderer, Dr Harold Shipman, contravened
article 10, as this constituted an interference with the reception of information that others wished to impart.
General Right to Freedom of Information
This point was reinforced in Kennedy v The Charity Commission [2014] UKSC 20 where a majority in the Supreme Court found that there was no free-standing positive duty of disclosure imposed by article 10 on
public authorities.
2 Restrictions on freedom of expression
Article 10 is a qualified right and so, as set above, under para 10(2) a contracting state can legitimately interfere with this right where the interference is:
* Prescribed by law;
* In pursuit of a legitimate aim; and
* A proportionate means of achieving the stated aims.
Prescribed by law
The prescribed by law requirement is the same test we have considered with respect to articles 8
and 5. (Refer to the key cases of Sunday Times v UK and Gillan and Quinton v UK.)
Relevant Legitimate Aim
The following cases concern examples of article 10 in operation, including the courts’ decisions on
proportionality. They are grouped under the relevant legitimate aim; you will note that there are additional interests listed in para 10(2) that do not feature in 8(2).
(Note also that many of these cases overlap and may relate to more than one of the legitimate
aims.)
2.1 National security
Action for breach of confidence
There are a number of statutes that prohibit free speech which are designed to protect the security of the state, for example the Official Secrets Acts 1911 and 1989, which have been used in conjunction with an action for breach of confidence. The leading case in this area arose out of the serialisation in newspapers of a book called Spycatcher, written by Peter Wright, a former
member of the British intelligence services.
Key case: The Observer and Guardian v UK (1991) 14 EHRR 153
In this ‘Spycatcher case’, the Attorney General had obtained a number of interlocutory injunctions against the newspapers preventing disclosure of the book’s contents, pending the outcome of applications for permanent injunctions based on breach of confidence. The newspapers appealed to the ECtHR who divided the period of the duration of the injunctions into
two: (i) the period before the book’s publication in the USA; and (ii) the subsequent period ending with the final determination of the English proceedings
Different periods
With regard to the first period, the court held that the injunctions were ‘necessary’, as the reasons
for their imposition were ‘relevant’, ‘sufficient’ and ‘proportionate to the aim pursued’. The continuance of the injunctions in the second period was found to be disproportionate. Following publication in the USA the damage had been done and there was no longer an interest in
confidentiality. The interest in protecting the reputation of the security forces was insufficient to justify the injunctions
Brind and McLaughlin v UK [1994] ECHR 57
Concerned a direction made by the Home Secretary preventing recorded speech from interviews with leaders and supporters of certain named organisations, including Sinn Fein, from being broadcast.
Ban proportionate to interests in national security
In a decision which endorsed the judgment of the House of Lords, the Commission found that, with reference to the margin of appreciation permitted to states, the limited extent of the interference with the applicants’ rights and the importance of measures taken against terrorism, the ban was proportionate in the interests of national security.
Miranda v Secretary of State for the Home Department [2016] EWCA Civ 6
Concerned the partner of a journalist who was stopped by police at Heathrow airport under Schedule 7 of the Terrorism Act 2000. A number of encrypted storage devices, obtained from the American
intelligence officer, Edward Snowden, were confiscated from him
Court of Appeal
The Court of Appeal departed from the judgment of the High Court, which had rejected arguments that the case concerned the protection of journalistic sources and the important constitutional role played by journalists in
holding governments to account.
Court of Appeal, Lord Dyson
Found that Schedule 7 was not ‘prescribed by law’ because the lack of adequate safeguards, in the form of independent scrutiny before the power was used, meant that it was susceptible to arbitrary usage. Consequently, the provision was found to be
incompatible with article 10.
Key case: R (Lord Carlile) v Secretary of State for the Home Department [2014]
UKSC 60
In this case, a majority in the Supreme Court decided that there had not been a violation of the applicants’ article 10 rights when the Home Secretary had excluded a dissident Iranian politician, Maryam Rajavi (who was living in Paris), from the UK.
Key case: R (Lord Carlile) v Secretary of State for the Home Department [2014]
UKSC 60
She had been invited by Lord Carlile and two other members of the House of Lords to address a meeting in Westminster, but an exclusion order had been upheld because her presence was not seen to be conducive to the public good. Mrs Rajavi had links to a formerly proscribed organisation and the Home Secretary was concerned that there could be repercussions in relation
to general UK-Iranian political relations.
