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**A-Individual and the State > ECHR art 10 > Flashcards

ECHR art 10 Flashcards

1
Q

What are the 5 steps to answering a problem question?

A

1) Define Article 10 requirements (1) and (2)
2) Refer to the problem question
3) Did the authorities act under a prescribed law which could justify their injunction under Art 10(2)
4) Did the authorities interference have a legitimate aim under Art 10(2)?
5) Was the action of the authority in proportion to the legitimate aim deemed necessary in a democratic society?

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2
Q

What does art 10 (1) state?

A

all shall have a right to hold opinions and recieve and impart information and ideas without interference by public authority

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3
Q

What does art 10(2) state?

A

provides exceptions for state authorities where their actions are ‘prescribed by law’ and where it is necessary in a democratic society to limit ones right to Art 10

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4
Q

What are 6 examples of exceptions under Art 10 (2) ?

A
  1. the interests of national security/public safety
  2. for the prevention of disorder or crime
  3. for the prevention of health and morals
  4. for the reputation or rights of others
  5. preventing the disclosure of information received in confidence
  6. protecting the authority and impartiality of the judiciary
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5
Q

What are the first 2 cases to be noted in regards to Art 10 (2)?

A

handy side v UK

Vejdeland v Sweden

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6
Q

What happened in the case of Handyside v UK under Article 10(2) exceptions?

A

Article 10 was held to be applicable to ideas that are not only favourably reviewed but also those that ‘offend, shock or disturb’

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7
Q

Article 10 was held to be applicable to ideas that are not only favourably reviewed but also those that ‘offend, shock or disturb’
what case?

A

Handyside v UK

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8
Q

What happened in the case of vejdeland v Sweden under Article 10(2) exceptions

A

In this case the applicants were found guilty of hate speech when distributing homophobic leaflets to schools
HELD:
Homophobic speech was found to be within Art 10 but interference with it was found to be justifiable under Art 10(2)

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9
Q

the protection of article 10 (2) extends beyond speech what are the 2 types of expression?

A

1) Physical expression through protect - Steel v UK

2) inoffensiveness of pulibc nudity- Gough v UK

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10
Q

Which case detemerined that expression includes receiving and imparting information?

A

Open Door Councselling v Ireland

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11
Q

the protection of article 10 (2) extends beyond speech and can include physical expression though protect as in Steel v UK
discuss case

A

this case concerned the imprisonment of two protestors employing direct action in protesting against hunting and against road building
HELD: 
The court made a highly significant finding of principle when they ruled that while the protests took the form of physically impeding the activities of which the applicants disapproved, the Court considers that they constituted expressions of opinion with the meaning of Article 10

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12
Q

the imprisonment of two protestors employing direct action in protesting against hunting and against road building
HELD: 
The court made a highly significant finding of principle when they ruled that while the protests took the form of physically impeding the activities of which the applicants disapproved, the Court considers that they constituted expressions of opinion with the meaning of Article 10

A

the protection of article 10 (2) extends beyond speech and can include physical expression though protect as in Steel v UK
discuss case

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13
Q

What case is an example of expression for the inoffensiveness of public nudity?

A

Gough v UK

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14
Q

Gough v UK is an example of expression for the inoffensiveness of public nudity?
Discuss case
(under article 10(2))

A

This claim concerned the so-called ‘naked rambler’ who argued that nudity relates to the substance and form of expression and so should not have been imprisoned
HELD: 
The interference to Art 10(1) was prescribed by law and pursued under the broader aim of seeking to ensure respect for the law to prevent crime and disorder
As the comparative data in surveyed States had no uniform response, the applicable margin of appreciation was a wide one
Ultimately held that Art 10 does not allow individuals to impose their antisocial conduct on unwilling members of society

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15
Q

This claim concerned the so-called ‘naked rambler’ who argued that nudity relates to the substance and form of expression and so should not have been imprisoned
HELD: 
The interference to Art 10(1) was prescribed by law and pursued under the broader aim of seeking to ensure respect for the law to prevent crime and disorder
As the comparative data in surveyed States had no uniform response, the applicable margin of appreciation was a wide one
Ultimately held that Art 10 does not allow individuals to impose their antisocial conduct on unwilling members of society

A

Gough v UK is an example of expression for the inoffensiveness of public nudity?
Discuss case

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16
Q 
expression also includes receiving and imparting information as evidenced ni which case?
article 10(2)
A

Open Door Counselling v Ireland

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17
Q

expression also includes receiving and imparting information as evidenced in open Door Counselling v Ireland

A

this case concerned an injunction preventing women obtaining information about abortion services available abroad
the Court concluded that the restraint imposed on the applicants from receiving or imparting information was disproportionate to the aims pursued

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18
Q

this case concerned an injunction preventing women obtaining information about abortion services available abroad
the Court concluded that the restraint imposed on the applicants from receiving or imparting information was disproportionate to the aims pursued

A

expression also includes receiving and imparting information as evidenced in open Door Counselling v Ireland

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19
Q

What is an interference by a public authority?

A

includes criminal sanctions and damages, even if awarded in cases brought by private parties

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20
Q

an inference by a public authority includes criminal sanctions and damages, even if awarded in cases brought by private parties such as in Tolstoy v UK which regarded what?

A

excessive damages after wrongful allegations

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21
Q

What time of interferences are treated as creating a more serious interference?

A

pre publication interference such as injunctions or censorship

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22
Q

pre publication interference such as injunctions or censorship are treated as creating a more serious interference as in which case?

A

Observer & Guardian Newspaper v UK

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23
Q

pre publication interference such as injunctions or censorship are treated as creating a more serious interference as in Observer & Guardian Newspaper v UK
discuss case

A

Case concerned the compatibility with Art 10 of interim injunctions preventing those newspapers from publishing extracts from SpyCatcher
HELD:
News is a perishable commodity and delay of its publication, even for a short period, may well deprive it of all its value and interest

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24
Q

Case concerned the compatibility with Art 10 of interim injunctions preventing those newspapers from publishing extracts from SpyCatcher
HELD:
News is a perishable commodity and delay of its publication, even for a short period, may well deprive it of all its value and interest

A

pre publication interference such as injunctions or censorship are treated as creating a more serious interference as in Observer & Guardian Newspaper v UK
discuss case

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25
Q

Why must an interference be prescribed by law?

A

n order to maintain the predictability and accessibility under the rule of law standard

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26
Q

an interference must be prescribed by law in order to maintain the predictability and accessibility under the rule of law standard
What is the leading authority?

A

Sunday Times v Uk

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27
Q

an interference must be prescribed by law in order to maintain the predictability and accessibility under the rule of law standard
the leading authority is Sunday Times v UK
discuss case

A

In this case the Sunday Times published an article in support of on going trials regarding the drug Thalidomide accused causing severe birth defects. The applicants argued against the use of an injunction for violation of Art 10
HELD: 
The Court found that the interference was proscribed by law and pursued the legitimate aim of safeguarding the impartiality and authority of the judiciary HOWEVER it was found not to not be necessary in a democratic society
Art 10 guarantees not only the freedom of the press to inform the public but also the right of the public to be properly informed, the issue of which was an undisputed public concern

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28
Q

In this case the Sunday Times published an article in support of on going trials regarding the drug Thalidomide accused causing severe birth defects. The applicants argued against the use of an injunction for violation of Art 10
HELD: 
The Court found that the interference was proscribed by law and pursued the legitimate aim of safeguarding the impartiality and authority of the judiciary HOWEVER it was found not to not be necessary in a democratic society
Art 10 guarantees not only the freedom of the press to inform the public but also the right of the public to be properly informed, the issue of which was an undisputed public concern

A

an interference must be prescribed by law in order to maintain the predictability and accessibility under the rule of law standard
the leading authority is Sunday Times v UK
discuss case

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29
Q

Why did the court decide the way it did in Sunday Times v UK?
(justification for interference via prescription by law)

A

the court decided in this way because the proposed article was moderate and balanced on a topic that had been widely debated in society and therefore risk of undermining the authority of the judiciary was minimal

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30
Q

Under the justification for interferences by a prescribed law, what are the 2 main cases?

A

Sunday Times v UK and

Hashmann and Harrup v UK

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31
Q

Under the justification for interferences by a prescribed law, the 2 main cases are Sunday Times and Hasmann and Harrup v UK w
discuss the latter case

A

case concerned hunt saboteurs who complained of a violation to their right to Article 10 when they blew a horn to disrupt a hunt. They were bound over to keep the peace as their behaviour was ‘contra bonos mores’
HELD: 
There was a violation of Art10 as contra bonos mores is not prescribed by law

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32
Q

case concerned hunt saboteurs who complained of a violation to their right to Article 10 when they blew a horn to disrupt a hunt. They were bound over to keep the peace as their behaviour was ‘contra bonos mores’
HELD: 
There was a violation of Art10 as contra bonos mores is not prescribed by law

A

Under the justification for interferences by a prescribed law, the 2 main cases are Sunday Times and Hasmann and Harrup v UK w
discuss the latter case

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33
Q

How must you find a legitimate aim?

A

There must be rational connection in whether the measure actually serves the purpose under Article 10(2)
The aims set out in Art 10(2) tend to be broadly construed as in Sunday Times v UK and Handyside v UK and as well in Otto-Preminger Institute v Austria:

34
Q

There must be rational connection in whether the measure actually serves the purpose under Article 10(2)
The aims set out in Art 10(2) tend to be broadly construed as in Sunday Times v UK and Handyside v UK and as well in Otto-Preminger Institute v Austria:
discuss the latter case

A

This case concerned a satirical religious play in which sacred Christian figures were mocked.
HELD: 
ECHR found no violation under Art 10
Those who choose to exercise the freedom to manifest their religion cannot reasonably expect to be exempt from all criticism.
HOWEVER the manner these beliefs are opposed may engage the responsibility of the state to ensure the peaceful enjoyment of the right under Art 9. The European Court of Human Rights did not find the government seizure of the film a violation of the right to freedom of expression under Article 10 of the European Convention on Human Rights. By taking into account the absence of a uniform position in Europe on the significance of religion in society, the Court held that national authorities were entitled to a certain margin of appreciation in assessing the necessity of imposing restrictions to avoid offending religious beliefs.

35
Q

This case concerned a satirical religious play in which sacred Christian figures were mocked.
HELD: 
ECHR found no violation under Art 10
Those who choose to exercise the freedom to manifest their religion cannot reasonably expect to be exempt from all criticism.
HOWEVER the manner these beliefs are opposed may engage the responsibility of the state to ensure the peaceful enjoyment of the right under Art 9. The European Court of Human Rights did not find the government seizure of the film a violation of the right to freedom of expression under Article 10 of the European Convention on Human Rights. By taking into account the absence of a uniform position in Europe on the significance of religion in society, the Court held that national authorities were entitled to a certain margin of appreciation in assessing the necessity of imposing restrictions to avoid offending religious beliefs.

A

There must be rational connection in whether the measure actually serves the purpose under Article 10(2)
The aims set out in Art 10(2) tend to be broadly construed as in Sunday Times v UK and Handyside v UK and as well in Otto-Preminger Institute v Austria:
discuss the latter case

36
Q

What are the two elements to determine whether the interference was necessary in a democratic society?

A

1) necessary

2) proportional

37
Q

There are two elements in determinign whether the interference was necessary in a democratic society.
Discuss the need for it to be ‘necessary’?

A

The expression ‘necessary in a democratic society ‘ can imply the existence of a pressing social need. The notion of whether the aim is ‘necessary’ also includes considering whether it was proportionate to the aim pursued

38
Q

There are two elements in determinign whether the interference was necessary in a democratic society.
Discuss the need for it to be ‘proportional’

A

The proportionality test must be considered to assess whether the interference was proportional or whether there was another, less invasive measure to reach the same outcome.
If the aim is disproportionate this is a breach of Art 10

Craig in Administrative Law stated that the most common version is whether the disputed measure is the least restrictive that could have been adopted:
1) was the measure necessary to achieve the desired objective

2) was it suitable for this end?
3) did this measure none the less impose excessive burdens on the individual

39
Q

determinations as to proportionality are influenced by the operation of what?

A

the margin of appreciation doctrine

40
Q

What are two factors which affect the necessity and proportionality analysis?

A

a) political speech

b) artistic speech

41
Q

What can the category of political speech, under factors affecting the necessity and proportionality analysis, include?

A

this category is broadly construed and can include speech with a public interest dimension and not directly related to a political process or body as in Jerslid v Denmark and Ligens v Austria

42
Q

the category of political speech, under factors affecting the necessity and proportionality analysis, is broadly construed and can include speech with a public interest dimension and not directly related to a political process or body as in Jerslid v Denmark and Ligens v Austria
discuss jerslid v denmark

A

This case concerned a documentary about a group of a right way extremist group which included interviews with the men.
ISSUE:
Whether the journalist was responsible for the dissemination of racist remarks of their interviewee and whether his conviction was a violation of Art 10
HELD: 
Article 10 was violated as the reasons for his conviction were not proportionate to justify the states interference with his right to expression.

43
Q

This case concerned a documentary about a group of a right way extremist group which included interviews with the men.
ISSUE:
Whether the journalist was responsible for the dissemination of racist remarks of their interviewee and whether his conviction was a violation of Art 10
HELD: 
Article 10 was violated as the reasons for his conviction were not proportionate to justify the states interference with his right to expression.

A

the category of political speech, under factors affecting the necessity and proportionality analysis, is broadly construed and can include speech with a public interest dimension and not directly related to a political process or body as in Jerslid v Denmark and Ligens v Austria
discuss jerslid v denmark

44
Q

What case is similar to Jerslid v Denmark under factors affecting the necessity and proportionality analysis?

A

Gunduz v UK

45
Q

Gunduz v Turkey is similar to Jerslid v Denmark under factors affecting the necessity and proportionality analysis
discuss this case

A

Similarly in Gündüz v UK the Court found that the forum of a televised program had a huge impact on whether the expression was protected under Art10. As Mr Gündüz openly called for Sharia law during a debate where other participants represented their ideals in addition to the fact that the subject was of widespread debate in Turkish media, there was a violation of his Art 10 rights

46
Q

the Court found that the forum of a televised program had a huge impact on whether the expression was protected under Art10. As the applicant openly called for Sharia law during a debate where other participants represented their ideals in addition to the fact that the subject was of widespread debate in Turkish media, there was a violation of his Art 10 rights

A

Gunduz v Turkey is similar to Jerslid v Denmark under factors affecting the necessity and proportionality analysis
discuss this case

47
Q

what are the 3 main cases under factors affecting the necessity and proportionality analysis?

A

Jerslid v Denmark
Gunduz v Turkey
Lingens v Austria

48
Q

What happened in the case of Ligens v Austria underfactors affecting the necessity and proportionality analysis?

A

the applicant was fined for publishing in a Vienna magazine defamatory remarks of a prominent politician,
HELD:
The limits of acceptable criticism are accordingly wider as regards a politicians than to a private individual and must have a greater degree of tolerance
Article 10(2) protects the reputation of all individuals which extends to politicians even when they are not acting in their private capacity, but in such cases the requirements of such protection has to be weighed n relation to the interests of open discussion of political issues
Since it was impossible to prove the truth of value judgments, the requirement of the relevant provisions of the Austrian criminal code was impossible of fulfilment and infringed article 10 of the Convention.

49
Q

the applicant was fined for publishing in a Vienna magazine defamatory remarks of a prominent politician,
HELD:
The limits of acceptable criticism are accordingly wider as regards a politicians than to a private individual and must have a greater degree of tolerance
Article 10(2) protects the reputation of all individuals which extends to politicians even when they are not acting in their private capacity, but in such cases the requirements of such protection has to be weighed n relation to the interests of open discussion of political issues
Since it was impossible to prove the truth of value judgments, the requirement of the relevant provisions of the Austrian criminal code was impossible of fulfilment and infringed article 10 of the Convention.

A

What happened in the case of Ligens v Austria underfactors affecting the necessity and proportionality analysis?

50
Q

If Article 10 did not apply to those ideas that offend, shock or disturb then the demands of what would be ineffective?

A

pluralism, tolerance and broadmindedness

51
Q

Under factors affecting the necessity and proportionality analysis under legitimate aim, what is included under the element of artistic expression/?

A

This can include sexually explicit and graphic expression as in Otto-Preminger as previously discussed, as well as Muller v Switzerland and Wingrove v UK

52
Q

Under factors affecting the necessity and proportionality analysis under legitimate aim,, the element of artisitic expression can include sexually explicit and graphic expression as in Otto-Preminger as previously discussed, as well as which 2 cases?

A

Muller v Switzerland and Wingrove v UK

53
Q

Under factors affecting the necessity and proportionality analysis under legitimate aim,, the element of artisitic expression can include sexually explicit and graphic expression as in Otto-Preminger as previously discussed, as well as Muller v Switzerland and Wingrove v UK
discuss first

A

This case concerned sexually explicit paintings, including pictures of orgies involving animals and humans that resulted in the applicants being sentenced, fined and the paintings confiscated
HELD:
There was no infringement of Art 10 in regards to either conviction or confiscation as although conceptions of sexual morality have changed in recent years, the Swiss courts were not unreasonable in finding the paintings grossly offensive even though there was no public outcry and the press were on the applicants side as the judges still responded to a genuine social need

54
Q

This case concerned sexually explicit paintings, including pictures of orgies involving animals and humans that resulted in the applicants being sentenced, fined and the paintings confiscated
HELD:
There was no infringement of Art 10 in regards to either conviction or confiscation as although conceptions of sexual morality have changed in recent years, the Swiss courts were not unreasonable in finding the paintings grossly offensive even though there was no public outcry and the press were on the applicants side as the judges still responded to a genuine social need

A

Under factors affecting the necessity and proportionality analysis under legitimate aim,, the element of artisitic expression can include sexually explicit and graphic expression as in Otto-Preminger as previously discussed, as well as Muller v Switzerland and Wingrove v UK
discuss first

55
Q

Under factors affecting the necessity and proportionality analysis under legitimate aim,, the element of artisitic expression can include sexually explicit and graphic expression as in Otto-Preminger as previously discussed, as well as Muller v Switzerland and Wingrove v UK
discuss second

A

Wingrove v UK
This case concerned a video depicting St Thersea having an erotic fantasy involving Christ that was denied a certification certificate as it infringed the criminal law of blasphemy.
HELD:
The refusal of a video certificate is within an individual nation’s margin of appreciation, and not an infringement of the film distributors right to free speech
It is against the background of the law which prescribed this infringement which justified the Art10(2) infringement.

56
Q

This case concerned a video depicting St Thersea having an erotic fantasy involving Christ that was denied a certification certificate as it infringed the criminal law of blasphemy.
HELD:
The refusal of a video certificate is within an individual nation’s margin of appreciation, and not an infringement of the film distributors right to free speech
It is against the background of the law which prescribed this infringement which justified the Art10(2) infringement.

A

Under factors affecting the necessity and proportionality analysis under legitimate aim,, the element of artisitic expression can include sexually explicit and graphic expression as in Otto-Preminger as previously discussed, as well as Muller v Switzerland and Wingrove v UK
discuss second

57
Q

What are the 3 cases under the artistic expression element under factors affecting the necessity and proportionality analysis under legitimate aim,,

A

Muller v Switzerland
Wingrove v UK
Vereingingung Bildender v Austria

58
Q

Which case affirmed the precedent of Handyside v UK that Art 10 is also applicable to information and ideas that ‘offend, shock or disturb’ the State or any section of the population, such are the demands of pluralism, tolerance and broadmindedness which without there is no democratic society.

A

Vereingingung Bildender v Austria

artistic expression

59
Q

the case of Vereingingung Bildender v Austria
(artistic expression) affirmed the precedent of Handyside v UK that Art 10 is also applicable to information and ideas that ‘offend, shock or disturb’ the State or any section of the population, such are the demands of pluralism, tolerance and broadmindedness which without there is no democratic society.
discuss the case

(artistic expression)

A

In this case the applicants had exhibited a painting which included various public figures such as Mother Teresa in sexual positions. The national authorities enforced an injunction against the exhibition of the painting
HELD:
the European Court of Human Rights to be disproportionate to the aim it pursued and not necessary in a democratic society as the portrayal amounted to a caricature of the persons concerned using satirical elements which are a form of artistic expression and social commentary. For this reason the painting could not be understood to address details of the applicants life but rather his public standing as a politician and so he must display a wider tolerance in respect of criticism (as decided in Lingens v Austria)

In dissent, it was argued that there was no justification for the ridicule of persons such as Mother Teresa whom had no political standing and in all there was no satiric expression

60
Q

In this case the applicants had exhibited a painting which included various public figures such as Mother Teresa in sexual positions. The national authorities enforced an injunction against the exhibition of the painting
HELD:
the European Court of Human Rights to be disproportionate to the aim it pursued and not necessary in a democratic society as the portrayal amounted to a caricature of the persons concerned using satirical elements which are a form of artistic expression and social commentary. For this reason the painting could not be understood to address details of the applicants life but rather his public standing as a politician and so he must display a wider tolerance in respect of criticism (as decided in Lingens v Austria)

In dissent, it was argued that there was no justification for the ridicule of persons such as Mother Teresa whom had no political standing and in all there was no satiric expression

A

the case of Vereingingung Bildender v Austria
(artistic expression) affirmed the precedent of Handyside v UK that Art 10 is also applicable to information and ideas that ‘offend, shock or disturb’ the State or any section of the population, such are the demands of pluralism, tolerance and broadmindedness which without there is no democratic society.
discuss the case

(artistic expression)

61
Q

What are two reasons for supporting the use of the margin of appreciation doctrine in context of expression as a factor affecting the necessity and proportionality analysis?

A

1) allows for deference (submission) to democratically elected decision makers
2) recognises to a limited extent cultural diversity within different European states

62
Q

In which case did the court comment that it is not possible to find in the domestic law of the various contracting states, a uniform European conception of morals

A

Handyside

63
Q

which kind of expression is given a broad margin of appreciation as in Wingrove and Otto Preminger?

A

non political expression

64
Q

non political expression as in Wingrove and Otto Preminger is given a broad margin of appreciation; discuss what Wingrove say

A

para 58 in Wingrove notes that ‘a wider margin of appreciation is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion’
This is as well evidenced in Goodwin v UK

65
Q

non political expression as in Wingrove and Otto Preminger is given a broad margin of appreciation;para 58 in Wingrove notes that ‘a wider margin of appreciation is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion’
This is as well evidenced in which case

A

Goodwin v UK

66
Q

non political expression as in Wingrove and Otto Preminger is given a broad margin of appreciation;para 58 in Wingrove notes that ‘a wider margin of appreciation is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion’
This is as well evidenced in Goodwin v UK
discuss

A

This case concerned a court order requiring a journalist to reveal his sources
HELD: 
As the publication of the confidential publication was already prohibited by injunction, the order for disclosure was not necessary in a democratic society and thus a breach of Art 10. If journalists are forced to reveal their sources the role of the press as public watchdog could have a serious chilling effect on the free flow of information

In this case the national margin of appreciation is circumscribed (limited) by the interest of democratic society in ensuring a free press

67
Q

This case concerned a court order requiring a journalist to reveal his sources
HELD: 
As the publication of the confidential publication was already prohibited by injunction, the order for disclosure was not necessary in a democratic society and thus a breach of Art 10. If journalists are forced to reveal their sources the role of the press as public watchdog could have a serious chilling effect on the free flow of information

In this case the national margin of appreciation is circumscribed (limited) by the interest of democratic society in ensuring a free press

A

non political expression as in Wingrove and Otto Preminger is given a broad margin of appreciation;para 58 in Wingrove notes that ‘a wider margin of appreciation is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion’
This is as well evidenced in Goodwin v UK
discuss

68
Q

The margin of appreciation is said to give much more scope for what?

A

subsidiarily (local level discretion) in regard to cultural or artisitic speech

69
Q

What is a greater margin of appreciation afforded to?

A

artistic as opposed to political speech

70
Q

Which case demonstrated that a wide margin may be applied in respect of expression purely intended for purposes of entertainment with no artistic elements

A

Scherer v Switzerland

71
Q

Schere v Switzerland demonstrated that a wide margin may be applied in resect of expression purely intended for purposes of entertainment with no artistic elements
discuss this case

A

concerned hardcore pornography however was found to have breached Article 10 as adults should have freedom to see/hear what they like and there were safeguards against children seeing it as it was not on sale to them

72
Q

concerned hardcore pornography however was found to have breached Article 10 as adults should have freedom to see/hear what they like and there were safeguards against children seeing it as it was not on sale to them

A

Schere v Switzerland demonstrated that a wide margin may be applied in resect of expression purely intended for purposes of entertainment with no artistic elements
discuss this case

73
Q

Certain aims are seen as being more objective than others such as in Sunday v UK
how/

A

In this case protecting the authority of the judiciary was seen as a more objective aim than the aim of protecting morals- so a narrower margin of appreciation was conceded in relation to the former aim. Whereas protecting the rights of others in the context of religion may attract a broad margin of appreciation.

74
Q

What did Otto Preminger say in regards to the margin of appreciation?

A

that State authorities are in principle in a better position than the international judge to give an option on what is exactly necessary to protect as well as on the necessity of a restriction.

75
Q

What kind of expression of speech will not be seen as necessary a dmeoctrac society>

A

An expression of speech which does not contribute to any form of public debate capable fo furthering progress in human affairs

76
Q

An expression of speech which does not contribute to any form of public debate capable fo furthering progress in human affairs ill not be seen as necessary a dmeoctrac society>
What case demonstrates this?

A

Giniewski v France

77
Q

An expression of speech which does not contribute to any form of public debate capable fo furthering progress in human affairs ill not be seen as necessary a dmeoctrac society
This was demonstrated by Ginieswki v France
discuss

A

The applicant had been convicted of public defamation towards the Christian community on the basis of an article suggesting that Catholicism contained the seeds of the Holocaust.
Held: While the article may have shocked and offended, it was a genuine contribution to an historical debate. It was not ‘gratuitously offensive’. The conviction was a breach of Article 10.
HOWEVER
the ECHR ruled
Pressing social need:
By considering the detrimental effects of a popular doctrine, the article contributed to discussion of the various reasons behind the extermination of European Jews and so not necessary in a democratic society as the conviction did not meet a pressing social need

Proportionality:
The sanction imposed appears disproportionate in view fate importance and interest of the debate in which the applicant legitimately sought to take part and so was a violation of Art 10

78
Q

The applicant had been convicted of public defamation towards the Christian community on the basis of an article suggesting that Catholicism contained the seeds of the Holocaust.
Held: While the article may have shocked and offended, it was a genuine contribution to an historical debate. It was not ‘gratuitously offensive’. The conviction was a breach of Article 10.
the ECHR ruled
Pressing social need:
By considering the detrimental effects of a popular doctrine, the article contributed to discussion of the various reasons behind the extermination of European Jews and so not necessary in a democratic society as the conviction did not meet a pressing social need

Proportionality:
The sanction imposed appears disproportionate in view fate importance and interest of the debate in which the applicant legitimately sought to take part and so was a violation of Art 10

A

An expression of speech which does not contribute to any form of public debate capable fo furthering progress in human affairs ill not be seen as necessary a dmeoctrac society
This was demonstrated by Ginieswki v France
discuss

79
Q

What case demonstrates expression v privacy?

A

Von Hannover v Germany

80
Q

Von Hannover v Germany demonstrates expression v privacy

discuss case

A

This case concerned photos of the Princess of Monaco taken by a paparazzo
HELD: 
The question was whether the photos had contributed to a debate of general interest
Having regard to the margin of appreciation enjoyed by national courts to balance freedom of express against respect for private life (Art 8) and did not find that there had been a violation of that provision as Princess of Monaco was a public figure irrespective of the question whether she assumed official functions

81
Q

This case concerned photos of the Princess of Monaco taken by a paparazzo
HELD: 
The question was whether the photos had contributed to a debate of general interest
Having regard to the margin of appreciation enjoyed by national courts to balance freedom of express against respect for private life (Art 8) and did not find that there had been a violation of that provision as Princess of Monaco was a public figure irrespective of the question whether she assumed official functions

A

Von Hannover v Germany demonstrates expression v privacy

discuss case

**A-Individual and the State (4 decks)

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