Free Speech (L32/33) Flashcards
What does A10 of the ECHR (free speech) state?
- Everyone has the right to freedom 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 [or] television….
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
When may the state interfere with an individual’s A10 rights?
State may interfere if:
- Interference is prescribed by law.
- Necessary in a democratic society.
- In the interests of one of the legitimate interests stated.
In the case of R v SSHD, ex parte Simms [2002] 2 AC 115, what did Lord Steyn say about free speech?
“Freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs public debate. 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. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country”.
In this case of R (Animal Defenders International) v Secretary of State [2008] 1 AC 1312, what did Lord Bingham say about free speech?
“The fundamental rationale of the democratic process is that if competing views, opinions and policies are publicly debated and exposed to public scrutiny the good will over time drive out the bad and the true prevail over the false. It must be assumed that, given time, the public will make a sound choice when, in the course of the democratic process, it has the right to choose. But it is highly desirable that the playing field of debate should be so far as practicable level. This is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated.”
What does s12 of the HRA say?
Domestic courts “must have particular regard to the importance of the Convention right to freedom of expression’.
A reflection of media nervousness about the HRA and its potential impact on privacy.
Why should free speech be protected?
- The argument from autonomy.
- The argument from truth.
- The argument from democracy.
- John Stuart Mill, On Liberty (1859) - the ‘harm principle’.
- Should be able to act how they wish unless harming someone.
What happened in the case of Derbyshire CC v Times Newspaper [1993] AC 534?
Key example of common law protection of free speech (before the HRA).
HL unanimously ruled that local authorities may not sue libel, Lord Keith gave the only judgment.
What does the case of Sunday Times v UK (1979) 2 EHRR 245 demonstrate?
Common law protection of free speech has not always been as robust as it should have been, from an Art 10 point of view.
ST prevented from publishing article on thalidomide because of possibility that publication would prejudice legal proceedings. Under Contempt of Court Act 1981, s2(2), law now is that such injunctions may be granted only where there is substantial risk of serious prejudice to legal proceedings.
What does the case of Observer and Guardian v United Kingdom (1991) 14 EHRR 153 demonstrate?
Common law protection of free speech has not always been as robust as it should have been, from an Art 10 point of view.
O and G published articles disclosing allegations made by Peter Wright, former MI5 officer, in his book. Gov obtained injunction under law of breach of confidence preventing further disclosure.
HL continued injunction in force even after book had been published in US.
ECtHR ruled this was disproportionate: once allegations had been published, they were no longer confidential.
What are some potential applications for disallowing free speech?
- Defamation (Defamation & Malicious Publication (Scotland) Act 2021).
- Obscenity (Obscene Publications Act 1959).
- Contempt of Court (Contempt of Court Act 1981)
- Official secrets (Official Secrets Act 1989 (and breach of confidence)).
- Political advertising (ProLife and Animal Defenders International).
- Speech that invades privacy (Campbell v MGN and Mosley v UK).
- Hate speech (Hate Crime and Public Order (Scotland) Act 2021).
What did the case of R v Shayler [2002] UKHL 11, [2003] 1 AC 247 address?
Official Secrets Act 1989, s.1.
Criminal offence for member or former member of security or secret intelligence services to disclose any information relating to security or intelligence. No requirement that any harm is caused by the disclosure.
HL ruled s1 compatible with Article 10.
What does the case of Kaye v Robertson [1991] FSR 62 tell us about the common law approach to privacy?
Actor recovering in hospital from car accident, journalists broke in, took photos of him and published them.
No laws were technically broken at the time, no protection for general right to privacy under common law.
What is significant about the case of Campbell v MGN [2004] UKHL 22, [2004] 2 AC 457?
Expansion of old law of breach of confidence into new “reasonable expectation of privacy”.
- The expectation is subjective and fact-sensitive.
Intrusion into privacy can justify ongoing injunction not to publish even where information is already in the public domain.
- PJS v News Group Newspapers [2016] UKSC 26, [2016] AC 1081.
What is significant about the case of Mosley v UK (2011) 53 EHRR 30?
ECtHR broadly supporting UKSC new approach to privacy vs free speech.
What happened in the case of R (ProLife Alliance) v BBC [2003] UKHL, [2004] 1 AC 185?
PEB fell foul of the “offensive material restriction” imposed on broadcasters; it was broadcast on TV with screen blanked other than the word “censored”.
HL ruled 4:1 that the broadcasters had acted lawfully in censoring the images (overruling the Court of Appeal).
