Freedom of expression

Question 1

where in the constitution does it discuss freedom of expression

Answer 1

Article 40.6.1 - The State guarantees liberty for the exercise of the following rights, subject to public order and morality (i) The right of the citizens to express freely their convictions and opinions

Question 2

where does the ECHR mention freedom of expression?

Answer 2

• Article 10 Freedom of Expression (ECHR): 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.

Question 3

Convictions and Opinions

Answer 3

Freedom of expression extends to convictions and opinions

The right to communicate is an unenumerated right as established in the case of Attorney General v Paperlink

Question 4

Right extends to convictions and opinions - what are the facts of Murphy v IRTC

Answer 4

This case concerned the ban on religious advertising. The Independent Television and Radio Commission refused to allow a Dublin radio station, to broadcast an advertisement for a presentation concerned the evidence of the resurrection of Christ. It was claimed, inter alia, that s.10(3) of the Radio and Television Act, 1988 which prevented the broadcasting of any advertisement directed towards, inter alia, a religious end was unconstitutional. The claim was ultimately unsuccessful, and the Court was happy that the balance struck between competing rights was proportionate.

Barrington J giving judgement explained that the right to communicate is protected under Article 40.3 (unenumerated) as it related to the Right to convey one’s needs and emotions.
Freedom of Expression is more concerned with public activities of the citizen in a democratic society. Hence why Expression, Assembly and Association are grouped together

Question 5

what was stated in the case of Mahon v Post publications?

Answer 5

Practical difference between right to communicate and freedom of expression is minimal as both are subject to same limitations.

Question 6

what are the facts of Mahon v Post Publications? (important role of the press)

Answer 6

Mahon tribunal, circulated docs to witnesses and person appearing, some info disclosed confidentially. Sunday business port published articles which quoted from these documents.
Tribunal sought injunction from further publication using these docs.
HC found that any restriction on the freedom of the press must be proportionate and no more than was necessary to promote the legitimate object of restriction . also held that the tribunal had no power to create such confidentiality over the docs

Question 7

what are the facts of Kivlehan v Rte (important role of the press)

Answer 7

RTE excluded the leader of green party from the party leaders debate. Baker J held that the criteria employed by RTE for determining participation in the party leaders debate was proportionate and that the court could not be asked to fix programming criteria in respect of which it had no expertise.

• Held – Public have right to receive information & RTE has duty to provide it
• Implies that RTE has a right to exercise editorial choice

Question 8

Balancing the right to freedom of expression with public order and morality

cases of Colgan v IRTC and Mahon v Post Publications

Answer 8

• Colgan v IRTC
  Pro-life advertisement was banned
  Held – That was a ‘political end’
  ‘Political’ means more than party politics.
  Held – Ban was justified.
  Why? The objective of prohibiting advertisements in sensitive and divisive areas such as religion and politics was to avoid giving proponents of any particular viewpoint an unfair advantage over others. Thus it was aimed at the protection of the common good.
• Mahon v Post Publications

Mahon tribunal, circulated docs to witnesses and person appearing, some info disclosed confidentially. Sunday business port published articles which quoted from these documents.
Tribunal sought injunction from further publication using these docs.

HC found that any restriction on the freedom of the press must be proportionate and no more than was necessary to promote the legitimate object of restriction . also held that the tribunal had no power to create such confidentiality over the docs.

Question 9

Balancing the right to freedom of expression with the right to a good name

cases of Hunter v Duckworth

Answer 9

• Publication of booklet on Birmingham Six (defamation case)
• Says that just because convictions were quashed it does not restore presumption of innocence.
  It was Held - Freedom of Expression is not superior to reputation
  But, it may prevail in certain cases due to democratic nature of State
  Held – Defence of ‘fair comment’ should be construed liberally to give effect to freedom of expression, even if it gives offence

Question 10

Balancing the right to freedom of expression with the right to Privacy

what are the facts of Herrity v Associated Newspaper

Answer 10

Newspaper articles revealed P’s affair with priest, included transcripts of private phone messages
Court held they had been obtained in breach of laws prohibiting recording of phone calls. P’s right to privacy breached. Court repeated what was said in Cogley that privacy could derive from the nature of the underlying info or the method by which the info was obtained. Court noted that generally FOE would prevail but on these facts the court held the right to privacy breached

Question 11

Balancing the right to freedom of expression with the right to Privacy

what are the facts of Hickey v Sunday Newspapers?

Answer 11

Plaintiff had a child with David Agnew (Twink’s husband)

Photographs appeared in Newspaper of plaintiff

Noted – Less easy to assert privacy in a public place.

Held – Publication of photos was not a breach as they were taken in public place. “Important consideration” that plaintiff has done an interview previously on the issue

Question 12

Balancing the right to freedom of expression with the right to Privacy

what are the facts of Murray v Newsgroup

Answer 12

Notorious sex offender, released from prison, several articles written on release about whereabouts, claimed he was diagnosed with depression and anxiety
Court held privacy had to be balanced with other rights such as public interest. Also identified public interest in reintegrating sexual offenders.
Held that if the latter public interest was greater then it could justify restriction on the FOE. BUT court felt that FOE prevailed and there had been NO breach of privacy.

Question 13

Balancing the right to freedom of expression with the right to Privacy

what are the facts of O’Brien v RTE

Answer 13

SC refused injunction to restrain publication of details of potentially shady bank business. Did note that although public interest in operation of bank it didn’t extend to every customers dealing with bank. Noted long history of banking privacy and that there was public interest to keep it confidential for benefit of society at large.

Question 14

Balancing the right to freedom of expression with the right to Privacy

what are the facts of Nolan v Sunday World

Answer 14

The Court felt that whether the plaintiff was a willing participant at the swinger parties,
whether or not he enjoyed them, or simply went along because his partner wished him to, was
beside the point. They were parties held in private houses in which photographs of him were
taken. He was not a public figure and accordingly his rights had been breached.

the court found that his rights had been breached but didn’t doubly compensate him

Question 15

ECHR case - what are the facts of Lingens v Austria?

Answer 15

Journalist suggested that the decision of chancellor to enter coalition with former SS officer was basest opportunism, immoral and undignified. Prosecuted for slander.
Court held that this breached his rights under ECHR. Noted that what he said was expressed as opinion not fact.
Held – FOE extends to statements which shock offend or disturb and that pluralism demands tolerance and broadmindedness.

Question 16

ECHR case - what are the facts of Tammer v Estonia?

Answer 16

article about previous PM assistant, now having baby, ECHR held it didn’t have to have such offensive comments and she had removed herself from public.

Question 17

Protection of journalistic sources

facts of Mahon v Keena

Answer 17

Irish times published article on leaked tribunal docs, summoned defs to appear with docs, deliberately destroyed copies

SC, held that balance had to be struck between tribunals right to conduct an inquiry and also the right to FOE and the public interest in the preservation of journalists sources.
Held – disclosure of sources could only be justified after careful scrutiny and overriding requirement in the public interest or pressing social need.
Court ordered reverse costs against IT due to deliberate decision to destroy docs

Question 18

Protection of journalistic sources

Facts of Louis Walsh v News group

Answer 18

The sun published article saying Walsh was investigated for alleged sexual assault, agreed that allegations false, sued in defamation and argued story was procedure by financial inducements offered by def’s to victim. Also argued paper misrepresented that it had obtained the story from gardai, brought discovery motion seeking all docs relating to payment to complainant and gardai contact.
Def resisted motion on basis of non disclosure of journalists sources

Question 19

Protection of journalistic sources

Facts of Cornec v Morrice

Answer 19

Irish newspaper made comments on litigation in US, alleged breach of share agreement clause, to prove origin of leak a testimony required from journalist, could the journalist be compelled to give evidence?

HC refused to order either journalist to give evidence/reveal source. High value in const of dissemination of info and public debate. Journalists are central to this. Also noted the traditional distinction between journalists and lay people has broken down in recent decades. Social media has a key role -> bloggers covered by same protection as mainstream journalists.

Question 20

Protection of journalistic sources

what are the important observation made in the case of Cornec v Morrice

Answer 20

1) Strictly speaking, no such thing as journalistic privilege. Protection is rooted in high value which the law places on the dissemination of info and public debate. Const itself recognizes that journalists are central to this process.
2) Existence of other evidence in relation to sources would weaken the case for ordering disclosure. On the facts other evidence in the US made clear who the sources were. Felt that this weaken the case for disclosure as it wasn’t essential.
3) The disclosure took place in the context of wider commercial proceedings. Noted that the public interest in disclosure may be greater where a persons guilt or innocence is at stake in criminal proceedings.
4) No real distinction between identity of the sources and the contents of their disclosure. In Either case the right to FOE of journalist would be affected should communication between source and journalist be revealed.
5) Hogan J noted the traditional distinction between journalists and lay people has broken down in recent decades. Social media had a key role -> bloggers covered by same protection as mainstream.

Question 21

what are the main principles with emerge from case law ?

Answer 21

1. High level of protection is afforded to the FOE
2. Extends to material that can offend, shock and disturb
3. Extends to the right to impart ideas and info
4. Wide margin of appreciation on morality and religion
5. Public figures attract greater invasions of privacy
6. Private persons have greater privacy protection