Freedom of expression - article 10

Question 1

what does section 1 say?

Answer 1

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, television or cinema enterprises

Question 2

what does section 2 say?

Answer 2

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalites 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

Question 3

what is the negative obligation?

Answer 3

• is the type of expression covered by article 10
• has the expression been restricted by a state actor?
• Is the restriction justified under 10(2) - in accordance with the law, legitimate aim and necessary in a democratic society

Question 4

what is the scope of article 10 (1)

Answer 4

“It is applicabe not only 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 such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”

Question 5

what are excluded from protection under article 10?

Answer 5

• hate speech and inciting violence

Question 6

what do you have to show under article 10?

Answer 6

that something has interfered with/prevented/stopped a freedom of expression

For example:
- Injunctions and damages
- Criminal convictions
- Restraining orders
- Confiscation orders
- Refusal of entry

Question 7

what is required for justification of breach of article 10 under 10(2)?

Answer 7

• prescribed by law
• necessary in a democratic society
• specified aim

Question 8

what are the specified grounds under 10(2)?

Answer 8

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

Question 9

what makes it necessary in a democratic society?

Answer 9

R v Shayler

Restriction must be based on relevant and sufficient reasons

Restrictions must aim to meet a pressing social need

The pressing social need must be met in a proportionate way

Proportionality involves a balancing of interests, but the starting point is freedom of expression, with the burden of proof on the authorities to justify the need for the restrictions and that the restrictions are not more than are necessary

The authority’s reasons must be subject close scrutiny by a court

Question 10

what is the four stage analysis for proportionality?

Answer 10

• whether the objective is sufficiently important to justify the limitation of a fundamental right
• whether it is rationally connected to the objective
• whether a less intrusive measure could have been used
• whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community

Question 11

what does protection and morals of health of others include?

Answer 11

Political and artistic performances

Philisophical or religious protection

Education