Human Rights Art 10

Question 1

What is art10?

Answer 1

Right to freedom of expression.

Question 2

What does it mean to say that art10 is not an absolute right?

Answer 2

Can be lawfully restricted under certain circumstances.

Restrictions are only premissible if enumerated in provision.

Question 3

What is the 3 part test applied by courts in relation to qualified rights?

Answer 3

1. restriction prescribed by law
2. was it in pursuit of a legitimate aim
3. was it proportionate (necessary in democratic society)

Question 4

Cases demonstrating the relationship between art10 and the press.

Answer 4

Lingens v Austria (ECHR confirmed that limits of criticisms are wider for politicians than private individual)

Bladet, Tromso, Stenaas v Norway (where public interst is concerned, courts will favour free speech protection)

Question 5

Explain ‘public watchdog’.

Answer 5

Role of the press.

Imparting information of serious public concern.

Question 6

What is the general aim of The Official Secrets Act 1989?

Answer 6

Lawful restriction for national security reasons. Disclosure of such info leads to criminal prosecution.

Question 7

Decision in AG v Guardian Newspapers.

Answer 7

Injunction rejected. As information was already in public domain it could no longer be considered confidential.

Question 8

What defence/s are available under OSA 1989?

Answer 8

• no reason to believe that information related to security and intelligene

NO public interest defence.

Question 9

What information is protected from disclosure under OSA 1989?

Answer 9

Damaging information.

• endangers interests of UK
• safety of UK citizens abroad
• damages capability of armed forces to carry out tasks

Question 10

Principles established in R v Shayler.

Answer 10

OSA 1989 is compatible with art 10 of ECHR.

Applicant could use internal mechanisms or seek permission for disclosure.

Question 11

What is the mens rea requirement for liability under OSA 1989?

Answer 11

• remains up to prosecution to prove disclosure

Question 12

What is art8?

Answer 12

Right to respect for private and family life.

Question 13

What is the status of art8 and art10?

Answer 13

Equal status. Court must make a balanced assessment of which right wins.

Question 14

ECHR cases relating to privacy v expression.

Answer 14

Peck v UK (CCTV usually has no reasonable expectation of privacy however in this case images went far beyond privacy.
Von Hannover v Germany 2005 (no public interest, primacy given to her privacy)
Von Hannover v Germany 2008 (public interest, primacy to freedom of expression)

Question 15

Decision in Re S (A Child).

Answer 15

Rejection of appeal to prevent press from reporting child’s name. Info was in public domain, banning press would make no difference

Hale dissenting - wellbeing of child outweighed press’ freedom

Question 16

Cases successfully in violation of art8.

Answer 16

Campbell v MGN (no public interest in publication, Hale: could negatively/adversely affect her health, unjustifiable distress)

Question 17

Cases unsuccessfully in violation of art8.

Answer 17

Ferdinand v MGN (no unjustifiable distress, falsely represented himself, publication contributed to general interest in democratic society)

Question 18

When can a state derogate from art10?

Answer 18

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 19

Mosley v NGN.

Answer 19

ECHR found no violation of rights. However, there was no public interest in publishing the images and Mosley was awarded £60,000 damages.