Lecture 17: Freedom of Expression Flashcards
What is the intrinsic value of Freedom of Expression?
Freedom of expression has intrinsic value because it is essential for individual autonomy, allowing individuals to express themselves freely and engage with the expressions of others.
How does Freedom of Expression relate to individual autonomy?
Freedom of expression supports individual autonomy by allowing autonomous individuals to express their thoughts and opinions, and to hear and consider what others have to say. (See Sadurski, Barendt)
Why is Freedom of Expression important in a democratic society?
Freedom of Expression is crucial in democracy as it is considered the “lifeblood of democracy,” ensuring that people can make informed choices and participate fully in democratic processes (Alexander Miekeljohn).
How does Freedom of Expression promote tolerance?
Freedom of Expression promotes tolerance by encouraging individuals to hear diverse perspectives and engage in open discussion, fostering a society where different viewpoints are respected (Joseph Raz).
What is the constitutional value of Freedom of Expression?
Freedom of Expression has constitutional value as it is a fundamental principle of democratic societies. In Handyside v. The UK (1979), the court stated that freedom of expression is one of the essential foundations of a democratic society, crucial for progress and individual development ([49]).
Why should people be allowed to express themselves?
People should be allowed to express themselves to ensure individual autonomy and personal freedom, as expression is a fundamental right.
Why should people be able to hear and think about what others say?
People should be able to hear and think about others’ opinions to foster a society where diverse ideas can be considered, promoting mutual understanding and tolerance.
What is the role of Freedom of Speech in a democracy?
Freedom of Speech is the “lifeblood of democracy” (ex p Simms [2000] AC 115, 126), as it ensures citizens can make informed decisions and participate fully in democratic processes.
How does Freedom of Speech relate to the truth?
Freely circulating ideas is the test of the truth, allowing ideas to be debated and examined, ensuring that the truth prevails in a free society.
Why does Freedom of Speech have intrinsic value for individual autonomy?
Freedom of Speech has intrinsic value because it allows individuals to exercise their autonomy, express their thoughts, and contribute to society’s development.
What beneficial consequences come from Freedom of Speech?
Freedom of Speech fosters an environment where ideas can be freely exchanged, leading to societal progress, innovation, and personal development.
What is the significance of restrictions on Freedom of Expression?
Restrictions on Freedom of Expression are considered “the most serious conceivable breach of civil liberties” (Gearty, Civil Liberties, p.22), as they undermine fundamental rights and freedoms.
Is Freedom of Expression unlimited?
No, Freedom of Expression is not an unfettered right. While it is a hallmark of free societies, legal safeguards protect vulnerable individuals and prevent abuse that could negatively impact others (e.g., chilling effects).
(Source: Free for All? Freedom of expression in the digital age, 1st Report of Session 2012-22 HL Paper 54, p.3)
Why is Freedom of Expression not an absolute right?
While Freedom of Expression is a cherished right, it is subject to limitations to protect individuals’ rights and prevent abuse that could harm others. These safeguards ensure a balance between free speech and societal protection.
What does the Freedom of Speech in Universities Report say about free speech?
Everyone has the right to free speech within the law, even if their views may disturb or upset others. This includes all forms of expression, such as forming societies with lawful aims and peaceful protests.
(Source: Freedom of Speech in Universities Fourth Report of Session 2017-19, Report, HC 589, HL Paper 111, p.3)
Does Freedom of Expression allow the right to form societies with controversial aims?
Yes, Freedom of Expression allows individuals to form societies with lawful aims, even if those aims are not shared by the majority, and it also protects peaceful protests.
(Source: Freedom of Speech in Universities Fourth Report of Session 2017-19, Report, HC 589, HL Paper 111, p.3)
What is Article 10 ECHR?
Article 10 of the European Convention on Human Rights (ECHR) protects freedom of expression. It is a qualified right, meaning that it can be subject to restrictions under certain conditions.
What does freedom of expression under Article 10 ECHR cover?
Freedom of expression covers more than just speech. It includes written or spoken words, pictures, images, and actions intended to express an idea or present information. (Müller and Others v Switzerland (1991))
Does Article 10 ECHR protect offensive or disturbing information?
Yes, it protects offensive, shocking, or disturbing information. It safeguards ideas that may be favourably received as well as those that offend, shock, or disturb, which are essential for pluralism and democracy. (Handyside v UK (1979-80))
Does Article 10 ECHR protect opinions and value judgments?
Yes, it protects opinions and value judgments. The truth of value judgments is not susceptible to proof, and requiring proof infringes freedom of opinion. (Lingens v Austria (1986))
What are the legitimate aims for restricting freedom of expression under Article 10(2)?
Legitimate aims include national security, territorial integrity, prevention of disorder or crime, protection of health or morals, and protection of the reputation or rights of others.
Can freedom of expression be restricted to protect national security?
Yes, national security is one of the legitimate aims for restricting freedom of expression. (Observer and Guardian Newspaper v UK (1992), Vereninging Weekblad Bluf! v Netherlands (1995))
Can freedom of expression be restricted to protect territorial integrity?
Yes, territorial integrity is a legitimate aim for restricting freedom of expression.
Can freedom of expression be restricted to prevent disorder or crime?
Yes, preventing disorder or crime is one of the legitimate aims for restricting freedom of expression.
Can freedom of expression be restricted to protect health or morals?
Yes, protecting health or morals is one of the legitimate aims for restricting freedom of expression.
Can freedom of expression be restricted to protect the reputation or rights of others?
Yes, protecting the reputation or rights of others is a legitimate aim for restricting freedom of expression. (Lingens v Austria, Otto-Preminger Institute v Austria, Von Hannover v Germany (2006), Von Hannover v Germany (2012))
Can freedom of expression be restricted to prevent the disclosure of information received in confidence?
Yes, preventing the disclosure of information received in confidence is a legitimate aim for restricting freedom of expression.
Can freedom of expression be restricted to maintain the authority and impartiality of the judiciary?
Yes, maintaining the authority and impartiality of the judiciary is a legitimate aim for restricting freedom of expression. (Sunday Times (No. 1) v UK (1979-80))
What are the four questions the ECtHR asks when analyzing a qualified right?
The four questions are:
Has there been an interference with the right?
Was the interference ‘prescribed by law’?
Did the interference have a legitimate aim?
Was the interference ‘necessary in a democratic society’?
What is the first question the ECtHR asks when analyzing a qualified right?
The first question is: Has there been an interference with the right?
What is meant by “prescribed by law” in the context of qualified rights?
“Prescribed by law” means that the interference with the right must be based on a legal provision that is accessible and foreseeable, and not arbitrary.
What is the third question the ECtHR asks when analyzing a qualified right?
The third question is: Did the interference have a legitimate aim?
What does the ECtHR mean by “legitimate aim” in the context of interference with a right?
A legitimate aim refers to the specific goals that are recognized under the law as justifiable grounds for restricting a right, such as national security, public order, or the protection of health and morals.
What is the fourth question the ECtHR asks when analyzing a qualified right?
The fourth question is: Was the interference “necessary in a democratic society”?
What does “necessary in a democratic society” mean in the context of analyzing a qualified right?
“Necessary in a democratic society” means that the interference must be proportionate, meaning it should be the least restrictive means to achieve the legitimate aim and should not go beyond what is required.
What is the first question to ask when analyzing Article 10?
The first question is: Was there an interference?
Interference with the right to freedom of expression can take various forms, including a “formality, condition, restriction, or penalty” (Wille v. Liechtenstein, Application no. 28396/95).
In freedom of expression cases, there is no need to consider the characterization of the interference by domestic courts. The focus is on examining whether there is a “chilling effect” on the exercise of the right (ECtHR, “Guide on Article 10 of the European Convention on Human Rights,” August 2022).
What is the second question to ask when analyzing Article 10?
The second question is: Was it “prescribed by law”?
This requires that the law imposing the interference is sufficiently precise and that the consequences of the interference are foreseeable.
What is meant by “prescribed by law” in the context of Article 10?
“Prescribed by law” means that the law must be sufficiently precise, and the consequences of the interference must be foreseeable. This ensures that individuals are able to understand the legal rules they are subject to.
What is the third question to ask when analyzing Article 10?
The third question is: Was it in pursuit of a legitimate aim?
Legitimate aims are listed in Article 10(2), and this list must be strictly followed. These aims include national security, prevention of disorder or crime, and protection of health or morals, among others.
What is the fourth question to ask when analyzing Article 10?
The fourth question is: Was the restriction “necessary in a democratic society”?
This means that the restriction must be proportionate to the aim pursued. It should be the least restrictive measure necessary to achieve the legitimate aim.
What is the “margin of appreciation” in the context of the European Court of Human Rights (ECtHR)?
The margin of appreciation refers to the leeway given to national authorities in determining the necessity of restrictions on rights, specifically when there is a pressing social need for interference with a right by the state.
When does the “margin of appreciation” apply?
The margin of appreciation applies when determining the necessity of restrictions and assessing whether there is a pressing social need for interference with the right by the state.
How does the ECtHR assess the necessity of restrictions on rights?
The ECtHR is more likely to defer to national courts for the initial assessment of necessity. However, the ECtHR ultimately makes the final ruling on whether the restriction is necessary.
Where was the “margin of appreciation” first articulated?
The “margin of appreciation” was first articulated in Handyside v UK (1979-80).
What did the ECtHR state about the margin of appreciation in Handyside v UK?
The Court noted that state authorities are in a better position than international judges to assess the necessity of restrictions due to their direct and continuous contact with the vital forces of their countries. (Handyside v UK, para. 48)
What did the ECtHR say about the meaning of “necessary” in Handyside v UK?
The Court stated that “necessary” under Article 10(2) is not synonymous with “indispensable” and is more flexible than terms like “admissible,” “ordinary,” or “desirable.” It is for national authorities to assess the reality of the pressing social need implied by the notion of “necessity.” (Handyside v UK, para. 48)
How does the ECtHR define “necessary in a democratic society”?
The ECtHR defines “necessary in a democratic society” by examining whether the interference corresponds to a “pressing social need,” whether it is “proportionate to the legitimate aim pursued,” and whether the reasons given by national authorities to justify it are “relevant and sufficient.” (Sunday Times (I) v. UK, 30 Eur. Ct. H.R. (ser. A), § 62)
What does the ECtHR consider when determining if there is a “pressing social need”?
The ECtHR considers whether the interference corresponds to a “pressing social need.” In cases where press freedom is restricted, the Court is more likely to restrict the margin of appreciation given to national authorities. (Sunday Times v. UK (No. 2), Application no. 13166/87)
How does the ECtHR view the nature and severity of sanctions in interference cases?
The ECtHR is particularly attentive to censorship and examines whether the state has adopted the least restrictive measures. The Court looks for relevant and sufficient reasons to justify the interference. (Sunday Times v. UK (No. 2), Application no. 13166/87)
How does the ECtHR balance conflicting rights in interference cases?
The ECtHR balances conflicting rights by considering other rights such as:
Article 6 (right to a free and impartial hearing)
Article 9 (freedom of religion)
Article 11 (freedom of assembly and association)
Article 1, Protocol 1 (protection of property)
What is an example of expression related to politics or matters of public concern?
Politics and matters of public concern are highly protected expressions. Examples include:
Lingens v Austria (1986) 8 EHRR 407
Thorgeirson v Iceland (1992) 14 EHRR 843
Maronek v Slovakia (2004) 38 EHRR 5vvv
What is an example of literary, cinematic, or artistic expression?
Literary, cinematic, and artistic expressions are also protected under Article 10. An example is:
Otto-Preminger Institute v Austria (1995) 19 EHRR 34
What is an example of commercial expression (e.g., advertising)?
Commercial expression, such as advertising, is subject to a lower level of protection. An example is:
Markt Intern Verlag GmbH v Germany (1990) 12 EHRR 161
Which types of expression receive a greater margin of appreciation by the state?
Political, public concern, and artistic expression tend to receive a greater margin of appreciation by the state, meaning that national authorities have more leeway in restricting these rights.
Which types of expression receive a lower margin of appreciation by the state?
Commercial expression, such as advertising, receives a lower margin of appreciation, meaning the state has less leeway in restricting this form of expression.
How is freedom of expression protected under common law in the UK?
Under common law, freedom of speech is presumed, with exceptions outlined in law. Lord Goff explained this approach in A-G v Observer Ltd. and Others [1990] 1 A.C. 109, stating that UK law operates on the assumption of freedom of speech, with established exceptions to it.
Does common law in the UK meet the standards of Article 10 ECHR?
Yes, common law in the UK meets the standards of Article 10 of the ECHR. An example is Derbyshire CC v The Times [1993] A.C. 534, where the court upheld freedom of expression in line with ECHR standards.
How is freedom of expression protected under the Human Rights Act 1998 in the UK?
The Human Rights Act 1998 incorporates the European Convention on Human Rights into UK law. Key sections related to freedom of expression include:
Section 1 (right to freedom of expression)
Section 2 (interpretation of Convention rights)
Section 3 (duty to interpret legislation compatibly with Convention rights)
Section 4 (declaration of incompatibility)
Section 6 (public authorities’ duty to act compatibly with the Convention)
Section 7 (right to take legal action)
How does the Scotland Act 1998 protect freedom of expression?
The Scotland Act 1998 protects freedom of expression in the context of devolved governance. Relevant sections include:
Section 29 (powers of the Scottish Parliament)
Section 57 (prohibition on the Scottish Parliament acting outside its powers)
Section 101 (imposition of restrictions on Scottish ministers’ actions)
How is freedom of expression protected under the European Convention on Human Rights (ECHR) in the UK?
Under the ECHR, Article 10 guarantees the right to freedom of expression, subject to certain restrictions for national security, public order, or other legitimate aims.
How does government policy and practice affect freedom of expression in the UK?
Government policy and practice, while adhering to domestic and international law (including the ECHR), may influence how freedom of expression is regulated and enforced, balancing rights with legitimate public interests.
What are the legitimate aims for restricting freedom of expression under Article 10(2) ECHR?
The legitimate aims for restricting freedom of expression under Article 10(2) include:
National security
Territorial integrity
Prevention of disorder or crime
Protection of health or morals
Protection of the reputation/rights of others
Preventing disclosure of confidential information
Maintaining the authority and impartiality of the judiciary
How does national security affect freedom of expression in UK law?
National security is a legitimate aim for restricting freedom of expression. Laws relating to state security and the prevention of terrorism or espionage may limit certain expressions, such as through the Official Secrets Act or other state security laws.
How does territorial integrity relate to freedom of expression in the UK?
Territorial integrity can restrict freedom of expression in cases where statements or publications might endanger the unity of the state, such as in cases of secession or encouraging violence against the state.
How does the prevention of disorder or crime affect freedom of expression in the UK?
The prevention of disorder or crime is a legitimate aim under Article 10(2), allowing restrictions on expressions that incite violence, disorder, or criminal activity. For example, public order laws or hate speech laws may restrict certain forms of expression.
How does the protection of health or morals affect freedom of expression in the UK?
The protection of health or morals can justify restricting freedom of expression, for instance, through obscenity laws or limitations on harmful content that could impact public health, such as restrictions on pornography or drug-related material.
How does the protection of reputation or rights of others affect freedom of expression in the UK?
Restrictions on freedom of expression may be made to protect the reputation of others or to uphold individual rights. This can include defamation laws and regulations on harmful false statements, as well as ensuring equality and preventing discrimination.
How does preventing the disclosure of confidential information affect freedom of expression in the UK?
Preventing the disclosure of confidential information is a legitimate restriction, such as through laws on trade secrets, confidential communications, and privacy laws that prohibit revealing sensitive or private matters.
How does maintaining the authority and impartiality of the judiciary affect freedom of expression in the UK?
Restrictions on freedom of expression may be imposed to maintain the authority and impartiality of the judiciary, such as in cases of contempt of court or statements that could undermine public trust in the judicial process.
How do state security laws limit freedom of expression in the UK?
State security laws can limit freedom of expression, particularly in cases involving terrorism, espionage, or the disclosure of classified information, often under acts like the Terrorism Act 2000 or the Official Secrets Act.
How do public order and hate speech laws affect freedom of expression in the UK?
Public order and hate speech laws can restrict expression that incites violence or hatred against individuals or groups based on race, religion, ethnicity, or other protected characteristics, in line with Section 4 of the Public Order Act 1986 and other related statutes.
How do obscenity laws impact freedom of expression in the UK?
Obscenity laws, such as the Obscene Publications Act 1959, restrict expressions that are deemed offensive, indecent, or likely to corrupt public morals, especially with regard to pornography or explicit content.
How do defamation and equality laws restrict freedom of expression in the UK?
Defamation laws can limit freedom of expression when false or harmful statements damage a person’s reputation. Equality laws also restrict expressions that may promote discrimination, harassment, or hate speech against protected groups.
How do privacy laws affect freedom of expression in the UK?
Privacy laws, such as those under the Human Rights Act 1998 and the Data Protection Act 2018, protect individuals’ privacy rights and can restrict the publication of private information, even if it is in the public interest, to prevent harm.
How does contempt of court law limit freedom of expression in the UK?
Contempt of court law limits freedom of expression when publications or comments interfere with ongoing legal proceedings, such as prejudicing a fair trial or undermining judicial authority, to ensure the integrity of the judicial process.
How is the regulation of media related to freedom of expression in the UK?
Media regulation, through bodies like Ofcom, ensures that freedom of expression is balanced with protecting the public from harmful or illegal content, such as through restrictions on broadcasting or print media to prevent defamation, obscenity, and hate speech.
How should the UK courts approach questions arising from Convention rights?
UK courts should use the “usual structural analysis” when dealing with Convention rights. This approach was outlined by Lord Reed in In re Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32. (Lord Reed, [2023] A.C. 505, [111])
What case set out the structural approach to qualified rights in UK courts?
The approach was set out by Lord Sumption in Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39. (Lord Sumption, [20])
What are the four questions the ECtHR asks when considering interference with a right?
The four questions are:
Is there a restriction/interference of the right?
Is the interference prescribed by law?
Does the interference pursue a legitimate aim?
Is the interference necessary in a democratic society?
What are the four questions to determine if interference is “necessary in a democratic society”?
To determine necessity, the following questions must be asked:
Is the aim sufficiently important to justify interference with a fundamental right?
Is there a rational connection between the means chosen and the aim?
Are there less restrictive alternatives to achieve the aim?
Is there a fair balance between individual rights and the general interest of the community, including the rights of others?
How does UK law address breaches of confidence regarding state secrets?
Breaching confidence by disclosing state secrets can be prosecuted. Attorney-General v Observer [1990] 1 AC 109 asks whether a remedy serves the public interest.
What are the Official Secrets Acts in the UK?
The Official Secrets Act 1911 and 1989 regulate state secrecy. The 1989 Act creates criminal offences for disclosing sensitive information. R v Shayler [2002] UKHL 11 confirms no public interest defense.
What reform replaced the Official Secrets Acts in the UK?
The National Security Act 2023 repeals the Official Secrets Acts, introducing three espionage offences, including disclosing protected information and assisting foreign intelligence services.
How does the Investigatory Powers Act 2016 impact journalistic freedom?
The Investigatory Powers Act 2016 raises concerns about protecting journalistic sources in surveillance contexts.
What laws regulate marches and public assemblies in the UK?
The Civic Government (Scotland) Act 1982 and Public Order Act 1986 regulate marches and assemblies, with new provisions in the Public Order Act 2023.
What is the law on racist acts and hate speech in the UK?
Hate Crime and Public Order (Scotland) Act 2021 and Public Order Act 1986 criminalize racist acts and incitement to racial or religious hatred.
How are threatening communications addressed in the UK?
Harassment is governed by the Protection from Harassment Act 1997 and the Online Safety Act 2023 regulates threatening communications online.
What are the main concerns around academic freedom in the UK?
Issues include intolerance, “no platforming,” protestors restricting free speech, and confusion about the Prevent duty. Legislative responses include the Higher Education (Freedom of Speech) Act 2023.
What laws govern the publication of obscene material in the UK?
The Obscene Publications Act 1959 and Civic Government (Scotland) Act 1982 make the display or possession of obscene material a criminal offence.
What is the statutory basis for defamation in the UK?
The Defamation Act 2013 governs defamation, requiring proof of actual harm or future harm. Lachaux v Independent Print Ltd [2019] UKSC 27 clarified harm must be shown.
What defenses exist against defamation in the UK?
Defenses under the Defamation Act 2013 include truth, honest opinion, public interest, and privilege (absolute or qualified).
How does UK law protect privacy through breach of confidence?
Campbell v Mirror Group Newspapers [2004] and PJS v News Group Newspapers Ltd [2016] UKSC 26 upheld privacy rights by preventing misuse of private information.
What is contempt of court in UK law?
Contempt of court involves interference with justice. Att.-Gen. v Punch Ltd [2002] UKHL 50 defines it as wrongful conduct that affects judicial processes.
What laws address contempt of court in the UK?
The Contempt of Court Act 1981 sets strict liability rules for prejudicial publications, with exceptions for discussions in good faith under s.5.
How is media regulated in the UK?
Media regulation includes Theatres Act 1968, Communications Act 2003, and Criminal Justice and Licensing (Scotland) Act 2010. Press is largely self-regulated but subject to defamation, contempt, and privacy laws.
What role does the Leveson Inquiry play in media regulation?
The Leveson Inquiry (2012) led to voluntary regulation in the press, with a focus on defamation, privacy, and self-regulation under the Press Recognition Panel.
How does the Online Safety Act 2023 impact media regulation?
The Online Safety Act 2023 regulates online content, including defamation and harmful speech, particularly on social media platforms.
