PAPER 3: Section B - Human Rights Law (Article 10) Flashcards
What is Article 10?
Everyone has the right to freedom of expression. This right includes the freedom to hold opinions and to receive and share information and ideas without interference from public authority.
This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema.
What is expression in article 10? relevant case (HINT: Hashman & Harrup vs UK)
Freedom of expression includes the right to communicate and to express oneself in any form, eg, words, pictures, and actions.
Hashman & Harrup v UK
Actions include public protest and demonstrations.
Defendants who disrupted a fox hunt by blowing horns. This also overlaps with Article 11, the right to freedom of assembly and association.
what does s.12(4) say? (3 points)
The court must have particular regard to the importance of freedom of expression. There’s 3 points they’ll consider:
- the material which the respondent claims to be journalistic, literary or artistic
- extent to which the material is available
- if it is in the public interest for the material to be published.
What is public interest and the relevant CASE? (hint: Steel & Morris v UK, McDonald’s)
Steel and Morris v UK
ECtHR found that there had been a violation of Article 10. The applicants published a leaflet accusing McDonalds of misleading nutritional claims, mistreating animals and workers, and destroying rainforests. The trial judge found some statements to be true.
Freedom of the press (Goodwin v UK)
Having a free press, to help ensure free expression and debate, includes protecting journalistic sources:
In Goodwin v UK, a trainee journalist refused to disclose the source of a company’s financial information.
The company had obtained an injunction and then an order for disclosure. The ECtHR held that a court order (and £5000 fine) was unnecessary and so was a breach of Article 10.
Therefore, the journalist did NOT have to disclose the source.
What does Article 10 say about celebrities? Two relevant CASES (A v B plc // Weller vs Associated Newspapers)
With celebrities, there’s an order restricting the freedom of the press.
A v B plc (Flitcroft v MGN Ltd)
A footballer sought an injunction to prevent a Sunday newspaper from publishing details of his extra-marital affair. The Court of Appeal granted a temporary injunction against publication. Lord Woolf stated:
“A public figure is entitled to a private life” but should recognise that because of his public position, must expect and accept that his actions will be more closely scrutinised by the media.”
In Weller v Associated Newspapers, the publication of photos of a musician out shopping with his children and at a café breached their Article 8 rights as it’s normal for a family to do so without press harassment.
LENGTHY QUESTION
After Axel Springer AG v Germany (explain this case), what were the 6 criterias used for Article 8 & 10 when it comes to creating and publishing articles?
In Axel Springer AG v Germany, a newspaper published stories and photos about the arrest and conviction for possession of drugs of a well-known TV actor. The court set out six criteria to be used in balancing articles 10 and 8 (privacy):
• whether the information contributes to a debate of general interest;
• the notoriety of the person concerned and the subject matter of the report;
• the prior conduct of the person concerned;
• the method of obtaining the information and its veracity;
• the content, form and consequences of the publication
• the severity of the sanction imposed.
In this case, the actor’s right to privacy outweighed the newspaper’s freedom of expression.
LENGTHY QUESTIONS
What does Article 10(2) say?
What comes with freedom of expressions?
What may it be subject to?
What are 5 reasons it’s subject to the things above
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties.
These rules are put in place:
- 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,
- for maintaining the authority and impartiality of the judiciary.
three limitations about article 10(2) and the right to interfere
The limitations are set out in Article 10(2) and are only permissible if they fulfil three criteria:
• The interference is prescribed by law.
• The interference is aimed at protecting one or more of the seven legitimate aims; and
• The interference is necessary and proportional in a democratic society.
V V V EXTENDED ANSWER
7 points about article 10 (2) RELEVANT CASES
If the state fails to prove any one of the these requirements the interference is unjustified, and Article 10 violated as in:
Observer & Guardian v UK. Newspapers wanted to publish extracts from Spycatcher, a book by a former member of the British Security Service. The ECtHR stated that a temporary injunction was justified prior to the publication of the book in other countries but not after.
The seven legitimate aims are:
1. In the interests of national security
The court rarely challenges the legitimate national security aim argued by the state, eg:
Hadjianastassiou v Greece, where a Greek Air Force captain, who was also an aeronautical engineer, wrote a report on guided missiles for a private company. He was properly convicted of disclosing military secrets.
- Territorial integrity or public safety
Territorial integrity” means the borders of the state.
In Shayler, a member of the security services disclosed “Classified” and “Top Secret” documents to journalists, contrary to the Official Secrets Act 1989. He argued a public interest defence but it was rejected by the House of Lords. - For the prevention of disorder or crime
In Surek v Turkey, the applicant published articles very critical of the Army in the conduct of a war against rebels. He was convicted of propaganda against the indivisibility of the state and provoking enmity and hatred among the people.
The ECtHR stated that the conviction was relevant and sufficient. Therefore the interference was proportionate to its legitimate aim - For the protection of health or morals
Muller v Switzerland involved a claim that Article 10 had been infringed by the applicant’s conviction for publishing obscene sexual paintings.
The ECtHR recognised that standards of sexual morality do change, but it did not find the view of the Swiss courts to be unreasonable. Therefore, fining the exhibition organisers was not a violation of Article 10.
Muller v Switzerland involved a claim that Article 10 had been infringed by the applicant’s conviction for publishing obscene sexual paintings.
The ECtHR recognised that standards of sexual morality do change, but it did not find the view of the Swiss courts to be unreasonable. Therefore, fining the exhibition organisers was not a violation of Article 10. - For the protection of the reputation or rights of others
The courts had to balance the presumption of innocence and the right to a fair trial (A6) and the right to a private life (A8) against freedom of expression (A10) in Bedat v Switzerland.
The applicant published an article questioning an accused motorist’s state of mind (after he crashed into pedestrians), a personal description and photos of letters sent by him to the investigating judge. The Court found no violation of Article 10 and the fine imposed was proportional. - Disclosure of information received in confidence
In Bedat v Switzerland, a professional journalist was likely to have been aware of the confidential nature of the information.
Breach of confidence is an English doctrine which allows a person to claim a remedy against both public and private bodies.
A duty of confidence arises when confidential information comes to the knowledge of a person in circumstances in which it would be unfair if it were disclosed to others, as in Campbell v MGN Ltd.
In the Spycatcher case, Lord Goff identified three limitations to the doctrine:
• Once confidential information has entered the public domain then, as a general rule, the principle of confidentiality does not apply;
• The duty does not apply to useless information, nor to trivia; and
• The public interest that confidences should be protected may be outweighed by some other public interest which favours disclosure - Maintaining the authority/impartiality of the judiciary
This was considered in Pinto Coelho v Portugal (No. 2). The applicant was fined for broadcasting audio recordings of a criminal trial. The original recording was available to the parties but was not for broadcast. However, voices had been digitally altered.
The Court balanced the rights of the media to report on a matter of public interest with the interests of the participants. It found a breach of Article 10.
DISCUSS THE OBSCENE PUBLICATIONS ACT
Obscene publications are governed by the Obscene Publications Act 1959. Section 1(1) sets out the legal test:
It describes an “obscene” item as one that has the effect of tending to deprave and corrupt persons likely to read, see or hear it.
There is a similar definition of obscenity for plays and performances in the Theatres Act 1968 and for live broadcasts under the Broadcasting Act 1990.
A case example is Handyside v UK, where the applicant was convicted after publishing a book intended to teach school children about sex, including recommending the use of pornography.
The ECtHR found there was no breach of Article 10 and the UK law fell within the margin of appreciation of the member states (this means the discretion allowed to a state).
There is also a possible criminal charge of outraging public decency:
In R v Gibson & Sylveire, the defendants exhibited in an art gallery, a model’s head with earrings made out of freeze-dried human foetuses. The gallery was open to and visited by members of the public. The defendants were convicted and fined.
TTORT OF DEFAMATION ACT 2013
The tort of defamation is where a claimant must prove that:
• a statement by the defendant is defamatory, ie, that an ordinary person would think worse of the claimant;
• identifies or refers to him; and
• was published to a third party.
There are two types: libel is in permanent form (eg, printed or broadcast) and slander in transient form (eg, spoken or gestures).
The Defamation Act 2013 provides that a statement is not defamatory unless it has caused, or is likely to cause, serious harm to the reputation of the claimant. In the case of businesses, that means serious financial loss (s1).
A claim for slander also requires proof of financial loss but there are two exceptions to this requirement:
• a statement that the claimant has committed a criminal offence punishable by imprisonment, or
• where the words are calculated to disparage the claimant in any office, profession, calling, trade or business carried on by them at the time of publication.
5 DEFENCCES TO TORT OF DEFEMATION
• Truth (s2);
• Opinion which could have been held by an honest person on the basis of any fact which existed at the time the statement was published (s3);
• Publication on a matter of public interest and a reasonable belief that publishing the statement was in the public interest (s4);
“Internet defences” including innocent dissemination and a website operator’s defence; and
• Privilege. Absolute privilege includes statements made during judicial proceedings or parliamentary proceedings or papers. Qualified privilege covers the publication of any fair and accurate report or statement on a matter of public interest, eg, reports of international organisations or public companies.
