A more recent version of these Echr Art 10 notes – written by Cambridge/Bpp/College Of Law students – is available here.
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Con&Ad : Article 10 ECHR, Freedom of Expression Contents:
?????Scope of Art 10
?????Privacy Law o Eg when a newspaper wants to publish an article about somebody, exercising Art 10; and that individual claims right to privacy ? court has to decide which right should take precedence (privacy or expression)---listen to the online lecture. Prior to HRA 1998:
?????There was no right of free speech; but individuals had freedom to express themselves, as long as this was not prohibited by law (i.e. was a residual right).
?????Now ECHR Art 10.
Art 10?Art 10: includes the 'freedom to hold opinions and to receive and impart information and ideas without interference by public authorities and regardless of frontiers'. Is a Qualified right (like Art 8): can be restricted by state if (a) prescribed by law; (b) in pursuit of a legit aim (Art 10(2)); (c) necessary in a democratic society. HRA 1998 s12 gives protection to right to freedom of expression when the court is considering whether to grant any relief that might affect the exercise of this right. o S12(4) HRA: the courts must have 'particular regard' to the importance of right to freedom of expression.
Scope of Art 10 Freedom of Expression (FoE)
? What is protected: o Freedom of expression (FoE) o Receiving opinions and information; o Licensing and publication (not so important for GDL). o 'Expression' includes words, pictures, images, actions.
? If Art 10 is engaged
? What is the method of restriction in Art 10: o Prescribed by law o Legitimate aim (legit aims are listed in Art 10). o Necessary in a democratic society
? Scope of Freedom of Expression broadly: o Given a wide interpretation. o Protects inoffensive remarks, but also those which 'offend, shock or disturb'. o Handyside v UK (1976) : 1
o Re publication of the 'Little Red Schoolbook' o Freedom of Expression covers not only inoffensive remarks; but also ideas/information that 'offend, shock or disturb the state or any sector of its population'. o And talks of the demands of 'pluralism, tolerance and broad-mindedness'---fundamental in a democratic society. Freedom of expression = 'one of the essential foundations' of a 'democratic society'. o Re Handyside is authority for the test of what is necessary in a democratic society. o Facts: seen in Art 8 lec, about the Danish red school book a manual for sex ed for teenagers, banned in UK. Danish published claimed the ban was a restriction on Freedom of Expression---but claim failed, held that UK had wide discretion re morality, and it was proportionate as to be necessary in a democratic society. Freedom of expression (FoE) INCLUDES: o Political opinion: o Bowman v UK (1998): re distribution of political leaflets. o Animal Defenders v UK: re prohibition of a TV political advert, re animal rights. o Journalistic freedom o Goodwin v UK (1996): re a journalist's refusal to disclose sources. o Artistic express: o Eg public authorities banning exhibitions or films, artists then challenging this. o Muller v Switzerland (1998) o Commercial information: o Colman v UK (1993).
[NB: the courts often give stronger protection to political &
journalistic expression, than other forms (eg artistic, commercial)]
R v SoS Home Dep, ex parte Simms (2000): o [[NB: this case was largely determined under a judicial review approach, occurred before HRA came into force; but contains important principles re freedom of expression---reinforces the impression (eg as in Jersild) that, in cases with more political content, the courts will more readily uphold FoE when it fulfils a functional role, eg by exposing possible miscarriages of justice]]. o Applicants, convicted murderers, had been interviewed by journalists with the aim of proving their innocence. o SoS had issued a blanket requirement for journalists to sign an undertaking that the results of any interviews with prisoners would not be used in a 'professional' capacity.
o SoS argued the relevant prison rule gave him complete authority in this matter, with discretion to be exercised only in certain exceptional circumstances. o HL HELD: this was an eg of a particular type of freedom of speech that had to be protected---it would be almost impossible to prove the innocence of an individual otherwise. This had been crucial in uncovering other miscarriages of justice. o Lord Steyn: 'freedom of speech is the lifeblood of democracy. The flow of information and ideas informs political debate. It is a safety vale: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country . . .' o In this case, 'the prisoners are in prison because they are presumed to have been properly convicted. They wish to challenge the safety of their convictions. In principle it is not easy to conceive of a more important function which free speech might fulfil'. o [NB: the applicants here relied on freedom of speech in general, rather than Art 10 ECHR, and HL referred only sparingly to ECHR.]
Animal Defenders International v UK (2013): o Applicant was an NGO, wished to screen a TV ad protesting against the keeping and exhibition of primates. The ad showed a young child being held in a cage. The ad was banned, because it infringed the prohibition on political advertising under Communications Act 2003. o ECHR (following HL ruling) HELD by 9/8 majority: there had not been a disproportionate interference with freedom of expression Art 10. Due to 3 specific factors: o (1) The statutory regulatory regime governing broadcasting had been subjected to scrutiny and validation by Parliament and judiciary. o (2) the ban only applied to advertising, not alternative media (eg radio, non-broadcast media) (Animal Defenders could show it elsewhere). o (3) No European consensus on how to regulate advertising---so margin of appreciation allowed to UK. o And was accepted that the UK gov was best placed to judge how the integrity of the democratic system should be upheld domestically, and thus was free to impose a strict policy preventing wealthy individuals and organisations from buying a disproportionate influence through the practice of political advertising.
Art 10 Also includes right to be Provided WITH INFORMATION 3
Open Door Counselling and Dublin Well Woman v Ireland (1992): Strasbourg HELD: an absolute and unqualified injunction prohibiting the dissemination in Ireland of information re advice/availability of abortion services ? a disproportionate interference with the applicant clinic's freedom to provide information/receive information under Art 10. R v Sos for Health ex p Wagstaff (2001): Dr Shipman convicted of multiple murders of his patients; public inquiry into his conduct. High Court ruled: the holding of the inquiry (into the murders committed by Dr Shipman) in private contravened Art 10--an interference with the receiving of information (eg by the families of the people he was alleged to have murdered). So the inquiry had to be held in public. BUT limits on this? NO GENERAL RIGHT OF 'FREEDOM TO INFORMATION': R (Persey) v SoS for Environment (2003): arose out of foot-andmouth disaster (2001-2); HELD: the right to receive info under Art 10 doesn't impose a positive obligation on the government to provide an 'open forum' re investigation into foot and mouth. Kennedy v Charity Commissioner (2014), SC A journalist trying to get info out of a public body under the FOI Act
2000. (wanted info re inquiries carried out by the Charity Commission into the 'Mariam appeal' launched by George Galloway). Kennedy a journalist, wanted info from the Charity Commission about a charity set up by George Galloway. His request were rejected by the Commission under an exemption in s32(2) of FOI Act. SC HELD (majority): no general positive duty of disclosure imposed by Art 10 on public bodies, no positive duty on the Charity Commission to disclose information that had been considered by that inquiry.
[[note 2 justices dissented, Lords Wilson and Carnwath: said they would have used powers in HRA s3 to 'read down' necessary words into s32(2) to achieve compatibility]].
Lawful restrictions on Freedom of Expression?
Art 10 = a qualified right A lawful restriction must be (same test as Art 8): o (1) prescribed by law; o (2) pursues a legitimate aim; o + (3) necessary in a democratic society
4 (1) Prescribed by law
? ?? ? Sunday Times v UK
??? ?Is there a legal basis for the interference. IF so:
??? ?(i) is the relevant law sufficiently accessible to the affected individual (might be with legal advice)
??? ?(ii) formulated with sufficient precision to enable the citizen to regulate his conduct.
? ?? ? Extension from Gillan and Quinton v UK
??? ?(iii) Is the law sufficiently narrowly prescribed in order to prevent arbitrary abuse of power.
(2) Pursues a legitimate aim
? ?? ? Listed in the Article, Art 10(2): NB, they go further than Art 8: (a) National security
? ?? ? Statutes which prohibit freedom of expression, eg Official Secrets Act 1911 and 1989.
? ?? ? And a common law action for breach of confidence (eg if an employee of a public authority is going to disclose confidential info, the gov can get an injunction preventing that from happening).
? ?? ? Often the Official Secrets Act is used in conjunction with an action for breach of confidence
? ?? ? 'spycatcher' cases, re publication and serialisation of Spycatcher book by Peter Wright, former member of intelligence services
? ?? ? AG v Guardian Newspapers (1987):
? ?? ? AG v Guardian (No 2) (1990)
? ?? ? The Observer & The Guardian v UK (1991)
?????book published in USA; Guardian wanted to serialise chapters of the book; Gov (AG) obtained a number of interlocutory injunctions got a blanket injunction preventing publication, pending the outcome of applicants for permanent injunctions based on breach of confidence.
?????The newspapers went to Strasbourg, arguing it wasn't 'necessary in a democratic society. '
?????HELD, two judgement divided the period of the injunctions into two:
?????(1) in relation to the period before the publication of the book in the USA: the injunctions were 'necessary' in a democratic society, were proportionate to the aim pursued -the reasons for imposition were 'sufficient' and 'relevant'. (national security aim). The injunctions were limited in their scope; and publication would potentially prejudice the breach of confident actions the gov was bringing.
?????(2) after publication of the book in the USA ? the injunctions were not necessary for national security, not 'proportionate', because the information was now already freely available, so wasn't protecting confidentiality. So was now disproportionate, and the legit aim of national security wasn't available anymore---the damage had already been done. The only ground for continuing the injunctions 5
was to protect the reputation of the security services, and this was insufficient reason.
?????[[note this case could also be considered under the legit aim of 'maintaining the authority of the judiciary' and, though not raised in the case, 'preventing the disclosure of information received in confidence']]
? ?? ? Sinn Fein cases
? ?? ? R v SSHD ex p Brind (1991):
?????Re a direction made by SSHD preventing broadcast of speeches by Sinn Fein. Claimed it was for national security. Appeal by Bring, a journalist.
?????HL HELD: it wasn't clear what was justified in combatting terrorism, so it couldn't be said that SoS had exceeded his power---had not exceeded discretion. Court deferring to Home Sec re national security.
? ?? ? Went to Strasbourg, Brind & McLaughlin v UK (1994):
?????Argued that the policy constituted an unlawful interference with Art 10 ECHR.
?????Application also dismissed---Strasbourg gave the gov a wide margin of appreciation re measures to combat terrorism/national security. In this case, the ban was proportionate re aim of national security.
? ?? ? Miranda v SSHD(2014):
?????Re Edward Snowden.
?????David Miranda was partner of Guardian journalist Glenn Greenwald, involved in leaking of Snowden information.
?????Miranda, a Brazilian citizen, stopped and interviewd by police at Heathrow airport in August 2013---found a number of encrypted storage devices, obtained from Snowden---confiscated them.
?????Miranda claimed against SoS Home Dep, on basis that his Art 10 rights had been infringed
?????Admin Court, Laws LJ:
?????He rejected the claimant re both Art 10 and common law principles of illegality (notably improper purpose).
?????Rejected claim that Terrorism Act 2000, Sch 7, para 2(1), allowing the stopping & questioning of a person at a border to determine whether they were 'concerned in the commission, preparation or instigation of acts of terrorism' was incompatible with Art 10. He did not accept that this case was akin to those of protection of journalistic sources, seeing this was a case of 'stolen (intelligence) material'.
?????And he was equally dismissive of the more general proposition that the constitutional role that journalists play in disclosing matters of public concern and in scrutinising gov actions must be given special protection.
?????decided the claim on common law principles, he rejected the claim that the Terrorism Act allowing detaining and searching at borders
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