A more recent version of these Freedom Of Expression notes – written by Oxford students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our Constitutional Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
1. General Human Rights Act art 10:
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.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties 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. Why protect freedom of expression?
* 1. Discovery of truth - More truth results in better societal progress, and so is valued for utilitarian reasons, or as a fundamental value in itself. Without FoE government action might be regarded as infallible. Even if a proposition is regarded as wrong by most people, this view still defends the person's right to utter their statement. Justice Holmes (USA) developed this idea of FoE as a market place of ideas - the best way to test the truth of a proposition is to put it out there in the marketplace of ideas and see if it is taken up. It allows us to profit by learning new truths so that old dogma is not held just because the state tells us that it is true. 2 qualifications to this view:
* We don't think truth is determined by how many people believe an idea
* Even if you subscribe to this view, most people accept that you will have some limitations to FoE - e.g. hater speech, either because of its disruptive effects on society or because it is regarded as integral to human dignity
* 2. Self fulfillment - limits to FoE will inhibit our personality and ability to develop. Expression of views is part of what it means to be human - in non-consequentialist terms this has a value in itself, in consequentialist terms it will lead to a better and more reflective society. Qualifications:
* Turns on the benefit to self - it is very self focused, and ignores possible harmful effects on third parties.
* 3. Citizen participation in a democracy - free speech enables citizens to understand political issues and to participate effectively in the working of a democracy.
* This only gives us a rationale for freedom of speech in relation to the political process - it provides no rationale for freedom of speech in non-political contexts.
* You can only buy into this rational when political speech is concerned -the courts do apply a varying intensity of protection and often give political speech the greatest protection.
* 4. Suspicion of government - we have FoE because we distrust the government to make that kind of distinctions and value judgements entailed in any limitation of freedom of speech.
* This is a rather negative argument which doesn't explain why we value free speech, just that we don't want governments to be able to limit or reduce it.
* While it sounds convincing, we do allow government to regulate and make controversial choices about lots of aspects of our lives, so why is freedom of speech any different?
The pre-HRA position
* We had the traditional Diceyan view that rights weren't regarded as rights but s negative residual liberties - there was no rule limiting the ability to speak freely.
* A more positive approach was recognised towards the latter period leading up to the enactment of the HRA. A number of cases began to recognise freedom of speech as a common law rights, and so interpreted defamation law against that background.
* We became bound by the ECHR before the HRA, under a treaty obligation. Strasbourg Courts protected FoE in art 10, subject to conditions in art 10(2). Since exercise of right of FoE carries duties and responsibilities it can be subject to conditions 'prescribed by law and necessary in a democratic society' which must relate to national security, public safety, protection of reputation rights of others etc.
* Before the HRA introduced a general legal right to freedom of expression, it only existed in a few peculiar contexts - these were in parliamentary debate, in legal proceedings, where civil actions were ruled out, though criminal potentially weren't, and on university campuses which had to issue their ow codes of practice on free speech. Judges were also aware of the moral right to freedom of expression, and tried to give it some legal standing b7y narrowly reading statues and common-law rules which inhibit freedom of expression, and by outweighing other considerations which would otherwise justify censorship. This common law right has major legal limitations:
* (i) It had never been used to defend anything other than the expressive activities of individuals
- it was denied to local authorities and charities. This was wrong because freedom of expression is not justified solely by the right holder alone, but rather by the public interest in free flowing information.
* (ii) It had only been used to protect verbal communication - free speech.
* A number of legal limitations on the right existed:
* (i) Obscenity
* (ii) Racial hatred
* (iii) Defamation
* (iv) Confidentiality
* (v) Official Secrets
* (vi) Contempt of court - any activity which created any risk of prejudice to pending or imminent criminal or civil proceedings, or which tended to interfere in the course of justice in such proceedings.
* (vii) Media controls - such as cinema certification, and restrictions of TV and radio programming such as those requiring good taste, decency and inoffensiveness.
* In International law, before the HRA came into force, two trends are identifiable:
* (i) Reliance on the margin of appreciation
* (ii) A move towards the idea that the interests enumerated in the catalogue of permissible restrictions are to be balanced against the interests of freedom of expression, rather than treated as specific narrow exceptions to its supremacy. This threatens the claim that freedom of expression is a right - and turns it into a value or principle to be weighed up against others. The Human Rights Act 1998
* The HRA then underpinned the freedom - Lord Bingham said in Shaylor that this fundamental right had been recognized at common law for some time, but was now "underpinned by statute." The Convention right was not absolute, and allowed for many exceptions, but it did make a difference - once it had been found that the right was engaged, a valid limitation had to be shown
- either that it was prescribed by law, impose in order to set out one of the aims in Article 10(2) and that its imposition could be regarded as necessary in a democratic society.
* There is thus both a common law and a statutory source. The HRA made a difference to the general reasoning of the courts in freedom of expression cases, but its incorporation might not be seen to have made an advance in the degree of legal protection.
* There are some statutory limitations on freedom of expression:
* The Serious Organised Crime and Police Act 2005 requires that anyone organizing a demonstration within a mile of Parliament Square obtains authorization from the police. The police are required to issue a permit, but may impose restrictions to prevent disorder or damage to property.
* The Terrorism Act 2006 makes it an offence to publish material likely to be understood by members of the public who read or hear it as a direct or indirect encouragement of terrorism.
There are doubts that this would survive a challenge in Strasbourg - it couldn't be argued that it was necessary to limit the freedom of expression by this legislation given that speech which clearly incited terrorism is already caught by other provisions of English criminal law.
* The Racial and Religious Hatred Act 2006 extends the proscription of incitement to racial hatred to protect religious groups - it is an offence to use threatening words or behaviour and the prosecution must prove an intent to stir up religious hatred. If freedom of expression is at issue, the courts proceed to determine whether the restrictions are necessary in a democratic society for one of the aims set out in article 10(2). Occasionally determining whether freedom of expression is engaged or not has caused issue - the courts distinguish between political, commercial and celebrate gossip, amongst other types, giving the greatest protection to the former.
* Baroness Hale in Campbell first drew distinctions between different types of speech: "There are undoubtedly different types of speech, some of which are more deserving of protection in a democratic society than others." Political speech is worthy of the strongest protection while intellectual, educational and artistic speech are also important. There is a contrast between information that is interesting to the public, such as 'the most vipid tittle-tattle about the activities of footballers' wives and girlfriends', and speech which is in the public interest.
* When courts balance FoE against competing rights and interests it is inevitable that they must take account of the type of speech at issue in the case, just as they must consider how its dissemination may infringe privacy or endanger public order. The scope of FoE has occasionally come under challenge - in Prolife it was held that freedom of expression only meant the freedom to speak and write with means at one's own disposal, and not the right of access to use TV to put out a political message. Barendt has criticized this position those permitted to use TV media should enjoy the same freedom as authors and newspaper writers who equally lack positive access rights. A court should first determine whether the right to freedom of expression is at issue, or to use the usual term, is "engaged," in the case before it. Secondly, it should examine whether the restriction imposed by the U.K. statute meets the conditions required under ECHR, Article 10(2) for a valid limit on exercise of the right. According to Article 10(2), the limit must be prescribed by law and be imposed for a legitimate aim under the Convention to prevent disorder or to protect health, morals, or the reputation or rights of others, and it must be necessary for that purpose, that is, not disproportionate and justified by relevant and sufficient reasons.If the restriction does not meet these conditions, the applicant's right to freedom of expression (or other right at issue) is fully engaged; there is then a strong presumption that it should be protected. Finally, the U.K. legislation at issue in the case should be interpreted and applied, so far as possible, compatibly with the right. This requirement enables a court to depart from the plain meaning of the legislation and uphold a Convention right;it should apply the legislation only when it would be incompatible with its overall purpose to enforce the right.It is in these latter circumstances that the court may make a declaration of incompatibility.
Conflict of rights
* Rights may conflict, and therefore have to be balanced against one another.
* Right to privacy under art 8 - privacy is valuable because it allows us to control access to our person, allows us to formulate ideas away from public scrutiny etc.
* Freedom of expression under art 10 - valuable for reasons listed above.
* There is often a conflict between these two rights - most often between an individual and the mass media, but occasionally between an individual and another individual (e.g. blogger).
* There is a presumption that the rights are of equal importance, and balancing them therefore requires an intense focus on the facts of the case e.g. did it concern sex life or the amount of tax someone pays? How was the information obtained? What was the degree of intrusion onto individuals friends and families? What is the level of public interest in the story - public academic discourse v. celebrity gossip?
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