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Article 10 Part 2 Notes

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A more recent version of these Article 10 Part 2 notes – written by Oxford students – is available here.

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Freedom of Expression II: Article 10(2): Necessary in a Democratic Society

1. The Court's Approach to Necessity A. The European Court will ask if the interference is: (Sunday Times v United Kingdom)a response to a pressing social need; and a proportionate response. justified by relevant and sufficient reasons

B. Margin of Appreciation


G. Letsas, "Two Concepts of Margin of Appreciation" (2006) Argues that in order to find out whether Contracting States have acted within their margin of appreciation one needs to examine which coherent set of principles can be attributed to the Convention as a whole. The notions of proportionality and deference (which figure in the substantive use of the doctrine) cannot by themselves provide any clear guidance since their content turns on which moral theory underlies human rights. As to the argument that the ECtHR should take into account consensus among Contracting States or avoid second-guessing national authorities on controversial matters (structural use of the concept) was found to be in tension with anti-utilitarian theories of rights and the duties of the European Court as a matter of law. I believe that the structural concept of the margin of appreciation should be completely abandoned.

Handyside v UK (1979) "State authorities in better position than international judge to give opinion on requirements of "necessity" and "restriction" but they DO NOT have unlimited power of appreciation and as such the The Court is final arbiter. Domestic appreciation goes hand in hand with European supervision."

*Lord Lester [1996] criticise that "margin of appreciation" is 'as slippery and elusive as an eel': "The concept of the margin of appreciation has become as slippery and elusive as an eel. Again and again the Court now appears to use the margin of appreciation as a substitute for coherent legal analysis of the issues at stake... in practice the Court's case law on Article 10 has been weak and unpredictable."

Compare: Vgt Verein gegen Tierfabriken v Switzerland with Murphy v Ireland: Swiss case concerns political speech, so concerns some of core convention values. Murphy concerned religious speech.

2. Type of expression A. Political expression Steel & Morris v UK (the "McLibel" case): Environmental effects of McDonalds counts as being in public interest even if from private party. The Identity of the speaker is important: Political Parties: Incal v Turkey (1998) because 'they represent the electorate. The subject of the expression: The government: Castells v Spain (1992): "The limits of permissible criticism are wider with regard to the Government than in relation to a private citizen, or even a politician." Politicians: Lingens v Austria: In Mid 70s in Austria had debate about leading politicians in WW2. Applicant wrote article criticizing Austrian Chancellor. Was convicted for defamation. Ecourt: Held, not necessary in democratic society. Narrow justification: Trying to prove truth of 'opinion' too heavy a burden in Austrian defamation law. Broader justification:Public figures cannot expect same level of protection from speech as private.


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