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Article 10 Part 3 Notes

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This is an extract of our Article 10 Part 3 document, which we sell as part of our European Human Rights Law Notes collection written by the top tier of Oxford students.

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Freedom of Expression III

1. Nature of the legitimate aim A. Protection of Health and Morals Handyside v UK (1979) 1 EHRR 737: eg. Of wide margin of appreciation. Open Door Counselling and Dublin Well Women v Ireland (1992) Key: It is for the Court, in this field also, to supervise whether a restriction is compatible with the Convention. Facts: prevented by injunction to give info of how to get an abortion outside Ireland. European Court accepted this was a legitimate aim and open to Irish government to decide that abortion is morally wrong. Held: The injunction was disproportionate because info that was being provided by clinics wasn't directly advocating abortion and unlike Muller wasn't such info that would shock or offend. Comment: Wide margin too wide?: Don't the restrictions permitted to protect morals seem to permit restrictions on expression because it is deemed to be offensive? We see that in the case of Muller. Second criticism of wide margin, don't we want to encourage the discussion of moral issues and moral values? If tolerance and pluralism are core convention values, shouldn't we allow the prevailing moral standards to be challenged? Sometimes might it not be necessary to shock and offend people?
B. Protection of the Reputation and Rights of Others

Religious Beliefs Otto-Preminger v Austria (1994) Key: If you criticize religions, must do so in a manner consistent with peaceful enjoyment of Art 9 to holders of those religions. Facts: App ran cinema which showed blasphemous film, prosecuted under blasphemy law in Austria. Restriction was within margin of appreciation (regarding interference with religions expression/expressing non-religious beliefs. . Criticism: Seems like the cinema is simply being silenced. Does the dominant Christian traditions need that much protection? Also, seems odd to allow restriction of speech directed at a particular religion. Nonetheless Ottto Preminger has been followed.

D. Pannick: "To prohibit a film from being seen in private because the ideas which it contains may offend religious beliefs of others is impossible to reconcile with a developed concept of free speech"

*Nathwani 2008:

*

In order to level the playing field between adherents of majority religions and those of minority religions and of none, the special protection for religious believers of majority religions should be dismantled in the interest of state neutrality.

Gunduz v Turkey:

1

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