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Freedom Of Expression Notes

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Freedom of Expression ECHR, Article 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 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 disclose of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Constitution of the United States, First Amendment: 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peacefully to assemble, and to petition the government for a redress of grievances.' It is useful to compare the above two provisions.
? Debate regarding the US Constitution centres around whether the relevant expression is speech, and therefore falls within the scope of protection; in contrast, ECHR's use of 'expression' makes it relatively easy to fall within the scope of the Article, the issue being 10(2) as to whether any restrictions is justified.
? This is reflected in the US's narrower approach being matched by higher level of protection, with no explicit limits on its scope.

Value of Freedom of Expression Reasons for encouraging free speech can be seen from two perspectives: a) Objective view refers to the deontological value of freedom of speech, more from an audience-based perspective, contributing to a democratic debate, pluralism and tolerance through protection of media freedom. b) Subjective view refers to the teleological value of freedom of speech to the individual, relating to human dignity from the personal perspective. Lingens v Austria makes a point to emphasise the second perspective: 'freedom of expression... constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment.' It is argued that, though we might equate any human right more naturally with the subjective view, it is inherently unclear and ambiguous.
?? ? ? Statutory restrictions on the freedom of speech relating to substance, for example the Racial and Religious Hatred Act, are forced into an objective view and thus towards the more objective approach.


For this, and other reasons, it is suggested that it is the objective perspective that the ECtHR is seeking to protect and further.
?? ? ? This arguably moves the freedom of expression towards Gearty's view of the Convention as being primarily concerned with civil liberties, rather than absolutist rights. o On this basis, mass media contributes more to public-political debates than an artist with a limited audience.
? There is nothing inherently wrong with this point and, without engaging in deep philosophical justification about exactly what the right should protect, it is argued that this has the potential for the most clarity. o If taken from the personal perspective of what offends or threatens and translate this into restrictions, the exercise becomes ambiguous and unclear. o An objective approach offers clearer lines to be drawn, which may be considered of value in itself.
? Since the inherent nature of the ECHR requires this, it is particularly appealing. It is clear that the right to freedom of expression is not unfettered.
? The very structure of Article 10 provides explicit limitations in 10(2) - such restrictions are inherent in the ECHR.
? Strasbourg broadly holds that the prohibition of the direct incitement of hatred based on race and other discriminatory grounds is not contrary to free speech guarantees, even though this involves taking a view based on the content of speech.
? Further in terms of the substance of speech, some particularly offensive and racist speech is said to fall outside the scope of Article 10. o In Jersild v Denmark, though the publication of such comments fell within the protection of Article 10, it was noted obiter that the actual verbal comments of the far-right 'green-jackets' group did not attract even the prima facie protection of Article 10.
? Article 17 also leaves open the possibility of substance limitations on the freedom of speech. o Prevents expression that goes against the very nature of the convention itself. o Garaudy v France: 'remarks directed against the Convention's underlying values... do not enjoy the protection afforded under Article 10.'
? 'Revision of a category of clearly established historical facts such as the occurrence of the Holocaust is removed from the protection of Article 10 by Article 17.' o Norwood v United Kingdom: 'the general purpose of Article 17 is to prevent individuals or groups with totalitarian aims from exploiting in their own interests the principles enunciated by the Convention... Article 10 of the Convention may not be invoked in a sense contrary to Article 17'.
? Not even subject to a proportionality test - blocked at the very gate of Article 10. o Also seen in exclusion of expression in Jersild v Denmark. Though such offensive speech may not receive protection, it has been made clear that the threshold is a high one.
? In Handyside: 'freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10, it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as

?a matter of indifference, but also those that offend, shock or disturb the State or any sector of the population'. From both perspectives of the value of freedom of expression, the offensive content of speech does not undermine its contribution - it contributes to public debate and is the expression of the individual. It is somewhat dangerous for the state to be paternalistic in this area as to do so would be to define the very material the public have access to and, subsequently, their thoughts and opinions. o As such, restrictions should be imposed only reluctantly.

Hierarchy of Speech: In constructing a methodology on the limitations of free speech, a hierarchy of speech model is often suggested.
? Under this model, different types of speech are considered to deserve more or less protection and thus higher or lower intensities of review from ECtHR.
? Political expression is considered to be deserving of the most protection, followed by artistic expression and, finally, commercial expression. o Particularly more objective values, such as the confidentiality of the identity of sources in Goodwin.
? Wingrove: 'whereas there is little scope under Article 10(2) of the convention for restrictions of political speech or on debate of questions of public interest... a wider margin of appreciation is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offend intimate personal convictions'.
? Commercial speech is afforded the least protection, seen in Markt Intern Verlag v Germany: o Made clear that such expression fell within the ambit of Article 10. o However, a very wide margin of appreciation.
? 'Such a margin of appreciation is essential in commercial matters and, in particular, in an area as complex and fluctuating as that of unfair competition.'
? 'The Court must confine its review to the question whether the measures taken on the national level are justifiable in principle and proportionate.' Such restrictions cannot be taken in isolation - Handyside: 'it must view them in the light of the case as a whole, including the publication in question and the argument and evidence adduced by the application in the domestic legal system and then at the international level.' It is suggested that this is a false taxonomy.
? Lester: 'I do not discern a satisfactory logical, philosophical or jurisprudential basis for protecting political expression and media freedom more strongly than artistic and cultural expression'.
? Even if it had a logical basis, the ambiguous categories make distinctions impossible.
? Muller notes the importance of artistic expression: 'through his creative work the artist expresses not only a person's vision of the world but also his view of the society in which he lives. To that extent art not only helps shape public opinion but is also an expression of it and can confront the public with the major issues of the day.' Fenwick and Phillipson offer an alternative justification.

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