Freedom Of Expression Quick Notes

Freedom of Expression

Objective value – consequentialist view, from the perspective of the audience, contributing to democratic debate, pluralism and tolerance; subjective value – to the individual, relating to human dignity.

1. Contents of the expression

Article 10(2) illustrates that the right to expression is not unfettered and the ECHR does not subscribe to contents neutrality, meaning some particularly offensive speech is prohibited.

• This is seen in Jersild v Denmark, where though the public of such comments fell within the protection of Article 10, it was noted obiter that the actual verbal comments did not attract even prima facie protection.

• Article 17 prevents expression that goes against the very nature of the convention itself.

  • Garaudy v France: ‘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.’

Handyside notes the value of freedom of speech, including that which may ‘offend, shock or disturb’ the population, and this must be balanced against the incitement of hatred or hurt associated.

• The fact that speech is offensive does not negate its contribution to a debate, but if it is purely offensive, it will not contribute anything.

• Reflected in duties and responsibilities of the media – Observer and Guardian notes a right of the public to receive information, and that this may be offensive, but this hinges on the accuracy of publication (Giniewski v France), as dissemination of false and offensive information merely offends, and does not contribute (Radio France).

Hierarchy of speech attempts to provide a methodology as to which values are to be protected and how.

• Under this, different types of speech re considered to deserve more or less protection, and thus a higher or lower intensity of review.

• Political expression (Wingrove) receives the most protection (Muller), followed by artistic expression and, finally, commercial expression (Markt Intern).

  • Note that it might not be the actual value of the speech, but the type of role the court can perform that deserves differing levels of protection.

• It is suggested that this is a false taxonomy.

  • Lester: no ‘logical, philosophical or jurisprudential’ basis for the hierarchy. Importance of artistic expression seen in Muller.

2. A consequentialist model

Fenwick and Phillipson note that in cases of public protest and assembly, the ECtHR has been extraordinarily deferential to what constitutes a ‘prevention of disorder’, which suggests the political nature of activity is not really what arouses the concern of the Court.

• Instead, the real focus of the court is on the interest the state is seeking to further. Consider the different values in expression between Von Hannover (celebrity gossip) and Sunday Times (the protection of the judiciary).

• Thus, the concern is objective, in relation to the value to the audience – political expression coincides with a greater audience.

• This might be considered closer to Gearty’s view of the Convention as civil liberties, rather than rights.

If the courts are protecting this wider ideal of promoting the underlying values of a democratic society, may be necessary to limit freedom of speech too, as in Animal Defenders.

• Though freedom of expression was restricted, this was because it was ‘trumped’ by the huge value of voter equality.

  • Also, a weaker type of freedom of expression, since political broadcasts were unilateral in their contribution to debate.

It is also...

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