article 10

• right to freedom of expression
• 10(1) everyone right to freedom of expression including holding opinions and receive, impart information and ideas without interference by public authority regardless of frontiers, shall not prevent states requiring licensing broadcasting, television, cinema enterprises
• 10(2) exercise of right carries duties and responsibilities, subject to formalities, conditions, restrictions or penalties prescribed by law, necessary in democratic society - interest of national security, territorial integrity, public safety, prevention of disorder or crime, protection of health or morals and reputation or right of others, prevent disclosure of information received in confidence, maintaining authority, impartiality of judiciary
• qualified right
• margin of appreciation - how much discretion
• proportionality - states interference proportionate creating balance between rights of individual and community
• expression - freedom to hold opinions, impart information and ideas, receive information and ideas
• expression can be political, artistic, religious and commercial (navalny v russia)
• 1. freedom to hold opinions - restrictions do not apply, state must not indoctrinate citizens, cannot discriminate citizens with different opinions, cannot prosecute for holding certain views - can dictate opinions, equality act 2010
• 2. freedom to impart information and ideas - the right of freedom of expression includes right to offend, shock and disturb however must be appropriate (handyside v uk)
• high value - political and religious expression (narrow margin - protests, democracies, religious/political groups)
• low value - artistic and commercial expression (wide margin - producing pictures, musical freedom, adverts)
• official secrets act 1989 - prevents some information from being imparted
• freedom of information act 2000 - allows access to state information
• no violation if right is being limited to meet a legitimate aim - health and morals (r(pro life alliance) v bbc 2003)
• it wont be a violation if it's justified to protect religious beliefs (otto preminger institut v austria)
• article 10 can support right to protest (steel and morris v uk)
• article 10 includes freedom of press to inform public and the right of the public to be properly informed (sunday times v uk)
• hate speech dealt with by article 17
• article 17 - no one can use an article of convention to undermine another human right, therefore a10 not justification to promote hate speech
• article 10 not a justification to promote hate speech (garaudy v france)
• state not obliged to tell residents about potential pollution from nearby chemical factory (guerra v italy)
• journalist expression seen vital in a democracy, s12 hra places importance on journalistic expression
• journalists don't have to reveal their sources (goodwin v uk)
• journalistic sources cannot be disclosed unless disclosure to prevent a crime, interests of justice, national security
• press freedom can be curtailed if publication could lead to risk of harm/life (thompson and venables v news corp)
• wont be a breach if already public knowledge (mills v news group newspapers ltd)
• a10 restricted - prescribed by law (laid down clear law), legitimate aim ( listed in 10(2)), necessary in democratic society (meet aims of democratic expression)
• ecthr rarely challenges a legitimate national security aim argued by the state (spycatcher case (observer v uk))
• governments cannot impose excessive or disproportionate limits on factual information (open door and dublin well woman v ireland)
• law on obscenity governs what can and cannot be published
• obscene publications act 1959 - s1 - acts such as to tend to deprave and corrupt those likely to hear, read, see it
• obscene publications act 1959 - s4 - defence where publication is for public good in interests of science, literature, art, learning or general concern
• obscene publications act 1964 - contains minor additions to 1959, tightens rules on making a gain from obscene materials
• published little red schoolbook, banned due to content on sex, pornography and drugs to teach school children (handyside v uk)
• lady chatterley ban due to content of novel, explicit sexual content (r v penguin books)
• oz publication case, banned due to content inapropriately made by school students, conspiring to corrupt morals of the young (r v anderson)
• broadcasting act 1990 - covers life broadcasts
• theatres act 1968 - covers plays and performances
• outraging public decency - common law offence aimed to protect against obscene materials or those likely to cause moral outrage as they are shocking, disgusting, obscene to viewer