article 10

• article 10(1)


  everyone has the right to freedom of expression. includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. article shall not prevent states from requiring licensing of broadcasting, television or cinema enterprises
• expression

  freedom to hold opinions

  freedom to impart information and ideas (even if others might find it offensive)

  freedom to receive information and ideas
• Handyside v UK (1976)


  the right to freedom of expression includes the right to offend, shock and disturb
• forms of expression

  high value forms of expression- political and religious - narrow margin of appreciation.

  low value forms of expression- artistic and commercial. wider margin of appreciation.
• R (Pro life alliance) v BBC 2003


  no violation if right is being limited to meet a legitimate aim.
• otto preminger intstitut v austria

  it wont be a violation if its justified to protect religious beliefs
• Steel and Morris v UK (2005)

  right to protest under a10
• sunday times v uk

  violation because it was in the public interest and people should have the right to know
• Garaudy v France (2003)


  garaudy wrote a book denying the holocaust and criticising israel and the jewish community. he was convicted for holocaust denial and incitement of hatred. he appealed to the ecthr claiming a violation of a10.

  ecthr held there was no violation. his opinions about israel and the jewish community were protected by 10(1) but the state was able to limit this right under the protection of the reputation or rights of others in 10(2)
• a10(2)


  a state can restrict freedom of expression when:

  prescribed by law

  have a legitimate aim

  be necessary in a democratic society
• prescribed by law


  laid down in a clear law
• have a legitimate aim

  those listed in 10(2):

  interferes with national security issues

  territorial integrity or public safety

  prevention of disorder or crime

  protection of health or morals

  protection of the reputation.
• necessary in a democratic society

  mainly to meet the aims of political expression

  ecthr use proportionality and margin of appreciation to decide
• spycatcher case (observer v uk 1995) - national security

  the ecthr rarely challenges a legitimate national security aim argued by the state
• health and morals - obscenity .
• open door and dublin well woman v ireland 1992

  the irish supreme court prohibited the two applicants from giving pregnant women info about abortions available in britain. it was claimed that it was for the protection of health and morals however the ecthr said this was a breach of article 10
• obscenity

  the law on obscenity governs what can and cannot be published

  the state needs to limit peoples freedoms under a10 if they are morally bad
• Obscene Publications Act 1959 and 1964

  covers obscenity

  
  

  s1 - obscenity test = acts 'such as to tend to deprave and corrupt persons'

  deprave = morally bad

  corrupt = rotten, to defile
• broadcasting act 1990


  covers live broadcasts
• Theatres Act 1968


  covers plays and performances
• outraging public decency

  indecent actions or displays that may cause offence to members of the public

  involves behaviour that is obscene, disgusting or showing and is not usually accepted in public
• r v gibson


  the defendants exhibited at an exhibition in a commercial art gallery, a models head to which were attached earrings made out of freeze-dried human foetuses

  the exhibit was entitled human earrings

  gallery owner and artist were both fined
• the rights or reputation of others

  defamation and breach of confidence .
• the defamation act 2013

  there are two types of defamation

  1. libel- permanent e.g. written or filmed.
  2. slander- is transient e.g. spoken or conduct it is saying something or writing something about somebody else that is both offensive and untrue

  s.1 serious harm - a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimants

  1(2) - likely to cause the body serious financial loss (companies)
• breach of confidence


  To reveal confidential information
• Coco v A N Clark (Engineers) Ltd 1968

  defined duty of confidence as requiring 3 elements:

  1. the info has the 'necessary quality of confidence about it'

  2. the info must have been imparted in circumstances with an obligation of confidence

  3. there must be an unauthorised use of that info to the detriment of the party communicating it
• attorney - general v observer ltd 1990 (spycatcher case)


  lord goff identified 3 limitations:

  1. duty only applied whilst the information is confidential

  2. duty does not apply to useless information or trivia

  3. there may be some times when public interest requires the disclosure
• freedom of press

  seen as central in a democratic society
• Campbell v MGN (2004)

  mirror breached her confidentiality rights by publishing her attendance at narcotics anonymous meetings

  this was private - win to a8
• Mosley v News Group Newspapers [2008]


  formula 1 boss. press published about his sex life - court held that his right to privacy had been violated as there was no public interest in his private life

  win to a8
• A v B (Flitcroft v MGN Ltd) (2002)


  married premiership footballer, was granted an interim injunction to prevent a newspaper from publishing information concerning sexual relationships that he had with 2 women and to restrain those women from disclosing info that could be published in the media

  
  

  different to mosley - court recognised there is a greater right to privacy for sexual activities within a marriage that there is for such activities outside of marriage.

  a10 won
• axel springer v germany


  sets out criteria to be used to balance the 2 articles

  ecthr would ask themselves certain qs

  
  

  does the information contribute to a debate of general interest?

  what is the notoriety of the person concerned and the subject matter of the report?

  does it refer to prior conduct of the person concerned?

  what was the method of obtaining the information and its veracity?

  what is the content, form and consequences of the publication?

  what is the severity of the sanction imposed?
• R v Chief Constable of Gloucestershire


  the passengers on a coach heading towards an anti-war protest to a RAF base were stopped by the police and ordered to return to London under a police escort

  the police claimed that this was to prevent a breach of the peace. appeal was allowed as there was no evidence that a breach of the peace was imminent, and their actions were disproportionate under a10 and 11.
• editorial board of parvoye delo and shtekel v ukraine 2011

  a developing area of law is the issue of expression on the internet. the law needs to be clear regarding the use of info found on the internet.

  
  

  a newspaper published a letter found on the internet. there was no law in ukraine regarding whether this was allowed. under the requirement that an act by the state which interferes with 10(1) must have a legal basis which is clear, precise and predictable, the limitation was not allowed under a10(2)
• Munim Abdul and Ors v DPP

  appellants were found guilty of offences under s5 public order act 1986
• section 2 to section 5 of defences

  s2 - statement is true

  s3 - statement was an honest opinion

  s4 - a matter of public interest. people had a right to know making it justified, reasonable attempts made to check its truth

  s5 -operator of a website. if they can show that it was not them who posted the statement and if they can identify the person who did post the statements
• section 6 and 7 of defences

  6 -peer reviewed statement in scientific or academic journal. can be electronic or printed. must relate to a scientific or academic matter and before publication, a independent review of the statements accuracy was carried out

  s7 -privilege. absolute privilege = statements made during judicial or parliamentary proceedings. qualified privilege = fair and accurate publication of public interest matters