Law

• Article 5

  What are they? What rights do they give? When can that right be interfered with?
• Guerra v Italy (1998)

  Applicants lived about 1km from a chemical plant and demanded a right to receive information about the dangers to health from the plant. Held no positive obligation on the state to collect and disseminate information.
• Leander v Sweden (1987)

  Leander had been refused employment at a museum located on a naval base, having been assessed as a security risk. A violation was not given when a citizen was not allowed access to the details of his security vetting (critically examining something)
• Handyside v UK (1976)

  Handyside published a Little Red Schoolbook. The purpose of the book was to teach school children about sex, drugs and the use of pornography. He was convicted under the Obscene Publications Acts 1959 and 1964 as the book tended to corrupt and deprave its target audience – children. The court found that there was no breach of Article 10 – the UK law was within the margin of appreciation of the member state.
• Lingens v Austria (1981)

  The ECtHR found that the defamation conviction of a journalist who had criticized a politician, violated his right to freedom of expression. Peter Lingens, an Austrian journalist, had accused Bruno Kreisky the President of the Austrian Socialist Party, for his accommodating attitude toward former Nazis who had continued to take part in hi Austrian politics. The European Court reasoned that politicians and other public officials should tolerate a high Profile degree of criticism due to their public position in democratic societies. Furthermore, the Court noted that the journalist was covering political issues that were of immense public interest to Austrians and that censuring the articles would deter other journalists from contributing to public discussion.
• Otto-Preminger-Institut v Austria (1994)

  The banning of a film that criticised Catholicism not a violation as Country predominantly Catholic.
• Goodwin v UK (1996)

  Mr Goodwin was a trainee journalist with The Engineer Magazine. He received information about a company's financial information from an anonymous source. The company tried to force him to reveal the source, in particular by using section 10 of the Contempt of Court Act 1981, requiring him to name his source. The ECtHR stated that as publication of the confidential information was already prohibited by an injunction they had issued, the order for disclosure of the source was no longer necessary and did breach Article 10.
• Axel Springer AG v Germany (2012)

  A German newspaper published stories and photographs about the arrest and conviction for possession of drugs of an actor, who was well known for his portrayal of a police officer in a television series. On the facts the Court held that his right to a private life under Article 8 outweighed the newspaper's freedom of expression under Article 10. To reach this conclusion and strike a balance between Article 8 and Article 10, the court set out the following criteria: 1) Whether the information contributes to a debate of general interest, 2) The notoriety of the person concerned and the subject matter of the report, 3) The prior conduct of the person concerned, 4) The method of obtaining the information and its veracity (accuracy), 5) The content, form and consequences of the publication, 6) The severity of the sanction imposed.
• R (on the application of pro-life Alliance) v BBC (2003)

  Pro-life political party wanted to broadcast via the BBC. Did censorship of a graphic election broadcast on national television constitute a breach of Article 10? Held no. Article 10 does not entail a right to be broadcast on TV, rather it "a right not to have one's access to public media denied on discriminatory, arbitrary or unreasonable grounds". It was in no way arbitrary or irrational to demand that P's broadcasts upheld these standards. There was no pressing public need to exempt P from the normal standards of taste and decency.
• Steel and Morris v UK (2005)

  The distribution of leaflets criticising the food brand (Macdonalds) was allowed under Article 10. Preventing them was a violation of Article 10.
• Garudy v France (2003)

  Garaudy's book, The Founding Myths of Modern Israel, challenged accepted views of the Holocaust and Hitler's 'Final Solution'. Garaudy was found guilty of disputing the existence of crimes against humanity, the defamation of a group of people (the Jewish community) and an incitement to discrimination and racial hatred. He argued that his right to freedom of expression had been violated and that his book was a political work. The court found that there could be an interference with his right as under Article 17, no-one can use an Article of the Convention to undermine another human right and Article 10 could not be used to promote hate speech. The interference of this right came under the exception of 'the protection of the reputation or rights of others' Article 10(2).
• Muller v Switzerland (1988)

  Fines were given to artists who exhibited obscene paintings depicting human/animal sex and sodomy etc. The Courts held that fines did not breach Article 10 (courts look at the prevailing views of the people in the country at the time).
• Observer and Guardian v UK (1995)

  The newspapers challenged injunctions from the government preventing their publications of extracts from the Spycatcher memoir of a former member of the British Security Service. He asserted that up until the late 1970s the security service had been engaged in various unlawful activities such as bugging and burgling of friendly embassies. The courts granted an injunction but by the time it was granted the book was already published in the USA and other countries. The ECtHR stated that the injunctions were justified up until the point where they were published in the USA, the interference after was no longer permissible.
• Open Door and Dublin Well Woman v Ireland (1992)

  Government tried to ban the distribution of leaflets with information on how to obtain abortions in other countries. Breach of Article 10.
• Surek v Turkey (1999)

  Published letters criticising the Turkish Government and Army and was fined and convicted. The ECtHR held that this violated their right to freedom of expression; the Turkish courts had failed to have sufficient regard to the public's right to be informed
• Bedat v Switzerland (2016)

  Bédat, published an article about a controversial car accident in 2003 that resulted in the death of three people. In his article, Bédat discussed in detail the ongoing criminal investigation against the driver in that collision. The public prosecutor brought a complaint against the journalist for having published secret documents in breach of Article 293 of Switzerland's Criminal Code and Bedat was fined. The ECtHR found no violation of Article 10 after assessing a number of factors, including the infringement of the driver's right to privacy, although it stated that Bedat had not obtained the information in an unlawful way.
• Guja v Moldova (2008)

  ECtHR ruled that Moldova breached Article 10 of the European Convention on Human Rights when it dismissed a civil servant who had revealed information of public interest regarding attempts by high-ranking politicians to influence the judiciary. The ECtHR stressed that open discussion of topics of public concern was essential to democracy.
• Heinisch v Germany (2011)

  The applicant alleged that her dismissal without notice was on the ground that she had brought a criminal complaint against her employer alleging deficiencies in the institutional care provided (geriatric care-home). Was a violation of Article 10 and a balance had to be made between protecting the employer's reputation and the right to freedom of expression of the whistleblower.
• Sunday Times v UK (1979)

  In 1972 the British newspaper the Sunday Times published articles concerning the settlement negotiations for the "thalidomide children," following pregnant women's' use of the drug thalidomide which resulted in severe birth defects. The newspaper had criticized the settlement proposals and an injunction was issued based on the claim that future publications would constitute contempt of court. Although the Court found that the interference was proscribed by law and pursued the legitimate aim of safeguarding the impartiality and authority of the judiciary, it was not necessary in a democratic society. The Court observed that the right to freedom of expression guarantees not only the freedom of the press to inform the public but also the right of the public to be properly informed, and the thalidomide disaster was a matter of undisputed public concern. The injunction was a violation of Article 10.
• Pinto Coelho v Portugal (no2) (2016)

  ECtHR held that a journalist's freedom of expression was violated when she was criminally penalized for including a recording of a trial in her TV-report without obtaining permission from the relevant state authorities. The journalist's report alleged that judges made mistakes in convicting an 18-year-old man of aggravated theft, and used audio-recordings of witness testimonies and the judges' statements to support her allegations.
• Thompson and Venables v News Groups Newspapers (2001)

  The injunctions to stop press from disclosing details of notorious child killers were put in place until they reached the age of 18. The injunctions were a permissible interference with Article 10.
• Prorogation

  The process of suspending Parliament from sitting for a prolonged time
• The Prime Minister advised the Queen to prorogue Parliament

  This was considered to be unlawful
• Ultra vires

  Beyond the legal powers or authority of a person or organisation
• Introducing new regulations

  1. Consult appropriate organisations

  2. Follow correct procedures
• The minister failed to consult the Mushroom Grower's Association when introducing new regulations
• The proposals were therefore ultra vires and void
• Unreasonable decision

  A decision so unreasonable that no reasonable person could have made it
• The court can only interfere in very limited circumstances when a decision is unreasonable
• An NHS trust refused to provide a woman with breast cancer the non-approved drug Herceptin

  The decision was considered to be unreasonable and therefore ultra vires
• The ECtHR found there was a lack of common approach among member states on the issue of allowing transgender people to change their birth certificate
• The ECtHR found that there had been some developments in the approach of Member states since Rees, but not enough to rule that there had been a violation of Article 8
• The ECtHR recognised in the Goodwin case that there had been scientific and social developments in the field since the previous decisions and that there had been a violation of article 8
• Sheffield and Horsham v UK (1999)

  UK refused to recognise for legal reasons the new identities of those undergone gender reassignment. The ECtHR found no breach, as this fell within margin of appreciation granted to the UK, but were critical of the UK falling behind this area of law. This led to the Gender Recognition Act 2004 so fulfilling positive obligations.
• Pretty v UK (2002)

  Diane Pretty was suffering from motor neurone disease and was paralysed from the neck down, had little decipherable speech and was fed by a tube. Pretty was prevented by her disease from ending her own life without assistance and wanted her husband to provide her with assistance in suicide. Because giving this assistance would expose the husband to liability, the Director of Public Prosecutions was asked to agree not to prosecute her husband. This request was refused, as was Pretty's appeal before the Law Lords.
• Ratio

  As concerns Pretty's right to respect for private life under Article 8, the Court considered that the interference in this case might be justified as "necessary in a democratic society" for the protection of the rights of others.
• Halford v UK (1997)

  Was an assistant Chief Constable. Her telephone calls were intercepted by senior police officers to obtain information about a sex discrimination claim that she was pursuing. The interception of such phone calls from an employee was held to be a breach of Article 8 and right to private life.
• AB v Secretary of State for Justice (2009)

  Claimant asked for judicial review of a decision not to move her to a female prison. She suffered gender dysphoria and had been granted a certificate under the gender Recognition Act 2004 – The claimant wanted to have reassignment surgery but this could not be approved until she had lived as a female in a female prison. Court held that the failure to transfer her to the female prison violated Article 8. There was no clear justification to limit that right here.
• Wainwright v UK (2007)

  On a prison visit a mother and her disabled son were both strip-searched leading them to experience PTSD. Court of Appeal set aside a hearing for battery and invasion of privacy. Article 8 also rejected by Supreme Court. The ECtHR held that it was a breach of Article 8, as it seeks to respect the physical and moral integrity of the applicant and the search was disproportionate as a measure of preventing crime and disorder.
• Campbell v MGN Ltd (2004)

  Naomi Campbell was photographed coming out of a Narcotics anonymous clinic with the headline: "Naomi: I am a drug addict". This came into conflict with the newspapers right to freedom of expression, Article 10. The court held that there was no priority of Article 10 over Article 8 and the publication of photographs outside of the clinic was disproportionate interference to her right to a private life. An actionable right was also established for the first time in English law, for the wrongful disclosure of private information. There is a distinction between 'in the public interest' and 'of an interest to the public'.