Article 10

• Article 10 of the Human Rights Act


  Freedom of expression
• Section 1

  1. Everyone has the right to freedom of expression

  2. This right shall include freedom to hold opinions

  3. This right shall include freedom to receive and impart information and ideas without interference by public authority and regardless of frontiers

  4. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises
• Section 2

  1. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities

  2. The exercise of these freedoms may be subject to conditions

  3. The exercise of these freedoms may be subject to restrictions

  4. The exercise of these freedoms may be subject to penalties as are prescribed by law

  5. The exercise of these freedoms may be necessary in a democratic society, in the interests of national security

  6. The exercise of these freedoms may be necessary in a democratic society, in the interests of territorial disorder or crime

  7. The exercise of these freedoms may be necessary in a democratic society, for the protection of health or morals

  8. The exercise of these freedoms may be necessary in a democratic society, for the protection of the reputation or rights of others

  9. The exercise of these freedoms may be necessary in a democratic society, for preventing the disclosure of information received in confidence

  10. The exercise of these freedoms may be necessary in a democratic society, for maintaining the authority and impartiality of the judiciary
• Article 10 (freedom of expression)

  • Protects both the giving and receiving of information
  • Scope is broader than just words and can include the right to express yourself through pictures, words, images and actions
• We have the right to receive information, but this does not create a duty on the state to actively provide information
• Guerra v Italy (1998)


  • Article 10 cannot be used to force a government to disclose information that it decides to keep secret. This case was about toxic emissions and it was said that whilst a government cannot prevent a citizen from receiving information it was not under a duty to collect and disseminate information.
• Leander v Sweden (1987)


  • A violation was not given when a citizen was not allowed access to the details of his security vetting (critically examining something).
• Freedom of expression

  Includes the right to 'offend, shock and disturb'
• ECtHR: '"The court's supervisory functions oblige it to pay the utmost attention to the principles characterising a 'democratic society'. 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"'
• The Court found no breach of Article 10


  The UK was within the margin of appreciation (discretion of each state to fit the ECHR into it's own laws)
• Freedom of speech was not applicable only to inoffensive material, but also extends to protect activity which others may find shocking, disturbing or offensive
• Types of expression protected

  • Political expression
  • Artistic expression
  • Commercial expression, particularly when it raises matters of legitimate public debate
• Political expression


  Given a particular precedence and protection
• 'High value' expression

  Less of a margin of appreciation
• Ability of individuals to take part in political debate and free elections

  Considered to be the 'bedrock of any democratic system'
• 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 Austrian politics
  • The European Court reasoned that politicians and other public officials should tolerate a high degree of criticism due to their public position in democratic societies
  • 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
• This shows the importance of Article 10 as a means of defending democratic involvement in the political process
• Freedom of the Press

  To ensure that free expression and debate are possible, there must be protection for elements of a free press including the protection of journalistic sources
• The public and the media must be able to comment on political matters without hindrance
• Lord Hoffman: '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.
• Artistic expression

  Seen as vital in the development of the individual but will come into conflict with the state and the community
• There is generally a wide margin of appreciation to reflect different cultures and values in different states
• Otto-Preminger-Institut v Austria (1994)


  Religious expression trumped artistic expression and no violation of Article 10
• Garudy v France (2003)


  Garudy's book, challenged accepted views of the Holocaust. His book contained ideas and therefore there could be an interference to his protection under Article 10. Hate speech is dealt with by Article 17, which disallows actions which undermine the values of the Convention and another human right
• Muller v Switzerland (1988)


  Exhibition of obscene paintings led to a fine. No breach of Article 10 as it did not
• For maintaining the authority and impartiality of the judiciary

  Reporting trials in the media can be restricted in order to protect the rights of others such as children etc.
• Reporting trials in the media

  Restrictions may also be allowed and put on press in advance of a trail so that the case can proceed fairly
• Sunday Times v UK


  1979
• Pinto Coelho v Portugal (no2)

  2016
• Press freedom


  May be curtailed, for example if a publication of a person's identity could lead to a risk or harm or even death
• Thompson and Venables v News Groups Newspapers


  2001
• Injunctions to stop press from disclosing details of notorious child killers put in place until they reached the age of 18
• Principle of proportionality

  Assessing whether the aim was proportional with the means used to reach that legitimate aim
• National security

  • Protecting legitimate aim
  • The Spy-catcher case, Observer and Guardian v UK (1995) - newspapers challenged injunctions from the Government preventing their publication of extracts from the Spy-catchers memoir from former British Security Service. As information had already been published in USA and other countries, the state interference was no longer permissible and violated Article 10
• Protecting religious beliefs

  • Otto-Preminger-Institut v Austria (1994)
• Health and Morals


  • 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
• Preventing obscenity

  • 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)
• Prevention of Order and Crime

  • Surek v Turkey (1999) - published letters criticising the Turkish Government which violated their right to freedom of expression, the Turkish courts had failed to have sufficient regard to the public's right to be informed