a10 import

• Article 10 of the European Convention on Human Rights (ECHR)


  The right to freedom of expression
• Article 10 (freedom of expression)


  • It is a qualified right which means it needs to strike a balance between the rights of the individual and the rights of the community
  • It can be limited in accordance with the law and if it is to meet a legitimate aim
  • The ECtHR use proportionality and margin of appreciation to decide if the interference is justified
• Article 10(1)


  Gives the right to freedom of expression
• What freedom of expression includes


  • Freedom to hold opinions
  • Freedom to impart information and ideas
  • Freedom to receive information and ideas
• The state is not obliged to inform residents (GUERRA v ITALY)
• Forms of expression


  • Words
  • Pictures
  • Actions
  • Protests
• Types of expression


  • Political and religious expression are high value
  • Artistic expression and commercial expression are low value
  • It is harder for states to interfere with high value forms than low value forms
• Political expression or public interest expression


  Are high value which means there is a narrow margin of appreciation
• The public can have the right to protest if it is in the public interest (STEEL and MORRIS v UK)
• The public must be properly informed of critical information if it is of public interest (THALOMIDE CASE - SUNDAY TIMES v UK)
• Artistic expression


  • Generally is low value, but some countries give it higher value, so the ECtHR gives a wide margin of appreciation (OTTO-PREMINGER-INSTITUT v AUSTRIA)
• Incitement of hatred


  Not to be confused with hate speech, can be dealt with under Article 10
• Incitement of hatred with freedom of expression

  Can be limited if the state wanted to protect the reputation and rights of others (GUARDY v FRANCE)
• Article 10 (freedom of expression)


  Can often conflict with Article 8 (right to private and family life)
• Press freedom is protected under Article 10, but it is necessary to balance this with Article 8
• Journalists do not have to reveal their sources (GOODWIN v UK)
• Article 10 (freedom of expression)


  Can outweigh Article 8 (right to private and family life) if the knowledge is in the public interest
• Criteria to decide if Article 10 would outweigh Article 8 (AXEL SPRINGER v GERMANY)


  • Does it contribute to debate of general interest
  • Notoriety of person
  • Method of obtaining the information
  • Consequences of the publication
  • Severity of sanction imposed
• Many states do not have legislation regarding the issue of expression on the internet
• The ECtHR says limitations cannot be allowed unless the state interferes with a clear legal basis, so if there is no legislation, a member state cannot limit that right (EDITORIAL BOARD of PARVOYE DELO and SHTEKEL v UKRAINE)
• Article 10(2)


  Contains the conditions the state must meet if they wish to limit the right to freedom of expression
• Conditions for limiting the right to freedom of expression


  • Prescribed by law
  • Have a legitimate aim
  • Be necessary in a democratic society
• Prescribed by law


  It is an act by the state which interferes with 10(1) that has a clear legal basis
• If there is no clear legal basis, limitation is not allowed (PARVOYE DELO and SHTEKEL v UKRAINE)
• Legitimate aims that could meet the conditions for limiting freedom of expression


  • National security
  • Protection of health and morals
  • Reputation or rights of others
  • Information received in confidence
• Obscenity in the UK


  • The Obscene Publications Act 1959 says something is obscene if it "depraves and corrupts people"
  • The Broadcasting Act 1990 and Theatres Act 1968 also look at obscenity in their respective areas
  • There is further an offence for outraging public decency (R v GIBSON)
• Defamation in the UK


  • Two types: libel (permanent) or slander (transient)
  • The Defamation Act 2013 details that defamation is likely to cause serious harm to the reputation of the claimant (SIM v STRETCH) and financial loss (LACHAUX v INDPENDENT PRINT), not just as a damage of pride (JOHN v GUARDIAN NEWSPAPER)
  • There are defences for defamation such as truth, honest opinion, matter of public interest, operators of websites, peer reviews and reports by privilege
• Press complaints arose after the phone hacking scandal which led to new laws regulating the press in the Crime and Courts Act 2013, however many elements have not been brought into force
• Confidentiality


  • The duty of confidentiality was defined in COCO v A N CLARK LTD as requiring: 1. Necessary quality of confidence, 2. Imparted with obligation of confidence and 3. Unauthorised use of information
  • In OBSERVER v UK, Lord Goff identified three limitations with them
• In CAMPBELL v MGN LTD, the House of Lords held Naomi Campbell's confidentiality had been breached
• UK laws that limit freedom of expression


  • Official Secrets Act 1989
  • Freedom of Information Act 2000
  • Contempt of Court Act 1981
• The law also protects journalistic expression, political expression (R v BBC), public protest (MUNIM ABDUL), the balance between A8 and A10 (CAMPBELL v MGN LTD) and the protection of identity, but only if it is due to a serious risk to physical safety (T and V v NEWS CORPS)