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Published: Fri, 02 Feb 2018
Human rights law
“The freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of everyman”, Handyside v UK (1979-80) 1 EHRR. These are words of high principle, spoken by the European court. They reflect the attitude of judges and statesman, in many societies and nations, who emphasise the right of freedom of speech.
Everyone has the right to freedom of expression under Article 10 of the Human Rights Act. This right shall include freedom to hold opinions and to receive and impart information and ideas without interferences by public authorities regardless of any frontiers. The scope of the freedom was identified in the case of Handyside, which involved the publication and distribution of a booklet to schools and colleges, containing offensive and obscene material intended to be read by school children and adolescents. The court did state that by convicting the defendant they had in-effect interfered with his right but said it was justified under the Article to protect morals.
The Article does impose certain limitations, but does clearly state in Article 17, that it will remove protection from those whom seek such rights to engage in any activity or performance of any act aimed at the destruction of the conventions rights as seen in Lehideux v France (2000) 30 EHRR 665. The types of expression covered by the article include speech and written words, although it does extend to paintings, drawings, sculpture and in addition to television and radio programmes, which are all forms of expression. It is also possible for somebody to express themselves via their actions, whether by taking part in a protest or simply being at a particular place to exercise this right under Article 10 of the convention.
Although sometimes the expression of one view may reach the point where it interferes with the rights of others as seen in Steel v UK (19990) 28 EHRR 603. The court concluded in this case that the convictions were not disproportionate to the interferences but the important thing was that it recognised freedom of expression by way of protest as coming with in the Article.
However, the wish to express something must be accompanied by the right to hear it. A newspaper’s claim that it has a right to publish information is also a claim that its readers have a right to receive it. The principle of Article 10 (1) is that access should not be denied to information that is being freely provided, and which is intended to be read. The case of Leander v Sweden  9 EHRR made clear that there was no positive right to be given information or to have access to information. Here the individual concerned was denied access to the register, which contained information of his personal position upon which he was declined employment. But where a matter involved public interest and or emergency it was held in the case of R (Wagstaff) v Secretary of state Health  1 WLR 292 that in such circumstances there was a right to receive information, likewise it was held that the inquiry should be conducted publicly.
The article goes further and carries with it duties and responsibilities under Article 10(2) and states that these may be subjected to formalities, conditions, restrictions or penalties as are prescribed by the law and are necessary in a democratic society, in relation to interferences with the articles rights.
Interferences into freedom of expression occur in a number of ways and include Films and broadcasting, Journalism and Publishing state laws on defamation. Some of the most important cases under Article 10 relate to the rights of newspapers in relation to freedom of expression. The entire function of a newspaper is to publish information and ideas on matters of public interest. The courts have held that the freedom of the press is a crucial element in a democratic society and hence requires a high level of protection. The leading case on freedom of expression is Sunday Times v United Kingdom (1979) where the court recognised that the public in general have a right to receive information about a matter, even if the facts and issues formed the background to pending litigations. But established that a high level of protection was required for the press, basing this protection on the presumption that the public’s interest is best served by ensuring that the broadest body of information is available to the population.
Though the case of Barfod v Denmark (1988) does show that the court may provide a lesser level of protection to the press where the public debate touches upon the “protection to reputations of others and, indirectly, the maintenance of the authority of the judiciary”. But in Goodwin v UK (1996) 22 EHRR 123 the courts did conclude in relation to the protection for journalist sources. In the above case, the journalist was ordered to reveal his source, although the court did emphasise the importance of protection for journalist sources but did conclude that such measures were not compatible within the article, unless they could be justified by an overriding requirement in the public’s interest.
Other interferences with Article 10 include political speech, defamation and privacy. For democracy to function properly politicians and powerful figureheads will all need to be subjected to scrutiny. The court laid in Lingens v Austria (1986) that the “freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders”, but did state in the case, that the limits of acceptable criticism had gone beyond that of Article 10(2) which does protect reputation and does extend to politicians. Even public figures are entitled to some privacy and the authorities may be justified by taking preventive measures as exposing certain aspects of a politicians life may be of very little interest to the general public as seen in Tammer v. Estonia (App.41205/98), judgment of 6 February 2001.
Further, other forms of expression, including racist and hate speech all fall within the right of Article 10. Where the expression is likely to include disorder or crime and undermines the security of minority groups within society. The court did stress the position in relation to racist views and concluded the position may be different when looking at the intentions of the parties and whether the view were to inform the public or illuminate a debate as seen in Jersild v Denmark, Judgment of September 24, 1994 series A, No. 298; (1994) 19 EHRR but also noted that the potential medium should be considered since both radio and television have a much more immediate and powerful effect then the printed word.
Other cases, which incite hatred or violence, include a series of cases involving newspapers. In which the courts noted journalist have a special responsibility and duty in situations of political conflict and tension because they can become ‘a vehicle for the dissemination of hate speech and violence’. In the case of Surek v Turkey (No.1) (App. 26682/95) and Surek v. Turkey (No3) (App.24735/94), judgment of 8 July 1999 the publication of letters undermining the integrity of the state was considered a violation amounting to inciting separatist violence. I can conclude that Article 10 provides limited restriction in terms of political speech or on debates on matters of public policy, however greater criticism could be made of the government then the private citizen or politician before any action can be filed.
Even the Official Secrets Act 1911 imposes restrictions on Article 10. However, two cases have arisen in relation to national security, which included the publication of a book called “Spycatcher”. The court here did consider whether the injunction obtained against the publication of the book was proportionate and necessary to protect national security and the authority of the judiciary whom granted the injunction. The court concluded that once the book had arrived in the UK, the material within the book were no longer regarded as likely to injure the security services, since it was freely circulating in the United States.
There have been a number of cases in which individuals have complained that the states have violated their right to freedom of expression under Article 10 in the employment context. In two applications, the commission found the government could restrict the exercise of the rights of legal practitioners under Article 10. In one, the applicant lawyer had made “insulting or tendentious statements” (App No.10414/83), in the other the applicant judge had distributed leaflets containing political comments on certain public prosecutions. (App No. 1027983) The commission found that the government’s disciplinary measures against the two applicants were acceptable under Article 10(2), in the light of the special duties and responsibilities that attach to lawyers and judges. Although generally the dismissal of public sector employees can constitute interference with freedom of expression, the commission did state that such employees when dismissed could not publicly criticize the government’s policies in a public manner, as they owe a special duty of discretion to the state.
Some of the same issues, which arise in the freedom of press cases under Article 10, also arise in those relating to the broadcasting media. However broadcasting is subjected to greater regulations and includes the power to license broadcasting, cinema, and television enterprises. The courts have considered a few cases raising the issue of whether the right to broadcast implies the right to be free from governmental interference, with the reception of broadcasts. A case that highlights this is Groppera Radio AG And Others v. Switzerland (1990) 12 EHRR 321 which included a broadcast of a radio programme from Italy to listeners in Switzerland whom failed to comply with Swiss regulations that prohibited cable retransmission of such programmes. The court said that licensing of broadcasting facilities was permitted under Article 10(1), but the state could only exercise its licensing power in the context of the article as a whole. There was found to be no violation and the court concluded that as the Swiss government had chosen a means of restricting this “could well appear necessary in order to prevent evasion of the law [and] was not a form of censorship”.
However in the case of Informationsverein Lentia v Austria (1994) 17 EHRR 93 the court found violation of Article 10 and said that the state was the ‘ultimate guarantor’ of pluralism and hence its monopoly could not be justified. Although it did note in Autronic AG v. Switzerland (1990) 12 EHRR 485 that in relation to broadcasting the state must not infringe on the right of a person to receive information. One of the best-known modern features of general elections is the party political broadcast. A broadcast of this kind is obviously ‘an expression of opinion’. In the case of R v (Pro-Life Alliance) v BBC  2 WLR 1080 where the court of Appeal gave judgment in a case where the BBC had refused to allow a party political broadcast. In which the court held the decision of the BBC was unlawful as interfering with the freedom of speech of an accredited party at a public election.
But the court did suggest in Handyside that the state will enjoy a wider margin of appreciation in relation to moral standards and hence Article 10 has further been restricted by obscenity and blasphemy laws. This was shown in Muller and Others v. Switzerland (1991) EHRR 212 where an artist’s work was restricted which concerned paintings depicting sexual acts, seized by the authorities on the grounds that they were obscene. The courts found it unreasonable for the Swiss courts to find the paintings to offend persons of ordinary sensitivity and did note that the deprivation of the items had restricted the artist’s use of them but did suggest a procedure for the restitution of those items.
The case of Wingrove v. The United Kingdom (1997) 24 EHRR 1 was an expression via a video made to show a num having erotic fantasy’s with the figure of Christ, hence contravening the British Blasphemy law as its publication and distribution would outrage and insult believers of Christianity. In which the court did conclude that a wider margin of appreciations was required of the state in relation to matters likely to offend morals, especially, religion, as the state was in a better position then the international judge to access what was likely to cause offence to believers in each country.
Article 10 is further limited by a series of cases concerning regulated professions and commercial speech. The case of Barthold v. Germany (1975) 7 EHRR 383 where the court ruled that there had been interference and the issue raised was one of public interest and rejected this idea that some element of advertising would cause a public debate on the life of the community. Other cases which arose in relation to published articles was the case of Markt Intern Verlag GMBH And Klaud Beermann v. Germay (1990 12 EHRR 161 which concerned the interests of small and medium businesses in relation to large which criticized the refund policies of such organisations. The court concluded it was within the margin of appreciation and granted the injunction. So while advertising can be restricted in some areas, in others it cannot. Although the court was prepared to give priority to freedom of expression in the form of advice about the availability of medical transmission of pregnancy in the case of Open Door Counselling And Dublin Well Women v. Ireland (1993) 15 EHRR 244 but said that an injunction was disproportionate as the information being disseminated was already widely available from other sources.
However there have been cases, which have arisen in relation to the election process that have imposed limitations on the amount of money that can be spent on election publicity, as seen in Bowman v. UK (1998) 26 EHRR 1 where the defendant distributed leaflets but exceeded the expenditure allowed on promotion. The court found that the prosecution was a violation of Article 10, and the limitations on expenditure to such a low figure including the subsequent prosecution were disproportionate to the legitimate aim of pursing and securing equality between candidates.
In addition Article 10(2) expressly authorizes limitations for maintaining the authority and impartiality of the judiciary. The court found violation in Colman v. United Kingdom, decision of 28 June 1983, series A, No. 258-0; (1994) 18 EHRR 119 where a journalist had been sued in defamation by a judge for making unjustified and untrue attacks.
We are all said to have freedom of expression and Article 10 of the European Convention of Human Rights guarantees this. However as I have discussed in my findings, that the right is subject to many restrictions. Whether these are in the form of defamation, which includes a person reputation being lowered by false statements about them or by obscenity laws affecting morals and religious groups. In addition there is restriction on the press and broadcasting authorities and these include voluntary codes of practice such as licensing arrangements and the availability of complaints procedures ensuring material is accurate and not overly offensive. The limitation in relation to regulated professions and commercial speech. The position in relation to elections and maintaining the authority and impartiality of the judiciary.
Lastly governmental restrictions on expression such as ‘D’ notices and the Official Secrets Act are supposed to prevent breaches of national security and are therefore in the interest of the public. Although in some instances these are viewed as more controversial e.g. Ponting, Spycatcher. The law also prevents anything treasonous, seditious or likely to incite disaffection to preserve order.
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