Article 10 - Freedom of Expression

Article 10.1

1. Freedom to hold opinions

2. Freedom to impart information and ideas

3. Freedom to receive information and ideas

Freedom to Hold Opinions

• Absolute right

• States cannot discriminate based on views

• Individuals not forced to communicate opinions

• Equality Act 2010

  • balance equality and expression

Freedom to Impart Information and Ideas

• Includes the right to offend/shock and disturb 

  • Handyside v UK (1976)

Protected forms of expression

• Political expression - high value

  • essential for democracy

    • Lingens v Austria (1986)

• Artistic expression

  • promotes cultural identity so often up to state

• Commercial expression - low value

  • more control for the state 

Freedom of the Press

• Protection of journalism essential for democracy

  • Goodwin v UK (1996) - forcing journalist to reveal source was a huge breach of article 10

Balance of Article 10 and 8

Axel Springer AG v Germany (2012) created 6 criteria laid out below -

1. Public interest

2. Notoriety

3. Conduct

4. Accuracy/method of obtaining info

5. Content/consequence of publication

6. Severity of sanction

Political/Public

• Core democratic value

• Navalny v Russia (2018) - Arrests and detentions of political activist was a breach

• Steel v UK (1998) - Protesters disrupting grouse shoot was a breach

• McLibel Case (2005) - Lack of legal aid for protester was a breach - equality of arms

• A v B plc (Flitcroft v MGN Ltd) (2002) - freedom of press can only be restricted with extreme clarity

Art

• Wide margin of appreciation - values differ by state

  • Otto Preminger Institute v Austria (1994) - ban on anti-catholic film wasn’t a breach

Hate Speech

• You can say whatever you please as long as it isn’t incitement to violence or racially motivated

• Garaudy v France (2003)

  • Holocaust denial book banned was no breach

Freedom to Receive Info

• Right to seek/gather/access info lawfully

• No obligation for state to provide info

  • Guerra v Italy (1998)

• Freedom of Information Act 2000 - access to public records on request

• Investigatory Powers Act 2016 - possibly could affect privacy/expression rights

Article 10.2 - Limitations

Is the interference -

1. Prescribed by law

2. Have a legitimate aim

3. Necessary for democracy

Prescribed by Law

• Restriction must have clear/foreseeable legal basis

• Sunday Times v UK (1979) - provided by law satisfied

Legitimate Aims

To protect -

• National security

• Public safety

• Prevention of disorder

• Protection of health

• Protection of reputation/rights of others

• Preventing disclosure of confidential information

• Maintaining authority/impartiality of the judiciary

Necessary in a Democratic Society

• Must respond to a pressing social need and be proportionate to its aim

• Observer and Guardian v UK (1995)

  • Original injunction preventing publication of MI5 documents justified before release abroad

  • After publication, restriction lost purpose so breach

• Burden of proof on state to justify interference 

Article 10 and the Internet

• Shtekel v Ukraine (2011)

  • Lack of internet protections for journalists so breach

• Yildirim v Turkey (2012)

  • Ban on Google sites breach

• Delfi AS v Estonia (2015)

  • Liability for defamatory comments online need to be put through effective legal framework

• Magyar Jeti Zrt v Hungary (2018)

  • Liability for hyperlinking defamatory content was a breach

  • Risked press freedom