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What type of right is Article 10 and what type of expression does it respect?
Qualified right which protects expression in any format (spoken, written, pictures, and action)
What are the three rights under article 10 freedom of expression?
The right to impart (give) information
The right to receive information
The right to hold opinions
The right to impart (give) information: Under Handyside V UK what does this include the right to do?
“offend, shock or disturb”
The right to receive information: When is the right to recieve information especially important?
In political contexts- where the public need to scrutinise with openness
The right to receive information: What is the case that states where the right to receive information is more important in political contexts?
Wagstaff V Secretary of State for Health
The right to receive information: Despite the right to receive information what does this not create on the state?
A general positive obligation on the state to disseminate information
The right to receive information: What is the case that states there is no general positive obligation to disseminate information?
Guerra V Italy
The right to receive information: In what circumstances does the UK allow citizens to gain information from public bodies?
To scrutinise the state via the Freedom of Information Act 2000
The right to hold opinions: What can opinions not be under article 10(2)?
Qualified
The right to hold opinions: What must the state avoid in relation to opinions?
Indoctrination
The right to hold opinions: What type of speech can be limited under the right to hold opinions?
Hate speech can be limited
What type of appreciation does high value expression have?
Narrower margin of appreciation
Why does High Value Expression have a narrower margin of appreciation?
Due to its importance in democratic societies
What was it described as Lingens V Austria?
‘the bed rock of any democratic system’
What is high value expression protected from?
Direct interference
Indirect interference
It includes public interest stories
What is the case of high value expression being protected by direct interference?
Navalny V Russia
What is the case of high value expression being protected by indirect interference?
Steel and Morris V UK
What are examples of high value expression?
Political Expression
Religious Expression
However where was it seen that high value expression can be limited if necessary to do so?
Article 10(2) R (On the application of Pro-Life Alliance V BBC)
What type of appreciation does low value expression have?
Wider margin of appreciation which takes into account a states unique historical and cultural context
What is a case which shows that the court found that blasphemous materials could be limited due to Austrias predominantly Catholic population?
Otto-Preminger Institute V Austria
What are examples of low value expression?
Commercial expression
Artistic expression- can be high value depending on what it shows
What do Both R(Pro-Life Alliance) V BBC and Otto-Preminger Institute V Austria show?
How article 10 is not infringed by having to comply with state licencing requirements
Due to the press role as the “fourth state” (this is because it exposes corruption and holds political figures to account) journalistic expression is given additional protection under what?
S12(4) Human Rights Act 1998
What does it mean by a journalistic source enjoys qualified privilege?
This means journalists cannot be required to reveal who their sources are in the most cases
What is the case which shows that a journalists cannot be required to reveal who their sources are in the most cases?
Goodwin V UK
However what is the qualified privilege balanced against?
National security, public safety and protection of individual rights and other factors
What is the case which states if the court decides the balance is in favour of revealing the source then the source may be revealed?
Ashworth Hospital Authority V MGN
However press freedom can be curtailed (Removed) in circumstances where what?
The publication of a persons identity would lead to a risk of harm or even a risk to their life
What is the case which shows how The publication of a persons identity would lead to a risk of harm or even a risk to their life?
Thompson and Venables V News Group Newspapers
If there’s a conflict between the article 8 and 10 the courts follow the Campbell V MGN two-part test which considers?
1) Was there a reasonable expectation of privacy? If yes,
2) Does the public interest outweigh the interest of the claimant in keeping the information private? If yes, it can be published – if not, it will breach article 8 to publish it.
What did Lord Wilberforce British Steel Corporation V Granada Television argue that there is a wide difference between?
“there is a wide difference between what is interesting to the public and what it is in the public interest to make known
What are the Factors considered under the Axel Springer AG V Germany?
Whether the information contributes to a debate of general interest
The notoriety of the person concerned and the subject matter of the report (How well known are they?)
The prior conduct of the person concerned (What have they done in the past – if they publish a lot about themselves for example).
The method of obtaining the information (how did they get the information) and its veracity (how truthful is it).
The content (what’s it about), form (What is in it) and consequences of the publication
The severity if the sanction imposed (if any).
What is the role model doctrine as seen in A V B Plc (Filtcroft V MGN?
The Court felt that those who were role models, or public figures, had reduced expectation of privacy because they profited from particular public images and often invited publicity: you cannot profit from publicity when it suits and claim privacy when it does not.
Limits on freedom of speech, permitted under article 10 (2): Prescribed by Law
there must be a law that allows the interference which can be the common law
Limits on freedom of speech, permitted under article 10 (2): What is the case for there must be a law that allows the interference which can be the common law?
Sunday Times V UK
Limits on freedom of speech, permitted under article 10 (2): For a legitimate aim in the interest of: National security case
R V Shayler)
Limits on freedom of speech, permitted under article 10 (2): For a legitimate aim in the interest of territorial or public safety case?
Surek V Turkey)
Limits on freedom of speech, permitted under article 10 (2): For a legitimate aim in the interest of the prevention of crime or disorder case?
(Surek V Turkey
Limits on freedom of speech, permitted under article 10 (2): For a legitimate aim in the interest of the protection of health or morals?
Open Door and Dublin Well Woman V Ireland
Limits on freedom of speech, permitted under article 10 (2): For a legitimate aim in the interest of the protection of the reputation of others case?
Twentieth Century Fox V British Telecoms); R (Pro-Life Alliance) V BBC
Limits on freedom of speech, permitted under article 10 (2): For a legitimate aim in the interest of the preventing the disclosure of information received in confidence?
Heinisch V Germany - Whistleblowing – and starting a public prosecution – is protected speech and should not lead bad consequences
Limits on freedom of speech, permitted under article 10 (2): For a legitimate aim in the interest for maintaining the authority and impartiality of the judiciary case?
Sunday Times V U
The measure must be necessary in a democratic society: For thus to be the case what must there be?
For this to be the case there must be “the existence of a pressing social need”
The measure must be necessary in a democratic society: Where was it seen that it was not the case as the spys memoirs had been published around the world already?
The Observer and Guardian V UK
Why is it an advantage if The Courts have interpreted article 10 to include a right to receive information?
This is good because it prevents Government’s from being able to block unfavourable press stories.
What is evidence of the Government being prevented from being able to block unfavourable press stories?
This can be seen from Wagstaff V Secretary of State for Health where the High Court held that in extreme cases of public misconduct it would be a violation of article 10 to hold such cases in private.
Why is it beneficial if it prevents the Government from being able to block unfavourable press stories?
This is beneficial as it allows the public to hold public officials – especially those who have been elected -responsible for their actions. In so doing, article 10 allows for democracies to flourish effectively. This was recognised in Lingens V Austria as “the bedrock of any democratic system
On the other hand as established in Guerra V Italy it was made clear that there is no positive what?
no positive obligation on the state to proactively disseminate information. This creates a limit on article 10.
Why is it good hate speech is protected under article 10?
This is good because Article 10 allows for effective public cohesion (people getting along).
Where is it seen that Hate speech is not protected under article 10?
This can be seen from the case of Garaudy V France where the Court held that criminalising holocaust denial is permissible.
What does Hate speech not being protected under article 10 enables?
This enables effective community cohesion as acceptable standards of community conduct can be established in a society and, by criminalising hate speech, it is more likely that minorities will fully engage and participate in daily activities of the state without fear of hostility.
Whilst some hate speech like holocaust denial is clearly hate speech what its not clear?
it’s not clear all potential hate speech is as universally accepted; this can be seen from JK Rowling tweets on Twitter or Jo Brand threatening to throw battery acid on Nigel Farage.
Why is it good if the courts have effectively distinguished between different types of expression?
This is good because it means that pure political messages are able to get through with as few adverse consequences as possible.
What is evidence of the courts effectively distinguishing between the different types of expression?
This can be seen from the case of R (Pro Life alliance) V BBC where the message was allowed but not to be broadcast in the way the Pro-Life Alliance had wanted.
Why is it effective by distinguishing between the political speech of not wanting abortions and the video that showed the graphic results of an abortion?
The House of Lords was able to allow the message, but not the graphic video – protecting those who may have been traumatised by the political broadcast.
However what could it be argued that the traumatising aspect of the video was in itself was?
, part of the political message – the reason it was traumatising, in part, was how graphic it was – highlighting, in the mind of the Pro-Life Alliance, how traumatising abortion itself is.
How is the Press sources protected?
This is good because it allows the press to act as the fourth estate.
Where is it seen in that the press to act as the fourth estate?
This is seen in s12(4) of the Human Rights Act 1998
Why is it effective if the press is able to act as the fourth estate?
This is effective as general members of the public are not in the same position to be able to hold Government Ministers to account; moreover, by journalists being able to protect their sources, civil servants (or those working for Government) are more likely to expose wrongdoing (consider Party Gate in Covid).
Moreover what have the courts have curtailed the press right?
where the sources have violated national security, public safety or the rights of others (Ashworth Hospital V MGN)
Why can it be seen to be bad that the ECtHR has taken into account countries unique circumstances?
This could be seen to be bad because it undermines the idea of fundamental rights.
What is the evidence of the ECtHR taking into account countries unique circumstances?
This can be seen from Otto-Preminger V Austria
By holding that, due to the fact it was artistic expression, the margin of appreciation permitted the film not to be shown in Austria what could be argued that?
the rights of the majority overruled the free expression rights of the minority; this seems counter-intuitive to how human rights usually work – surely the majority could have chosen simply not to watch the film.
On the other hand what could it be argued that article 10 is?
a qualified right and has to be balanced to protect public morality – therefore, Austria was entitled to prevent the film from being shown – as the convention must also protect the rights of all: not just minorities.