Article 9 – Right to marry and right to find a family.
The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.
Article 9 is equivalent to Article 12 of the European Convention on Human Rights. However, it is not in terms of men and women, representing the ever-evolving concept of marriage in order to embrace include same-sex marriage. It includes the right to find a family.
Article 10 – Freedom of thought, conscience and religion
- Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.
- The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.
Article 10 guarantees freedom of thought, conscience and religion. It corresponds with Article 9 of the European Convention on Human Rights. As with other protections, by Article 52(3) it is the have the same scope and meaning as the ECHR right. Limitations of the freedom may be justified in the same terms as in the European Convention.
- Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
There are both negative and positive obligations on the state. It covers freedom of religion and also freedom of thought and conscience. Religion may be exercised individually or collectively. Religious organisations are protected.
The ECHR as considered many cases in relation to religious symbols, particularly Christian and Islamic symbols and clothing. It has afforded states a significant margin of appreciation. In practice, the courts have allowed greater recognition of religions which are already established in member states.
The European Court of Human Rights and the European Court of Justice have taken different approaches to religious symbols in the workplace. However, the cases depend on the specific facts, and there is a balancing of the employee’s interest and that of the employer. The European Court of Justice held that if the limitation is genuinely a pursuit of a policy of the employer pursued in a consistent and systematic manner in relation to customer-facing roles, that may outweigh the employee’s right to display religious symbols.
Freedom of Speech
Article 11 – Freedom of expression and information
- Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
- The freedom and pluralism of the media shall be respected.
Article 11 recognises freedom of expression. It guarantees the freedom and pluralism of the media. It corresponds to Article 10 of the European Convention on Human Rights.
Article 11 protects the communication of ideas. It covers written, oral and other means of communication. It covers any speech. It includes the wearing of political symbols.
There are limitations. Denials of the Holocaust and the Armenian genocide have been considered an abuse of rights, impermissible and are denied protection. Personal political and commercial speech are covered.
Article 11 places positive obligations on member states. It must protect the freedom of the press while respecting the right to privacy. European Convention cases have distinguished between matters of general interest and both concerning the private life of the citizen. Generally, the protection of private life will outweigh the interests of the media.
The prospective grounds upon which the freedom can be justified, are the same as those in Article 10 in the European Convention on human rights as applied by Article 52(3).
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
The interference must be necessary in a democratic society. The courts have held that it must be proportionate and no more than necessary. Hate speech xenophobia inciting violence deformation et cetera will not be protected.
Consumer protection law limits freedom of speech in relation to commercial products and the type of claims that can be made.
Freedom of speech may interact with the Treaty rights of free movement. It may reinforce elements of the right to provide cross-border services. It may limit the extent to which states can restrict advertising.
The freedom includes the right to receive information and have access to information in the public domain. It is reinforced by the requirement not to interfere with private communications.
The European Court of Justice has held that injunctions against Internet service providers to protect intellectual property must be targeted so that they interfere with the users’ rights no more than strictly necessary.
Article 11 also affirms the freedom and pluralism of the media. This may include the right to receive diverse and pluralist media information.
Article 12 – Freedom of assembly and of association
- Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.
- Political parties at Union level contribute to expressing the political will of the citizens of the Union.
Article 12 protects freedom of assembly and freedom of association. The rights correspond to Article 11 of the European Convention on human rights.
Freedom of assembly is a broad concept. It refers to physical assembly such as public protests and demonstrations. This may be a manifestation of freedom of expression and democratic society. Protection is given for the organisation of assemblies and participation in them. There is also included a right not to participate.
The case law on the European Convention on Human Rights in relation to assembly. The assembly must be peaceful. The intention of others to disrupt the assembly does not necessarily mean it is not peaceful. The state under the Convention in relation to policing. There are significant case laws on demonstrations and counterdemonstrations.
The requirements of the Convention apply under Article 52(3) to the limitation of the right. Therefore, interference with the right must conform to the same requirements as in Article 11 of the European Convention on Human Rights. In particular, it must be necessary in a democratic society.
- No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
Freedom of association includes being able to share beliefs and ideas in a community with others. It covers associations, formal and informal groupings.
Trade unions and like associations are protected under Article 12 in the same way as Article 11 of the European Convention on Human Rights. There appears to be a right to join or not to join a union as under Irish law. Contrary to earlier cases later European Convention cases appear to recognise the right not to join.
Political parties are a form of association and are protected by the Article 12 guarantee. There are restrictions on the extent to which states may interfere with their operation and finance. Parties may be banned only in exceptional circumstances where there is a direct and immediate danger to democracy.