Freedom Expression [ECHR]

ECHR Guarantee

Article 10 of the European Convention on Human Rights provides that 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. This Article shall not prevent states from requiring the licensing of broadcasters, television or cinema enterprises.

The exercise of these freedoms, since it carries with its 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 integrity or public safety,
• for the prevention of 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.

Importance & Context

Freedom of expression is essential to democracy in that it may disclose abuses, advance political, artistic, scientific, commercial thought and development and disclose wrongdoing.

In Handyside v. United Kingdom in 1976, the court indicated that the right constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every man.

The right is linked with Article 9, which protects freedom of thought, conscience and religion. It is also related to Article 8, protecting privacy and Article 11, protecting freedom and assembly.

Expression covers expression in all media. This includes books, TV, films, printed information, and on the internet.

The question of whether the information is offensive or not is not the key issue. Freedom protects expressions which may be shocking, or disturbing to the state or any sector of the population.

It may protect some of that which is characterised as incitement to hatred or pornography. These are said to be demands of pluralism, tolerance and broad-mindedness, without which there is no democratic society.

Limitations

The court recognises that there are limitations. Freedom of expression may be used to incite violence, intrude on privacy, damage a person’s reputation and spread hatred. There is a balance as in the case of most fundamental interests. There is a balance between the protected interest and other competing interests.

Interference with free expression is broadly interpreted. It may include the prohibition of publication, confiscation of printed material, criminal convictions, restrictions and conditions. It may include damages in a civil action, disciplinary action, prohibitions on wearing political symbols and dismissal. Post-publication actions may affect or chill future publications. Accordingly, attempts to uncover journalistic sources, and disclosure orders are potentially interferences.

Restrictions may be prescribed by law and must be necessary in a democratic society in pursuance of one of the aims specified in the Article. The range of interests which may be protected are broad, including national security, public order, freedom from crime, health, morality, independence of the judiciary, rights of privacy and rights of reputation.

Margin of Appreciation

The degree of margin of appreciation allowed to the states depends on the interest concerned and the limitation in question. The limitations, conditions and restrictions. must be proportionate to the legitimate aim in question. However, the importance of the interest concerned must also be considered in relation to the restriction.

A greater level of protection is given to publications and free speech in the social and political sense. Other expressions may receive a lower degree of protection.

In Mouvement Raelien Suisse v. Switzerland, a movement was prohibited from posting a poster in a public place. It advocated sensual mediation, claimed to be linked to paedophilia, and believed in geniocracy, a political system based on an alleged intelligence.

It was found that there was no violation of the Convention. The speech was not political but was in the nature of advertising; although, there was no financial inducement, the poster and website linked to a certain proselytization.

Approach of Courts

The court’s task in exercising its supervisory jurisdiction does not to take the place of competent national authorities but seeks to review the decisions within the limits of their power of appreciation. This is not limited to ascertaining whether the respondent state exercised its discretion in good faith.

What the court must do is to look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are relevant and sufficient and whether it was proportionate to the legitimate aim pursued. In doing so, the court has to satisfy itself that national authorities applied standards which were in conformity with the principles in Article 10 and that they relied on an acceptable assessment of those relevant facts.

Morality

In Handyside v. United Kingdom, the court acknowledged that there was no singular concept of morality throughout Europe and that the states would have a wide degree of appreciation in assessing and taking measures that it considered necessary for the protection of public morals.

In Muller v. Switzerland, art paintings depicting sexual acts were seized by authorities and condemned as obscene. The court held it not to be unreasonable in the sense that it found that they could offend persons of ordinary sensitivity. Convictions for crimes were not in breach of the Convention’s guarantees.

In Wingrove v. United Kingdom, a video was banned which showed a woman dressed as a nun having an erotic fantasy involving the crucified Christ figure. It was refused a certificate for distribution on the basis that it would outrage and insult the sensibilities of Christians. Having reviewed the film, the court considered that the reasons given were sufficient and the refusal did not breach the Convention.

In Vereinigung Bildender Künstler v. Austria, the court narrowly found there to be a violation of an Austrian prohibition of a play in a public gallery depicting political and religious figures engaged in sexual activity. The minority criticised the failure to respect the human dignity of the persons depicted.

Protection of Religion

In Giniewski v. France, the applicant had been prosecuted for defamation having published a critical analysis of a papal encyclical. The court held that it was not gratuitously offensive, insulting, or inciting disrespect and there was thereby a breach of Convention.

In Klein v. Slovakia, a journalist responded to criticisms by an Archbishop about the showing of a controversial film. The applicant was subject to criminal proceedings in which he was convicted.The court held that there had been a violation of the Convention because the comments by the applicant neither interfered with the right or belief to express or exercise their religion nor did he denigrate the content of the religious faith.

Advertisements

In Casado Coca v. Spain, members of the Spanish Bar were disciplined by the Barcelona Bar Council for placing advertisements in newspapers. This was held to be within the state\’s competence.

In Barthold v. Germany, a vet was featured in a journal interview, in which he stated that Hamburg ought to have a regular service for attending to animals. A private association complained about it was a breach of professional rules, and he was restrained from further publications.

The court held the matter raised was one of genuine public interest.  The conviction that had been imposed prohibited Barthold from providing his opinion. The issue of unfair publicity or advertising was secondary to the larger public issue of not having enough veterinary clinics beyond the normal hours of business.

In Murphy v. Ireland, a pastor wished to broadcast an advertisement with evidence for the resurrection. There was a domestic against religious adverting. The court found there was no violation of Article 10. The court accepted that case by case treatment would be difficult to apply consistently, coherently and fairly.

Political Advertisements

In TV Vest v. Norway, it was held that the prohibition on political advertisements breached the Convention. The ban was absolute and was applicable only to television. Considering the importance of political speech and the lack of anything offensive, the court found there to be a breach. It distinguished the Murphy case.

Animal Defenders International v. UK involved a proposed advertisement that ADI wished to air on television regarding the abuse of chimps in entertainment. The advertisement was declined because it was primarily political in nature and breached the Communications Act.

The Court used a balancing approach and looked at “the applicant NGO’s right to impart information and ideas of general interest which the public is entitled to receive with, on the other, the authorities desire to protect the democratic debate and process from distortion by powerful financial groups with advantageous access to influential media.”

The Court looked at the necessity and proportionality of the Act in comparison to the threatened freedom of speech violations. This was not an all-out ban on political speech (only advertising) and the forum was limited to television and radio. Therefore, the Court ruled there was no violation of the Convention for the Protection of Human Rights and Fundamental Freedoms.