Table of Contents
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.
Media
The courts have emphasised the importance of the freedom of the press and its relevance as a watchdog in a democratic society. The press has a duty to communicate information and ideas. States have a narrow scope in interference with the freedom of the press.
This context must be cogently justified when journalists are expressing information and ideas of public concern. Journalists should be allowed to be provocative and exaggerate without sanction in so doing.
Public advisory groups, such as environmental groups, may fulfil a similar role to the press in promoting public debate and discussion. Restrictions imposed on them must not be disproportionate or have a chilling effect.
Media Restraints
The extent of restriction is of importance. Prior restraints, such as a ban on publication, are examined and are subject to greater scrutiny. It will be of relevance whether the applicant had other means of expression.
Audiovisual media are more immediate and powerful than print media and accordingly, more restrictive measures may be permissible due to the greater risk. Murphy v. Ireland 2003.
Restrictions and blocking an internet site in the context of court proceedings against another were held to be a breach in Yildirim v. Turkey. The measure was not prescribed by law.
In Sendikasi v. Turkey, it was confirmed that the freedom includes the freedom to express and impart information and ideas in any language that affords the opportunity to take part in the public exchange of cultural, political and social information and ideas of all kinds. Accordingly, orders against a trade union which promoted education in Kurdish were held to be a breach, although it was claimed that Kurdish threatened the integrity of the respondent State.
In Appleby v. United Kingdom, the court indicated there was no right of unrestricted access to public places for the purpose of the protest. There was no obligation on the state to ensure access to a private shopping mall for the purpose of protest. Other means of communication and dissemination of the material were available.
In Women on the Waves v. Portugal, a restriction of a ship to Portuguese territory, which was an open public space, was found to breach the Convention. Appleby was distinguished.
In the Mouvement Raelien Suisse v. Switzerland, it was confirmed that access to a public square where advertising could be restricted.
Incitement to Violence
In Gündüz v. Turkey, the court indicated: “. tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. This being so as a matter of principle, it may be considered necessary in certain democratic societies to sanction or to even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance, including religious intolerance, provided that any formalities, conditions, restrictions, or penalties imposed are proportionate to the legitimate aim pursued”. Whether a statement may be an incitement of violence or hatred depends on its context.
In Jersild v. Denmark, a Danish TV program in which self-confessed racists made offensive remarks about black people, lead to the prosecution and conviction of its presenter and commissioner. The court was satisfied that they did not intend to promote racist views but to deal with a matter of public interest. Where this involves the creation of conflict and tension, the media may be expected to exercise greater restraint.
Politically COntroversial
In Sürek v. Turkey, the owner of a newspaper was convicted of publishing letters about the Kurdish conflict which condemned the authorities and accused them of brutal suppression of the Kurdish people. One letter alleged the state had connived in the imprisonment, torture and killing of dissidents in the name of democracy. The others referred to massacres which it was claimed were committed intentionally by the authorities.
The courts indicated there was limited scope for restricting free speech and debates of public interest. They should exercise restraint in criminalising comments, in particular where there are other means of response to unjustified criticism available. In this case, the letters published amounted to an incitement to revenge and violence and hardening embedded prejudice which had already manifested themselves in deadly violence. In view of the tense security position, the authorities were justified. However, six of the seventeen judges dissented.
In Temel v. Turkey, the chairman of a political party criticised US involvement in Iraq, the solitary confinement of a terrorist leader and the disappearance of persons in police custody. He was convicted of spreading propaganda. The court found there was no incitement of violence and that the Convention right was breached.
Garaudy v. France involved a historian who published a book denying certain aspects of the Holocaust. It was found that the aim of the book was to rehabilitate the national socialist regime and accuse the victims of falsifying history. The protection provided by the freedom of expression was not available. Denying crimes against humanity was stated to be a serious form of racial defamation of Jews and incitement of hatred of them.
However, the court has not extended the reasoning beyond denials of clearly established aspects of the Holocaust. A book that excluded Marshal Pétain from wrongdoing in World War II was protected.
In Levy v. France, a cartoon in a newspaper seemed to glorify the September 11 attackers, two days after the event, was the subject of a fine. It was found that the Convention protection was not breached due to the proximity of the event and its increased propensity to stir up violence and public disorder. The fine was modest and found to be proportionate.
In Vejdeland v. Switzerland, penalties were placed on the applicant who placed leaflets on the lockers of schoolchildren making derogate remarks about homosexuality. It was found the state was justified in applying penalties against agitation against a national group. Attacks by way of insulting, ridiculing, and slandering groups can be sufficient for authorities to justify appropriate counteraction by way of anti-discrimination legislation. The leaflets were unduly, unnecessarily offensive and were aimed at children.
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.