3B.3.4 Article 10

Question 1

Article 10

Answer 1

The right to freedom of expression.

Question 2

Key elements of Article 10(1)

Answer 2

The article covers the right to
- Freedom to hold opinions.
- Freedom to impart information and ideas.
- Freedom to receive information and ideas.

Question 3

Does Article 10 only include speech?

Answer 3

Its scope is broader than just speech, it includes the right to express oneself through words, pictures, images and actions.

It also covers public protest and demonstrations – showing a strong link with Article 11.

Question 4

Freedom to hold opinions

Answer 4

The freedom to hold opinions is an underpinning aspect of Article 10. The restrictions set out in Article 10(2) do not apply.

Any restrictions to this right will be inconsistent with the nature of a democratic society. | See: George Orwell’s 1984 and the ‘thought police’.

States must not try to indoctrinate their citizens and should not be allowed to distinguish between individuals holding one opinions and another.

Question 5

How might the Equality Act 2010 conflict with Article 10?

Answer 5

The Equality Act 2010 has potential conflict with Article 10. For example, a university must prevent unlawful discrimination and promote equality of opportunity, fostering good relationships between different groups, including those with ‘protected characteristics’, as designated in the act.

Question 6

Handyside v UK

Answer 6

Mr Handyside had punished a book, which taught school children about sex, drugs and the use of pornography. He was convicted under the Obscene Publications Act. The court found there was no breach of Article 10. The UK law was within the margin of appreciation of the member state, the ‘wiggle room’ granted to each state to fit the ECHR to its own laws.

Question 7

Freedom to impart information and ideas

Answer 7

The right to freedom of expression includes the right to ‘offend, shock and disturb’ (Handyside v UK).

Question 8

What types of expression are protected under Article 10?

Answer 8

• Political expression (including comment on matters of general public interest).
• Artistic expression.
• Commercial expression, particularly when it raises matters of legitimate public debate.

Question 9

Charlie Hebdo

Answer 9

Charlie Hebdo published a cartoon of the Prophet Mohammed. Terrorists went to the factory which printed the paper and killed people. Charlie Hebdo had the right to offend, shock and disturb (as held in Handyside) but it is morally questionable as to whether they should.

Question 10

What includes high value forms of expression?

Answer 10

Religious expression, political expression and public interest expression.

Question 11

Is political expression a high or low form of expression?

Answer 11

Political expression is given particular precedence and protection. This is an example of a ‘high value’ expression, which means that there is less margin of appreciation. This means states do not have much ‘wiggle room’ to restrict political expression.

The ability of individuals to take part in political debate and free elections is considered to be ‘the bedrock of any democratic system’ (Lingens v Austria).

Question 12

Low value forms of expression

Answer 12

Low value forms of expression includes commercial expression – where the margin of appreciation is wider.

Whether artistic expression is high or low value ultimately depend on the values of the state involved.

Question 13

Freedom of the press

Answer 13

To ensure that free expression and debate are possible, there must be protection for elements of a free press, including protection of journalistic sources.

The public and the media should be able to comment on political matters without hinderance.

Cases: Goodwin v UK and Axel Springer AG v Germany

Question 14

Goodwin v UK

Answer 14

Mr Goodwin, a journalist, received information about a company’s financial information from an anonymous source. The company tried to force him to reveal the source using various court orders. He appeal unsuccessfully against the court orders and continued to reduce to disclose his source.

He was fined £5000 for contempt of court. ECtHR stated that as publication of the confidential information was already prohibited by injunction, the order for disclosure of the source was not necessary, and breached Article 10.

Question 15

Axel Springer AG v Germany

Answer 15

This case set out criteria to be used in balancing Article 10 and Article 8. These criteria are:

• Whether the information contributes to a debate of general interest
• The notoriety of the person concerned and the subject matter of the report
• The prior conduct of the person concerned and the subject matter of the report
• The prior conduct of the person concerned
• The method of obtaining the information and its veracity
• The content, form and consequences of the publication
• The severity of the sanction imposed

Question 16

Political and public expression

+ Cases

Answer 16

Political expression has broad meanings and can include political marshes, demonstrations and other forms of expression. In this wider sense it has very strong links with Article 11, freedom of assembly and association.

Cases: Navalny v Russia, Steel v UK and Steel and Morris v UK.

Question 17

Navalny v Russia

Answer 17

A political activist and opposition leader claimed that his arrest, detention and administrative conviction on seven occasions in 2012 and 2014 had breached his rights and had been politically motivated. The ECtHR found violations of Article 5 and Article 10.

Question 18

Steel v UK

Answer 18

The ECtHR found that Article 10 was engaged when demonstrators disrupted in the construction of a motorway, and in another case – a grouse shoot.

Question 19

Steel and Morris v UK

Answer 19

The McLibel case is another example of where the Court found there had been a violation of Article 10.

Question 20

Overlap of Articles 8 and 10

Answer 20

Where a court was considering whether to interfere with the freedom of the press, any interference has to be justified, even where there is no public interest in the material in question being published.

Case: A v B (Flitcroft v MGN Ltd)

Question 21

A v B (Flitcroft v MGN Ltd)

Answer 21

Sportsman had affairs and sought an injunction against newspapers and one of the women from printing the story. He argued there was no public interest and that privacy between husband and wife should be the same as other sexual relationships. Held: It doesn’t matter if there is no public interest in a story – that is no reason to prevent free expression. Role models should be held to a higher standard as the public are interested and have a legitimate interest.

Question 22

Artistic expression

Answer 22

Different states place different values on artistic expression.

Artistic expression is seen as a vital element in the development and fulfilment of the individual. There is generally a wide margin of appreciation to reflect different cultures and values in different states. This means different countries perspectives differ and the court takes this into account.

Cases: Gibson and Otto-Preminger Institut v Austria

Question 23

[Case - Artistic expression]

Otto-Preminger-Institut v Austria (1994)

Answer 23

The institute tried to show a film that was seen as offensive to Catholics, who formed a large part of the religion of the local area. The authorities had banned the showing of the film and confiscated it. The ECtHR found no violation.

Question 24

[Case - Artistic expression]

Gibson

Answer 24

Rick Gibson, an artist, created earrings from freeze-dried human foetuses. They were exhibited at a gallery in London, until they were seized by the Met Police. The ECtHR held there was no breach of C’s right to freedom of expression.

Question 25

Hate speech or incitement to hatred

Answer 25

Incitement o racial hatred can also be seen in the context of Article 10 in the case of Garaudy v France (2003).

Question 26

Garaudy v France (2003)

Answer 26

D wrote a book denying the holocaust. He was held on criminal charges and argued that his article 10 right was infringed.

Held: D can hold the views/express them but should be restricted to avoid inciting hatred against groups of people. No Article 10 violation.

Question 27

Freedom to receive information and ideas

Answer 27

We have a freedom to gather and seek information, but the UK is not under a duty to provide information.

• In Guerra v Italy (1998), it was held that a state cannot prevent citizens from having information, but it doesn’t have a positive obligation to collect and give information. | Article 10 excludes the right to receive information.
• In the UK, the Freedom of Information Act 2000 gives everyone the right to access recorded information held by public sector organisations. Any request for information under the Act will be handled under different regulations, depending on the kind of information requested, and an organisation could refuse a request if the information is sensitive or the costs are too high.

Question 28

Limitations to Article 10

Answer 28

The limitations are set out in Article 10(2). There are three criteria. The interference must be:
- Prescribed by law
- Aimed at protecting a legitimate aim
- Necessary in a democratic society

Where the ECtHR finds that all three requirements are fulfilled, the interference will be considered legitimate. The burden of proof is on the state. If any of the three requirements fail then freedom of expression has been violated.

Question 29

[Limitations to Article 10]

Prescribed by law and protecting a legitimate aim

Answer 29

In Sunday Times v UK (1979), the court found that the British common law rules on contempt of court were sufficiently precise as to fall under the requirement ‘provided by law’.

They must also be for one of the following legitimate aims:
- In the interests of national security
- With respect to 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.
- For maintaining the authority and impartiality of the judiciary.

Question 30

[Limitations to Article 10]

Necessary in a democratic society

Answer 30

The ECtHR uses the principle of proportionality to assess whether the aim was restriction was necessary in a democratic society.

In Observer and Guardian v UK, the ECtHR stated that ‘necessary’ means the existence of a pressing social need.