Article 10

Question 1

1) Intro

Answer 1

• Under Article 10, everyone has the right to freedom of expression.
• This right includes freedom to hold opinions & to receive & impart info & ideas without interference by public authority.

Question 2

2) Positive & negative obligations

Answer 2

• The state has a positive obligation to protect freedom of expression, including freedom to hold opinions & to receive & impart info.
• The state has a negative obligation not to interfere with the right.
• The right to speak freely & hold opinions which may contradict the government or other authorities is essential in a democratic society.

Question 3

3) Obscenity which offend, shock & disturb (only if relevant)

Answer 3

• The Obscene Publications Act 1959 defines obscene as ‘tending to deprave & corrupt’. There’s a defence if the publication is justified ‘in the interests of science, literature, art & learning’.
• The Criminal Justice & Immigration Act 2008 creates the offence of possession of extreme pornographic images.
• Outraging public decency (Gibson).

In Handyside, despite finding that Article 10 included the right to ‘offend, shock & disturb’, C’s conviction wasn’t a breach of Article 10 as the UK law banning obscene publications fell within the states margin of appreciation.

*Apply

Question 4

4) Artistic expression which offend, shock & disturb

Answer 4

• Everyone has the right to freedom of expression which includes artistic expression but it may be limited where there’s potential to significantly offend.
• In Otto-Preminger, Article 10 wasn’t breached as the ban was justified given the need to protect the religious beliefs of others.
• In Muller, the court emphasised that on the topic of morals, countries are left a considerable margin of appreciation in deciding what is acceptable.

*Apply - is C’s work artistic expression? Does it have potential to significantly offend?

Question 5

5) Inciting hatred speech which offend shock & disturb (only if relevant)

Answer 5

• The right to freedom of expression may be limited where the expressions have the potential to incite hatred of others.
• It’s an offence under the Public Order Act 1986 to stir up hatred against people because of their race or religious beliefs.

*Apply - does C’s act have potential to incite hatred?

Question 6

6) S.12 HRA

Answer 6

•S.12 of HRA 1998 specifically strengthens Article 10 as it requires courts & tribunals to consider the importance of freedom of expression in any case where the material is ‘journalistic, literary or artistic’.

*Apply- is C’s work journalistic, literary or artistic?

Question 7

7) Balancing conflicting interests

Answer 7

•In Von Hannover five criteria were set out to consider when balancing conflicting interests:

• whether the information contributes to a debate of general interest.
• how well known the person is.
• prior conduct of the person concerned.
• the method of obtaining the information & it’s veracity.
• the content, form & consequences of the publication.
• the severity of the sanction imposed.

*Apply

Question 8

8) Confidential information (only if relevant)

Answer 8

• The state may justify a restriction in preventing disclosure of confidential information using the legitimate aims from Article 10.2.
• The Official Secrets Act creates an offence of the unlawful disclosure of information by employees of the security & intelligent services.

*Apply

Question 9

9) Conclusion

Answer 9

Has C’s rights under Article 10 been breached?