Article 10 Flashcards
(17 cards)
Introduce + Describe
Article 10 + 10(1)
- Article 10 is a qualified right
Article 10(1) - Everyone has right to freedom of expression to hold opinions \ Receive and Impart information and ideas without state interference.
Describe
Freedom of Expression, What it covers, What it can be, and what it can do to others.
- Cornerstone and bedrock of any democratic society.
- More than free speech it covers, right to communicate with others, to express your thoughts and feelings publicly. The right to both give and receive information.
- It can be in spoken word, written word, pictures, religious expression or actions.
- Can shock, offend and disturb others
Describe
What does Article 10 protect? And the values and what those values mean?
- Political Expressions - Both written and spoken opinions - High Value
- Religious Expression - High Value
- Journalistic Expression - Leaflets and articles - High value
- Artistic Expression - Art or Film or writing - Low value
High Value - narrow margin, ECtHR likely to intervene
Low Value - wide margin, less likely to intervene.
Describe
Journalistic Expression + When it can be limited
S12((4) of HRA Act 1998, (a)(1), (a)(2), Ashworth Hospital v MGN
- Journalist allowed to publish, shocking and disturbing, private information if in public interest. This is vital in a democratic society.
S.12(4) Human Rights Act 1998 - Coirts can’t restrict journalistic expression if
(a)(1) - The material is already available to the public.
(a)(2) - It is in the public interest to know the material
Limited
Can be limited if publication can lead to risk of harm to an individual and their life
Ashworth Hospital v MGN - A journalist should only be made to reveal their source if there is an overriding public interest.
Describe
Hate Speech
Garaudy v France
- Hate speech is abusive or threatening speech, that is prejudiced against a particular group.
Garaudy v France - State can restrict this type of expression without a breach.
Describe
Article 10(2)
Article 10(2) - Expression can be lawfully restricted if,
1) Prescribed by law
2) There is a legitimate aim
3) Necessary in a democratic society
Describe
National Security Aim +Prevention of Crime and Disorder + Protection of Health and Morals
Shayler v UK, Surek v Turkey, Open Door and Dublin Well Woman v Ireland
National Security
Shayler v UK - Can restrict if necessary and proportionate to aim of protecting national security - wide margin
Prevention of Crime and Disorder
State can justify restriction to prevent crime - wide margin
Surek v Turkey - Restriction must be proportional in relation to potential crime it could cause.
Protection of Health and Morals
State can lawfully restrict expression that they deem to harm health and morals.
Open Door and Dublin Well Woman v Ireland - Journalistic expression can be restricted to protect health and morals.
Describe
Protection of Religious Beliefs aim + Maintaining Impartiality of Judicary
Otto v Austria, Sunday Times v UK
Protection of Religious Beliefs
State can lawfully restrict expression that is offence towards religious beliefs - Wide Margin
Otto v Austria - Each state should be allowed to limit expression that can be offensive to religious beliefs within member state
Maintaining impartiality of judiciary
State can lawfully restrict information or records if it could harm impartiality.
Sunday Times v UK - The court may decide information is too important for public to know and will allow it to be published.
Describe
Obscenity + Outraging Public Decency
Handyside v UK, S(1) of Obscene Publications Act 1958, S(4), Hicklin, Gibson and Sylverie
Obscenity
* Deprave means to corrupt or pervert a persons morals.
Handyside v UK - Expression can be restricted if considered to be obscene.
S(1) - Offence towards religious publish obscene items for gain
S(4) - Defence is obscene was done for public good to learn from
Hicklin - A person does not need to intent to deprave or corrupt a persons morals if publish something obscene.
Outrage Public Decency
Expression is classed as unacceptable behaviour by most of public.
Gibson and Sylveire - The act took place in public and could be seen by two or more people and it was of a lewd character.
Describe
Defamation
S1 Defamation Act 2013, S(2), S(3), S(4), S(5)
- State can lawfully restrict expression that damage the reputation of other or interferes with Article 8 right.
Libel - Permanent, long term damage to reputation, through broadcast or publishing.
Slander - Short term reputation damage - Spoken Conduct or Gestures
S(1) of Defamation Act 2013 - C must show publication that they were identified in, that would or likely cause serious harm if published to a third party.
Person behind statement has 4 defences.
S(2) - Is the truth
S(3) - Expressions contains honest opinions of person publishing
S(4) - Publication contains matters of public interest
S(5) - If the person is operator of website and not one who published it.
Describe
Harassment + Malicious Communications
S(3), Malicious Communications Act 1988
Harassment
Means to put person in fear of violence with actions or behaviours, that opens or intimidates them, on two or more occasions, V can claim compensation
S(3) - A person can begin being a claim against others, if that other person is pursuing a courted of conduct that amounts to harassment
Malicious Communications
Law protects people from malicious communication
Malicious Communications Act 1988 - Criminal offence to send communication which cause distress to recepuent and is,
1) indecent or grossly offensive
2) A threat
3) False information sent, or know to be false by sender
Describe
Breach on Confidence
Coco v AN Clark, Associated Newspapers v Prince of Wales
State can restrict published confidential information as a duty of confidentiality, for a duty to exist
Coco v AN Clark -
1) Information is confidential
2) Given with obligation of confidence
3) Unauthorised use of information, that is detriment to party involved
Associated Newspapers v Prince of Wales - Express obligation of confidence
Courts balance Article 8 and 10.
Evaluate
Qualified Right
- Article 10 is a qualified right, this protects individuals rights.
- What does Article 10 grant? What can state still do? What is under 10(2)? Which aim is important for protection?
- What is state limited on? Why is this good? Protects what?
- Freedom of Expression, can still be restricted, under 10(2). Protection of health and morals important to state to protect vulnerable .
- State is limited in when it can interfere, political journalistic and religious expression hard for state to limit, this protects human rights.
Evaluate
Abuse of Power
- Rules covering Journalistic Expression can lead to abuse of power.
- What power do journalists have? What value is their expression? Why is this good and necessary?
- How can this abuse citizens? What methods can journalists use? Do they go unpunished? What is it easy for press to limit a persons right?
- Wide power, to publish in public interest, expression high value, a free press necessary for democracy, good as keeps people in the know.
- Impact Article 8 of citizen , use unlawful or immoral methods to get evidence, this unpunished unless challenged, so easy for press to abuse at expense of Article 8
Evaluate
Protection of Individual Rights
- The balance between Article 8/10 can impact human rights protection.
- What rights get overlooked? Hard to balance? What do Hannover v Germany tests favour?
- What does the decision in Associated Newspapers v Prince of Wales protect the rights of more? What can it stop press from doing? Why is this actually a good thing?
- A10 overlooked for A8 of person, not easy to balance, tests favour persons A8 over presses A10.
- Protects A8 of person, press can be stoped to uphold the A8 and that individuals privacy, this is a right balance as A8 is more important over A10 when it comes to wellbeing.
Evaluate
Margin of Appreciation
- Margin of Appreciation protects individual right
- What does the doctrine acknowledge? How countries differ? Why was this good for Otto v Austria?
- Which expression is high value? What’s the MOA for these?, Let’s the ECtHR? Is this consistent?
- Member states have discretion to interpret rights within own legal system to be appropriate for their morals and culture, good as film was offensive in different cultures so right to ban in those cultures.
- Press and Political expressions are high value with narrow margin of appreciation, can intervene and protect expression, consistent across member states.
