article 10 Flashcards
(30 cards)
What does Article 10(1) of the ECHR say about freedom of expression?
Article 10(1) provides that everyone has the right to freedom of expression, including the freedom to hold opinions and to receive and impart information and ideas without interference by public authority.
What makes Article 10 a qualified right?
Article 10 is a qualified right, meaning it can be restricted under Article 10(2) if the interference is lawful, pursues a legitimate aim, and is necessary in a democratic society.
What are the three conditions under Article 10(2) for lawfully restricting freedom of expression?
Restrictions must be (1) prescribed by law, (2) pursue a legitimate aim, and (3) be necessary in a democratic society (i.e., proportionate to a pressing social need).
What case illustrates the ‘prescribed by law’ requirement in Article 10(2)?
Editorial Board v Ukraine (2015) - Held: Interference without lawful basis violated Article 10.
What does ‘necessary in a democratic society’ mean under Article 10(2)?
It means the restriction must meet a pressing social need and be proportionate to the legitimate aim pursued, as established in Axel Springer AG v Germany (2012).
What does freedom of expression under Article 10 include beyond speech and what does it not impose a duty to do ?
It includes communication with others, expressing thoughts and personality, and imparting/receiving information. It does not impose a duty to provide information (Guerra v Italy, 1998).
What does the case Handyside v UK (1976) illustrate about the scope of expression?
It shows that Article 10 protects the right to “offend, shock or disturb,” and states have a margin of appreciation for morals.
What is high-value expression and how is it protected under Article 10?
High-value expression includes political, religious, and journalistic speech. It receives strong protection and is subject to a narrow margin of appreciation.
What is low-value expression and how is it treated under Article 10?
Low-value expression, such as artistic content, is protected but more easily restricted. States are given a wide margin of appreciation.
How is journalistic expression protected under Article 10?
It is considered high-value, given a narrow margin of appreciation, and can include shocking or private content if in the public interest (Jersild v Denmark, 1994).
What additional protection does Section 12(4) of the HRA 1998 provide for journalistic expression?
Courts must consider public interest before restricting publication, and can’t restrict if material is already public or publishing serves public interest.
When can journalists be compelled to reveal sources under Article 10?
Only when there is an overriding public interest, as seen in Ashworth Hospital v MGN (2002) but otherwise revealing sources isn’t necessary(Goodwin v UK)
When can expression be restricted for national security under Article 10(2)?
Expression can be restricted if it is in the interests of national security if it is necessary and proportionate, and the court gives states a wide margin of appreciation (Shayler v UK, 2005).
How does prevention of crime and disorder justify restricting expression under Article 10(2)?
It applies when expression risks personal safety or harassment, with a wide margin of appreciation (Surek v Turkey, 1999).
When can expression be restricted to protect health and morals under Article 10(2)?
If it’s harmful to societal values, including obscenity (Open Door and Dublin Well Woman v Ireland, 1992).
How does Article 10(2) allow restrictions to protect others’ rights and reputation?
When expression defames or harms others, Article 10 can be limited to protect Article 8 rights.
How can Article 10(2) be used to maintain the impartiality of the judiciary?
States can restrict media reporting of trials to protect fair trial rights (Sunday Times v UK, 1979).
How is hate speech treated under Article 10?
It is not protected. States can lawfully restrict it with a wide margin of appreciation (Garaudy v France, 2003).
What case supports restricting religiously offensive content under Article 10?
hate speech
Otto-Preminger-Institut v Austria (1994) – upheld a film ban on erotic film about Jesus to protect religious beliefs.
How does the law deal with obscenity under Article 10?
Expression can be restricted if it depraves or corrupts (Obscene Publications Act 1959). No breach of Article 10 (Handyside v UK).
What does Section 1 of the Obscene Publications Act 1959 define as ‘obscene’?
Material that tends to deprave or corrupt those likely to read, see or hear it.
What is the defence to obscenity under Section 4 of the Obscene Publications Act 1959?
Public good — e.g., for learning, literature, or scientific merit.
What is the offence of outraging public decency under Article 10?
An act that is lewd, occurred in public, and could be seen by at least two people. (Gibson v Sylverie, 1991).
What 2 types of defamation can restrict Article 10 rights to protect reputation?
Libel (written/permanent) and slander (spoken/temporary). Restrictions are justified to protect reputation under Article 8.
